Chan Wai Chung v. China Travel Service (Hong Kong) Ltd and Others
Read the full judgment text of HCPI 914/2015 on BabelCite. This High Court CFI judgment was delivered on 14 December 2022.
1. At/about 8:23pm on 22 October 2013, the plaintiff (“ P ”) was a passenger on board cross-border passenger coach bus (“ CB Coach Bus ”) 粵ZHR00港 (“ Coach ”) travelling on 莞佛高速 (“ Dongguan-Foshan Expressway ”) en route from Zhongshan (中山), Mainland China (“ ZS ”) to Hong Kong (“ HK ”). The Coach stopped in the course of that journey on 22 October 2013 (“ Coach Trip ”), and P met with an accident as a result of which he suffered personal injuries, loss and damage (“ Accident ”).
Cited by 4 cases · Cites 13 cases
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HCPI 914/2015 [2022] HKCFI 3718 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 914 OF 2015 ________________________
________________________ Before: Hon Marlene Ng J in Court Date of Hearing: 28-30 September, 4 October and 8 October 2021 Date of Handing Down Judgment: 14 December 2022 ____________________ J U D G M E N T ____________________ I. INTRODUCTION 1.At/about 8:23pm on 22 October 2013, the plaintiff (“P”) was a passenger on board cross-border passenger coach bus (“CB Coach Bus”) 粵ZHR00港 (“Coach”) travelling on 莞佛高速 (“Dongguan-Foshan Expressway”) en route from Zhongshan (中山), Mainland China (“ZS”) to Hong Kong (“HK”). The Coach stopped in the course of that journey on 22 October 2013 (“Coach Trip”), and P met with an accident as a result of which he suffered personal injuries, loss and damage (“Accident”). 2.In his Re-Amended Statement of Claim filed on 28 September 2021 (“RASoC”), P pleaded 3 further and/or alternative cases (“P’s 1st, 2nd and 3rd Cases”) set out in paragraphs 3-5 below. 3.P’s 1st Case pleaded inter alia that:
4.Further or alternatively, P’s 2nd Case pleaded inter alia that:
5.Still further or alternatively, P’s 3rd Case pleaded inter alia that:
6.In relation to the Accident, P pleaded inter alia that:
7.On the issue of liability, P pleaded inter alia that:
8.D2 admitted it was incorporated in BVI, and D4 admitted it was incorporated in HK. D2/D4 agreed (a) the registered owners of the Coach, the Other Coach and the Container Truck were respectively (i) 和興 (中港) 運輸有限公司 (Woo Hing (China-HK) Transportation Co Limited, “HK Woo Hing”)),[9] (ii) 廣東僑旅客運服務有限公司 and (iii) 深圳市森炎泰集裝箱運輸有限公司, and (b) (i)-(ii) above were subsidiary companies of D2 (but D2 averred (i)-(ii) above were separate legal entities that were wholly independent in their administration and business operations). 9.D4 further admitted (a) D3 and D4 signed the Co-operation Agreement to jointly operate the Service between ZS and HK from 1 January 2012 to 31 December 2013, (b) D1 was a selling agent of the Bus Tickets for the Service under (a) above, and (c) D4 was engaged in the business of providing the Service between different places in Mainland China (including ZS) and HK.[10] Save for the admissions in paragraphs 8-9 above and herein, D2 and D4 denied liability. 10.In D2’s Re-Amended Defence filed on 22 August 2018, “D2RAD”),
11.In respect of the Accident, D4’s Defence filed on 14 May 2018 (“D4D”) pleaded as follows:
12.D2 denied the Accident was caused by its breach of implied terms/obligations of the Contract and/or the 2nd Alternative Contract, negligence and/or vicarious liability as alleged or at all. D4 denied the Accident was caused by its breach of implied terms/obligations of the 1st and/or 2nd Alternative Contracts, negligence and/or vicarious liability as alleged or at all. Both D2 and D4 denied P was entitled to rely on the doctrine of res ipsa loquitur. 13.On the other hand, D2 and D4 claimed (but P denied) the Accident was solely caused by the negligence of Deng who so negligently drove, managed and controlled the Container Truck that he caused or permitted the Container Truck to collide with the Coach.[14] 14.Further or alternatively, D2 averred the Accident took place in Mainland China, and P was provided with necessary information as to the identities of the drivers, the registered owners and the motor vehicle insurers of the Coach, the Other Coach and the Container Truck, so P should have commenced legal proceedings against such tortfeasor(s) in Mainland China rather than legal proceedings against Ds in HK, hence P’s claim in the present action was liable to be struck out “for want of prosecution”. But P pleaded the HK court was the most natural and appropriate forum for determination of P’s present claim for personal injuries, loss and damages against D2. In my view, D2 rightly did not maintain such defence contention at trial. Whether P had claims against other tortfeasors was neither here nor there for the crux of the dispute was whether D2/D4 were themselves tortfeasors liable to P. Further, any suggestion that HK was an inappropriate forum became meaningless when P’s claim against D2/D4 proceeded to trial before this court in HK. II. PROCEEDINGS 15.On 27 August 2015, P commenced the present action against D1 and D2 to claim for personal injuries, loss and damages as a result of the Accident. By the order of Master Roy Yu dated 21 March 2018, P was granted leave to join D3 and D4 as additional defendants in the present action. 16.By a Consent Order filed on 31 May 2019, P’s claim against D1 in the present action was wholly discontinued. Trial of P’s claim against D2, D3 and D4 commenced on 28 September 2021. 17.On the 1st day of trial, I granted leave for P to file his RASoC.[15] On 22 August 2018 D2 filed its D2RAD, and on 14 May 2018 D4 filed its D4D. On 9 August 2021, P filed his Re-Re-Revised Statement of Damages (“RRRSoD”). On 31 August 2021, D2 and D4 filed their joint Answer thereto (“Answer”). 18.On the 1st day of trial, I granted leave for the following affidavits to be read at trial: (a) P’s 2nd affidavit filed on 13 July 2017 (with some exhibits) (“P 2nd Aff”), (b) P’s 3rd affidavit filed on 14 November 2017 (without exhibits) (“P 3rd Aff”), and (c) affirmation of Wong Ming Chi (“Mr Wong”) filed on 3 October 2017 (without exhibits) (“Wong Aff”). The P 2nd/3rd Affs were filed to support and the Wong Aff was filed to oppose P’s application by summons filed on 13 July 2017 for leave to inter alia join D3 and D4 as additional defendants in the present action and amend the Writ of Summons and the Statement of Claim accordingly. Although the P 2nd/3rd Affs and the Wong Aff (collectively, “Affs”) referred to the then intended D3 and intended D4, for convenience I shall simply refer to them as D3 and D4 when I make references to the contents of the Affs below. Further, since P successfully joined D3 and D4 in the present action, I shall mainly refer to parts of the Affs that pertained to the Accident and Corporate Issues referred to in paragraph 31 below although I have also considered those parts of the Affs that strictly related to the application for joinder of parties. 19.D2 and D4 disputed the authenticity and admissibility of the Archived Webpages of the Website which were said to have been retrieved from the internet in/about August 2016 (E/575-582). On the 1st day of trial, I directed that such documents (and clearer copies thereof – see E/582-588) be received as evidence on de bene esse basis, and reserved the issues as to their authenticity and admissibility for determination in this Judgment. 20.Pursuant to the order of Master Roy Yu dated 15 August 2018, D2 and D4 served Zhu’s witness statement dated 12 October 2018 (“Zhu Stmt”). At the pre-trial review on 29 June 2021 (“PTR”), Mr Law, counsel for D2 and D4, informed this court D2/D4 intended to call Zhu to give oral evidence at trial. But on 13 September 2021, D4 filed a hearsay notice indicating its intention to adduce the Zhu Stmt as hearsay evidence pursuant to the civil hearsay procedure (“Hearsay Notice”). Ms Lee, counsel for P, did not object to the admissibility of such hearsay document, but reserved P’s right to address on the question of weight to be attached to its hearsay contents. 21.On the 2nd day of trial (ie 29 September 2021), I granted leave for P to discontinue his claim against D3, and granted further leave for D3 to withdraw its Notice Claiming Contribution and Indemnity against D4 filed on 9 August 2018 and to discontinue its contribution and indemnity proceedings against D4. Consequent upon P’s discontinuance of his claim against D3, several documents were excluded from the trial bundle, not least of which were the copy Co-operation Agreement and copy internet information from Wikipedia concerning “中港通” and/or Chinalink Express Holdings Ltd. 22.On 13 October 2016, D1/D2 filed the witness statement of 陶曉斌 (a director of D2, “To”) (“To WStmt”). According to Mr Law’s oral submissions at the PTR and in his written opening submissions for trial, D2 intended to call To to give oral evidence at trial. Subsequently in the course of the trial, Mr Law informed this court D2 decided not to call To to give viva voce evidence, so the To WStmt was not adduced as evidence at trial. 23.Thus, the remaining trial was between P and D2/D4. At the end of the trial, Ms Lee in her written closing submissions indicated that P relied on P’s 3rd Case and the 2nd Alternative Contract (see paragraph 5 above). III. WITNESSES AND EXPERTS 24.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.[16] (a) P’s factual witnesses 25.P himself gave evidence, and called his wife 雷艺慈 (“Lei”), Madam Wong and 秦天賜 (or Keith Chun, “Chun”) as his factual witnesses:
26.I am impressed by P and Lei as witnesses. They gave their evidence robustly, standing their ground when questioned by Mr Law, but also made concessions where appropriate. Their evidence was clear, honest and confident, and they were at pains to distinguish where they were relying on their actual recollection of what they personally knew and/or observed and where they heard from others (eg from other passengers of the Coach at the scene of the Accident). They never wavered in their evidence, which had the hallmarks of consistency, probability, common sense and probity. They made impressive witnesses. 27.As for Madam Wong, she was a chance-met co-passenger on the Coach Trip, and hence an independent witness. There was no evidence she knew P/Lei prior to the Accident, and no suggestion she had any interest in the outcome of the present litigation. I also find her to be an impressive witness. She was clear in her recollection, well reasoned and emotionally detached. Madam Wong tried her best to assist, and her evidence was truthful and reliable. 28.As for Chun, his evidence was of principal relevance to the present action in relation to P’s pre-Accident and post-Accident work as well as P’s “resignation” from Topocean. In relation to such evidence, even though Chun was P’s direct supervisor when P worked at Topocean, I do not think he was influenced by his work relationship with P and/or by the present litigation between P and D2/D4. I find Chun gave evidence in a frank, fair and reliable way. (b) D4’s factual witness 29.D4 called Mr Wong to give evidence at trial. Mr Wong adopted his redacted witness statement dated 13 September 2021 (“Mr Wong WStmt”) and the Wong Aff as part of his evidence-in-chief. As alluded to in paragraphs 20 and 22 above, D2/D4 did not call Zhu and/ or To to give oral evidence at trial, which meant they were not available to be examined by Ms Lee. Further, D2 and/or D4 did not call Liang as witness to give evidence on their behalf or at least on behalf of D4. 30.To put it simply, D4 called as its witness Mr Wong whose Mr Wong WStmt was only served upon leave granted by this court on the very 1st day of trial, and D2’s/D4’s original witnesses To and Zhu were not called to give oral evidence. In short, there was a last-minute and complete overhaul of D2’s/D4’s factual witness(es) for the trial. I will return to this in paragraph 54 below. 31.Before turning to the defence witness and/or potential factual witnesses who might have been expected to be called, it is useful to note the matter of liability involved inter alia 2 essential issues: (a) how did the Accident happen and whether it was caused by default on the part of the Driver / Zhu and/or the Other Driver / Liang (“Accident Issue”), and (b) if so, whether D2/D4 was contractually liable to P for breach of implied contractual terms/obligations and/or was tortiously/vicariously liable to P for negligence (“Corporate Issue”). 32.Zhu Up until September 2021, D2’s/D4’s stance was that Zhu would be called as factual witness to give oral evidence at trial. It was only on 13 September 2021 that D4 filed the Hearsay Notice pursuant to sections 47 and 47A of the Evidence Ordinance Cap 8 (“EO”) with a view to adduce the Zhu Stmt as hearsay evidence (see paragraph 20 above). But as explained by DHCJ Leung in Lily Cheung v Cheung Wai Kwok & anor, “[it] is no excuse if the party does not call or ensure that the witness could be called at the trial. Nor is it excuse that the witness does not or refuses to testify for personal reasons”.[17] This is in line with the nature of factual witness evidence as explained in Order 38 rule 1 of the Rules of the High Court (“RHC”) which provides that “[subject] to the provisions of these rules and of the [EO] and any other written law relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open court”.[18] Thus, although Order 38 rule 2A(6) of the RHC[19] was expressly subject to rule 2A(9) which provides inter alia that “[where] any statement served is one to which the [EO] applies, paragraph (6) and (7) shall take effect subject to the provisions of the [EO] and Parts III and IV of this Order” (ie the civil hearsay procedure), the underlying importance of vive voce examination of factual witness enshrined in the RHC must necessarily be a relevant factor for assessing the weight to be given to the contents of the Zhu Stmt, the admissibility of which Ms Lee generously declined to dispute. 33.I bear in mind D4 did not adduce any admissible evidence to explain why Zhu was not called to give oral evidence at the trial despite Mr Law’s indication as late as the PTR on 29 June 2021 that Zhu would give oral evidence at trial. According to Mr Law’s written opening submissions, the alleged reason for not calling Zhu to give oral evidence at trial was as follows:
But apart from Mr Law’s written opening submissions, which was not admissible evidence and which should not be received as such from the bar table, there was no witness, document and/or affidavit/statement that spoke to and/or verified such alleged reason for not calling Zhu to give oral evidence at trial. No documents were produced to the court to show (a) Zhu had made timely application to the relevant authority for cross-border permit to leave Mainland China for attending the trial in HK, (b) his application (if made) had been refused by the relevant authority, and (c) if so, when and why such application was refused by the relevant authority. In my view, Zhu’s absence at trial had not been properly justified, which must be relevant to the question of weight to be attached to the contents of the Zhu Stmt in view of the importance of viva voce examination of factual witnesses as explained in paragraph 32 above and the factors in section 49(2) of the EO (see paragraph 35(a) below). 34.But even if one were to take the reason for not calling Zhu to give oral evidence at trial as put forward by Mr Law (see paragraph above) at face value, I am still not persuaded it amounted to any sufficient reason for Zhu’s absence from the trial. There was no evidence that D4 had explored the possibility for Zhu, the sole defence witness (on whose evidence D2/D4 rested their pleaded defence case) on the Accident Issue, to give evidence remotely via video-conferencing facilities (“VCF”) (see Practice Direction 29), and no explanation why it was impractical to have Zhu give evidence in such manner. There was no suggestion that (a) Zhu was unable to travel to facilities within Mainland China that provided VCF services even if, as Mr Law suggested, he could not have obtained a cross-border permit to come to HK, (b) D4 was unable to and/or could not afford to make such arrangements (if necessary with the assistance of D4’s solicitors who must have been familiar with the requirements of Practice Direction 29), and/or (c) there was insufficient time to make such arrangements.[20] Bearing in mind the purpose for a witness to give evidence remotely via VCF was to promote fair and efficient disposal of the proceedings, to save costs and/or to avoid materially delaying the disposal of proceedings,[21] any application by D4 for Zhu to give evidence via such means in the midst of the COVID-19 pandemic would have found sympathetic attention by P (who very fairly did not even challenge admissibility of the Zhu Stmt as hearsay evidence) and the court. In the circumstances, on the evidence before the court, I am not satisfied there was sufficiently sound basis for Zhu not to give viva voce evidence at trial, which conclusion must be relevant to assessment of the weight to be given to the contents of the Zhu Stmt that was served as the witness statement of Zhu who ought to have been orally examined at trial. 35.On assessing the weight to be given to the hearsay contents of the Zhu Stmt, the factors in section 49(2) of the EO as analysed below would be relevant:
36.Nevertheless, even without taking into account the considerations unfavourable to the veracity of the Zhu Stmt in paragraph 35(a), (d) and (f) above, in coming to my findings below by weighing/assessing the contents of the Zhu Stmt against the totality of other factual evidence (but bearing in mind Zhu was not orally examined), I still find myself unable to place any cogent weight on the Zhu Stmt even though its contents touched on core matters on the Accident Issue. In my view, the Zhu Stmt did not assist D2/D4 in any event even without the considerations in paragraph 35(a), 9(d) and (f) above, which factors would have strengthened such conclusion if they were to be taken into account. 37.That said, there was little dispute over Zhu’s personal background set out in the Zhu Stmt:
It is common/public knowledge that Shenzhen Bay Port was/is a port of entry/exit between Mainland China and HK. Thus, Zhu as a CB Coach Bus driver was responsible for driving CB Coach Buses on the Mainland China leg (ie between ZS and Shenzhen Bay) of the cross-border journey between ZS and HK. 38.Liang Liang was present at the Location (also the scene of the Accident) at the time when the Accident happened, having stopped the Other Coach driven by him at the Location before the arrival of the Coach. In my view, he was expected to have been able to give evidence on the following:
39.As D4 admitted, both Zhu and Liang were employed by 深圳市港中旅快線運輸有限公司 (see paragraph 6(a) and (c) above). The Zhu Stmt also confirmed 深圳市港中旅快線運輸有限公司 was “…… [D4] 旗下公司 ……” (see paragraph 37 above). There was no explanation forthcoming from D2/D4 as to why they procured Zhu as intended factual witness to give the Zhu Stmt, but they (or at least D4) did not have Liang give witness statement and/or give witness evidence at trial on the Accident Issue when both drivers were similarly Mainlanders employed by D4’s “旗下公司, 即深圳市港中旅快線運輸有限公司”, especially when (a) P alleged default on the part of the Driver / Zhu and/or the Other Driver / Liang (see paragraph 7(a)-(c) and (f) and footnotes 4 and 8 above) as a result of which D2/D4 were said to be in breach of implied contractual terms/obligations, negligent and/or vicariously liable, and (b) Liang’s particulars, address and employment/ contact details were known to D2/D4 (see道路交通事故認定書 that was available to D2/D4). 40.I have in DBS Bank (Hong Kong) Limited v Sit Pan Jit explained the maxim omnia praesumuntur contra spoliatorem and/or the principles for drawing adverse inferences by reason of absence or silence of a witness who might be expected to have material evidence to give on an issue in an action, which adverse inferences might go to strengthen the evidence on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.[29] I rely on those principles without repeating them here. 41.I bear in mind that before the court would be entitled to draw the desired inference, there must have been some prima facie evidence adduced by the other party on the matter in question that was credible in the first place, then in the absence of credible explanation of the absence or silence of the relevant witness, the court might (but was not necessarily obliged to) take into consideration the potentially detrimental effect of such silence or absence.[30] Obviously, whether any adverse inference should be drawn must be considered in all the relevant circumstances in each case. 42.Ms Lee in her oral closing submissions referred to Li Sau Keung v Maxcredit Engineering Ltd & ors[31] (even though a copy of the judgment was not lodged for the court’s consideration). In that case, the plaintiff was a concrete worker who suffered spinal injuries as a result of a fall from height, but his account of the fall was seriously disputed. The plaintiff was taken to hospital after the accident where an irregularity was found at the lower spinal region of L4 as well as bruising/swelling to his back. A week later, the plaintiff was interviewed by a Mr So, who was an employee of the main contractor and who prepared an accident report which did not mention a fall. Some months later, the plaintiff was found to have an old fracture of L4 and his work capacity was limited by back pain. The defendants did not call factual witness to challenge the plaintiff’s account of what happened at the time of the accident. The medical experts disagreed on whether or not the fracture of L4 was related to the accident. The first instance judge found the plaintiff did not fall. On appeal, such finding was reversed. The Court of Appeal observed there was no other factual evidence to contradict the plaintiff’s unequivocal account, so there had to be cogent reasons for rejecting the plaintiff’s evidence and other evidence which would have explained how the accident happened and how the plaintiff ended up where he was found. The Court of Appeal also found there was nothing inherently improbable about the plaintiff’s explanation concerning the omission of a fall in the accident report. It was also not put to the plaintiff that he did not tell Mr So (who was not a trained safety officer but merely an employee of the main contractor) about the fall. “Had Mr So given evidence, this aspect [ie his task of recording the industrial accident] could have been further explored. As he did not, the plaintiff was deprived of the opportunity. In the circumstances, an adverse inference should have been drawn against the defendants” (pages 443-444). 43.Likewise, in Telings International Hong Kong Limited v John Ho & ors,[32] the plaintiff failed to call any witness. Le Pichon JA rejected the submissions by counsel for the plaintiff to the effect that “[n]o adverse inference could be drawn from the fact that the witnesses were not called. If the witness is not called, these statements are simply disregarded” (paragraph 78) as being contrary to the maxim omnia praesumuntur contra spoliatorem, ie that failure to bring before the tribunal a witness, when either the party himelf or his opponent claimed that the facts would thereby be elucidated, served to indicate, as the most natural inference, that the party feared to do so, and such fear was some evidence that the witness, if brought, would have exposed facts unfavourable to the party (paragraph 79). The first instance judge took a broad brush approach to reject the testimony of the defendants in its entirety (paragraph 81). Le Pichon JA held that “[in] a case such as this, where the plaintiff has failed to call relevant witnesses to give evidence notwithstanding the highly complex and at times wholly unexplained factual backdrop, such an approach serves to emasculate the evidential maxim and cannot be correct. In my view, every reasonable inference adverse to the plaintiff and in favour of the defendants should be drawn in determining each and every disputed fact” (paragraph 81). 44.In my view, given P’s allegations against the Other Driver / Liang (see paragraphs 7(a)-(c) and (f) and 38 above and footnotes 4 and 8 above), Liang (a) could have given important evidence on the Accident Issue, and (b) fell clearly within the expectation that D4 would have called him if his evidence would have assisted D4 (see paragraphs 38-39 above). After all, as explained in paragraph 39 above, D2/D4 did put forward Zhu as their factual witness, and Liang (like Zhu) was similarly a Mainlander employed by D4’s “旗下公司, 即深圳市港中旅快線運輸有限公司” as CB Coach Bus driver, and his particulars and contact details were known to at least D4. Further, there was no evidence that Liang had any falling out with D2/D4 or that he bore D2/D4 any ill will. The failure of at least D4 to call Liang as witness was unexplained, and should lead to an inference being drawn against at least D4 that it feared his evidence would not have assisted D4’s case on the Accident Issue. As seen below, it was unnecessary for me to rely upon such adverse inference in coming to my findings of fact on the Accident Issue. Nevertheless, had it been necessary, I would have drawn such adverse inference, which would have been another factor that would have supported my views on the Accident Issue. 45.To To was D2’s witness, and he addressed the Corporate Issue in the To WStmt (ie the alleged lack of business role/involvement as to the Service on the part of D2 and the consequent alleged absence of contractual relationship with and/or obligation to P). He was expected to give oral evidence at trial, and Mr Law so confirmed as late as the PTR on 29 June 2021 and in his written opening submissions adopted on the 1st day of trial. D2’s subsequent change of mind in not calling To as factual witness to give oral evidence was not explained or satisfactorily explained. In my view, To was expected to have been called to give oral evidence in view of D2’s denial of P’s case and D2’s defence pleas on the Corporate Issue, and had To given oral evidence it was likely that as a director of D2 he would have been questioned on D2’s operations, its corporate/business relationship with D1, D3 and/or D4, its involvement in the Service (generally and/or for the Coach Trip that P took), D2’s website and webpages, and the Archived Webpages of the Website, especially when such matters necessarily would have been more in the knowledge of D2 and/or its directors (of which To was one) than P (as mere passenger of the Coach). In the absence of cogent explanation for the last-minute decision not to produce To for questioning, D2 obviously waged a battle of tactics to prevent P from eliciting evidence on the Corporate Issue by examining To. In my view, D2’s failure to call To as witness to be examined at trial should lead to an inference being drawn against D2 that it feared his evidence would not have assisted its case on the Corporate Issue. I can think of no other credible explanation. 46.Mr Wong Mr Wong was called to give evidence on behalf of D4 at the 11th hour. He was a general manager of D4. Under cross- examination, he claimed that the fact D2’s/D4’s names were seen in the Archived Webpages of the Website did not mean the Website was D2’s/D4’s, but he could not clearly remember who was the registered domain[33] holder/owner for the Website Address except it should not be D2 or D4 (see paragraph 202 below). Mr Wong did not explain why he asserted the Website Address (ie the domain) was not D2’s/D4’s when (a) the Archived Webpages expressly referred to D2/D4 and (b) their contents correctly described D4’s business and affairs (see paragraph 204 below). 47.Bearing in mind that (a) the Wong Aff filed on 3 October 2017 acknowledged that “…… [the] said web address [ie the Website Address], as at today, still links to a website[34] bearing [D4’s] name [ie the Website] ……”, and (b) the Website Address was stated on the Bus Tickets of P’s Ticket Package (including P’s Bus Ticket that P used for taking the Coach Trip from ZS to HK) for the Service between ZS and HK provided by inter alia D2/D3/D4 (on P’s case – see paragraph 5(c) above) or D3/D4 (on D2’s/D4’s case – see paragraphs 9 and 10(d)(iv) above and Mr Wong’s evidence in paragraph 185(c) and 194 below), it was plain the domain (ie the Website Address) that showed a protocol identifier (ie “http”) and a domain name (ie “ctsbus.hkcts.com”) linked to an actual website (ie the Website), and a visitor who typed the Website Address in the search bar of an internet search engine would be brought to visit/browse the Website that existed even up to at least 2017 when Mr Wong made the Wong Aff. Thus, there could not be any question or dispute as to the genuine existence of the Website Address and/or the Website. 48.Thus, even if the registered domain holder/owner of the Website Address was not D2/D4 but another party (which could be a related party, eg D2’s/D4’s group/holding/related company, or a service company set up to hold/register the domain, or a third party agent / service provider for holding/registering the domain, but Mr Wong did not say at all), the relevant questions were (a) whether the Website was D2’s/D4’s and/or pertained to D2/D4, and (b) if so, whether the digital content[35] of the Archived Webpages of the Website[36] were on the balance of probabilities genuine, credible and reliable. 49.Plainly, the matters in (a)-(b) above must have been within D2’s/D4’s (or at the very least D4’s) own knowledge. After all, one would have expected D2/D4 (or at the very least D4) to have material, circumstance, documents and/or witnesses that would have clarified/ explained whether they themselves or any group/holding/related/service/ agent company on their behalf (a) were the holders/owners of the domain being the Website Address with any domain host, (b) built the Website by filing it with digital content (and thereby would have known the file paths of the webpages so built), and/or (c) built the previous Archived Webpages that pertained to D2/D4. But obviously D2/D4 (or at the very least D4) did not make available any such material, circumstance, document and/or witness in this litigation. 50.It was significant that although Mr Wong had been with D4 for 20 years, starting as department manager and becoming a deputy general manager in 2008 and a general manager in 2020, his knowledge and experience had always been about 車輛維修 (repair and maintenance of D4’s fleet of vehicles). He initially worked at 安全技術管理部 (or 安技部, ie the safety and technical department) that was responsible for 車輛維修 (repair and maintenance of D4’s fleet of vehicles), and as deputy general manager and/or general manager Mr Wong was still essentially responsible for 車輛維修 (repair and maintenance of D4’s fleet of vehicles). He explained under cross- examination that matters concerning “…… 公司 [ie D4] 嘅營運嘅業務 …… 即係譬如生意嗰方面, 包括呢一個譬如中港運輸嘅業務 [ie the Service], 營運嗰方面嘅 ……” were handled by D4’s 市場部 (marketing department) headed by a deputy general manager. When asked by this court as to whether he was involved in D4’s business and affairs in relation to “…… 中港運輸嘅業務喇 [ie the Service] …… 同其他 …… 公司嘅聯營、合作、營運嗰方面呀 ……”, Mr Wong confirmed (a) “…… [Mr Wong] 就只係參與嗰個安全、技術嘅問題 ……”, (b) he was not involved and did not participate in “…… 處理關於協議、合作、營運或者係推銷呀, 即係一般營運所牽涉嘅不同嘅工序 …… 包括埋即係對於業務嘅推廣呀, 或者係廣告等等呀, 或者係一啲推銷嘅嗰啲 ……”, and (c) the business and affairs in (b) above “…… 係由嗰個市場部做嘅 ……嗰啲係市場部嘅同事處理嘅 ……” In light of the above, the generalised assertion in paragraph 2 of the Mr Wong WStmt that Mr Wong “…… 於第四被告人公司 [ie D4] 任職20年, 主要負責公司日常運作管理……” (my emphasis) disguised Mr Wong’s lack of knowledge/experience on matters relevant to the Corporate Issue (including D4’s own website or website that pertained to D4 if any). Further, Mr Wong admitted under cross- examination that (i) there was no overlap in management executives between D2 and D4 at any one time, and (ii) he spent over 20 years of his career with D4 and not D2, so it was also unknown on what basis he could testify for D2 on the Corporate Issue. Given Mr Wong’s work history and responsibilities at D4 (and none at D2), it was unsurprising he was unable to say much (beyond bare assertions/denials) about (1) why the Archived Webpages of the Website were not from D2’s/D4’s own website(s) (as he claimed) or any website of any group/holding/related/ service/agent company that pertained to D2/ D4, and/or (2) the business operations of the Service (of which the sale/marketing of the Bus Tickets and the Ticket Packages was an essential part). 51.This highlighted 2 concerns over Mr Wong’s evidence being the only witness evidence adduced by D4. First, in relation to (1) above, Mr Wong’s knowledge and/or experience were steeped in 車輛維修 (repair and maintenance of D4’s fleet of vehicles), and there was simply no evidence he had any knowledge and/or experience concerning websites/webpages (including archived webpages) pertaining to D2/D4 to support his bare assertions and/or denials concerning the Archived Webpages and/or the Website. If he had learned of hearsay facts/matters from other sources that led to his bare assertions and/or denials concerning the Archived Webpages of the Website, he did not disclose those facts/matters and/or those other sources of information. But in light of paragraphs 47-49 above, D2/D4 (or at the very least D4) were expected to have some material, circumstance, document and/or witness about the matters in (1) above, and their failure to bring before the court such material, circumstance, document (and discovery of documents was on Peruvian Guano basis[37]) and/or witness, when D2/D4 or, more importantly, their opponent P claimed the facts would thereby be elucidated (see paragraph 43 above), would serve to indicate D2/D4 (or at the very least D4) feared to do so, which fear was some evidence the material, circumstance, document or witness, if brought, would have exposed facts unfavorable to D2/D4 (or at the very least D4) (see paragraphs 40-43 above). 52.In my view, it was no answer for D2/D4 to say by not admitting or by denying P’s case they simply put P to strict proof. After all, their non-admission or denial did not lessen their duty to make discovery on Peruvian Guano basis. Moreover, there was some evidence from P on the matter in paragraph 50(1) above that raised, in my view and as seen in Part IV(j) below, a convincing case which was more than a prima facie one even though as mere passenger on a CB Coach Bus (ie the Coach) under the Service from ZS to HK he had far less knowledge than D2/D4 of their website(s) or website of any group/holding/related/ service/agent company that pertained to them. For reasons explained in paragraph 49 above, it was a far different situation from a litigant putting his opponent to proof of facts/matters which he did not have and/or was not expected to have personal knowledge or information. Thus, failure by D2/D4 (or at the very least D4) to call evidence expected to be available to them to displace P’s case or to give plausible explanation for not doing so (together with D2’s withdrawal of To from being examined at trial on the Corporate Issue) meant an adverse inference could be drawn that such evidence, even if adduced, would not have displaced P’s case or supported D2’s/D4’s (or at the very least D4’s) case. 53.Secondly, in relation to paragraph 50(2) above and as explained in paragraph 51 above, Mr Wong’s knowledge and/or experience were steeped in 車輛維修 (repair and maintenance of D4’s fleet of vehicles), and he actually admitted he was not involved in the business operations of the Service and the sale/marketing of the Bus Tickets and the Ticket Packages. He was a “technical” man who dealt with D4’s vehicles and their repair/maintenance, but he was not a creature of business operations and sales/marketing. Thus, under cross- examination, Mr Wong was understandably unable to describe the details/ specifics of the actual business deals, arrangements and operations of D4 (let alone D2) beyond bare bones assertions/denials. This immediately raised query as to the overall usefulness and/or reliability of his evidence in relation to the matter in paragraph 50(2) above and/or the Corporate Issue. Thus, even without drawing adverse inferences as I should under paragraphs 46-52 above, the cogency of Mr Wong’s evidence was doubtful given his knowledge and/or experience were largely confined to 車輛維修 (repair and maintenance of D4’s fleet of vehicles). I find there were unreliable shortcomings in Mr Wong’s denial of P’s case and belief in D2’s/D4’s case, which I find to be unpersuasively glossed in favour of D2/D4. 54.Summary I find the evidence adduced by D2/D4 left much to be desired, and there were lacunae in their evidence that had not been cogently or credibly explained. It gave a strong impression of anxiety to shroud in obscurity behind a veil of non-admission and denial evidence they were expected to have and expected to be able to throw light on the facts, not least by lamentable last minute tactical move of withdrawing To (who was expected to have some knowledge of the facts and matters in relation to the Corporate Issue) as witness, and introducing Mr Wong (who was not shown to have much knowledge beyond 車輛維修 (repair and maintenance of D4’s fleet of vehicles)) as witness. (c) Medical experts 55.Orthopaedic expert evidence from Dr Wong See Hoi (“Dr Wong”) for P and Dr Chun Siu Yeung (“Dr Chun”) for D2 was adduced at trial. D4 elected not to adduce medical expert evidence. Dr Wong and Dr Chun (collectively, “Experts”) jointly examined P on 25 February 2016 (“Jt Exam”). By the order of Master Leong dated 21 February 2017 and the order of Mater Roy Yu dated 6 June 2019, the joint orthopaedic expert report dated 27 April 2015 (“1st Jt Report”) by the Experts was adduced at trial without calling oral evidence. At the PTR, I granted leave for P and D2 to obtain a supplemental joint orthopaedic expert report. Such supplemental joint orthopaedic expert report dated 29 July 2021 by the Experts (“2nd Jt Report”) was also adduced at trial without oral evidence. IV. LIABILITY 56.As evident from the written closing submissions of Mr Law, D2 and D4 had no material disagreement over the circumstances of the Accident (which were described in detail in Ms Lee’s written closing submissions) save for Zhu’s acts and conduct. In light of Mr Law’s helpful indication, I propose to briefly deal with the facts of the Accident, and then turn my attention to the grounds of P’s claim on the matter of liability, ie breach of implied terms of contract, negligence and vicarious liability. Given the availability of witness and documentary evidence as to how the Accident happened, I am not persuaded the doctrine of res ipsa loquitur would add anything further to the analysis. (a) Coach and Other Coach 57.According to (a) 道路交通事故認定書 dated 22 November 2013 and issued by 廣州市公安局交通警察支隊高速三大隊, (b) 道路交通事故車輛冷卻系統分析報告[38] dated 18 October 2013 and issued by 檢驗人周育根 and 復核人蘇毅峰 of 廣州市慶豐進口汽車維修中心 upon inspection of the Coach on 22 October 2013 (“道路交通事故車輛冷卻系統分析報告”), and (c) 道路交通事故車輛計算車速分析報告[39] dated 18 November 2013 and issued by 計算員周育根 and 工程師麥錦源 of 廣州市慶豐進口汽車維修中心 on the speed of the Container Truck at the time of the Accident (“道路交通事故車輛計算車速分析報告”), it was clear that the Coach and the Other Coach were “大型普通客車”.[40] Indeed, the CB Coach Buses shown on the cover page of P’s Ticket Package (E/545 and E/574-1), which presumably were the CB Coach Buses used for providing the Service, were clearly large passenger coach buses. 58.Mr Law in his oral closing submissions agreed the Coach was a large CB Coach Bus. In my view, the Coach was also wide-bodied. According to the Bus Tickets (from P’s Ticket Package) that P/Lei used for taking the Coach Trip from ZS to HK (including P’s Bus Ticket),[41] they were assigned seats nos 5-6 in the front part of the Coach. P/Lei said they were seated next to each other with Lei seated next to the bus window. In his oral closing submissions, Mr Law accepted that inside the passenger cabin of the Coach, there would have been 2 passenger seats on either side of a middle aisle. Thus, the body width of the Coach would encompass 4 passenger seats and a middle aisle enclosed by the Coach’s bodywork. In the circumstances, Mr Law conceded that the width of the Coach necessarily exceeded 1.55m (or 5.07ft), and he fairly accepted that if the Road Shoulder was 1.55m (or 5.07 feet) wide, then the Coach could/would not have stopped entirely within the Road Shoulder at the Location, and would have encroached/intruded onto the 4th Lane next to the Road Shoulder. And this did not yet take into account the Gap referred to in paragraph 96 below (see also D4’s plea as to some space at the Road Shoulder for passengers to walk from the Coach to the Other Coach in paragraph 11(f) above). 59.According to the Zhu Stmt, the Coach “…… 是一輛右軚車輛, 有2道乘客門在左邊的車身 (即在車頭及車中間的位置), 而車身兩邊都設有行李門 ……” As seen in discussions below, it was of some significance that (a) the passenger doors were on the left side of the Coach, which would pose risk to the passengers disembarking from the Coach near to or onto the 4th Lane if the Road Shoulder was not wide enough to allow the Coach to stop entirely within it, and (b) the Luggage Compartment could be accessed from both left-side and right-side doors, which would pose risk to passengers retrieving their luggage via the left-side door whilst they were near to or on the 4th Lane if (i) the Road Shoulder was not wide enough to allow the Coach to stop entirely within it and (ii) the left-side door of the Luggage Compartment was opened to allow access to the luggage inside. (b) Dongguan-Foshan Expressway and the Location 60.There was no dispute the Location (also the scene of the Accident) was on eastbound Dongguan-Foshan Expressway, but query arose as to precisely where exactly the Location was on such expressway. Given Mr Law’s concessions in paragraph 58 above, the more precise question was whether (a) the Road Shoulder at the Location was merely 1.55m (or 5.07ft) wide such that the Coach could/did not stop entirely within it (as P claimed) or (b) whether the Road Shoulder was wider than 1.55m (or 5.07ft) such that the Coach could/did stop entirely within it and there was space for the Gap (as D2/D4 claimed). In a nutshell, the hearsay Zhu Stmt was the lone voice that supported (b) above, whilst P, Lei, Madam Wong and the official traffic police investigation reported in 道路交通事故認定書 all supported (a) above. 61.According to 道路交通事故認定書, (a) Dongguan-Foshan Expressway “…… 呈東西走向, 東行的事發路段 [ie eastbound Dongguan-Foshan Expressway at the Location] 設四條主車道, 路肩 [Road Shoulder] 寬1.55米; 西行設有四條主車道及一條應急車道。為完好平整干燥水泥路面, 道路標志標線清晰, 事發時夜晚, 無路燈照明, 視線一般 ……”, (b) the Location (also the scene of the Accident) was identified at “50公里 + 800 米處” on eastbound Dongguan-Foshan Expressway, and (c) the measured width of the Road Shoulder thereat was 1.55m (or 5.07ft). I further note there was 應急車道 (emergency or “safety” vehicle lane) on westbound Dongguan-Foshan Expressway, but only the Road Shoulder on the far right of eastbound Dongguan-Foshan Expressway at/near the Location. I find this unsurprising as a 1.55m wide Road Shoulder could hardly be graced with the epithet of 車道 (vehicle lane). 62.Before I turn to the evidence of P, Lei and Madam Wong and the Zhu Stmt, it is useful to mention the various documents (procured at different times after the Accident) which Zhu in the Zhu Stmt claimed would throw light on the issue of where exactly was the Location:
Since the Zhu Stmt referred to the above documents without qualification to identify the Location, I shall assume they depicted the general road condition at the material time of the Accident (save for differences noted in discussions below). I shall mainly refer to the Recording with cross- references to the Map, the Sat Photo and the 1st/2nd Photos. 63.The Recording began with vehicles travelling on the Guangdong-Macau Expressway, which was a two-way expressway with carriageways going in opposite directions separated by a central divider. The carriageway in the direction shown in the Recording (ie going towards inter alia eastbound Dongguan-Foshan Expressway) had 3 lanes. For present purpose and unless otherwise stated, references below to the Guangdong-Macau Expressway would be references to such 3-lane carriageway going towards inter alia the direction of eastbound Dongguan-Foshan Expressway since the carriageway in the opposite direction was not relevant to the Accident. 64.In the Recording at 00:00-01:15, the Guangdong-Foshan Expressway was on a bridge that passed over a waterway. Cross- reference to the Map showed such bridge to be 坦尾橋 (Tan Wei Bridge) marked as such on the Map over a blue-coloured waterway feature. On the far right of the 3-lane Guangdong-Macau Expressway was a road shoulder bound by a concrete barrier. A section of the concrete barrier on Tan Wei Bridge had a metal fence mounted on top (“Fenced Barrier”, see the Recording at 00:26-00:41). Just past the Fenced Barrier was a break in the concrete barrier with a small space surrounded by metal railing and an upright green sign that stated “救援電話 400-888-4788” (see the Recording at 00:47). 65.Both the 1st Photo and the Recording showed the Overhead Sign (which in fact was a combination of various signages) above the Guangdong-Macau Expressway. But it was plain (i) the 1st Photo was taken and the Recording was filmed at different times and (ii) the Overhead Sign in the 1st Photo and that in the Recording were erected at different positions (ie the latter was 1km further along the Guangdong-Macau Expressway from the former):
As seen in the Map and later in the Recording, the right bend along the Guangdong-Macau Expressway before it merged with eastbound Dongguan-Foshan Expressway (so that these 2 merged expressways would proceed forward together, “Merge Point”) was a gentle right curve (“Right Curve”). Thus, the road shoulder of the Guangdong-Macau Expressway between its far right lane and the concrete barrier and/or the Fenced Barrier on the right edge of the expressway seen in the 1st Photo was not the Road Shoulder at the Location on eastbound Dongguan-Foshan Expressway. 66.The Recording at 01:15 showed the Guangdong-Macau Expressway reached the opposite shore across Tan Wei Bridge, and the road shoulder began to widen and expand into a large empty piece of flat land all the way to the Pink Building and beyond (“Flat Land”). At the beginning of the Flat Land, the concrete barrier veered away from the right edge of the road shoulder to become the far right edge of the Flat Land. Just after the concrete barrier started to so veer away, the right side of road shoulder was marked by a row of low cone-shaped support posts with top and intermediate rails, all of which were coloured in yellow and black (collectively, “Yellow/Black Barrier”) (see the Recording at 01:15). Since the Yellow/Black Barrier started after the concrete barrier began to veer right, the road shoulder from that point onwards was wider than the road shoulder on Tan Wei Bridge that was bound on the right by the concrete barrier that ran parallel to the white dividing line that separated the road shoulder and the far right lane of the Guangdong-Macau Expressway (see the Recording at 01:15). After this starting point, the concrete barrier continued to veer right to form the far right edge of the Flat Land, and the Yellow/Black Barrier continued forward, but the aforesaid white dividing line began to separate into 2 white lines with (a) the left one continuing forward as the white dividing line between the far right vehicle lane and the road shoulder (see the Recording at 01:24), and (b) the right one curving towards and eventually merging with the Yellow/Black Barrier (see the Recording at 01:34). 67.The road shoulder outlined by the Yellow/Black Barrier to its right and the white dividing line to its left then continued until the end of the Flat Land that was beyond the Pink Building (see Recording up to 02:13). The Recording at 01:48-01:56 showed portable red plastic cones placed along a section of the white dividing line between the road shoulder and the far right vehicle lane (ie the left edge of the road shoulder). The Recording at 01:49 showed where the red plastic cones were first seen, the far right lane of the Guangdong-Macau Expressway split into 2 lanes in anticipation of moving into the Right Curve. This far right lane that split into 2 lanes was separated from the 2 other lanes of the expressway by an inverted triangular hatched road mark (see the Recording from 01:49 to 01:56), which area was later outlined by portable red plastic cones (see the Recording at 01:56-02:02). 68.The Recording at 01:58 showed that just after the row of red plastic cones on the left edge of the road shoulder ended, there was a break in the Yellow/Black Barrier that allowed ingress/egress to the Flat Land and access to the Pink Building (and a car was seen parked on the Flat Land close to the Pink Building) (“Opening”). The Opening would have enabled vehicular and pedestrian access to and from the Flat Land that was separated from the expressway by the Yellow/Black Barrier. Shortly after the Opening, an upright black and white road sign stating “虎門大橋” (Humen Bridge) with directional arrow pointing at 2 o’clock was erected just outside the Yellow/Black Barrier (see the Recording at 2:01). 69.After such upright road sign, the Flat Land was about to come to an end, and the 2 lanes that split from the far right lane of the Guangdong-Macau Expressway were about to move into the Right Curve (see the Recording at 02:05). A green road sign was erected on the left side of these 2 lanes indicating these 2 lanes would turn right into eastbound Dongguan-Foshan Expressway to go towards Tan Wei Interchange and eventually to inter alia SZ (see the Recording at 02:03). When the Flat Land came to an end where a lamppost was seen, the Yellow-Black Barrier also ended, and the concrete barrier again marked the right edge of the road shoulder (see the Recording at 02:13). The Recording showed the Yellow-Black Barrier terminated against the concrete barrier of the Flat Land before such concrete barrier turned to run parallel to and thereby again become the right edge of the road shoulder (see the Recording at 02:13). This echoed the beginning of the Yellow/Black Barrier described in paragraph 66 above which noted such barrier did not start until after the concrete barrier veered right to become the right edge of the Flat Land. This meant that whole stretch of the road shoulder (outlined by the Yellow/Black Barrier to its right and the white dividing line to its left) that fronted the Flat Land was wider than the road shoulder before this section (ie on Tan Wei Bridge) and after this section (ie on the Right Curve) (“Wide Section”). The Recording showed that the driving distance at moderate speed from the beginning of the Wide Section to the Opening (“1st Wide Section”) and from the Opening to the end of the Wide Section (“2nd Wide Section”) were respectively 39 seconds (see the Recording at 01:19-01:58) and 11 seconds (see the Recording at 01:58-02:09). 70.As alluded to in the above paragraph, at the lamppost seen in the Recording at 02:13, the concrete barrier turned to become once again the right edge of the road shoulder, but this road shoulder was narrower than the Wide Section (see the Recording at 02:10). The road shoulder and concrete barrier after such lamppost ran for a very short distance to a clump of trees where the concrete barrier was replaced by a metal barrier (see the Recording at 02:10-02:14). The metal barrier on the right edge of the road shoulder continued along the Right Curve until it merged with eastbound Dongguan-Foshan Expressway at the Merge Point. As seen in the Recording at 02:14, the road shoulder bound by the metal barrier was narrower than that bound by the concrete barrier as a result of the manner by which the metal barrier was fixed onto the concrete barrier. As seen in the Recording at 03:44-03:52, a black sedan-type car was able to travel comfortably on the road shoulder along the Right Curve. From the above observations, it was obvious that the short road shoulder with concrete barrier after the Flat Land and before the Right Curve (“Concrete Barrier Road Shoulder”) was slightly wider than the road shoulder with the metal barrier along the Right Curve until the Merge Point (which comfortably accommodated a sedan-type car) (“Metal Barrier Road Shoulder”). But the Wide Section was wider than the Concrete Barrier Road Shoulder, and the end of the Wide Section or the 2nd Wide Section was close to a lamppost which would provide highway lighting at night. 71.The Recording at 2:09 showed the 2 lanes that split from the far right lane of the Guangdong-Macau Expressway moved into the Right Curve. From this point onwards (but unless otherwise stated), references below to the Guangdong-Macau Expressway would be references to the 2 lanes on the Right Curve since the 2 other lanes of the 3-lane Guangdong-Macau Expressway were irrelevant to the Accident. The Recording showed quite dense growth of flowering trees just outside the metal barrier along the right side of the Right Curve up to the Merge Point (see the Recording from 02:14 to 04:58), which limited visibility to the right. The Recording at 02:32-03:06 showed an elevated road passing above the 2-lane Right Curve, and cross-reference to the Map showed it was 黃閣南路 (South Huang’ge Road). The Recording at 03:35-04:42 particularly filmed the road shoulder next to a metal barrier, but this road shoulder was on the right side of the Right Curve on the Guangdong- Macau Expressway and not on eastbound Dongguan-Foshan Expressway. As alluded to in the above paragraph, the Recording at 03:44-03:55 showed a black sedan-type car being driven on the right road shoulder of the Right Curve. 72.The Map and the Sat Photo showed that whilst the Right Curve of the Guangdong-Macau Expressway passed underneath South Huang’ge Road, the Dongguan-Foshan Expressway beyond the Merge Point (see the Recording at 04:58) was shown (a) in the Map and in the Sat Photo to pass over the interchange of South Huang’ge Road (“ SHR Interchange”) and (b) in the Map to pass over 鳳凰大道 (Fenghuang Boulevard), 蕉西路 (Jiaoxi Road) and various waterways. Since the Dongguan-Foshan Expressway (with eastbound and westbound carriageways separated by a central divide) was a long and straight expressway coming from the west with 3 lanes on the eastbound carriageway, it was obvious from the Map and the Sat Photo that (i) the Dongguan-Foshan Expressway was an elevated expressway, and (ii) the Right Curve had to make a gradual climb to reach the Merge Point (see the Recording at 04:58) to merge with eastbound Dongguan-Foshan Expressway. 73.The Sat Photo, the Map and the Recording showed the Merge Point (see the Recording at 04:58) and its vicinity as follows:
74.The Recording at/about the the Merge Point (see the Recording at 04:57) showed the following features:
75.As seen in the Sat Photo, by virtue of the merger of the 2 lanes on the Right Curve of the Guangdong-Macau Expressway (to the right of the Hatch Mark) to become the 4th Lane of eastbound Dongguan-Macau Expressway, the 4th Lane right at the Merge Point was wider than the existing 3 lanes of eastbound Dongguan-Foshan Expressway (to the left of the Hatch Mark). Due to the resolution of the Sat Photo and presence of vegetation along the right side of the Right Curve, it was unclear from the Sat Photo whether the road shoulder at the Merge Point (which was less affected by vegetation) was wider than the Metal Barrier Road Shoulder along the Right Curve. But for reasons explained in paragraph 74(d) above, I have found it was slightly wider than the Metal Barrier Road Shoulder but not wider than the Concrete Barrier Road Shoulder, so it must have been narrower than the road shoulder at the Wide Section. 76.As evident from the Sat Photo (but there was no more footage in the Recording that abruptly ended), when eastbound Dongguan-Foshan Expressway progressed eastwards, (a) the 4th Lane gradually narrowed so that the 4 lanes of eastbound Dongguan-Foshan Expressway on Dachong Bridge were no longer dissimilar in width by the time such expressway passed over the SHR Interchange, and (b) at the same time the road shoulder to the right of the 4th Lane also gradually narrowed. 77.In light of the above paragraph, I agree with the Zhu Stmt that “…… 在莞佛高速 [ie Dongguan-Foshan Expressway] 及廣澳高速 [ie Guangdong-Macau Expressway] 連接的位置 [ie Merge Point] …… 該路段的最右線 [ie 4th Lane] 有一條緊急車道 [ie road shoulder], 基於該處為兩條高速公路的相交點, 該緊急車道 [ie road shoulder] 比起其它路段的緊急車道 [ie road shoulder] 更為寛敞 ……” if comparison was made with (a) the road shoulder farther away from the Merge Point along eastbound Dongguan-Foshan Expressway and (b) the Metal Barrier Road Shoulder along the Right Curve. But as explained in the above paragraph, by the time eastbound Dongguan-Foshan Expressway on Dachong Bridge was about to pass over the SHR Interchange, both the 4th Lane and the road shoulder to its right had narrowed. 78.Having explained the Merge Point and its vicinity, I now turn to the Zhu Stmt on the Location (also the scene of the Accident). The Zhu Stmt referred to the Map, “…… 一段由廣澳高速 [ie Guangdong-Macau Expressway] 準備轉入莞佛高速 [ie Dongguan-Foshan Expressway]、再駛至案發地點的錄像 [ie the Recording] 以及 [1st/2nd Photos] (附件三)。 從 [Map] 可看到意外現場的該緊急車道 [ie road shoulder] 更為寛敞。同樣的事實亦在 [1st/2nd Photos] 及 [Recording] 顯示到, [Recording] 開始時顯示了一般緊急車道 [ie road shoulder on the Guangdong-Macau Expressway] 的闊度, 大約可以停放一輛小型客車或私家車; 但到 [Recording] 快要結束、車輛駛過大涌橋 [ie Dachong Bridge]、亦即是 [Accident]發生地點時, 該緊急車道 [ie road shoulder] 則寬敞很多, 可以停放大型客車” (my emphasis). 79.Zhu did not (a) mark the Location he alleged in the Zhu Stmt on the Sat Photo or on the Map, (b) identify the precise frame of the Recording that showed the Location he alleged in the Zhu Stmt, and/or (c) confirm the Location he alleged in the Zhu Stmt was “50公里 + 800 米處” on eastbound Dongguan-Foshan Expressway, so one was left to ascertain the Location Zhu alleged from his narrative in the Zhu Stmt itself (see above paragraph). The Zhu Stmt claimed the Location was shown in the Map, the 2nd Photo and the Recording. Given (a) there was no dispute the Location was on eastbound Dongguan-Foshan Expressway, (b) the Recording only had about 10 seconds of footage on eastbound Dongguan-Foshan Expressway at/after the Merge Point, (c) the 2nd Photo showed the road shoulder beyond the 2nd Lamppost after the Merge Point along eastbound Dongguan-Foshan Expressway on Dachong Bridge, and (d) Zhu stated “…… 到 [Recording] 快要結束、車輛駛過大涌橋 [ie Dachong Bridge]、亦即是 [Accident] 發生地點 ……”, it seemed Zhu alleged the Location was on the road shoulder to the right of the 4th Lane just beyond the 2nd Lamppost after the Merge Point, which he claimed was the widest in the vicinity and thus suitable for stopping the Coach and the Other Coach for the transfer of passengers/luggage. 80.On balance, I do not accept Zhu’s account in the Zhu Stmt:
81.In summary, the Location where the Coach and the Other Coach stopped and where the Accident occurred was “50公理 + 800 米處” of eastbound Dongguan-Foshan Expressway[43] on Dachong Bridge, and I find on balance it was farther away from the Merge Point than Zhu alleged and was likely to be close to or where eastbound Dongguan- Foshan Expressway passed over the SHR Interchange. I also find on balance that the Road Shoulder at the Location had no highway lighting and was 1.55m (or 5.07 ft) wide such that neither the Coach nor the Other Coach could stop entirely within it. The above findings amounted to rejection of core elements of Zhu’s hearsay allegations, and necessarily had adverse effect on the overall veracity and reliability of the Zhu Stmt. 82.There were 2 final points in relation to the Location. First, I have found eastbound Dongguan-Foshan Expressway was elevated on Dachong Bridge. The Lei WStmt stated that when Lei overheard the Driver / Zhu speaking on the telephone “…… 其實當時 [Coach] 仍然未上大橋 ……”, but about 5 minutes later when the Driver / Zhu told the passengers the Coach had broken down (壞車) so they had to transfer to another CB Coach Bus and he then stopped the Coach “…… 當時已經在大橋上 ……” (see paragraph 96 and footnote 47 below). In my view, “大橋” mentioned by Lei was Dachong Bridge, so the Coach was still on the Guangdong-Macau Expressway when “…… [Coach] 仍然未上大橋 ……” and the Coach was already on eastbound Dongguan-Foshan Expressway that was elevated on Dachong Bridge when “…… 已經在大橋上 ……” This was consistent with the Recording with footage of just over 5 minutes that covered the driving distance at moderate speed from the Guangdong-Macau Expressway on Tan Wei Bridge to the 4th Lane (just after the Merge Point) of eastbound Dongguan-Foshan Expressway on Dachong Bridge. But P said under cross-examination that “…… 全部都係天橋嚟嘅”, and that “…… 喺天橋上面嘅高速公路 …… 行咗三十分鐘 …… 然後先停車 ……” In my view, there was no real/material inconsistency because when the Coach was on the Guangdong-Macau Expressway, (a) the elevation of such expressway before Tan Wei Bridge was unknown, (b) such expressway passed Tan Wei Bridge that was elevated over a waterway, and (c) the Right Curve had to climb to reach the elevated eastbound Dongguan-Foshan Expressway on Dachong Bridge (see paragraph 72(ii) above). P in saying “…… 喺天橋上面嘅高速公路 …… 行咗三十分鐘 ……” was plainly referring to the elevation of the Guangdong-Macau Expressway before the Merge Point. 83.Secondly, P said under cross-examination there was a concrete barrier along the right edge of the Road Shoulder at the Location (also the scene of the Accident) similar to that seen in the 1st/2nd Photos but without any metal fence on top. Bearing in mind (a) the Location at eastbound Dongguan-Foshan Expressway was on Dachong Bridge and (b) I have found the Road Shoulder thereat was 1.55m (or 5.07ft) wide, the passengers who disembarked from the Coach would have to stay on the Road Shoulder bound by the concrete barrier as they had nowhere else to go on the bridge before they retrieved their luggage and/or boarded the Other Coach. It was quite unlike the 2nd Wide Section or the road shoulder at the Opening where the passengers of the Coach (if they disembarked thereat) could have gone and stayed at the Flat Land by walking to/through the Opening or (if in case of danger or urgency) by climbing over the Yellow/Black Barrier. (c) Investigation by the authorities in Mainland China 84.According to 4 道路交通事故車輛技術檢驗報告[44] all dated 18 November 2013 and issued by the relevant 檢驗人 and 復核人 of 廣州市慶豐進口汽車維修中心 on inspections of the Coach, the Other Coach, the Truck and the Trailer on 22 October 2013, it was found that the Coach and the Other Coach had no mechanical defect:
85.According to 道路交通事故車輛冷卻系統分析報告dated 18 October 2013, the Coach was examined on 22 October 2013, but it would not start as a result of the Accident, so its coolant system could not be tested:
86.According to 道路交通事故車輛計算速分析報告dated 18 November 2013, it was reported that “…… 根據交警提供的痕跡檢驗、口供、現場圖片所示, [Container Truck] …… 與 [Coach] …… 及 [Other Coach] …… 發生碰撞, [Coach] 、 [Other Coach] 事故時停在路面, 事故造成 [Container Truck] 車頭損壞及 [Coach] 車尾、車頭。[Other Coach] 車尾損壞 ……”, and after calculation and analysis, “…… [Container Truck] …… 碰撞時速度為55.48km/h ……” (ie within the speed limit). Regrettably, “…… 交警提供的痕跡檢驗、口供、現場圖片 ……” were not available at trial. 87.According to 訴前財產保全建議書 dated 18 November 2013 and issued by 廣州市公安局交通警察支隊高速三大隊, “2013年10日22日20時23分, [Deng] 駕駛 [Container Truck] …… 在 [Dongguan-Foshan Expressway] 由西往東在中心綠化帶起第四條車道 [ie 4th Lane] 行駛至東行50公里 + 800米處時, 與 [Zhu] 駕駛 [Coach] ……、[Liang] 駕駛的 [Other Coach] ……發生交通事故, 造成 [P] 受傷。…… 我隊在對事故車輛檢驗完畢後, 將按規定交還肇事駕駛員的事輛和行駛證。為確保您的合法權益得到維護, 延議您到人民法院提起訴前財產保全, 申請人民法院依法扣押事故事輛”. 88.According to 道路交通事故認定書 dated 22 November 2013 and issued by 廣州市公安局交通警察支隊高速三大隊, the Accident was caused by Deng’s failure to drive the malfunctioned Container Truck safely and Zhu’s/Liang’s failure to properly place the Warning Signs:
(d) Boarding the Coach 89.Zhu According to the Zhu Stmt, “…… 在 [Accident] 發生當天, [Zhu] 在早上約7時15分開始工作, 原定的下班時間約為晚上9時30分, 期間大約有2小時30分鐘休息, 因此在 [Accident] 發生時, 即使 [Zhu] 正在駕駛當天的最後一程車, [Zhu] 的精神狀態依然良好，並不疲憊。在 [Accident] 發生時, [Zhu] 正駕駛 [Coach] …… [Coach] 由 [ZS] 出發, 回程至 [Shenzhen Bay], [P] 為其中一個乘客 ……” 90.P and Lei In the afternoon on 22 October 2013, P/Lei, who were in ZS, intended to go together to HK. P telephoned “旅遊巴於內地的代理”[45] to reserve seats for the Coach Trip from ZS to HK, so he/Lei boarded the Coach at/about 7:30pm at the bus stop near to 交通大廈 (Communications Building) and opposite 中山國際酒店 (Zhongshan International Hotel), 石歧 (Xiqu), ZS (“ZS Bus Stop”) for the Coach Trip to HK. After P/Lei boarded the Coach, Lei was seated next to the window and P sat next to her. They were assigned seats nos 5-6,[46] so they were at the front part of the Coach. It was a long journey from ZS to HK. The P 1st WStmt stated P and Lei took a rest after boarding the Coach, but the Lei WStmt said P fell asleep after boarding the Coach and Lei played with her iPad as she was not tired. Both P/Lei could not remember how many passengers were on the Coach for the Coach Trip, but P recalled the Coach was not full. 91.Madam Wong Madam Wong purchased her Bus Ticket at a bus stop at Xiqi, ZS. She and 3 other family members boarded the Coach at such bus stop. After she was seated on the Coach, Madam Wong fell asleep. (e) Before Coach stopped 92.According to the Zhu Stmt,
93.The following matters were of note concerning Zhu’s allegations in the Zhu Stmt:
94.On balance, I prefer the evidence of P, Lei and Madam Wong which I find credible, honest and consistent. I accept and find that (a) P woke up from his sleep at/about 8:15pm, (b) both P and Lei saw the Driver / Zhu speaking on the telephone and hearing him say something about another CB Coach Bus, (c) P who just woke up did not realise what was happening but Lei overheard the Driver / Zhu mentioned (i) there was some problem with the Coach’s water tank (presumably its coolant system) and (ii) the passengers on the Coach had to transfer to another CB Coach Bus, and (d) at that time (or indeed up to the time of the Accident) Lei did not know the Other Coach was going from 佛山 (Foshan) to Shenzhen Bay. P’s/Lei’s evidence was corroborated by Madam Wong’s statement evidence (which on balance I also accept) that stated when Madam Wong woke up from her sleep she heard the Driver / Zhu speaking on the telephone, and she overheard him saying there was some problem with the Coach and the passengers of the Coach might have to transfer to another CB Coach Bus. 95.On balance, I also accept the evidence in the P 1st WStmt and the Lei WStmt that (a) about 5 minutes later[47] the Driver / Zhu told the passengers that the Coach had broken down (壞車) so they had to transfer to another CB Coach Bus, and (b) the Driver / Zhu then stopped the Coach on the edge (ie the Road Shoulder) of eastbound Dongguan- Foshan Expressway and asked the passengers on the Coach to disembark and transfer to the Other Coach to complete the remaining journey to HK. 96.The P 1st WStmt claimed the Driver / Zhu also told the passengers of the Coach to retrieve their own luggage from the Luggage Compartment for transfer to the luggage compartment of the Other Coach. Under cross-examination, P recalled that after the Driver / Zhu stopped the Coach he told the passengers “落車, 過車”, ie by the time “…… [the Driver / Zhu] 講轉車, 已經係停咗喺路邊 [ie Road Shoulder] 㗎喇 …… 喺高速橋面嗰個路邊 ……”, which bridge I have found to be Dachong Bridge. This was corroborated by (a) Lei who testified under cross-examination that Zhu “…… 係停車, 就講囉”, asking the passengers “…… 盡快去前面嗰架車嗰度上車 ……”, and (b) the Madam Wong WStmt that stated about 5 minutes after Madam Wong overheard the Driver / Zhu on the telephone, he stopped the Coach on “…… 高速公路天橋邊上 [ie road shoulder of eastbound Dongguan- Foshan Expressway on Dachong Bridge] …… 開啟車裏面的燈、開門並叫乘客落車取行李 ……” On balance I find and accept P’s, Lei’s and Madam Wong’s accounts, and reject the Zhu Stmt that claimed Zhu made detailed broadcast announcement to the passengers of the Coach to “…… 使用 [Coach] 靠近高速公路路邊一則的通道 [as explained in paragraph 101 below and shown in the Sketch / 1st Schedule referred therein, “Gap”], 以避開迎面而來的車流, 免生危險 ……” (my emphasis). (f) Stopping the Coach 97.In the Zhu Stmt, Zhu claimed “約在8時30分, [Zhu] 駕駛[Coach] 至事發 [ie Accident] 地點。當 [Zhu] 到達時已見 [Liang] 的 [Other Coach] 已停在該緊急車道 [ie road shoulder] 內，並着了死火燈。[Zhu] 把 [Coach] 完全駛入該緊急車道 [ie road shoulder] 之後，安全地把車停在 [Liang] 的 [Other Coach] 後方約70至80米的位置，拉上手制，並開着死火燈。在停車之後，[Zhu] 把車廂內的所有燈全開，方便乘客之後下車；而 [Zhu] 也確認車身外由車頭至車尾的燈號也都一直開着。[Zhu] 告訴 [Coach] 的乘客可以到行李艙提取個人行李，轉移到前面的客車繼續行程。…… [Zhu] 在完成廣播後，隨即把乘客車門及兩邊的行李門打開，讓乘客下車取回行李 ……” (my emphasis). 98.Lei did not know whether there were other passengers on the Other Coach, but she agreed the Driver / Zhu did switch on the lights inside the Coach’s passenger cabin. The passengers of the Coach (including P, Lei and Madam Wong) disembarked from the passenger doors which were on the left side of the Coach (see paragraph 59 above), ie the side that abutted or encroached upon the 4th Lane (given the Road Shoulder at the Location was only 1.55m (or 5.07ft) which was less than the body width of the Coach). This meant the passengers disembarking from the Coach had to get onto the roadway close to or on the 4th Lane before they could walk to the front of the Coach and through the Gap between the right front of the Coach and the concrete barrier at the right edge of the Road Shoulder (which, according to P’s testimony under cross-examination, was wide enough to allow a wheelchair to pass similar to the distance between the witness stand and the bar table in the courtroom at trial) to the space between the right side of the Coach and the aforesaid concrete barrier (“Right Side Space”) to wait for their turn to retrieve their luggage via the right-side door of the Luggage Compartment. P agreed the Coach’s passengers who retrieved their luggage from the opened right-side door of the Luggage Compartment would have to transfer their retrieved luggage to the Other Coach via the Gap between the right front of the Coach and the concrete barrier. 99.P/Lei disembarked from the Coach via the left-side front passenger door and prudently walked to the Right Side Space (presumably via the Gap) to wait for their turn to retrieve their luggage though the opened right-side door of the Luggage Compartment. Although P/Lei could not remember whether there were other passengers who disembarked first, P agreed under cross-examination he/Lei were among the 1st batch of passengers to disembark from the Coach, and it took them less than a minute to walk to the Right Side Space. I find on balance it was their (and also Madam Wong’s) own prudence that they walked to the Right Side Space to retrieve their luggage through the opened right-side door of the Luggage Compartment. 100.According to P’s/Lei’s statement evidence, as they disembarked from the Coach, they saw the Road Shoulder at the Location was not wide enough for the Coach and the Other Coach to stop entirely within the Road Shoulder, so part of the Coach and part of the Other Coach were on the Road Shoulder but the rest of the vehicle bodies encroached onto the 4th Lane. Indeed, P said under cross-examination that “…… 嗰段路真係好窄喎 …… [Zhu] 泊咗出嚟吖嘛 ……” Under cross-examination, P, Lei and Madam Wong consistently disagreed the Coach stopped entirely within the Road Shoulder, and they insisted “…… [the Driver / Zhu] 除咗喺 [Road Shoulder] 泊咗一半, 另外一半車身就喺 …… 佢哋俗稱嘅「慢車道」囉 …… 即係喺 [Road Shoulder] 隔離嗰條嘅行車線 [ie 4th Lane] ……” Indeed, Madam Wong testified under cross-examination that “…… [Madam Wong] 嘅理解, 係個 [Road Shoulder] …… 事實上係窄過個 [Coach] 嘅 …… [Madam Wong] 唔知你哋有冇有呢啲數據, 但係 [Madam Wong] 印象中個 [Road Shoulder] 係好窄嘅, 唔會闊過一架巴士 ……” I also refer to the discussions/findings in Part IV(b) above in which I have taken into account P’s, Lei’s and Madam Wong’s above evidence as well as the official traffic police investigation reported in 道路交通事故認定書 to conclude that the width of the Road Shoulder at the Location was 1.55m (5.07ft) that was insufficient to fully accommodate the Coach and/or the Other Coach entirely within it. 101.This was also borne out by the existence the Gap (which D4 and Zhu also acknowledged – see paragraphs 11(f) and 96 above) and the stopped position of the Coach. The Coach, the Gap and the Right Side Space were shown in the sketch annexed to the Madam Wong WStmt (“Sketch”) which was reproduced in the 1st schedule to this Judgment (“1st Schedule”). Under cross-examination, P said his recollection of the stopped position of the Coach was akin to that shown in the Sketch, but he fairly said “…… 咁 [P] 係真係冇睇到 [Coach] 究竟係打斜定打直嘅 …… 所以 [P] 就冇寫 [in P 1st WStmt] 話係咪打斜, [P] 總之就係一半一半 ……” Madam Wong explained under cross- examination that the Sketch showed the final position of the Coach after (rather than before) the collision with the Container Truck, but “…… [Madam Wong] 嘅印象 [of the Coach before such collision] …… 泊唔晒入去嘅 …… 亦都係斜斜哋嘅, 呢個係 [Madam Wong] 印象 …… 泊唔晒入去嘅, 同埋都係斜斜哋, 當然冇咁斜喇 …… 都係有斜斜哋嘅 ……” (ie the stopped position of the Coach before the collision with the Container Truck was still at an angle to the Road Shoulder but the angle was not as acute as shown in the Sketch). 102.Mr Law submitted Madam Wong’s evidence was not credible because even if the Road Shoulder was not wide enough to entirely accommodate the Coach, there was no good reason why Zhu would have stopped the Coach at an angle. It was said Zhu was likely to be the last person to leave the Road Shoulder as he would have to close the passenger doors and the doors of the Luggage Compartment after the passengers (together with their luggage) had transferred to the Other Coach, so his exposure on the Road Shoulder and/or on eastbound Dongguan-Foshan Expressway would have been the longest, and he would have chosen a spot where he could have parked (and he did park) parallel to the vehicle lane and entirely within the Road Shoulder. 103.I disagree. I find on balance Zhu stopped the Coach in a slanted position at an angle to the Road Shoulder that was less acute than shown in the Sketch, but still with the right front of the Coach pointing towards the concrete barrier on the right edge of the Road Shoulder because he well knew the Road Shoulder at the Location was not wide enough to entirely accommodate the Coach, and inevitably part of the Coach would have to encroach upon the the 4th Lane. In parking the Coach at an angle that was not too acute, the rear of the Coach would encroach onto the 4th Lane (which encroachment would also have been unavoidable even if he stopped the Coach (with body width wider than the Road Shoulder) parallel to the 4th Lane), but this would have allowed the left front of the Coach to be closer to the Road Shoulder so that the passengers disembarking from the left-side front/middle passenger doors would land closer to the Road Shoulder than if he had stopped the Coach parallel to the 4th Lane (which would have meant the passengers would necessarily have disembarked onto the 4th Lane as the body width Coach was wider than the Road Shoulder). Further, stopping the Coach at an angle also made for a wider Right Side Space to allow the disembarked passengers to gather for retrieving their own luggage from the Luggage Compartment or for waiting their turn to do so. Had Zhu stopped the Coach parallel to the 4th Lane, the Right Side Space would only have the width of the Gap which would have been insufficient to accommodate (a) the collection of passengers for retrieving their luggage from the Luggage Compartment or for waiting their turn to do so, and at the same time (b) the to and fro passenger traffic along the Gap, ie passengers going to the opened right-side door of the Luggage Compartment to collect their luggage and passengers leaving with their luggage and going to the Other Coach that had stopped in front of the Coach. In my view, it was Zhu’s appreciation of the narrowness of the Road Shoulder (ie the Coach would not fit entirely within the Road Shoulder) and the Gap that he stopped the Coach at an angle to facilitate the above purposes. 104.In my view, 2 matters were of note from the stopped position of the Coach as explained above:
105.For all the above reasons and those in Part IV(b) above, I have found (a) the Location where Zhu stopped the Coach was at 50km + 800m on eastbound Dongguan-Foshan Expressway and the Road Shoulder there was only 1.55m (or 5.07ft) wide, (b) the Location was farther away from the Merge Point along eastbound Dongguan-Foshan Expressway on Dachong Bridge that was closer to or just over the SHR Interchange. But even if the Location was at or shortly after the Merge Point (which I disagree), it would have been beyond the illumination area of the 2nd Lamppost, and the road shoulder there would not have been as wide as Zhu claimed and would not have entirely accommodated the Coach with the Gap. Thus, the front part of the stopped Coach (at an angle similar to but less acute than shown in the Sketch) was inside the Road Shoulder, but its rear part encroached onto the 4th Lane. On balance, I reject Zhu’s allegation that the Coach aligned in parallel to the 4th Lane was stopped entirely within the Road Shoulder. 106.There was no dispute the Other Coach had already stopped in front when the Coach arrived at the Location. The P 2nd Aff claimed the Coach “…… had already stopped at a short distance ahead of the Coach ……”, and the P 1st WStmt claimed the Other Coach was stopped 1-2m in front of the Coach. On balance, I prefer P’s evidence and reject Zhu’s allegation in the Zhu Stmt that “…… [Zhu] 把 [Coach] 完全駛入該緊急車道 [ie Road Shoulder] 之後, 安全地把車停在 [Liang] 的 [Other Coach] 後方約70至80米的位置 ……”, which plainly highlighted the overall unreliability of Zhu’s account:
107.Given the aforesaid analysis, the Location was plainly unsatisfactory for the purpose of transferring the passengers of the Coach and their luggage from the Coach to the Other Coach, and the Coach was under danger of collision by oncoming traffic on the 4th Lane when the Coach and the Other Coach could not entirely fit within the Road Shoulder. (g) Retrieving electric wheelchair 108.The Madam Wong WStmt stated inter alia that:
As apparent from the Sketch, Madam Wong attempted to retrieve the electric wheelchair from the Right Side Space via the opened right-side door of the Luggage Compartment. Under cross-examination, Madam Wong estimated her attempt to retrieve the electric wheelchair took a few minutes, “…… 因為係嗰個 [Luggage Compartment] 嗰度, [Madam Wong] 係曾經爬入過 [Luggage Compartment] 度拎個車出嚟, 搬出嚟, 因為佢個高度係好矮嘅, 咁 [Madam Wong] 係上架車嗰度, 所以嗰度都有一陣㗎喇, 其實都。…… 係喇, 用咗一段時間咁樣囉, 因為 [Madam Wong] 爬上去嘅 …… 即係走上去嘅, 個人 ……” 109.Likewise, P/Lei disembarked from the Coach and went to the Right Side Space. P/Lei in their statement evidence confirmed they waited for the passengers in front of them to retrieve their luggage from the Luggage Compartment before their turn to retrieve theirs through the opened right-side door of the Luggage Compartment. P/Lei saw a female passenger (later known to them as Madam Wong) trying to retrieve a heavy electric wheelchair from the Luggage Compartment. P gave evidence that the electric wheelchair was stored deep inside the Luggage Compartment, so one had to bend and get inside such compartment to reach the electric wheelchair and to pull it out. Lei went forward to ask Madam Wong whether she needed help. P saw Madam Wong was in difficulty, so he immediately went forward to help by putting one foot inside the Luggage Compartment with a view to pull out the electric wheelchair. The Madam Wong WStmt corroborated this by stating “…… 當時 [P] 和他的太太上前施予援手。當時 [P] 一腳踏在 [Luggage Compartment] 上，準備爬進 [Luggage Compartment] 把 [Madam Wong] 的電動輪椅取出。[Madam Wong] 也退到後面 ……” Lei said under cross-examination she/P probably waited for about 2-3 minutes before P went forward to assist Madam Wong in retrieving the electric wheelchair, but P could not remember how long they waited. 110.According to the P 1st WStmt, just as P put one foot inside the Luggage Compartment with a view to pull out the electric wheelchair, he suddenly felt the Coach was violently hit by another vehicle (later known to be the Container Truck) from the rear. P said under cross-examination “…… 其實 …… 嗰一剎那㗎咋 …… [P] 一埋去幫 [Madam Wong], 即係攞 …… 電動嘅輪椅 …… 一攞, 未成功, 已經撞車喇 ……” P did not hear any other vehicle sounding horn prior to the Accident. Lei herself also felt a violent collision, which caused her to be thrown for about 3ft (Lei WStmt) and/or “…… 自己當時都彈開咗喺石壆嗰度 ……” (Lei’s oral evidence). P’s statement evidence went on to say that in the confusion he lost balance and also lost consciousness as a result of the violent collision.P’s/Lei’s accounts were corroborated by the Madam Wong WStmt that stated “…… 突然之間, [Madam Wong] 聽到一聲巨響, 在混亂過後, [Madam Wong] 看見 [P] 已經被壓在 [Coach] 下 ……”, and by Madam Wong’s testimony under cross- examination that the Coach was hit in the rear (but she was unclear which part at the rear of the Coach was hit “…… 因為 [Madam Wong] 喺車中間嗰度 …… [Madam Wong] 係睇唔到嘅, 因為 [Madam Wong] 凈係聽到「boom」一聲咋 ……”). 111.The Lei WStmt explained Lei only had some superficial injury (皮外傷), but when she collected herself she saw a wheel of the Coach (ie a right rear wheel) had rolled over and pinned P’s right lower limb underneath it. She ran to P who was unconscious and could not answer her. Lei said her mind went blank and she did not know what to do, and all she could do was to mop the blood from P’s face and to plead for others to help her and to report to the police. Fortunately, a man nearby quickly made a report to the police, and attempted to find a way to lift the wheel from P’s right lower limb. 112.The P 1st WStmt stated when P regained consciousness, he saw himself lying on the ground with many people staring at him. He also saw he had been pulled under the Coach, and a wheel of the Coach (ie a right rear wheel) had rolled over and pinned his right lower limb underneath it. P said under cross-examination that “…… [P] 醒番嘅時候, [P] 就見咗 [Coach] 撞咗埋路肩喇, 個車頭 ……”, which was consistent with the slanted position of the Coach in the Sketch that was at an angle to the concrete barrier. The Madam Wong WStmt also stated “…… [Madam Wong] 當時有遞水給 [P]和他的太太, 並協助清洗 [P] 的臉部, 並一直從旁陪伴 [P] 和他的太太, 直至救援人員的到來 ……” According to the Lei WStmt, the ambulancemen later arrived and rescued P from under the Coach. P was immediately sent to 南沙醫院 (Nansha Hospital) for medical treatment. 113.The Zhu Smt stated “…… [Zhu] 沒有看到 [P] 受傷一刻的情況, 但 [Zhu] 在 [Coach] 被撞後, 知道 [P] 因 [Coach] 受撞後向前滾動而受傷”. In all the circumstances, I accept P’s, Lei’s and Madam Wong’s accounts of the Accident, and find on the balance the Accident happened as described in paragraphs 108-112 above. (h) Zhu’s acts and whereabouts 114.Before the Accident The Zhu Stmt stated inter alia that:
115.Lei said under cross-examination she had a look when she disembarked from the Coach, and saw no Warning Sign was placed behind the Other Coach. P/Lei then walked towards the Right Side Space with a view to retrieve their luggage from the opened right-side door of the Luggage Compartment, so Lei did not pay attention whether any Warning Sign was placed behind the Coach. But Lei remembered that after the Accident “……周圍嘅乘客係有啲憤怒 …… 咁話 [Driver / Zhu], 當時嘅乘客係有啲憤怒咁指責 [Driver / Zhu], [Lei]聽到嘅 ……” (ie the onlooking passengers accused the Driver / Zhu of not having placed any Warning Sign). P also said he heard from others (but he did not personally observe) that no Warning Sign was placed behind the Coach and/or the Other Coach. 116.As to Zhu’s whereabouts, the Lei WStmt stated that after Lei disembarked from the Coach, she could not see where the Driver / Zhu had gone to, and suggested “…… 這意味著並沒有人在現場指示乘客取行李, 乘客下車後取行李的情況非常混亂 ……” Lei had no idea whether Zhu went to get the Warning Sign, “…… 因為確實係出事先見到 [Zhu]”. P also gave evidence under cross-examination that from the time he disembarked from the Coach until the Accident (including the time when he waited to retrieve his luggage), he had no impression where the Driver / Zhu was. Neither P nor Lei saw Zhu’s alleged efforts to retrieve the Warning Sign from the Storage Compartment at the rear of the Coach or to wave to the Truck Driver / Deng to warn him about the stationary Coach. Indeed, the Madam Wong Stmt stated “…… 在取行李其間, [Madam Wong] 並沒有見到 [Zhu] 在場, 更妄論他會指揮或幫忙。[Madam Wong] 也沒有看到設置了任何 [Warning Sign] 以警告路上的車輛 ……” 117.Mr Law submitted the evidence by P, Lei and Madam Wong as to the existence of a “time gap” when they failed to sight Zhu (see the above paragraph) served to bolster Zhu’s assertion that he spent that time window to obtain the Warning Sign from the Storage Compartment with a view to place it about 150m behind the Coach, and he even took the precaution of having a switched-on torch in his hand to alert oncoming traffic before he finished placing the Warning Sign behind the Coach. Mr Law suggested Madam Wong’s estimate of having spent a few minutes trying to retrieve the electric wheelchair (see paragraph 108 above) and Lei’s estimate of having waited for 2-3 minutes for their turn to retrieve their luggage from the Luggage Compartment before P went forward to assist Madam Wong (see paragraph 109 above) might have been inaccurate, and although “…… it [was] not clear at what time frame Zhu left the Coach and went for the warning sign ……[, on] the basis that Zhu waited for all passengers to leave the Coach and he commenced his route to the rear, it might match the estimate of [P’s] witnesses”. I will return to Mr Law’s suggestion that Zhu waited for all passengers to leave the Coach before he commenced going to the Storage Compartment at the rear of the Coach to obtain the Warning Sign in paragraph 143 below. 118.There was no dispute the Warning Sign was not yet placed behind the Coach when the Accident happened. The Zhu Stmt stated that Zhu was in the process of doing so, but P, Lei and Madam Wong all gave evidence that Zhu was nowhere to be seen after he asked the passengers to disembark and to collect their luggage for transfer to the Other Coach. According to Zhu, the Coach “…… 是一輛右軚車輛 ……” (see paragraph 59 above), so the driver’s seat was on the right side of the Coach. It would have been natural for Zhu to walk to the Storage Compartment (which was also on the right side of the Coach – see photograph at G/689) through the Right Side Space along the right side of the Coach. Zhu did not explain why he would “…… 下車沿著 [Coach] 另一邊, 即靠近高速公路最右邊行車線 [ie 4th Lane] 一旁車身走到車尾 ……” when he must have known the left rear of the coach, which he had to round in order to reach the Storage Compartment on the right side of the Coach, encroached on the 4th Lane and subject to greatest exposure to oncoming traffic. On balance, I reject Zhu’s account as to how he allegedly went to the Storage Compartment, which boded ill for the reliability of his assertions as to the precautionary measures he allegedly took after having stopped the Coach, ie that he attempted to take out the Warning Sign from the Storage Compartment but the Accident overtook his intention to place the Warning Sign at a safe distance behind the Coach. 119.Indeed, the official traffic police investigation reported in 道路交通事故認定書 found “…… [Zhu] 、[Liang] 駕駛 [Coach and Other Coach] 在高速公路停車未按規定設置 [Warning Sign], 其過錯行為是導致 [Accident] 發生的另一方面原因 ……” with no suggestion that at the material time Zhu was making genuine efforts to obtain and to place the Warning Sign but his goodly intent was overtaken by the Accident. Moreover, it was of no use to say Zhu as a professional driver of CB Coach Buses familiar with the route between ZS and Shenzhen Bay would have done so. After all, Liang being also a professional CB Coach Bus driver and presumably also familiar with the route did not place any Warning Sign behind the Other Coach (as I find) even though (a) he stopped the Other Coach at the Location before Zhu/Coach arrived, (b) he did not have to deal with disembarking passengers having to retrieve their luggage with a view to transfer to another CB Coach Bus, and (c) he did not have to manage mechanical problem that might render his CB Coach Bus unroadworthy. 120.On balance I reject Zhu’s account in paragraph 114 above, and find he did not (a) try to take out and position the Warning Sign behind the Coach, (b) report to the police (as it was done by a passenger – see paragraph 111 above and see the Madam Wong / Lei WStmts in the paragraph below), and/or (c) wave his switched-on torch to warn the oncoming Container Truck. In coming to such findings, I need not speculate where Zhu was and what he did during what Mr Law described as the time gap when P, Lei and Madam Wong did not have sight of him, eg whether he was checking out the water tank of the Coach to assess the extent of the perceived mechanical problem and/or the roadworthiness of the Coach, or whether he was liaising with Liang about transfer of the Coach’s passengers and their luggage from the Coach to the Other Coach. In my view, quite apart from the PRC road traffic legislation referred to in 道路交通事故認定書 which P confirmed he would not rely on for the trial, I find on balance that Zhu’s failure to place any Warning Sign at a safe and appropriate distance behind Coach to give reasonable and/or necessary warning of the stationary Coach to oncoming traffic was plainly negligent and causative of the Accident (ie the collision by the Container Truck against the rear of the Coach – see paragraphs 138-141 below). 121.After the Accident Lei said under cross-examination that by the time she spotted Zhu it was after the Accident when the Coach’s wheel (ie a right rear wheel) had rolled over and pinned P’s right lower limb underneath it. The Madam Wong WStmt also stated “…… [Madam Wong] 當時看到 [Zhu] 並沒有報警, 而且數次上落 [Coach], 叫上當時 [Coach] 上還有其他乘客, 增加了 [P] 的痛楚。當時現場沒有千斤頂, 有3至4個人嘗試抬起 [Coach] 以鬆開 [P] 的右腳，但仍不成功 ……” Madam Wong said under cross-examination there were people going up and down the steps at the left-side middle passenger door near to the centre of the Coach. In the Lei WStmt, Lei also complained that (a) during this period the Driver / Zhu not only did not report to the police, he even boarded and alighted from the Coach several times which added to P’s sufferings, and (b) it was only after he was scolded by other passengers that he tried to look for a jack to lift the wheel that pressed down on P’s right lower limb. 122.I find on balance that after the Accident, (a) Zhu did not report to the police and it was a passenger standing near Lei who did so (see paragraph 111 above), (b) Zhu boarded and alighted from the Coach several times even though the Coach had been pushed forward by the collision with the Container Truck such that a right rear wheel pinned P’s right lower limb underneath it, and (c) Zhu did not start looking for a jack to free P’s right lower limb until he was rebuked by the onlooking passengers. Although there was no medical evidence to show (a)-(c) above materially aggravated P’s injuries/disabilities, they necessarily reflected Zhu’s cavalier attitude towards P as an injured passenger of the Coach that was under Zhu’s care and control, which did not give confidence over his assertions in the Zhu Stmt that he had exercised reasonable care and skill prior to and at the time of the Accident. (i) Accident Issue 123.According to the P 1st WStmt, P complained that the Accident was caused by the negligence of the Driver / Zhu and/or the Other Driver / Liang, including but not limited to the following:
124.Likewise, the Lei WStmt made similar complaint that the Accident was caused by the negligence of the Driver / Zhu and/or the Other Driver / Liang, including but not limited to the following:
125.In the Madam Wong WStmt, Madam Wong made the same complaints as Lei in the above paragraph save and except she did not refer to the hazard lights. 126.Location As explained in Part IV(b) above, P, Lei, Madam Wong and the official traffic police investigation all spoke in a consistent voice that the Road Shoulder at the Location was not wide enough for the Coach to stop entirely within it, and I have found their evidence prevailed over Zhu’s untested hearsay assertion that he/Liang chose the location for transfer of the passengers/luggage because the road shoulder there was wide enough to fit the entire Coach, and that he did stop the Coach entirely within the road shoulder. 127.In my view, whilst I agree the Truck Driver / Deng was liable or even primarily liable for causing the collision (see the particulars of negligence in footnote 14(a) and (e)-(i) above and 道路交通事故認定書 in paragraph 88 above), I disagree with D2’s/D4’s contention that the collision was entirely Deng’s fault. Zhu was plainly negligent in stopping the Coach at the Location such that it partially obstructed the 4th Lane on an expressway at night with dim lighting and no highway lamps, especially as he must have known that the Coach’s passengers would have to disembark from left-side passenger doors near to or onto the 4th Lane, and to retrieve and transfer their luggage in the open with real risk of the Coach and/or themselves being hit. I find this to be dangerous, which danger should have been obvious to any reasonable driver let alone an experienced professional CB Coach Bus driver familiar with the route (ie eastbound Dongguan- Foshan Expressway), the nature/volume of vehicular traffic expected on such expressway, the size/width of the Coach, the width of the Road Shoulder at the Location, and the cumbersome process of transferring the passengers/luggage from the Coach to the Other Coach. 128.Ms Lee referred me to the helpful guidance in Ross v Squires.[48] In that case, an articulated lorry skidded and jack-knifed across 2 lanes of a 3-lane carriageway of a motorway. A motor car driven in the centre lane collided with the lorry and stopped with its rear lights on. Another lorry that had been following parked on the nearside lane some 15ft of the jack-knifed lorry with headlights on to illuminate it. 5-10 minutes later, the defendant driving a lorry in the same direction with dipped headlights came within view of the collision scene some 400 yards away, but he did not realise the vehicles were stationary until within 150 yards. Seeing the parked lorry, he braked, moved to the centre lane, and then realised it was blocked. Braking harder, he skidded and collided into the parked lorry which was pushed forward, and killed a driver (whose lorry was not involved in any collision) who was assisting at the scene of the collision. The widow of the deceased sued the defendant, and the claim was compromised. The defendant then took out third party proceedings against the owners/driver of the jack-knifed lorry. The judge found the driver of the jack-knifed lorry was negligent in not keeping a proper lookout, in failing to observe the vehicles were stationary earlier and in driving at excessive speed, but found against the defendant on the basis that the scene of the obstruction was adequately lighted to warn any driver keeping a proper lookout, and that the situation arising from the third party driver’s negligence was not causative of the accident which was attributable to the defendant’s negligence. 129.The English Court of Appeal allowed the appeal. Cairns LJ said as follows:
130.MacKenna J also said at pages 899-900 that “…… I would deduce this rule from the cases. Where the guilty party of the prior negligence has created a dangerous situation, and the danger is still continuing to a substantial degree at the time of the accident, and the accident would not have happened but for the continuing danger, he is responsible for the accident as well as the party who was subsequently negligent ……” 131.I have no quarrel with the legal principles set out in Ross. Mr Law sought to distinguish Ross by saying the owner/driver of the jack-knifed lorry was held liable for the continuing danger presented by the jack-knifed position of such lorry that was negligently caused of its driver because he did nothing to abate such continuing danger even though other drivers tried to illuminate the obstruction scene to alert oncoming traffic. But given my finding that the Coach was not stopped entirely within the Road Shoulder at the Location but encroached upon the 4th Lane, it necessarily presented a continuing obstruction and danger for oncoming traffic (including the Container Truck) on the 4th Lane of eastbound Dongguan-Foshan Expressway. I agree with Ms Lee that the Accident would not have occurred but for such obstruction since the Container Truck was travelling on the 4th Lane (and not, as Zhu alleged, on the Road Shoulder), and the obstruction being part of the Coach that protruded onto the 4th Lane created a continuing danger which the carelessness of the Truck Driver / Deng did not remove. In coming to this conclusion, I also refer to and rely on the discussions and findings in relation to the Warning Sign and the hazard lights in paragraphs 133-141 below. Suffice to state here that Zhu took insufficient steps to abate the continuing danger posed by the obstruction that was caused by the stopped Coach that encroached on the 4th Lane. 132.Lei said when she overheard the Driver / Zhu talking on the telephone about some problem with the water tank of the Coach and a need for the Coach’s passengers to transfer to another CB Coach Bus, “其實當時 [Coach] 仍然未上大橋 [ie Dachong Bridge], 大有其他比意外地點 [ie Location] 更適合的地方停泊 [Coach] ……”, and it was about 5 minutes later when “…… 已經在大橋 [ie Dachong Bridge] 上 ……” that the Driver / Zhu told the passengers that the Coach had broken down (壞車) so they had to transfer to another CB Coach Bus, and he then stopped the Coach. There was no evidence as to the state of the traffic on the Guangdong-Macau Expressway (including the Right Curve) and/or on eastbound Dongguan-Foshan Expressway at the material time. But using the continuous Recording as a reference (which was weighted in favour of Zhu, D2 and/or D4 since the traffic at the Right Curve in the Recording was somewhat busy), it took almost 5 minutes or so for a vehicle at moderate speed to have travelled from the Guangdong-Macau Expressway at/about Tan Wei Bridge to just after the Merge Point of eastbound Dongguang-Foshan Expressway on Dachong Bridge. In my view, Lei was right in saying there were rendezvous location(s) for the Coach and the Other Coach that were better than the Location for transfer of the passengers/luggage from the Coach to the Other Coach, and, in my view, an example of that was the Wide Section or more particularly the 2nd Wide Section:
133.Hazard lights The Zhu Stmt claimed that “…… 約在8時30分, [Zhu] 駕駛 [Coach] 至事發地點。當 [Zhu] 到達時已見 [Liang] 的 [Other Coach] 已停在該緊急車道 [ie road shoulder] 內, 並着了死火燈。[Zhu] 把 [Coach] 完全駛入該緊急車道 [ie road shoulder] 之後 …… 拉上手制, 並開着死火燈 …… 在停車之後, [Zhu] 把車廂內的所有燈全開, 方便乘客之後下車; 而 [Zhu] 也確認車身外由車頭至車尾的燈號也都一直開着 ……” (my emphasis). In short, Zhu claimed the headlights, tail lights and the hazard lights of the Coach were all switched on when the Coach was stopped on the Road Shoulder. 134.There was no dispute Zhu did switch on the lights in the Coach’s passenger cabin. Under cross-examination, Lei said she was unable see whether the hazard lights of the Other Coach were switched on or not, but after the Accident occurred and the right rear wheel of the Coach had rolled forward to pin P’s right lower limb underneath it, she heard other passengers criticising or rebuking Zhu, saying that the hazard lights of the Coach and the Other Coach were not switched on. So when Mr Law suggested to Lei under cross-examination that Zhu had switched on the hazard lights of the Coach, Lei fairly said “唔清楚”. 135.Under cross-examination, Madam Wong could not remember whether the Coach’s hazard lights were switched on or not at the time of the Accident, “……因為事隔好耐喇 …… 同埋其實當其時都好亂, 好混亂 …… 啲人前前後後喇, 同埋上上落落啲走 [ie boarding and alighting from the Coach], 同埋自己嘅心情都好混亂 ……” 136.Mr Law submitted the post-Accident investigations showed no defect with the Coach’s and the Other Coach’s lighting system (see paragraph 84(c)-(d) above), so there was no reason for Zhu and/or Liang not to switch on the hazard lights of the Coach and/or the Other Coach when (a) the Location was dark and the Road Shoulder was next to the 4-lane eastbound Dongguan-Foshan Expressway, (b) the switch for hazard lights was easily reachable from the driver’s seat, (c) it would take time for the passengers to disembark, retrieve their luggage, and transfer to the Other Coach, and (d) Zhu/Liang being present at the Location also had personal interest to look after their own safety. It was also said that even if the Coach encroached upon the 4th Lane, the fact that all lights of the Coach (including the hazard lights) were blazing would have offered temporary protection until the Warning Sign was placed at a safe distance behind the Coach. 137.Mr Law suggested the evidence adduced by P on the matter of hazard lights (see paragraphs 134-135 above) was weak. But I do not discern evidential weakness simply because of the misfortune in factual witnesses not paying attention to hazard lights whilst in the thick of things, ie the hassle of having to retrieve luggage and the Accident happening upon them. I find P’s, Lei’s and Madam Wong’s evidence honest and credible, and they were at pains to distinguish what they saw for themselves and what they overheard, and to decline descending into guesswork or surmise. Given the overall credibility of P’s, Lei’s and Madam Wong’s evidence and the overall unreliability of Zhu’s account that was untested by cross-examination, I prefer on balance Lei’s hearsay evidence that right after the Accident the onlooking passengers at the scene (who were expected to have been able to see for themseleves whether or not the hazard lights were switched on) complained that the hazard lights of the Coach and the Other Coach were not switched on. I believe Lei, and see no reason for immediate swelling of such criticism by the onlooking passengers at the scene of the Accident if the Coach and the Other Coach were fully lit up. The fortuity of Zhu escaping injury and the misfortune of Liang suffering injury (but there was no evidence where Liang was or what he was doing at the material time) did not add anything further. Whilst Mr Law suggested switching on the hazard lights was a common sense safety measure, the discussions and findings above showed Zhu had been cavalier with passenger/vehicle safety, and Lei herself observed that no Warning Sign was placed behind the Other Coach. These matters did not give confidence that Zhu/Liang had switched on the hazard lights. 138.Warning Sign I have found in paragraphs 114-120 above that Zhu negligently failed to place any Warning Sign behind the Coach, and have rejected his account that he was on his way to get the Warning Sign from the Storage Compartment at the rear of the Coach for such purpose. Even if Zhu’s account were correct (which I disagree), I have found and thus he well knew (a) he had stopped the Coach at an angle with part of it encroaching onto the 4th Lane, and (b) the passengers disembarking from the left-side passenger doors would land close to or onto the 4th Lane before they would, say, move to the Right Side Space, so Zhu ought not to have asked the Coach’s passengers to disembark and/or to retrieve their luggage without his first having placed the Warning Sign at a safe distance behind the Coach. Such act, which could be donely fairly quickly by Zhu, would have been relevant to reducing or removing the risk of harm to the Coach’s passengers from being exposed on the Road Shoulder to potential collision by oncoming traffic when they disembark, retrieve their luggage, walk to the Other Coach, store their luggage again, and board the Other Coach. 139.Ms Lee referred to Yu Shuk Ying and Fong Yin Ha, the co-administratrixs of the estate of Lam Sze Ching, deceased v Proficiency Industrial Products Limited & ors.[49] In that case, the proprietor of a cleaning company hired from the 1st defendant (a) a special purpose truck with a folding crane and jib cabin which could be extended to enable workmen to execute work at height together with (b) the 2nd defendant as operator to drive the truck and to operate the crane. During a cleaning operation in respect of the external wall of a pedestrian walkway, the proprietor (doing cleaning) and the operator (operating crane) were in the jib cabin of the extended crane when a double decker bus owned by the 3rd defendant and driven by the 4th defendant hit the jib cabin throwing both the proprietor and the operator out of the jib cabin onto the ground. The proprietor died for injuries as a result of the accident, and his widow sued. 140.Suffiad J found the immediate cause of the accident was the failure of the bus driver to keep a proper lookout, ie he failed to see/ notice the crane’s jib cabin dangling below the pedestrian footbridge. The learned judge further found the proprietor had asked the operator to extend the jib of the crane out to the middle of the road to enable him to clean some dirt on the pedestrian footbridge’s external wall. The operator mentioned this would have necessitated cones being placed on the road to block off traffic, but when the proprietor said it would take less than 3 minutes to clean the spot, the operator decided not to place the cones and/or turn on the hazard lights of the truck that was parked on the pavement or other warning lights to alert oncoming traffic the jib cabin was in the middle of the road. The learned judge concluded at page 11 that “…… [however], a further and possible equally significant cause of the accident, from the facts found, must be the failure to warn other road users of the fact that there was such an operation going on at that part of the road which posed a danger or hazard to motorist using the road, and/ or the failure to close off that part of the road in which the operation was being carried out ……” Thus, both the operator and the bus driver were found to have been negligent (and their employers were thereby vicariously liable) in causing the accident, and the learned judge apportioned liability of 30% to the proprietor. 141.Whilst each case must be decided on its own facts, Yu Shuk Ying and Fong Yin Ha, the co-administratrixs of the estate of Lam Sze Ching, deceased helpfully pointed out the importance of giving warning (by warning signs and hazard lights) of obstruction on the roadway that posed a continuing danger to other road users, which supported my conclusions in the present action in relation to the hazard lights and the Warning Sign. 142.Transfer P complained that at the time of the Accident the Location was dark, the situation was confusing and the Driver / Zhu “…… 冇統籌乘客轉車”. Under cross-examination, P said Zhu stopped the Coach at the Location, which was a dangerous spot, so “…… [Zhu] 應該有責任可能就係叫近車門乘客先落車喇, 然後就幫佢哋攞行李喇, 然之後就過車喇。然之後, 即係前、中、後咁樣去分囉, [P] 覺得應該係。而唔係 …… 開咪話架車有問題, 落車, 過車, 咁樣囉 ……” He acknowledged that proceeding in such manner would have taken a longer time, “…… 但係安全先係最重要嘅 …… [P] 覺得, 如果 [Driver / Zhu] 幫乘客攞, 總好過畀所有乘客一窩蜂咁走去攞行李囉 ……” 143.Mr Law submitted the difficulty with P’s complaint that Zhu failed to take orderly steps to control the chaos and confusion among the Coach’s passengers in retrieving their luggage from the Luggage Compartment, to put the Coach’s passengers at a safe location away from the expressway and/or to assist in manhandling their luggage from the Coach to the Other Coach was that Zhu could not have done all such acts at the same time. It was also said the Coach was stopped on the Road Shoulder at the Location on eastbound Dongguan-Foshan Expressway in the evening without highway lighting, so there was simply no safe location nearby to act as temporary shelter for the passengers, hence obtaining the Warning Sign from the Storage Compartment and placing it at a safe distance behind the Coach would have been Zhu’s “first and utmost priority task”, but the collision/Accident happened before he completed such task. 144.In my view, if taking out and placing the Warning Sign behind the Coach were Zhu’s “first and utmost priority task”, it was strange that he would have opened the left-side passenger doors and the left-side and right-side doors of the Luggage Compartment with directions to the Coach’s passengers to disembark and retrieve their own luggage for transfer to the Other Coach without having first obtained and placed the Warning Sign behind the Coach. In my view, this would have been a reasonable step to take as there would have been less risk of harm by keeping the Coach’s passengers (including P) in the passenger cabin protected by the Coach’s bodywork rather having them all out in the open on the Road Shoulder with limited width/space. Mr Law in his oral closing submissions suggested the Coach’s passengers would not necessarily have avoided injury by staying inside the passenger cabin (eg passengers seated in the last row might be hurt as a result of collision against the rear of the Coach when there was no evidence whether the Coach was equipped with seatbelts or not). Such submissions were not understood as (a) P/Lei were actually seated at the front and not at the back of the Coach, (b) there was no evidence of any effect on the passenger cabin of the Coach and/or any passengers inside the passenger cabin as a result of the Coach being hit in the rear and was thereby pushed forward, (c) the type of injury P suffered (ie the Coach’s right rear wheel rolling over and pinning his right lower limb underneath) would have been avoided, and (d) a tortfeasor could not escape liability in negligence by saying there might still be possible risk of some other type of injury if a reasonable precautionary step that could have avoided the forseeable injury in question was not taken. After all, a defendant is liable in negligence if he causes damage that is not too unforeseeable as to be too remote as a result of breach of his duty of care. In my view, the fact it was contemplated in paragraph 117 above that Zhu might have “waited for all passengers to leave the Coach” before Zhu “commenced his route to the rear” to fetch the Warning Sign suggested his lack of appreciation of the real risk of being exposed on the limited space at the Road Shoulder that was not wide enough to entirely accommodate the Coach, and reasonable precaution required in relation thereto. 145.In my view, Zhu should have taken reasonable steps to keep the Coach’s passengers out of harm’s way when eastbound Dongguan- Foshan Expressway at the Location had no highway lighting and when the Coach encroached upon the 4th Lane. As Ms Lee submitted, Zhu knew the Warning Sign had not been set up when he told the passengers on the Coach to disembark and to retrieve their luggage. In my view, what he should have done was to ask the passengers to remain in the passenger cabin whilst he switched on the hazard lights, bring out his torch, and fetch the Warning Sign to place it at a safe distance behind the Coach before returning to the passenger cabin to give directions for the passengers to disembark and to retrieve their own luggage in an orderly fashion. It would not have taken long to do this, but Zhu did not switch on the hazard lights, and did not place the Warning Sign before he asked the passengers to disembark and to retrieve their luggage. I agree with 道路交通事故認定書 that Zhu’s negligent failure to properly place the Warning Sign causally contributed to the Accident. 146.Ms Lee suggested Zhu should have asked the disembarked passengers to stay at a safe location sufficiently far away from the expressway to safeguard their safety. In my view, there was little room at the Location other than the Right Side Space for the disembarked passengers of the Coach to gather given the limited width of the Road Shoulder, the large dimensions of the Coach, and the lack of standing room or temporary shelter outside the concrete barrier as eastbound Dongguan-Foshan Expressway was elevated on Dachong Bridge. This highlighted the importance of putting in place the Warning Sign and switching on the hazard lights before the passengers disembarked. It also showed the Location was undesirable, and Zhu should have stopped the Coach elsewhere (see paragraph 132 above). 147.As for P’s evidence under cross-examination that since the Coach had stopped at a dangerous Location, Zhu should have asked the passengers nearest to the passenger door(s) to disembark first and then the other passengers to disembark in orderly batches, I see the practical good sense of this approach, and I am not persuaded this would have delayed matters. Having all passengers milling around the opened left-side and right-side doors of the Luggage Compartment trying to get to their own luggage would not have been conducive to speed and efficiency either. But that said, I am not persuaded Zhu had the obligation to take up sole responsibility of retrieving the passengers’ luggage from the Luggage Compartment, and he was not negligent in not doing so when he had other matters to attend to, eg making arrangements with Liang for transfer of the Coach’s passengers/luggage and/or checking out the Coach’s suspected mechanical problem and its roadworthiness. 148.Summary In the premises, I have no hesitation in coming to the conclusion that Zhu was negligent and that he was also liable for the Accident (irrespective whether Deng driving the Container Truck was also negligent and liable (or even primarily liable) for causing the Accident). Since it had not been pleaded that P was in any way contributorily negligent, P’s case must prevail in relation to the Accident. But were D2/D4 liable? (j) Corporate Issue 149.P’s claim against D2/D4 sounded in both contract and in tort. 150.Contractual claim For P’s Coach Trip from ZS to HK on board the Coach on the day of the Accident, there could not be any dispute there was a contract for services between the service provider of the Coach Trip and P as passenger of the Coach. The relevant questions were (a) who was the service provider of the Coach Trip under the Service who contracted with P, and (b) whether such service provider contracted with P to provide the Coach Trip under the Service or whether it contracted with P as agent for another contractor to provide the Coach Trip under the Service. 151.P’s claim Ms Lee’s written final submissions relied on P’s 3rd case and the 2nd Alternative Contract that claimed inter alia that D2 and/or D4 was/were the contracting service provider(s) of P’s Coach Trip by the Coach from ZS to HK on the day of the Accident. Although P had no personal knowledge of D2 and D4 (save that he would choose to travel on the CB Coach Buses bearing logos/signs of 香港中國旅行社 (China Travel Service) that were driven by uniformed drivers for their greater cleanliness, tidiness and comfort, especially for the CB Coach Bus trips from ZS to HK under the Service that he usually took by boarding the CB Coach Bus that would make a scheduled stop at the ZS Bus Stop at/about 7:30pm to pick up passengers (“7:30 ZS/HK Trip”)), P relied on P’s Bus Ticket being a bearer Bus Ticket (自由票 – see clause 5 on the reverse of the cover of P’s Ticket Package (E/546)) and paragraph 181(h) below) in the pre-purchased P’s Ticket Package that entitled him to travel on the Coach for the Coach Trip to prove his contractual relationship with D2/D4. Indeed, Mr Wong in the Wong Aff and under cross-examination agreed P’s Bus Ticket was the contract between the service provider of the Coach Trip under the Service and P. On such basis, P contended that D2 and/or D4 owed him (as passenger) a primary and non-delegable duty to provide the Coach Trip under the Service with reasonable care and skill (see also other implied terms of contract in paragraph 5(e)(i)-(iii) above). 152.D2’s/D4’s defence D2’s/D4’s pleadings denied they were the service providers of the Coach Trip from ZS to HK on the day of the Accident. D2 pleaded P purchased P’s Ticket Package from a travel agent of 中港通 (ie D3 – see paragraph 10(d)(v) above), and the Mr Wong WStmt also claimed P purchased P’s Ticket Package for the Service between ZS and HK from “…… 一家第三方旅行社 ……” Upon reading the contents on the reverse of an unused Bus Ticket (E/550) in P’s Ticket Package (which contents were the same as those on the reverse of P’s Bus Ticket that was used for the Coach Trip (E/548)) during cross-examination, Mr Wong reiterated such unused Bus Ticket (and thus P’s Bus Ticket) “…… 係第三方公司賣出嘅車票嚟 ……” Consequently, the Mr Wong WStmt claimed this meant P’s Ticket Package (and thus the Bus Tickets therein including P’s Bus Ticket) “…… 並非由 [D2] 及/或 [D4] 提供, [P] 與 [D2] 及/或 [D4] 均沒有任何交易, 所以 [Wong] 認為 [P] 與 [D2] 及/或 [D4] 之間不存在合同關係 ……” 153.Mr Law’s written closing submissions contended “…… [the Bus Tickets] under the Co-operation Agreement were printed by Chinalink. In 2013, [P] bought [P’s Ticket Package] from other company not related to D2 or D4. Two [Bus Tickets] from [P’s Ticket Package] used by P and his wife to make the scheduled [Coach Trip] on 22.10.13 at 7.30 pm departed the Communications Building, [ZS][50] …… In the present case, [P] bought the [Bus Tickets] from a third-party company / travel agency instead from D2 and/or D4. In other words, by such purchase per se there could be no contractual relationship between [P] and D2 and/or D4”. 154.I pause to note there was no evidence that the Bus Tickets under the Co-operation Agreement was printed by “Chinalink” (ie presumably D3) who together with D4 were the 2 joint operators of the Service under the Co-operation Agreement. Moreover, D2/D4 in their pleadings did not plead any positive case as to who was/were the actual service provider(s) of the Coach Trip under the Service who contracted with P, but Mr Wong under cross-examination claimed深圳和興中港運輸有限公司 (“SZ Hexing”) was the registered owner of the Coach in Mainland China, so the Coach Trip from ZS to Shenzhen Bay (ie the Mainland China leg of the CB Coach Bus trip from ZS to HK under the Service) by the Coach that picked up passengers (including P/Lei) at the scheduled stop at the ZS Bus Stop at 7:30pm on the day of the Accident (ie the 7:30 ZS/HK Trip) “…… 唔係D4提供嘅服務, 服務係和興 [ie SZ Hexing] 提供㗎嘛 ……” 155.Mr Law in his written closing submissions also contended that for the 7:30 ZS/HK Trip on the day of the Accident (ie the Coach Trip), “the [Service] was carried out by [the Coach] owned by [SZ Hexing] and driven by Zhu who was employed by 深圳市港中旅快線運輸有限公司 …… [P] and his wife were on board the Coach for the scheduled service …… Further, the fact that [P] boarded the coach owned and operated by [ZS Hexing] ought to be taken that he entered into a contractual relationship with [SZ Hexing]; whereas the relationship between D4 and [SZ Hexing] was one of “transfer of passenger” relationship (乘客轉乘關係)”. 156.2 matters arose out of D2’s/D4’s pleadings and Mr Law’s submissions stated above:
157.In short, D2/D4 claimed there was no contract between P and D2/D4 because (a) P purchased P’s Ticket Package (and hence P’s Bus Ticket) from a third party company or travel agent and not from D2/D4 (“Third Party Seller Defence”), and/or (b) the Mainland China leg of the Coach Trip under the Service provided by the Coach registered in the name of SZ Hexing (and not under the name(s) of D2/D4) and driven by Zhu who was employed by 深圳市港中旅快線運輸有限公司 (and not by D2/D4) was not any service provided by D2/D4 under contract with P (“Mainland China Party Defence”). 158.Before I turn to the Third Party Seller and the Mainland China Party Defences, it is useful to first set out the relevant legal principles. 159.Legal principles: contracting as principal or for others In my view, given there was no dispute that P’s Bus Ticket was the contract between the service provider of the Coach Trip under the Service and P as passenger (see footnote 2 above and paragraphs 181(e)(iv) and 203 below), clearly P as passenger made an invitation to treat by asking for P’s Ticket Package (and the Bus Tickets (including P’s Bus Ticket) therein) to be issued to him, and the offer contained in the Bus Tickets in P’s Ticket Package was made to and accepted by P as passenger either by retention of the Bus Tickets in the Ticket Package without objection, or, more probably, when he claimed the Coach Trip offered by P’s Bus Ticket by reserving a seat (either seat no 5 or no 6 – see footnote 46 above) and/or by boarding the Coach for the Coach Trip. 160.As for the relevant legal principles on identification of the contracting service provider, the nature of the contract for services and the relevant implied terms, Ms Lee referred me to a number of English and local authorities, and Mr Law also made observations on such cases. 161.In Wong Mee-wan, the Administratrix of the estate of Ho Shui-yee, deceased v Kwan Kin Travel Services Limited & ors,[51] the deceased went on holiday in Mainland China by joining a package tour offered/organised by the 1st defendant (HK company). The tour group was accompanied by a tour leader employed by the 1st defendant. On crossing the border, the tour group was joined by an employee of the 2nd defendant who said he was their tour guide. The tour group missed a scheduled ferry, so they crossed a lake by speedboat. The deceased was thrown into the water and drowned when the speedboat driven negligently by the employee of the 3rd defendant hit a fishing junk. “The issue is thus whether in this particular contract the first defendant undertook no more than that they would arrange for services to be provided by others as their agents (where the law would imply a term into the contract that they would use reasonable care and skill in selecting those other persons) or whether they themselves undertook to supply the services when, subject to any exemption clause, there be implied into the contract a term that they would as suppliers carry out the services with reasonable care and skill ……” (page 545). Thus, a distinction was drawn between a contract whereby the contracting party agreed merely as agent to arrange for services to be provided, and where the contracting party undertook to supply the service. 162.Lord Slynn of Hadley in giving the opinion of the Privy Council observed that the mere fact some or all of such services were provided by a third party (ie not the contracting party) would not provide a complete answer, and he explained at page 545 as follows:
He went on to say it was a matter of construction whether a party undertook no more than to arrange for services to be provided by others as its agents or whether it undertook to supply the services itself (page 546). 163.It was held in that case the 1st defendant’s brochure contained the contractual terms between the deceased and the 1st defendant (page 548), and the itinery therein clearly showed it was always the 1st defendant’s intention that parts of the package tour would be carried out by others and, in particular, in their respective spheres, by the 2nd and 3rd defendants. Indeed, the deceased might have appreciated that someone other than the 1st defendant would carry out some parts of the tour. But that was not the end of the matter, for the court still had to go on to consider whether the 1st defendant was merely “arranging” the tour so that it undertook no liability to take reasonable care in selecting those who provided the services or at most a liability to take reasonable care in selecting the service providers (page 549). The heading and contents of the 1st defendant’s brochure indicated it was the 1st defendant who had undertaken the task of supplying the package tours and who integrated the company into each stage of the tour, eg (a) there was nothing to indicate the tour guide who accompanied the tour group was other than an employee of the 1st defendant, (b) the price covered transportation that was included in the itinery (eg trip across the lake), and (c) it was the 1st defendant who had the right to change the means of transport provided in the itinery (pages 549-550). Thus, the Privy Council concluded that (page 550):
164.In Rogers v Night Riders (a firm) & ors,[52] which was cited in Wong Mee-wan, the Administratrix of the estate of Ho Shui-yee, deceased, the relevant defendants were 2 firms under the same management and control who operated a minicab service. They hired radios to car-hire drivers, and ensured the drivers on their list had held a licence for at least 2 years and had their own private hire insurance, but the drivers owned, maintained and controlled their own vehicles. The plaintiff by her mother telephoned the defendants to ask for a minicab to take her and her father to the railway station. The telephonist, who answered the call giving the name “Night Riders”, said a vehicle would be on its way. A vehicle subsequently arrived at the plaintiff’s home. In the course of the journey to the railway station, the door on the plaintiff’s side flew open, struck a stationary vehicle and rebounded, injuring the plaintiff. The trial judge found the driver was negligent in failing to properly maintain the vehicle, but further found the driver was an independent contractor and principal, so the defendants were not liable for his negligent acts. 165.The English Court of Appeal allowed the appeal, holding that on the facts the defendants had held themselves out to the general public as a car-hire firm undertaking to provide a vehicle to convey the plaintiff to her destination. Everleigh LJ said as follows (page 328):
166.Dunn LJ agreed and said as follows (page 331):
167.The above authorities emphasised that for the service provider to escape liability it was important to bring to the attention of the claimant that it was not the true service provider and the service would actually be performed by someone else. In Craven et al v Strand Holidays (Canada) Ltd et al,[53] also cited in Wong Mee-wan, the Administratrix of the estate of Ho Shui-yee, deceased, the plaintiffs were injured in Columbia when a bus in which they were travelling overturned as a result of an unforeseeable blow-out, which had nothing to do with the contracted for quality of the travel arrangements. The bus trip was arranged by the defendant as part of a tour package bought by the plaintiffs. In accordance with Columbia law, the defendant was not allowed to deal directly with the local transportation companies, and was required to arrange for transportation services through an appointed government travel agent. The defendant’s brochure gave an “Importance Notice” that:
168.The cause of the accident was the carelessness of the bus driver. The jury found there was negligence on the part of the defendant. The trial judge gave judgment for the plaintiffs. On appeal to the Ontario Court of Appeal, the appeal was allowed and a new trial was ordered. It was held there was no implied term in contract between the parties that the plaintiffs would be carried safely, and any such term would have been excluded by an exemption clause. Further, the jury’s answer suggested the negligence lay in the way the bus was driven, but since the defendant was only liable if it had been negligent in selecting the bus operator, there was no causal connection between any negligence there might have been on the part of the defendant and the accident, so a new trial was required to determine this issue. 169.Lacourciere JA explained the relevant principles as follows:
170.In Chea Kam Wing v Kwan Kin Travel Services Ltd,[54] the plaintiff was a member of a tour group travelling on a package tour to Taiwan organised by the defendant. He sustained injuries when the double-decker coach in which the group was travelling crashed due to the negligence of its driver. The plaintiff sued the defendant on the basis of the driver’s negligence. The defendant argued it was merely the plaintiff’s agent to arrange for the tour to be supplied by others, including Z which entered into an agreement with the defendant to implement the itinery. Z then subcontracted the provision of transport to another company who in turn subcontracted it to another company. The defendant inter alia relied on references in the contractual documents constituting the contract between the plaintiff and the defendant to the provision of part of the services that provided as follows: “The transport, accommodation …… meals, sightseeing or entertainment programmes arranged by our company for the tour members are not owned, managed or operated by [the defendant] ……” The defendant further relied on the itinery which formed part of the contractual documents that “flights shall be subject to the arrangement of the airline company” and that the “itinery shall be subject to arrangement of local receiving units”. 171.DHCJ Longley found the defendant liable to the plaintiff for personal injury damages. Citing Wong Mee-wan, the Administratrix of the estate of Ho Shui-yee, deceased, the learned judge drew a distinction between (a) where the defendant was simply acting as a travel agent arranging the tour with others as the plaintiff’s agent in which case the likely consequence was that it undertook no liability for Z and others in providing the goods and services or at most a liability to take reasonable care in the selection of those providers, and (b) where the defendant had undertaken itself to supply the services, there would be implied into the contract a term that it would as supplier carry out the services with reasonable skill and care even if it had arranged for others to carry out all or part of the services (pages 942-943). 172.In that case, the learned judge held there was overwhelming evidence that the defendant was itself the organiser and provider of the tour although it had engaged others to perform part of the services it had contracted to supply.[55] DHCJ Longley went on to say as follows (pages 945-946):
173.Legal principles: sale of travel tickets As to the legal effect of the sale of travel tickets, eg coach bus ticket or railway ticket, in relation to the contract for services, Ms Lee referred me to Fang Guo Quan & anor v Choi Ming Sang & anor.[56] In that case, the plaintiff were passengers on a coach travelling from HK to Guangzhou (“GZ”), Mainland China on tickets bought at the 2nd defendant’s office in HK. The coach (driven by the 1st defendant) was travelling on the Guangzhou- Shenzhen Highway when it was involved in an accident as a result of which the plaintiffs suffered personal injuries. The 2nd defendant claimed to have sold coach tickets for and on behalf of its principal, which company was the registered licence holder of the coach, and also provided the coach, the driver and insurance coverage in Mainland China (paragraph 4(b)). 174.In Fang Guo Quan & anor, the plaintiffs’ counsel conceded the 2nd defendant was not liable under contract if at the material time the plaintiffs knew that the 2nd defendant was only agent for its principal, and the 2nd defendant’s counsel conceded the 2nd defendant could be held liable under contract if at the material time the plaintiffs did not know the 2nd defendant was only agent for its principal (paragraph 14(d)-(e)). In paragraph 15 of his judgment, DDJ J Wong (as he then was) applied the principles in Wong Mee-wan, the Administratrix of the estate of Ho Shui-yee, deceased, Foulkes v The Metropolitan District Railway Company[57] and Rogers to the facts, and found and concluded as follows:
175.In Foulkes, which was cited in Fang Guo Quan & anor, the defendants had running powers over the South Western Railway between Hammersmith and the New Richmond station of the South Western Railway Company. Above the booking office at the New Richmond station were the words “South Western and Metropolitan Booking Office and District Railway”. The plaintiff took from the clerk there employed by the South Western Railway Company a return ticket to Hammersmith and back. The ticket was not headed with the name of either company, but bore on it the words “Via District Railway”. On his return journey from Hammersmith to Richmond the plaintiff travelled with his ticket in a carriage of a train belonging to the defendants and under the management of their servants. The carriage being unsuited for the New Richmond station platform, the plaintiff, on alighting there, fell and was hurt. He brought an action against the defendants, and the jury found negligence in them. It was held that having invited or permitted the plaintiff to travel in their train, the defendants were bound to make reasonable provision for his safety; and that there was evidence of their liability, even assuming the ticket not to have been issued by or for them, but by the South Western Company. 176.Grove J at pages 275-276 said as follows:
177.Lopes J at page 281 said as follows:
178.More usefully, Lopes J set out an illustrative example that illuminated the legal principles as follows (page 282):
179.D2/D4 and involved parties The starting point would be the following admitted facts by D2 and D4:
180.The Mr Wong WStmt further claimed (a) “…… 有關 [Coach] 於內地的一切營運, 包括安全培訓、司機管理、車輛維修、購置保險等管理工作都由內地 [SZ Hexing] 和深圳港中旅快線運輸有限公司 [ie Zhu’s and Liang’s employer] 負責 ……”, (b) D4 and SZ Hexing “…… 是客人轉乘關係, 兩者都是獨立法人管理公司 ……”, and (c) “…… 有關 [Other Coach] 的營運, 是由 [廣東僑旅客運服務有限公司] 負責 ……” 181.Business arrangements for the Service Taking into account D2’s/D4’s stance and admissions in paragraph 179 above, the Mr Wong WStmt in the above paragraph, and further evidence provided by Mr Wong in the D4 Chart and under cross-examination, I find on balance that the business arrangements for the Service were as follows:
182.On the aforesaid factual context, I turn to consider P’s claims, firstly against D4, and then against D2. 183.P’s Ticket Package / P’s Bus Ticket The P 1st WStmt explained that since P visited ZS quite often, he would buy Ticket Packages rather than individual Bus Tickets to enjoy the discount offered. In/about September 2013, P purchased a buy 10 rides get 1 free ride Ticket Package for the CB Coach Bus trips between ZS and HK (ie P’s Ticket Package) (E/545-559, E/560-574 and E/574-1 – 574-2). The P 1st WStmt said P purchased P’s Ticket Package at “太子991BUS的站頭”, but the P 2nd Aff clarified the purchase was made at a shop at Playing Field Road (運動場道) near to Prince Edward MTR Station and Mongkok Police Station (“Prince Edward Shop”), but by February 2016 the Prince Edward Shop was no longer to be found at such location, which was then occupied by another shop unrelated to the Service. 184.The Mr Wong WStmt claimed P purchased P’s Ticket Package from “…… 一家第三方旅行社 ……” and not from D2/D4, and under cross-examination Mr Wong confirmed upon review of an unused Bus Ticket (E/550) in P’s Ticket Package (which was the same as P’s Bus Ticket used for the Coach Trip (E/548)) that “…… 係第三方公司賣出嘅車票嚟 ……” For the present purpose, I accept and find that P purchased P’s Ticket Package and P’s Bus Ticket therein not from D1, D2 and/or D4 but from the Prince Edward Shop being a travel agency that was the selling agent for D3 in respect of the Service under the Co-operation Agreement. But did it then follow, as D2/D4 suggested, that the contracting service provider for the Coach Trip was not D2/D4 (see paragraphs 150 and 157 above)? In my view, it did not. 185.P’s Ticket Package and P’s Bus Ticket did not expressly name in narrative form which company issued the Bus Tickets and/or operated the Service between ZS and HK. Certainly, P’s Ticket Package and P’s Bus Ticket did not name in narrative form, by diagrammatic cross-reference and/or any other hint to the Prince Edward Shop, SZ Hexing and/or 深圳港中旅快線運輸有限公司. However, the cover page of P’s Ticket Package and the front page of P’s Bus Ticket on their face showed inter alia the following, which (in my view and putting D2 aside for the moment) clearly referred to at least D3 and D4:
186.As alluded to in paragraph 185 above, there was no mention or reference in P’s Ticket Package and P’s Bus Ticket of or to any other company or service provider for the scheduled CB Coach Bus trips (班次) between ZS and HK under the Service. Indeed, Mr Wong agreed that 乘客條款 on the reverse of P’s Bus Ticket (E/548) which time and again referred to “本公司” did not name “…… 其他嘅公司係提供呢一個嘅乘車服務 ……” But various clauses of 乘客條款 on the reverse of P’s Bus Ticket that mentioned “本公司” plainly integrated “本公司” into all stages/aspects of the CB Coach Trips between ZS and HK under the Service, eg “…… 本公司歡迎解答有關客人對過關證件方面的查詢” (clause 1), “…… 客人需要在登車前出示有效過關證件給予本公司職員檢查” (clause 2), “客人 …… 不能准時到達, 本公司恕不負責” (clause 3), “本公司在中港兩地均有購買第三者乘客保險 ……” (clause 4), “…… 如超過規定, 本公司有權向乘客收取行李費” (clause 7), “所有旅客之行李 …… 如有任何遺失, 本公司恕不負責” (clause 8), “本公司有權單方面修改此《乘客條款》內任何條款及擁有最終解釋權” (clause 10), and “如有任何遺失, 本公司恕不負責” (clause 14). In my view and putting D2 aside for the moment, “本公司” for the purpose of the Service particularly between ZS and HK could only have been referable to D3 and D4 identified on the cover page of P’s Ticket Package and the front page of P’s Bus Ticket as explained in paragraph 185(a) and (c) above. 187.More importantly, there was no suggestion in P’s Ticket Package and P’s Bus Ticket (including 乘客條款 on the reverse of the Bus Tickets) of any intention that all or part of the CB Coach Bus trips under the Service between ZS and HK would be carried out by others, eg the Mainland China leg of such CB Coach Bus trips under the Service between ZS and HK would be carried out by SZ Hexing. In my view and again putting D2 aside for the moment, P’s Ticket Package and/or P’s Bus Ticket plainly showed it was D3 and/or D4 who had undertaken provision of the Service between ZS and HK and who integrated their companies into such Service by the various powers, authorisations and rights of “本公司” in 乘客條款 as explained in the above paragraph. In my view and putting D2 aside for the moment, any reasonable reader (and/or P) would not have appreciated from P’s Ticket Package and/or P’s Bus Ticket that some party other than D3 and D4 would have been the service provider. It was not suggested, as Everleigh LJ put it in Rogers, that D3 and D4 were just a post box to put P in touch with someone else with whom he would have made an independent contract (see paragraph 165 above). P was not told the Coach was not registered in the name of D2/D3/D4 in Mainland China, the Driver / Zhu was not employed by D2/D3/D4, and/or the Mainland China leg of the Coach Trip would practically be provided by ZS Hexing and 深圳港中旅快線運輸有限公司. The contractual terms and/or the situation were far different from those in Craven et al when third party involvement and arrangements for the services had been brought to the attention of the plaintiff, ie the plaintiff was told the relevant services would be provided by someone else (see paragraphs 167-169 above). Again, putting D2 aside for the moment, in P’s Ticket Package and/or P’s Bus Ticket D3 and D4 were held out as service providers who undertook to provide the Service between ZS and HK, ie to provide a CB Coach Bus and a driver to take P from ZS to his destination in HK, and not (as Everleigh LJ put it in Rogers) to put P “in touch with someone else who would undertake the obligation” (see paragraph 165 above). This was also consistent with the business features of the Co-operation Agreement as founded in paragraph 181(iv)-(v) above such that D3 and D4 mutually recognised the bearer Bus Tickets in the Ticket Packages (whether they were sold by D3’s or D4’s selling agents) by (a) D3 and D4 having to carry the passengers who presented such tickets (with reserved seats) to their destinations (ZS or HK) on whichever scheduled CB Coach Bus trips (班次) they wished to take and whether on D3’s or D4’s CB Coach Buses, and (b) the passengers who wished to take particular scheduled CB Coach Bus trips (班次) having to board the CB Coach Buses stopping at the scheduled bus stops at the scheduled times for such scheduled CB Coach Bus trips (班次) whether they were operated by D3 or by D4. 188.In my view, putting D2/D3 aside for the moment, had P’s Ticket Package and P’s Bus Ticket therein been sold by D4 and not by the Prince Edward Shop being D3’s selling agent for CB Coach Bus tickets for the Service under the Co-operation Agreement, I have no doubt that D4 was a service provider for the Coach Trip who contracted with P. This was obvious from the guidance in the authorities in paragraphs 159-172 above. Plainly P would have been dealing with D4 as a travel service company that provided cross-border passenger transportation service, and not D4 as an agent to put him in touch with someone else with whom he made an independent contract of carriage. In those circumstances, D4 would have had an obligation/duty to see that reasonable care and skill was deployed to see P safely to his destination, and the fact D4 arranged for SZ Hexing and 深圳港中旅快線運輸有限公司to perform the Mainland China leg of the Coach Trip would not have absolved D4 from his contractual obligation/duty. D4 relied on the Driver / Zhu as a third person (and it mattered not that he was an employee, an independent contractor or an employee of an independent contractor) to perform such obligation/duty, so D4 must have failed in their obligation/duty, which was non-delegable, for I have found the Coach Trip was not provided with reasonable care and skill in view of Zhu’s negligence that was a contributive cause of the Accident. 189.But would the conclusion be different when (a) P’s Ticket Package (and P’s Bus Ticket therein) was sold by the Prince Edward Shop being D3’s selling agent of the Bus Tickets for the Service under the Co-operation Agreement (ie the Third Party Seller Defence), (b) D3 was also a joint operator of the Service under the Co-operation Agreement and also (as seen in paragraph 185(a) below) a service provider of the Service between ZS and HK as identified by the dragon logo with the Chinese characters “中港通” on P’s Ticket Package and P’s Bus Ticket, and (c) the Mainland China leg of the Coach Trip was actually performed by the Coach that was registered in the name of SZ Hexing and by Zhu who was employed by 深圳港中旅快線運輸有限公司 (ie the Mainland China Party Defence)? In my view and as seen below, (a)-(c) above would not have lessened or removed D4 contractual obligation/duty vis-à-vis P. 190.Third Party Seller Defence The question in paragraph 189(a) above concerned P’s purchase of P’s Ticket Package (and P’s Bus Ticket therein) from the Prince Edward Shop which was D3’s selling agent of the Bus Tickets for the Service under the Co-operation Agreement. For reasons below and again putting D2 aside for the moment, I find the question must be answered in the negative:
191.D3 as joint operator of the Co-operation Agreement In light of the discussions and findings in paragraph 190(b)-(c) above, there was real probability that D3 as joint operator of the Service under the Co-operation Agreement that nominated the travel agencies as ticket selling agents (eg the Prince Edward Shop) to sell the Ticket Packages and the Bus Tickets therein (eg P’s Ticket Package and P’s Bus Ticket) for the Service operated by D3 and/or D4 (eg the Coach Trip operated by D4) was also a service provider who contracted with P. In my view, D3 was in this sense akin to railway A. in the illustration by Lopes J save that P’s Ticket Package (and P’s Bus Ticket therein) was not sold directly by D3 (as in the case of railway A. in the illustration) but by D3’s ticket selling agent on D3’s and D4’s behalf, but this would not have lessened or removed D3’s legal obligation/duty when P’s Ticket Package (and P’s Bus Ticket therein) clearly informed the passenger (ie P) that D3 and D4 were the service providers of the Service (if D2 was to be put aside for the moment). The illustration by Lopes J also made clear that railway A. and railway B. were both liable to the injured passenger. Here, the fact that D3 was probably also contractually liable to P (but it is unnecessary for me to come to any finding) would not have lessened and/or excluded D4’s contractual obligation/duty to P. 192.In all the circumstances and on balance, I reject the allegations in the Mr Wong WStmt that P’s Ticket Package (and P’s Bus Ticket therein) “…… 並非由 [D2] 及/或 [D4] 提供, [P] 與 [D2] 及/或 [D4] 均沒有任何交易, 所以 [Wong] 認為 [P] 與 [D2] 及/或 [D4] 之間不存在合同關係 ……” 193.Mainland China Party Defence On 22 October 2013, P and Lei used 2 Bus Tickets from P’s Ticket Package[59] to board the Coach that stopped at the ZS Bus Stop at/about 7:30pm. The Coach Trip was the 7:30 ZS/HK Trip which was the 18th scheduled 班次for the Service from ZS to HK that day. P/Lei intended to disembark at their destination in HK, ie the bus stop opposite D1’s branch office at Southorn Centre, Wanchai. The staff at the ZS Bus Stop put the date/time chop (ie 7:30pm on 22 October 2013) on P’s/Lei’s Bus Tickets and assigned seats nos 5-6 on the Coach for P/Lei. Earlier in the afternoon on that day, P himself wrote down the Chinese characters “交通”, “灣仔” and “灣” on his/Lei’s Bus Tickets when he telephoned to reserve seats on the Coach. 194.There was no dispute the Coach Trip (ie the scheduled 7:30 ZS/HK Trip that was the 18th “班次” that day) under the Service was, pursuant to the Co-operation Agreement, divided unto and operated by D4. Quite irrespective of the dispute over the authenticity of the Archived Webpages of the Website, Mr Wong in his testimony under cross-examination confirmed that as a matter of fact “…… D3同D4聯營嘅過境巴士服務 [ie the Service] 嘅呢一條線 [ie the CB Coach Bus trips from ZS to HK] 嘅所有嘅班次就係喺呢一頁 [ie Archived Webpage at E/588] 可以見到嘅 ……”, “…… 包括咗 …… D3嘅班次 ……” and those of D4 as well, and Mr Wong went on to give evidence that “…… 呢個班車 [ie the Coach Trip] 事實係我哋 [ie D4] 開㗎嘛 ……” He explained that for the daily scheduled 18th “班次” from ZS to HK, “…… 嗰班車係黃昏嘅19點由京華酒店出發，到19:30分就去到交通大廈 [ie ZS Bus Stop] …… 然後去到19:40分呢就去到星晨花園 …… 跟住就梗係沿途返嚟香港喇 ……”, and “…… 呢一班車係由 [D4] 根據呢個時間表, 提供畀乘客㗎 ……” 195.This was also borne out by P’s evidence, which on balance I accept and (putting D2 aside for the moment) which I find clearly demonstrated that (consistent with P’s Ticket Package and P’s Bus Ticket as explained above) D4 held itself out to P and other passengers to be the service provider of the Coach Trip:
196.Even though Mr Wong said under cross-examination that the Alphabets and the Logo “……係代表我哋集團所有屬下嘅企業一個logo嚟, 係包括咗旅行社、酒店同埋內地所有 …… 中旅集團 [ie China Travel Service] 下屬嘅所有企業都係用呢個logo嚟 ……” (see paragraph 185(c) above), he agreed that “…… [D4] 提供跨境巴士 [ie Service] 畀乘客, 由 [ZS] 去 [HK] 嘅 ……而 …… 七半點半鐘由交通大廈 [ie ZS Bus Stop] 開出去 [HK] 嘅呢 [ie 7:30 ZS/HK Trip]，就係喺 [Co-operation Agreement] 之下, 由 [D4] 負責提供 ……” Mr Wong further agreed that even though “…… [D4] 而家嘅講法就係話「哦，唔係我哋, 係和興 [ie SZ Hexing」……” who was the service provider, the passengers (including P) were not informed of the business/service arrangements between D4 and SZ Hexing being the registered owner of the Coach in Mainland China. 197.Mr Wong also agreed under cross-examination that (a) D3 and D4 were the 2 joint operators that provided the Service between ZS and HK pursuant to the Co-operation Agreement, (b) irrespective whether the CB Coach Bus trips under the Service were actually provided by SZ Hexing or any other company, such CB Coach Bus Trips were D4’s performance of the Service that it contractually agreed to provide under the Co-operation Agreement, (c) the Bus Tickets (E/547-550) did not refer to D4’s collaboration with others (eg SZ Hexing) for provision of such Service between SZ and HK, and (d) apart from the logos, words and website addresses referred to in paragraph 185(a)-(c) above the Bus Tickets did not refer to any name or particulars of any other company as “本公司” (see paragraphs 185-186 above). 198.It was clear from the authorities that the fact the contracting service provider arranged for some or all of the services to be performed by others would not have necessarily absolved it from its contractual obligation/duty. As Mr Wong recognised, it was D4 itself who undertook to provide the Service (or at least the CB Coach Trips or “班次” between ZS and HK divided unto D4 including the 7:30 ZS/HK Trip) under the Co-operation Agreement, and it in turn contracted for the Mainland China leg of such Service from ZS to HK to be performed by SZ Hexing and 深圳市港中旅快線運輸有限公司. These contractual arrangements between D4 and SZ Hexing / 深圳市港中旅快線運輸有限公司had little significance vis-à-vis P because as a matter of construction they formed no part of the contractual terms agreed by P, and what was evident from P’s Ticket Package and P’s Bus Ticket was that D4 (putting aside D2/D3 for the moment) undertook to P to supply the Coach Trip from ZS to HK under the Service, which was reinforced by the Signs on the Coach’s bodywork and Zhu’s uniform. In my view, any reasonable passenger and/or P would not have been alerted to the involvement of SZ Hexing and/or 深圳市港中旅快線運輸有限公司. It was not a case in which D4 undertook no more than to arrange for the Service to be provided by others with no liability to take reasonable care save for selecting the contractors who actually provided the Service. On the facts as found and particularly on Mr Wong’s factual evidence, it could hardly be said D4 was merely a post box to put P in touch with ZS Hexing and 深圳市港中旅快線運輸有限公司 with whom P made his contract for the Coach Trip when P was never put in the picture that (a) Coach was not registered in the name of D4, (b) the Driver was not D4’s employee, and (c) D4 had no involvement at all from the sale of P’s Ticket Package up to the Coach Trip, which in any event flied against Mr Wong’s evidence. In my view, P’s Bus Ticket evidenced the contract for the Coach Trip between P and inter alia D4. But in any event, an implied contract or undertaking would have arisen from D4 inviting and permitting P to board the Coach at the ZS Bus Stop and to become a passenger on the Coach for the Coach Trip to HK (which Mr Wong said was operated by D4). 199.D4’s contratual liability Quite simply, D4 contractually agreed to provide a CB Coach Bus (ie the Coach) and a driver (ie Zhu) to take P from ZS to HK. That being the case, I agree that arising from their contractual relationship D4 undertook to P that the Service (ie the Coach Trip) would be provided with reasonable care and skill even though D4 had arranged for its contractors (ie SZ Hexing and 深圳市港中旅快線運輸有限公司 and through them Zhu) to perform such duty arising from its relationship with P. The duty to exercise reasonable care and skill for safe carriage was a core implied term of the contract between P and D4, and such primary duty was non-delegable, and (putting D2 aside for the moment) I find the implied terms set out in paragraph 5(e)(i)-(iii) above were necessarily implied in the contract between P and D4 for the Coach Trip in the context as found and to give such contract business efficacy. D4 was thus liable to P for breach of the aforesaid implied terms since the Service (ie the Coach Trip) was performed negligently without due care and skill on the part of Zhu (as I have found) for whom D4’s contractors (and ultimately D4) were liable, notwithstanding any tortious liability on the part of Deng and/or Zhu and/or any liability or vicarious liability on the part of SZ Hexing and 深圳市港中旅快線運輸有限公司. 200.D4’s tortious liability As Dunn J said in Rogers (see paragraph 166 above), it mattered not whether the aforesaid non-delegable duty that D4 owed to P was put in contract or in tort as “either way it is a duty [D4] could not delegate to a third person so as to evade responsibility” if the Service (ie the Coach Trip) was not performed with reasonable care and skill even if part of such Service (ie the Coach Trip) was carried out by others (eg SZ Hexing and 深圳市港中旅快線運輸有限公司). I find D4 to be also tortiuously liable in negligence to P. 201.I come to the above conclusions as to D4’s liability without need to rely on the Archived Webpages of the Website. Nevertheless, the discussions and findings below in relation to the Archived Webpages reinforced and lent weight to the above conclusions vis-à-vis D4. 202.Archived Webpages I now turn to the Archived Webpages of the Website. P pleaded that the Archived Webpages revealed that D2 and/or D4 operated the Service between ZS and HK at/about the time of the Accident (see paragraph 5(a) above). D4 in paragraph 7 of the D4D and D2 by paragraph 10 of the D2RAD did not admit P’s plea and put P to strict proof, and the D2RAD went on to deny “the contents of the [Archived Webpages] of the [Website Address] found by [P’s] solicitors were the actual contents of the webpage of [D2]”. Mr Wong under cross-examination disagreed that the Website was D4’s website because “…… 因為妳入去網頁見到 [D4] 個名 …… 並唔係代表呢個網頁就係 …… [D4] 嘅 ……”, but “…… 呢個網頁 …… [Mr Wong] 記唔清楚而家佢個網頁嗰個註冊人係邊個, 但係應該就唔係 [D4] ……” and D2 “…… 亦都唔係 ……” D2/D4 by such non-admission and/or denial challenged the authenticity (and hence admissibility) of the Archived Webpages of the Website. 203.Turning first to the Website, as discussed in paragraphs 46-47 above, the Website was plainly a genuine website in that (a) the Website Address appeared on the face of P’s Ticket Package and P’s Bus Ticket and (b) carrying out an internet search in 2017 by “typing and entering this [Website Address]” would, in the words of the Wong Aff, “still [link] to a website bearing [D4’s] name” and “the company name of [D4] would be shown”:
Even at trial in 2021, Mr Wong said under cross-examination that the search result of an internet search done by typing “ctsbus.hkcts.com” (presumably in the search bar of an internet search engine) would show the Website that (a) “…… 一定會見到 [D4] 嘅名嘅 ……”, (b) introduce D4 to the public, and (c) describe D4’s business operations. 204.Turning then to the Archived Webpages, P disclosed 2 sets of computer printouts of the Archived Webpages, those at E/575-581 (“1st Copies”) and those at E/582-588 (said to be clearer copies, “2nd Copies”). Under cross-examination, Mr Wong disagreed that (i) the Archived Webpages existed in September/October 2013, (ii) they belonged and/or pertained to D2/D4, and/or (iii) the information in the Archived Webpages was correct. But a different picture came to light under cross-examination:
205.Whilst the substantive web contents of the Archived Webpages in the 1st and 2nd Copies were the same, Mr Law complained there were some differences in the computer printouts of these 2 sets:
206.The above led to the following questions: (a) whether the Website was a website of the Website Address on the internet, (b) whether the Archived Webpages were webpages searched and found on the internet, (c) if so, whether the Archived Webpages were historical webpages of the Website, and (d) if so, whether the Archived Webpages of the Website were webpages and website of D2/D4 and/or webpages and website pertaining to D2/D4. 207.Discovery of Archived Webpages The P 2nd Aff explained P suffered serious injuries to his right leg for which he received many surgeries and long period of medical treatment. When P was discharged from hospital in mid-March 2014, he wished to pursue his claim for personal injuries, loss and damages. But at that time (a) P was worried his right lower limb might not recover, (b) he lacked financial resources to engage lawyers, and (c) he did not know how to pursue his claim as he only had secondary education. P applied to the Director of Legal Aid (“DLA”) for legal assistance, and at that time P only knew the matters in paragraph 195 above. The DLA assigned lawyers to advise on inter alia the identities of the seller of P’s Ticket Package and the service provider for the Service on the day of the Accident (ie the Coach Trip). 208.According to the P 2nd Aff, P believed his assigned lawyers conducted internet search in May/June 2014 and located D2’s website. P stated in paragraph 16 of the P 2nd App as follows:
209.In August 2014, the DLA assigned P’s present solicitors to act for him to pursue his claim for personal injuries, loss and damages as a result of the Accident. P commenced the present action against D1/D2 in 2015. On 15 December 2015, D1/D2 filed a joint Defence to deny they operated the Service from ZS to HK on the day of the Accident. According to the P 2nd Aff, P’s solicitors made further investigation as to the identities of the seller of the Bus Tickets and the service provider of the Service from ZS to HK. P’s solicitors noted the depictions described in paragraph 185(a)-(c) above on the Bus Tickets. For the Website Address seen together with the Alphabets and Logo on the Bus Tickets, P’s solicitors checked the annual returns of D4 made up to 26 July 2014 and 26 July 2016 (E/609-636) and the internet information about D4 in Wikipedia as at July 2016 (E/513-514), and found that even though D4 appeared to still operate the Service between ZS and HK in July 2016, the bus schedules and pick-up locations were different from the Coach Trip from ZS to HK under the Service that P took on 22 October 2013. 210.P admitted he did not know archived webpages of websites that existed years ago could be retrieved from the internet, but according to the P 2nd Aff, P’s solicitors advised him that in/about August 2016 they learned of “a device called Internet Archive’s Wayback Machine that can be used to retrieve the archive webpage that existed several years ago” (“Wayback Machine”), and they were thus able to locate the Archived Webpages of the Website (E/575-581) “of [D2] and [D4] as in September and October 2013 [which] suggest [D2 and/or D4] operated the [Service] from [ZS] to [HK] on the day of the [Accident] ……”[65] Under cross-examination P further explained that his solicitors told him they found the Website (ie “…… 即係 …… [P’s solicitors] 話畀 [P] 聽 [P’s solicitors] 搵到呢個網頁 ……”), and they actually showed him the Archived Webpages on the computer screen (ie “[P’s solicitors] 都有喺當時喺個電腦度開過畀 [P] 睇嘅 ……”). P did not look for the Archived Webpages on the internet himself “因為 [P] 電腦 [P] 真係唔熟 …… [P] 就係可以搵到而家嘅網頁, 但係至於再睇--即係呢個網頁嘅之前嗰啲, 其實 [P] 唔係咩嘢IT奇材, 所以 [P] 唔識搵 ……” 211.On 8 November 2016, P’s solicitors made enquiries with the Transport Department, but no information was provided (E/591-600). The P 2nd Aff stated that in November 2016 D1/D2 appointed new solicitors to act for them in the present action, and in/about December 2016 D1/D2 disclosed a redacted copy of the Co-operation Agreement which suggested D3/D4 jointly operated the Service between ZS and HK between 1 January 2012 and 31 December 2013.[66] P’s solicitors asked for an un-redacted copy of the Co-operation Agreement, and the P 3rd Aff claimed a full and complete copy was provided by D4’s solicitors under cover of their letter dated 10 November 2017. The P 2nd Aff went on to state that in/about April 2017 D1/D2 filed their Amended Defence to raise pleas concerning the Co-operation Agreement and matters relating thereto. P contended that the correlation of the Archived Webpages to such developments revealed the evidential significance of the web information. 212.Website Address and Website For reasons explained in paragraph 47 above, it was plain the Website Address (expressly stated on the cover of P’s Ticket Package and on P’s Bus Ticket) had a protocol identifier and a domain name of an actual website such that if a visitor typed the Website Address in the search bar of an internet search engine, he/she would be brought to visit/browse the Website (see also paragraph 203 above). This was reinforced by (a) the internet search conducted by P’s solicitors in August 2016 (see paragraph 210 above), and (b) the internet search in 2017 that was referred to in the Wong Aff (see paragraphs 47 and 203 above). Given P’s account as to the discovery of the Website from the Website Address and further confirmation in the Wong Aff, I have no hesitation in concluding the Website Address and/or the Website genuinely existed. 213.Retrieval of Archived Webpages Mr Law complained that despite D2’s/D4’s non-admission and/or denial which put P to strict proof, P did not ask P’s solicitors to give evidence as to the retrieval of the Archived Webpages from the internet and/or the technical information of the computer programme Wayback Machine in discharge of his burden of proof. On the other hand, Ms Lee submitted P had produced sufficient proof on the balance of probabilities as to the authenticity of the Archived Webpages, which demonstrated such fact. 214.Whilst the burden of proof was on P, Ms Lee was correct to remind that the standard of proof was on the balance of probabilities, and here D2/D4 did not plead any positive case and/or adduce any countervailing evidence that the Archived Webpages were not genuinely retrieved from internet search. P explained how P’s solicitors downloaded the Archived Webpages from the internet and had actually shown P such downloaded webpages on the computer screen. P further explained that he was told by his solicitors that web information about D4 discovered by internet search in July 2016 did not reflect the scheduled times and scheduled bus stops of the CB Coach Bus trips between ZS and HK under the Service as applicable in 2013, which prompted them to turn to “Wayback Machine” being a digital archive of the “Internet Archive” (see name and logo on E/575 at paragraph 205(a) above and the P 2nd Aff at paragraph 210 above) that would allow the user to go back in time to look at archived copies of defunct webpages in the past of websites on the internet, and this was the digital software by which they retrieved the Archived Webpages from the Website via internet search using the Website Address. 215.There was no countervailing evidence from D2/D4, and Mr Wong did not disagree the Archived Webpages could be digitally located by internet search of the Website by using the name of the Website Address through the Wayback Machine service. Mr Law complained there was no technical evidence as to how the Wayback Machine accurately reproduced archived webpages and how such archived webpages were accurately dated. But I find this prima facie evident in the various HTML file paths seen on most computer printouts of the webpages in the 1st and 2nd Copies. Using the HTML file path on E/577 as an example, “https://www.archive.org/web” appeared on its face to be the protocol identifier and domain name of the Wayback Machine’s digital archive of webpages of the world wide web, and “20130917141709” obviously appeared on its face to be the date (20130917) and time (141709) stamps for re-direction to the subject capture, ie “notice.html” (ie the specific webpage at E/577 for乘客須知 (notice to passengers)) of “http://ctsbus.hkcts.com” which, as I have explained, was the protocol identifier and the domain name of the Website (see paragraph 47 above). Again, there was no countervailing evidence to the contrary. 216.The apparent date and time stamps in the HTML filepaths were particularly borne out by the scheduled bus stops and scheduled times (班次) of the CB Coash Bus Service between ZS and HK at E/580-581 of the 1st Copies with date stamp of “20130620” and time stamp of “031024” which showed 29 comments, but the scheduled bus stops and scheduled times (班次) at E/587-588 of the 2nd Copies with the date stamp of “20130917” and the time stamp of “140153” showed exactly the same bus stops and time schedules as those in the 1st Copies but without the comments. Indeed, apart from the date/ time stamps, the HTML file paths were the same. This showed the 2 printouts were from the same internet-stored Arhived Webpage that was displayed on different dates/times, but their material web contents were the same. 217.It was also significant to note that neither D2/D4 nor Mr Wong said the Archived Webpages could not be so searched via the Wayback Machine service. In face of D2’s/D4’s bare non-admission and/or denial, Mr Wong’s acceptance of the correctness of the substantive web contents of the Archived Webpages (seen in paragraphs 46, 194 and 204 above) and in light of the above analysis, I find on balance P had sufficiently proved on balance of probabilities that the Archived Webpages were genuinely retrieved via the software Wayback Machine that enabled P’s solicitors to go back in time to view how the Website looked at/about the time of the Accident in 2013. 218.Mr Law raised a number of differences between the 1st and 2nd Copies to question the authenticity of the Archived Webpages (see footnotes 61 and 63-64 above), which I set out and deal with below, but I find on balance that none of the matters were able to show the Archived Webpages were not genuine and/or authentic:
219.In all the circumstances (including D2’s/D4’s bare non-admission and/or denial and Mr Wong’s acceptance of the correctness of the substantive contents of the Archived Webpages) and on balance, I find P had sufficiently proved on the balance of probabilities the Archived Webpages were retrieved from the digital archive of Internet Archive’s Wayback Machine that allowed the user to go back in time to see the web content of the Website with the Website Address, and that they were genuine and authentic past webpages of the Website with the Website Address. 220.The next question was whether the Archived Webpages demonstrated that D2 and D4 jointly operated the Service between ZS and HK. Mr Law complained P failed to adduce evidence as to who was the registered holder, agent or owner of the Website Address, or whether D2/D4 endorsed the contents of the Archived Webpages. Mr Law sought to bolster these complaints by submitting there was nothing that connected D2 to the Service save for the Heading of the Archived Webpages, and D2’s name and the opening sentence in the “company profile” (E/575 and E/582), but even though the organisation chart (E/576 and E/583) had D2’s name, the 6 executives identified therein were D4’s executives unconnected to D2. 221.Given my findings that the Website with the Website Address was a genuine website and the Archived Webpages were genuine past webpages retrieved from the Website with the Website Address with no suggestion that it belonged or pertained to any third party (and indeed no third party company was named or identified in the Archived Webpages), I find it more probable than not that the Website belonged and/or pertained to D2/D4. 222.All Mr Wong said was that D4 (and he thought D2 also) should not be the registered owner of the Website Address and/or the Website (“…… 應該就唔係 [D4] …….” (my emphasis)). Such bare assertion was not even an adamant denial, which in my view this was unsurprising because he lacked relevant knowledge about such matter, and significantly he did not explain the basis of his assertion. Mr Wong did not say it was his personal knowledge, or if he was told about this, how he obtained such hearsay information. This was important because it was revealed under cross-examination that throughout his career with D4 (including at senior managerial level) his knowledge and experience was steeped in 車輛維修 (repair and maintenance of D4’s fleet of vehicles), and he had not been involved in sales and marketing of the Service (including sales and marketing of the CB Coach Bus tickets) at all, which matters were handled by the marketing department headed by different management. I am unable to place weight on Mr Wong’s assertion that D4 was not the registered owner of the Website (see paragraphs 50-53 above). 223.The above concerns were exacerbated in relation to Mr Wong’s bare assertion that D2 should not be the registered owner of the Website Address and/or the Website. He had no role in D2, and he did not explain how he knew “…… 應該就唔係 [D4] ……”, and D2 “…… 亦都唔係 ……”, which again was not any adamant denial. Indeed, D2’s pleaded denial was not supported by oral or other evidence from D2 since it chose not to call To as factual witness to give oral evidence at trial. In my view, this only served to weaken Mr Wong’s aforesaid bare assertion. Although there was no direct evidence on this (since D2 decided not to call To give evidence), Mr Law asked me not to draw adverse inference from D2’s failure to call To to be examined at trial, and go further to infer that D2 was a mere holding company with no involvement in D4’s business, and he then urged me to find it was “utterly unreasonable” for P to seek to recover damages from D2 which was merely “an investment company with no business or operational duties …… [by] relying on some webpage information of which authenticity is challenged and not proved by [P]”. I am unable to accede to such suggestions when D2 chose not to call To to be examined at trial, and I reiterate my views in paragraph 45 above. 224.I also reiterate my reservations about Mr Wong’s evidence in paragraphs 47-53 above. It was interesting that Mr Wong did not adamantly deny knowledge about the Website, but only said under cross-examination “…… 呢個網頁 …… [Mr Wong] 記唔清楚而家佢個網頁嗰個註冊人係邊個, 但係應該就唔係 [D4] ……” and D2 “…… 亦都唔係 ……” (see paragraph 202 above), which suggested that Mr Wong once knew but had since forgotten the domain name owner of the Website Address / Website, but he nevertheless believed it was not D2 and/or D4. But he did not explain how he once came to know the domain name owner of the Website Address / Website if it was not D4’s website or website that pertained to D4 as he alleged. As seen below, the Archived Webpages plainly pertained to both D2 and D4, and the digital content of the Archived Webpages were on the balance of probabilities genuine, credible and reliable. I further agree with Ms Lee that D2’s and D4’s non-admission and/or denial were rendered nugatory by Mr Wong’s oral testimony as he agreed the contents of the Archived Webpages and the company profile therein accurately reflected D2’s/D4’s business and operations. 225.The Heading of the Archived Webpages expressly referred to D2’s Chinese and English names, and the Alphabets and Logo (also seen in P’s Ticket Package and P’s Bus Ticket) were the logo/sign used by companies under the China Travel Service group (including D2 and D4). In the company profile (Archived Webpage E/575 and E/582), the contents of which Mr Wong did not dispute, D2 and its subsidiaries (of which D4 was one) were identified as being involved in providing the Service including the CB Coach Bus trips between ZS and HK (see Chinese version of the company profile) and D2/D4 were both named (see the English version). Both the Chinese and the English versions referred to “本公司”, “our business”, “our transportation services are provided by our company” etc, which suggested both D2 and D4 were actively engaged in the business of providing the Service to “our” passengers at inter alia HK and Mainland China and elsewhere. As for the organisation chart of the executive office (E/576 and E/583), Mr Wong said D4’s management executives were named but D2’s name undoubtedly appeared on the webpage (presumably because D2/D4 were engaged in providing the Service – see Archived Webpage on company profile, and because D4 was its subsidiary). Turning to the bilingual notice to passengers (E/577-579 and E/584-586), even though it ended with D4’s name (which led to the suggestion in the Wong Aff that it appeared to be issued by D4 – see paragraph 203 above), it was still headed under D2’s name (E/577 and E/584). More importantly, in the Archived Webpages of the CB Coach Bus schedule (E/580-581 and E/587-588) which concerned the actual operational details of the Service, these webpages only had D2’s name but not D4’s name although Mr Wong admitted the 7:30 ZS/HK Trip (including the Coach Trip) was operated by D4 for the Service under the Co-operation Agreement, and the scheduled bus stops and scheduled times when the CB Coach Buses would pick up passengers at such bus stops set out in the Archived Webpages’ bus schedules were actually those shared between D3/D4 for the Service under the Co-operation Agreement. Indeed, Mr Wong agreed the holder of a bearer Bus Ticket was entitled to reserve a seat, board the Coach, and be accepted as a passenger for the Coach Trip, and it mattered not that P’s Bus Ticket was not directly sold by D4. 226.I agree with Ms Lee that on any view of the evidence relating to the Archived Webpages of the Website, P had proved on the balance of probabilities they belonged to D2/D4 or genuinely pertained to D2/D4. D4 was a fully owned subsidiary of D2. I agree with Ms Lee that given Mr Wong’s acceptance that the contents of the Archived Webpages accurately reflected D4’s business and operations, it was improbable such web contents would be authentic for D4 but not be authentic for D2. Apart from a bare denial, D2 had not provided any positive plea, document or witness evidence to explain how the Archived Webpages were not authentic in face of the evidence adduced/elicited by P (or how its very own website looked like instead, or how it did not have any website), and I reiterate my concerns over Mr Wong’s evidence in this respect (being the only oral evidence adduced by D2/D4) in paragraphs 47-53 above, especially when the answers as to whether the Website of the Website Address was D2’s/D4’s website or website that pertained to them and whether the Archived Webpages were defunct (but active in 2013) webpages of D2’s/D4’s website or website that pertained to them must have been within D2’s and D4’s knowledge. I agree with Ms Lee it was particularly telling that the Archived Webpages of the bus schedules (E/581-581 and E/587-588) that concerned the actual operation of the Service between ZS and HK that passengers (such as P) would be most concerned about only contained D2’s name even though it was D4 that actually operated the CB Coach Bus trips under the Service that were divided unto D4 pursuant to the Co-operation Agreement. Plainly and I find on balance, the Archived Webpages were genuine webpages of the Website that pertained to D2/D4 at/about the time of the Accident which showed D2/D4 were involved in the provision of the Service between ZS and HK (including the Coach Trip). 227.Significantly, I find on balance that D2/D4 held themselves out to undertake the Service (including the 7:30 ZS/HK Trips and the Coach Trip) in the Archived Webpages that were webpages (active at/about the time of the Accident) of the Website of the Website Address stated on the front cover of P’s Ticket Package and P’s Bus Ticket, and D2/D4 did not attempt to disabuse any visitor to the Archived Webpages and/or the Website from the understanding that they both offered the Service by making clear the Service was in fact offered on behalf of others. This was bolstered by the Alphabets and the Logo (which Mr Wong explained was commonly used by all companies of the China Travel Service group that would include D2 and D4) on inter alia P’s Ticket Package, P’s Bus Ticket, the Coach’s bodywork markings and Zhu’s uniform. In the circumstances, the aforesaid analysis as to the nature of the contract, the implied terms of contract between P as passenger and D4 as contracting service provider of the Service and the non-delegable obligation and duty owed to P (see paragraphs 150-200 above) formed mutatis mutandis basis for concluding that the contract for services being the Coach Trip from ZS to HK was also made by D2 as contracting service provider regardless who sold P’s Bus Ticket to P and/or whether D3/D4 were also contracting service providers liable to P. Thus, D2 was also contractually and tortuously liable to P, and I so find. V. QUANTUM (a) Personal particulars 228.P was born on 15 June 1984. He was 29 years old at the time of the Accident, and 37 years old at the time of trial. He was educated up to Form 5 level. As alluded to paragraph 25(a) above, he was married for 2 days when he suffered the Accident. He used to live with his parents in Chai Wan, and his wife Lei used to live in ZS. 229.According to the 1st Jt Report, P occasionally did some housework at home (ie his parents’ home). He enjoyed good past health with no serious trauma and/or orthopaedic problem. The P 1st WStmt stated P “…… 能應付高體力勞動及長時間工作、體格強健精力充沛、能夠爬高爬低及手腳活動靈活 ……” Likewise, the Lei WStmt stated that before the Accident “…… [P] 的健康狀況良好, 能夠應付體力勞動及長時間的工作、有幹勁、每天也加班3-4小時 …… [Lei] 與 [P] 的關係非常親密及和諧。[P] 為人樂觀, 自信心強, 十分好動活躍, 常與朋友游水, 不時會與 [P] 一同買餸做家務, 亦經常會與朋友相聚 ……” According to the 1st Jt Report, P used to swim all year round for 1-2 times a week, and he strolled from Tsimshatsui to Hunghom every day. P was a social drinker and non-smoker. He was right hand dominant. 230.Since the Accident, Lei had come to settle and live with P in HK. Their daughter was born on 21 December 2017. As seen below, P started to work for 新界西院牧事工有限公司 (The NT West Hospital Chaplaincy Ltd, “Chaplaincy Ltd”) as 義復幹事 (pastoral care service worker) in 2017. In/about July 2019, P, Lei and their daughter moved from Chai Wan to live in Tuen Mun. (b) Injuries and treatment 231.There was no dispute at the time of the Accident the collision force pushed the Coach forward so that its right rear wheel rolled over and pressed onto P’s right lower limb at the ankle area. P lost consciousness for a while but regained consciousness at the scene. He noticed his right ankle was crushed by the right rear wheel of the Coach. In brief, P suffered severe crush and degloved injuries to his right lower limb for which he received 17 operations with long hospital stay followed by outpatient orthopaedic, psychological, wound dressing, prosthetic and orthotic, physiotherapy and podiatry follow-up service. P’s follow-up sessions were continuing as at trial, and he would need life-long medical attention for his residual disabilities (see Part V(n) below). 232.Hospital stay According to the P 2nd Aff, P was taken to Nansha Hospital in the vicinity of the Location for emergency medical treatment, and then he was transferred to 廣州市第一人民醫院 (Guangzhou City No 1 People’s Hospital) for further treatment. P explained in-chief that “…… 因為當時 [Nansha Hospital] …… 話佢哋嘅設備唔夠, 就要即刻將 [P] 送去 [Guangzhou City No 1 People’s Hospital] ……” But P wanted to return to HK for medical treatment, so after receiving emergency surgery P returned to HK at/about 10:50pm on 23 October 2013 (ie the day following the Accident) for continued treatment. 233.According to the discharge summary by Guangzhou City No 1 People’s Hospital on 23 October 2013,
The diagnoses upon admission were “車禍傷1. 右下肢擠壓軟組織缺損 2. 右小腿脫套傷 3. 右足毀損傷 4. 右下肢血管神經損傷 5. 右內踝骨折 6. 足部骨折待排 7. 顱腦外傷8. 失血性休克”. Fasciotomy for P’s right lower limb and “急診右下肢清創 + 右脛前神經血管、脛後血管神經探查 + 局部皮瓣轉移術 + 左顳部清劊縫合述” were performed, “…… 術後病人轉入中心ICU復甦 ……” As alluded to in the above paragraph, P was discharged on 23 October 2013. 234.P was transferred to the accident and emergency department (“AED”) of Tuen Mun Hospital (“TMH”) late at night on 23 October 2013. P’s chief complaint was right leg injury. According to the medical report dated 28 April 2014 by TMH’s AED, medical examination revealed P was afebrile, there was right leg open wound with crepitus, abdominal and chest examination was unremarkable, electrocardiogram showed sinus tachycardia, chest x-ray was clear, and ultrasound of abdomen was sub-optimal. X-ray right ankle and foot showed fracture of left medial malleolus. CT right ankle and foot showed (a) degloved injury of right ankle and foot, (b) fracture of medial and lateral malleoli, and (c) Lisfranc fracture dislocation. P was admitted to the hospital ward of the department of orthopaedics and traumatology (“DOT”) for further management. 235.According to the 1st Jt Report, emergency operation was performed by TMH’s DOT on 24 October 2013 with the following findings:
236.According to the medical reports dated 30 May and 21 November 2014, 2 October 2015, 15 March 2017 and 19 November 2018 by TMH’s DOT, P had degloved injury to his whole right leg from mid-thigh. X-ray showed right ankle and mid-foot fractures. P had multiple surgeries performed including repeated debridement of necrotic tissues, fracture fixation of his right ankle and mid-foot, and flap coverage for lost soft tissue. In the 1st Jt Report, it was said TMH’s DOT performed 13 surgeries for P between 24 October 2013 to 12 February 2014.[67] But the P 1st WSmt stated he had 17 operations, “…… 其中包括：多次壞死組織清創、右腳踝和中腳部固定及皮瓣移植 ……” P explained in-chief “…… 有其中一次手術就係當晚發生 [Accident] 嘅時候就喺 [Guangzhou City No 1 People’s Hospital] 嗰度做嘅, 咁至於仲有嗰幾次, 就係喺 [TMH] 入面喇, 咁就由護士就將 [P] 成張床就推入去護士房, 然之後就由資深護士長就幫 [P] 去清洗傷口, 咁仲有幾個醫護人士, 當中又會有幫 [P] 打麻醉劑呀, 同埋止痛針咁樣 ……” As seen in footnote 67 above, the longest surgery for flap reconstruction of the right foot took 8 hours 7 minutes (15 November 2013), but flap failure led to another operation for closed reduction and fixation as well as vascular repair that lasted 5 hours 15 minutes (following day). The severe and extensive nature of P’s injuries was evident from grafting 15% total body surface area to cover the wound on 24 October 2013. P had to endure 10 debridement operations under general anaesthesia and further skin grafts from both thighs in December 2013 to mend the wounds. 237.Orthopaedics P was referred to physiotherapist and occupational therapist for rehabilitation. He had residual ankle stiffness, but was able to walk with help of walking aid. According to the report dated 21 November 2014 by TMH’s DOT, P’s condition was static, and he had occasional ulcerations over the skin edges. There was no acute treatment from 19 January to 10 February 2014 and from 21 February to 14 March 2014. According to the medical report dated 2 October 2015 by TMH’s DOT, P had pain on prolonged walking. According to the medical reports dated 15 March 2017 and 19 November 2018 by TMH’s DOT, P regularly attended follow-up and was assessed at the outpatient clinic of TMH’s DOT. P told the Experts at the Jt Exam there was no specific further treatment plan. P was last seen at TMH’s DOT before the Jt Exam in February 2016, and his then next appointment was in February 2017. P’s follow-up with TMH’s DOT was still continuing (see paragraph 370(b) below). 238.In-ward clinical psychology According to the 1st Jt Report, P was attended by clinical psychologist during hospitalisation for nightmares, flashbacks of the Accident scene, and poor sleep due to physical pain. According to the clinical psychological reports dated 20 May 2014 and 28 August 2015 by TMH’s Psycho-Behavioral Unit (“PBU”), P was referred to TMH’s PBU for psychological treatment of the anxiety and emotional disturbance he experienced after the Accident. P was provided in-ward psychological support 8 times from 5 November to 20 December 2013. He reported nightmares and flashbacks about the Accident scene, and his sleep was disturbed by physical pain and intrusive thoughts about the Accident. P expressed he was physically/ mentally exhausted by repeated medical procedures for debridement and repair, and he was worried about the treatment outcome. The focus of the psychological intervention was to help P to better cope with the demands of his medical treatment and to adjust to the changes resulting from the Accident. P was taught relaxation skills to help improve sleep and to reduce pain. P showed improvement in his adjustments with psychotherapy, and was discharged from PBU’s service on 20 December 2013. 239.Community nursing According to the P 2nd Aff and the 1st Jt Report, P was discharged from TMH on 14 March 2014 when he could walk with walking aid. The P 2nd Aff stated there was on-and-off discharge from the wound at his right ankle, so (according to the P 2nd Aff and the 1st Jt Report) PYNEH’s community nurse visited his home in Chai Wan 21 times from 18 March to 23 June 2014 to provide nursing care and dressing to his right leg wound. 240.Prosthetics and orthotics According to the reports dated 3 August 2015, 3 January 2017, 4 August 2017, 8 November 2018 and 25 May 2021 by TMH’s prosthetic and orthotic department (“P&OD”), P was seen by TMH’s P&OD on 25 February 2014 for fitting of right orthopaedic insole and orthopaedic sandal upon referral by TMH’s DOT. The diagnosis was crush injury of right leg. P received 28 sessions of treatment until 19 April 2021 from TMH’s P&OD (including assessing, measuring, fitting and checking right orthopaedic insole, left raised sole and bilateral orthoapedic insoles). 241.According to the 2nd Jt Report, on 20 May 2014 P was transferred to be cared by P&OD of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) for geographic reason (since P lived in Chai Wan at the time). The prosthetic and orthotic services report dated 22 July 2015 by PYNEH’s P&OD confirmed that on 20 May 2014 TMH’s DOT referred P to PYNEH’s P&OD for orthotic management. Physical examination showed P had equino-varus deformity at his right ankle. His skin over the right ankle was sensitive after skin graft. The right ankle range of motion was limited and there was a fixed varus deformity at hind foot, but toe movement and sensation were intact. So an inner raised supportive insole was designed/measured to accommodate P’s deformed foot configuration for level walking. On 30 May 2014 P turned up for fitting of this insole, and it was found he could fully support his bodyweight with the total contact supportive insole in functional walking. But on 11 July 2014 P turned up for adjusting/lowering the heel raise to relieve excessive upward thrust. According to the 1st Jt Report, P attended P&OD in December 2015 before the Jt Exam in February 2016, and he was pending follow-up for insole. P returned to attend TMH’s P&OD after he moved to live in Tuen Mun, and P&OD service was still needed at the time of trial (see paragraph 370(a) above). 242.Physiotherapy According to the P 2nd Aff, P was referred to PYNEH to continue with physiotherapy. He had to use a pair of elbow crutches to assist in walking, and his walking endurance was limited with reduced range of motion in his right knee and right ankle as well as wasting of right lower limb muscles. According to the P 2nd Aff and the 1st Jt Report, P received a total of 56 outpatient physiotherapy sessions at PYNEH between 25 March 2014 and 30 January 2015.[68] At the last assessment, P was able to walk unaided indoors and with stick outdoors, and his walking endurance had improved to 1-2 hours. 243.Outpatient clinical psychology According to the clinical psychology reports dated 1 February 2017, 27 November 2018 and 18 June 2021 by TMH’s PBU, TMH’s DOT referred P to TMH’s PBU for counselling, and P was interviewed on 25 September 2015. P complained of flashbacks, sleep disturbance and low mood, and he expressed feeling stressed due to multiple job changes and financial tightness after the Accident. His mood also fluctuated easily due to compensation issues. He reported increased stress after his baby daughter was born, and harboured sense of uselessness for providing enough security for his family. He reported irritable mood and anger outbursts both at work and in family interactions. P attended 15 counselling sessions since 25 September 2015 for the presenting problems, and the psychotherapy treatment focused on educating P about the nature of his symptoms and teaching him specific techniques to manage his difficulties, to better adjust to the changes resulting from the Accident, and to cope with the stress he was facing. He was guided to challenge his negative thoughts and to replace them with more helpful ones. He was also helped to enhance problem-solving and anger management skills, and to develop more positive cognitions and to regulate his mood adaptively. According to the 1st Jt Report, P was followed up by clinical psychologist and was seen in January 2016 before the Jt Exam on 25 February 2016 with the next follow-up in March 2016. According to the clinical psychology report dated 18 June 2021, P was scheduled to attend follow-up on 6 August 2021 (see also paragraph 370(d) below). 244.Wound care According to the 1st Jt Report, on 30 July 2014 P attended PYNEH’s AED for yellowish discharge from right ankle wound. He attended again on 14 August, 29 October and 6 November 2014 for wound discharge. He also told the Experts at the Jt Exam in February 2016 his right ankle wound still had discharge, which he managed with self-dressing at home. 245.According to the medical report dated 17 August 2015 by PYNEH’s AED, P attended PYNEH’s AED several times for wound care:
246.During the Jt Exam in February 2016, the Experts discovered yellowish discharge over right heel wound that had not yet healed. P explained in-chief that after a wound healed, another wound might develop, and he would have to clean the wound every night “…… 直至到傷口完全 …… 埋咗口為止 ……”, ie “…… 有傷口嗰陣時要處理, 處理好傷口喇, 傷口會結合 …… 但係可能會有其他嘅情況, 譬如 …… 新鞋 …… 會產生 …… 受壓, 又會有新傷口出現, 然後又要處理 …… 都會有一段時間 ……隻腳係冇傷口嘅 …… 但係如果行得耐, 即係有陣時行嘅時候啲皮始終太薄喇, 咁佢就會衍生一個新嘅傷口出嚟 …… 其實…… 由開始睇P&O …… [podiatry department, “PD”] 嘅時候, 本身隻腳係有個傷口嘅 …… 睇過咁多次 [PD], 凈係試過有一至兩次係冇傷口嘅, 其餘 ……都係有傷口, 睇親 [PD] ……” 247.According to the medical report dated 28 May 2021 by TMH’s AED, P attended TMH’s AED on 21 January 2019 for right leg pain. The chief complaint was right ankle pain with discharge for 2 days with no preceding injury (apart from the degloved injury with flap done over right ankle as a result of the Accident). Medical examination revealed there was a small ulcer over right lateral ankle with yellowish discharge and mild surrounding erythema and warmth, but there was no fever and no focal neurology. Capillary refill was within 2 seconds and distal pulses were palpable. X-ray right ankle and foot showed no fracture or osteomyelitic change, and screws were in situ. Admission was suggested in view of suspected infection, but P requested discharge with acknowledgment of medical advice, and he was so discharged with a course of antibiotics. 248.Podiatry According to the medical report dated 20 May 2021 by TMH’s PD, P first consulted TMH’s PD on 8 November 2019 for foot ulceration assessment/management, and had 18 sessions since then until 11 May 2021. P had right foot equinocavovarus deformity after the Accident with Lisfranc fracture dislocation and ankle fracture. P complained of callosity at right foot with a non-healing ulcer over right lateral ankle for 6 months. Clinical examination revealed P had tailor-made insole from P&OD and he walked with stick. There was right foot equinocavovarus deformity with persistent pressure ulcer at lateral ankle that developed from skin abrasion wound. Callus was also found at right 5th metatarsophalangeal joint with no subcallus skin breakdown, and right 1st toenail was highly involuted with pain upon pressure. The clinical impression was right ankle pressure ulcer, right foot callus and right 1st toenail involution. Treatment given included callus and toenail reduction to right foot and toe as well as wound debridement to right ankle ulcer. P was suggested to have daily self-dressing at home with unisept solution cleansing and flaminal forte for right ankle ulcer. Semi-compressible felt pad was added to right shoe to enhance pressure offloading and to prevent rubbing of right lateral ankle against the shoe. The right lateral ankle ulcer finally healed on 16 September 2020 with ongoing dressing and enhanced pressure offloading measures. Multiple episodes of right heel skin abrasion wound and right 5th toe blistering secondary to foot deformity from rubbing against shoe wear were noted. Persistent callus was also found at right 5th plantar metatarsophalangeal joints secondary to pressure of deformed foot and ankle. It was recommended there be regular follow-up at PD for callus treatment for prevention of recurrent pressure ulcer of high risk foot with equinocavovarus deformity. In short, P attended PD for wound dressing, removal of dead skin and blister care. 249.P explained in-chief that after injury to his right foot as a result of the Accident, he could no longer wear low top shoes as he needed ankle support. He had to wear boots with insoles. P could “…… 勉強行到, 都得 ……” without walking aid, but “……. 都唔會耐 ……. 如果有陣時約咗人喺屋企樓下食嘢喇, 就屋企樓下啫, 咁就唔用拐杖囉, 因為一落樓下就係個食肆嗰度 ……”, and “…… 如果喺office, 咁就去toilet嗰啲時間都即係由office行到去toilet嗰度都唔會用拐杖喇 ……” However, P had to use walking stick when travelling between his home and the court for the trial. (c) Disabled person driving licence 250.According to the occupational therapy report dated 20 November 2018 by TMH’s occupational therapy department (“OTD”), P was referred to TMH’s OTD for driver assessment which was conducted on 29 June 2018. In the assessment, P presented with minimum active range of motion over right ankle and toes with deformity. He reported reduction in light touch sensation over right dorsal foot skin graft region. He was then working as 義復幹事 (pastoral care service worker) at TMH, which job entailed visiting patients within the hospital and making outreach visits to clients’ homes. “The critical physical demand was constant sitting, walking and standing. He reported managed well with job demand. He reported travel by public transportation”. P had driving licence for more than 10 years but claimed he did not resume driving after the Accident. He wished to obtain a disabled person driving licence. In the driving assessment, he demonstrated maximum left foot pedaling with 30lbs resistance. For driving stimulator, he was smooth in brake and accelerator pedals control. He passed the brake reaction time in 0.7-0.8 second with driving speed of 70kph. He was then referred to the Community Rehabilitation Service Support Centre (“CRSSC”) for on-road driving assessment and clarification of need for disabled person’s parking permit or car adaptation. 251.According to the medical report dated 4 October 2019 by CRSSC of Queen Elizabeth Hospital (“QEH”), on 5 July 2018 TMH’s OTD referred P to QEH’s CRSSC for driver rehabilitation service. P was holder of a driving licence for classes 1 and 2. He was then working in hospital chaplaincy unit and had to visit clients, so he wished to resume driving for personal convenience. P attended assessments on 27 July, 2 August and 27 August 2018 which included off-road and in-vehicle assessments. The assessment results showed P did not have visual or cognitive deficit. Physical assessment showed he had reduced right ankle range of motion and presented with equinus deformities. It was recorded that “…… [P] also reported to have dull sensation in the right leg and persistent pain in the scar of the sole which was aggravated by weight-bearing” (and P confirmed under cross-examination he so informed the assessor). The report went on to record “…… [P] could walk unaided with mild limping gait, and he occasionally required a stick for standby support. He tolerated to walk for more than one hour”. When cross-examined by Mr Law as to whether P could walk with limping gait but without walking aid, P said “…… 睇下即係要行幾遠, 同埋步法唔正嗰個就覺得係 ……”, but he disagreed he was able to tolerate walking for an hour (without walking aid), and he did not know why it was so reported. 252.The report went on to state that in-vehicle assessment was arranged to assess his ability to drive private car with automatic transmission and adapted with left foot accelerator. He was able to demonstrate smooth and coordinated control between brake and accelerator pedals with the left lower limb. He also performed smooth and accurate steering with both hands. He did not report any symptom change after the in-vehicle assessment. QEH’s CCRSSC opined P had the functional ability to be licensed to drive classes 1 and 2 vehicles with automatic transmission and adapted with left foot accelerator. P was referred to “Kowloon Hospital DRI clinic for Disabled Person’s Parking Permit (DPPP) assessment”. P attended the appointment on 7 August 2018 and the result showed he was eligible to apply for concession. Since the assessments were completed and the assessment report was sent to the referring department, P’s case was closed on 6 September 2018 with no follow up required. 253.According to the medical report dated 28 September 2019 by the Department of Rehabilitation (“DoR”) by Kowloon Hospital (“KH”), P attended the clinic of KH’s DoR on 7 August 2018 for driving assessment. Physical examination showed right foot equinocavovarus deformity with restricted right ankle movement. “[P] reported he needed to walk with stick and experienced significant pain on walking”. Vehicle modification with left foot accelerator was recommended. No significant medical risk of driving private vehicle was anticipated. Under cross-examination, P said he believed at the time he told examiner that “…… [P] 行嗰陣時要用士的, 同埋 …… 會有一個痛楚, 覺得有 …… 幾明顯嘅痛楚 …… 所以佢記低咗囉 ……” 254.In summary, the assessment results in July/August 2018 showed P was eligible for disabled person’s driver permit. (d) P ‘s complaints 255.Jt Exam (February 2016) According to the 1st Jt Report, P had the following complaints:
256.P 1st Stmt (20 September 2016) According to the P 1st WStmt, P said during his sick leave his disabilities as a result of the Accident affected him as follows:
257.P and Lei in their statement evidence claimed P’s disabilities at the time of the P 1st WStmt were as follows:
258.When asked whether there were any changes to his health condition after the P 1st/2nd WStmts in 2016 and 2017, P said in-chief it was about the same, and he continued to receive treatment. 259.Additionally, Lei in the Lei WStmt stated that apart from physical/functional permanent injuries and disabilities, the Accident also had serious effect on P’s mental condition, his work capacity and his daily life. The Accident happened 2 days after they married, and caused irretrievable negative impact on their marriage. The Lei WStmt went on to explain that “…… 在結婚前, [Lei] 早已辭去工作準備做家庭主婦相夫教子; 在意外後, 非但不能生育及照顧孩子, 因為家庭財政壓力, [Lei] 需要重新回到公司工作以養活家庭 …… [Lei] 正在申請來港, 本來打算會與 [P] 搬出去兩個人住二人世界, 但 [at the time of the Lei Stmt] 只好跟丈夫家人一同居住 ……” (e) Jt Exam and 1st Jt Report 260.Jt Exam The Jt Exam was held in February 2016. P attended the Jt Exam with left hand holding stick, limping and right heel off the ground. He wore a pair of boots with insole over the right one. His right foot had equino-varus deformity with weight bearing mainly on forefoot and toe. P managed to stand without support, but could not walk with good stability without aid, and could not perform tip-toe/heel walk, squat or single-leg stand on right side. 261.Examination of right lower limb showed: (a) multiple well-healed scars circumferentially over both thigh and medial side of left leg as donor site for skin graft, (b) significant muscle wasting of right calf (9.5cm), (c) disfigurement of whole right leg from knee cap to mid-foot with circumferential pigmented scars from skin grafts, (d) atrophic, synotic and smaller right leg with foot held in equino-varus deformity, (e) yellowish discharge over right heel wound (even though it was more than 2 years after the Accident), and (f) pigmented scar over donor site for whole left lateral chest to left waist (50cm x 2-3cm) with slight decrease in sensation over the scar but non-tender on palpation. I note from the photographs included in the 1st Jt Report there was significant dysmmetry between P’s right and left lower limbs which demonstrated significant muscle wasting on the right side. The scars on P’s right lower limb and on the skin graft donor sites on the left lower limb and left lateral chest to left waist were unsightly. 262.Hip/knee range of movement was normal and symmetrical. Left ankle movement was normal, but right ankle had no movement and was fixed at equinus 40º. “Right subtalar fixed inversion 20 degrees and midlateral joint no movement and fixed at neutral position”. There was decreased range of movement of all toes, mild stiffness of left shoulder (but no weakness) and other upper limb joint range of movement was normal. 263.As regards sensation, there was 100% decrease in hot-cold sensation of grafted area on temperature, 80-90% decrease in sensation on light touch, and 30-40% decrease in sensation over toe, mid-foot and knee. 264.X-rays of right ankle showed right ankle and foot were in equino-varus position with mild arthritis over right ankle and subtalar joint, but the fracture had healed with screws in position. X-rays of right foot showed right foot in satisfactory alignment with generalised mild osteoporosis, but no mid-foot or toe joint arthritis. I note that even at trial P still walked with a limp. 265.1st Jt Report The Experts agreed P suffered a severe crush injury to his right leg as a result of the Accident. They explained the Lisfranc joint is the articulation between mid-foot and fore-foot, and is composed of 5 tarsometatarsal (TMT) joints. A Lisfranc fracture is a fracture and dislocation of the joints in the mid-foot. It always results from dropping something heavy on the foot or twisting the foot during sports or in a car accident. Hence, the Experts opined there could not be any dispute the Accident was the direct contributing event that caused structural damage resulting in P’s right foot and leg condition. 266.The Experts noted P received 13 operations (see paragraph 236 and footnote 67 above), which multiple operations were aimed to save the right leg, ankle and foot that were associated with severe soft tissue injury, bone fracture and ankle position. For soft tissue injury, there was 15% body surface skin loss, which was covered temporarily with degloved skin, followed by multiple debridement to remove dead/infected skin, and finally the wound was covered by free myocutaneous latissimus dorsi flap. But the flap failed resulting in another major microvascular operation performed a day later with the wound covered by split skin graft taken from both thighs, which led to significant stiffness to ankle subtalar and mid tarsal joint. For the right ankle joint fracture, it was treated by closed reduction and screws fixtion. For the Lisfranc dislocation, it was treated by open reduction and temporary screws fixation with removal of the screws about a month later. 267.The Experts explained that grafting free mycutaneous dorsi flap is a complicated/difficult surgery involving microvascular surgical technique, taking the muscle with skin, subcutaneous tissue, arteries and veins from left chest region. The procedure aimed to replant/cover soft tissue defect area over right foot with good full thickness skin and muscles, which involved vascular surgery to connect veins and arteries to maintain viability of the flap. The surgical purpose was to allow P to have immediate ankle/foot movement, and to provide good coverage of the defective soft tissue. Even though such difficult/complicated surgery was unsuccessful for P, the procedure was standard and appropriate. But the failure led to another skin graft surgery, taking nearly the whole lot of skin from both thighs, which might result in contracture and decrease in sensation of the graft site that contributed to his present right foot/ankle condition (ie deformity, no movement, significant decreased sensation and disfigurement over this region). 268.At the time of the Jt Exam, P still had the complaints in paragraph 257 above, and the Experts made the findings in paragraphs 265-267 above. The Experts agreed P’s condition was compatible with post-injury status after all the surgeries. The multiple scars were severely disfiguring and associated with marked muscle wasting of right calf. Yellowish discharge was still noticed over right heel. There was nearly no movement below right ankle (except right toes). Functionally, Dr Wong opined P’s condition was no better than a case of below knee amputation with prosthesis, but Dr Chun disagreed and said at least there would be no overloading of the heart in later life due to the weight of the prosthesis. 269.As regards P’s prognosis, the Experts agreed he had attained maximum medical improvement:
270.As for the assessment of whole person impairment, Dr Wong turned to the American Medical Association guides (6th ed) which recommended 70-80% for lower extremity impairment for below knee amputation, which would be equivalent to 28-32% whole person impairment. In view of P’s condition, Dr Wong gave (a) 32% whole person impairment for disfiguring scars and deformity of right foot, and marked stiffness of right ankle due to the right ankle injury caused by the Accident, and (b) additional 4-6% whole person impairment for donor site morbidity causing left shoulder pain, stiffness and weakness. On the other hand, Dr Chun opined soft tissue loss of the leg and body, stiffness at the ankle, foot deformity and scarring accounted for 25% whole person impairment. 271.On the matter of sick leave, the P 1st WStmt stated P was granted on-and-off sick leave for 316 days from 24 October 2013 to 31 January 2015 and also on 17 August 2015. Both Experts agreed in view of P’s persistent symptoms that required multiple surgeries and prolonged treatment, the sick leave granted by the orthoapedic treatment doctors up to 31 January 2015 as well as a further day’s sick leave on 17 August 2015 for follow-up purpose were acceptable. (f) Pain, suffering and loss of amenities (“PSLA”) 272.For damages for PSLA, P claimed a sum of $1,300,000 under the RRRSoD, and D2/D4 averred in their Answer that a sum not more than $500,000 should be awarded. In his written closing submissions, Mr Law upgraded the amount to $800,000 on the basis that P made good recovery, had reasonable mobility such that he was able to manage 3 hours of transport to/from work between Chai Wan and TMH from February 2017 (when P started to work as 義復幹事 (pastoral care service worker) – see paragraph 305 below) and July 2019 (when P moved to live in Tuen Mun – see paragraph 230 below), and at the time of the trial he was able to and would attend to patients in TMH, talk to them whilst they waited for medical appointments, visited patients living nearby, and walked them home (see paragraph 230 above). 273.Ms Lee referred me to the guidance by Cons Actg CJ in Lau Che-ping v Hoi Kong Ironwares Godown Co Ltd as follows:[72]
274.Ms Lee cited a number of authorities to urge the court to award damages for PSLA as P claimed.[73] As explained above, P’s injuries and disabilities involved not only orthoapedic aspects, but also psychological struggle/adjustment to his severe injuries and disabilities. There was also serious disfigurement and cosmetic impairment. 275.Ms Lee referred me to the guidance by Master Jerome Chan (as he then was) in Chui Po Hing, by her father and next friend, Chui Sun v Lo Suen [74]where apart from functional disablement the plaintiff suffered “horrendous cosmetic injuries to her lower limbs” (page 7 and see footnote 73(e) above):
Such guidance was applied by DHCJ Chu (as she then was) in Ng Chi Chung v Lay Kam Ping where the 23-year old plaintiff suffered severe injuries in a road traffic accident. His orthopaedic injuries alone would have placed him in the upper end of the “substantial injury” category (paragraph 18). The learned judge cited Chui Po Hing, by her fathr and next friend, Chui Sun and declined to make a separate award for cosmetic injuries. Nevertheless, DHCJ Chu (as she the was) held as follows:
276.Turning to the matter of inflationary increase in PSLA awards, in Slater v Commissioner of Police,[75] whilst Bharwaney J in taking judicial notice of year on year inflationary increase according to Composite Consumer Price Index (“CCPI”) came to the view that inflation had not been high in 2016/2017, he nevertheless held that damages for PSLA in personal injury cases falling within the “serious injury” category would start at $530,000 in July 2017. The learned judge also reminded practitioners “to have regard to the rise in the level of awards for damages for PSLA when updating their clients’ Statements of Damages”. 277.In Ng Tat Kuen v Tam Che Fu & ors,[76] Bharwaney J reviewed the appropriate inflationary adjustments to awards for different categories of injuries over the years, and produced a level of damages for PSLA of $715,000-$875,000 for the “substantial injury” category as at/ about July 2017 (ie when Slater was decided). 278.In Yuen Wai Chuen v Chan Wing Pui & anor,[77] the plaintiff’s injuries fell just below the “serious injury” category (paragraph 43). Like Bharwaney J in Slater, DHCJ Raymond Leung SC took judicial notice of the inflation rates afforded by the CCPI (paragraph 47) and also made reference to “[the] inflation-adjusted ranges of awards under the different categories of injuries [that] are now readily available from the Personal Injury Tables (Sweet & Maxwell), also known as the “Chan’s Tables”” (paragraphs 44 and 47) in coming to his inflation-adjusted award for damages for PSLA. 279.In Yu Chun Kit v Wong Wing Yau (formerly trading as Viewbond Cargo Service Co),[78] the plaintiff’s injuries were less serious than the “serious injury” category (page 948). DDJ Kay Seto referred to the award in Slater (assessed as at July 2017) and took judicial notice of the inflationary increase in the CCPI in 2018, 2019, 2020 and 2021 to update the figures to arrive at a starting point of an award for damages for PSLA for the “serious injury” category at $590,000 in 2021 (page 949). 280.The Personal Injury Tables Hong Kong 2019[79] (“Chan Tables”) helpfully set out the revised range of award for the “substantial injury” category as at 2018 (ie upon taking into account the effects of price inflation between 1996 and 2018) from $740,000 to $905,000. Taking judicial notice of year on year inflationary increase in June 2019 (3.3%), June 2020 (0.7%) and June 2021 (0.7%), there should be a percentage increase of 3.3% + 0.7% + 0.7% = 4.7% to the range of award in the Chan Tables up to June 2021. Ms Lee asked me to uplift this by another 0.3% to cater for further inflation until judgment. I agree in view of the time lapse between the trial and this Judgment, and applying a percentage increase of 5% to the range of awards in the Chan Tables, the current range of award for damages for PSLA in the “substantial injury” category would be $777,000 ($740,000 x 105%) to $950,250 ($905,000 x 105%). 281.Here, I have no doubt P’s orthopaedic injuries fell within the “substantial injury” category. The injuries to his right lower limb and the complex surgeries/treatment he endured were extensive. He was psychologically upset/stressed, so much so that he had to receive in-ward psychological counselling. P was a young man at the beginning of married life, but the trauma of the Accident, his extensive injuries, the difficult/complicated surgeries/treatment, his serious disabilities and the persistent need to tend to them had wrested from P what should have been carefree honeymoon years. Plainly, P had to live with his disabilities with all the inconvenience arising from limitation in work (eg inability to continuously sit for extended periods due to leg pain, stiffness and swelling as discussed further below) and play (eg difficulty in participating in physical recreational activities with wife/daughter, carrying out heavier household chores, and enjoying sports such as football and swimming that he used to enjoy). He walked with limping gait and required tailor-made boots with raised sole and customised insole, and had limitation in ambulation (ie requiring walking stick/aid except for short distance) and walking tolerance. There was marked muscle wasting of right calf, the right foot was lopsided, and there was no movement below right ankle (except right toes), disfigurement in this region, and decreased sensation and contractures due to graft sites at thighs. P had persistent pain of scars at sole aggravated by weight bearing, pain on walking, abrasion wound and pressure ulceration on prolonged walking. P would require lifelong P&OD service and regular podiatry service. He suffered and would suffer constant discomfort, pressure wound / ulceration, callosity, toenail involution, and the non-healed wounds and blisters in the right foot/heel would require regular self-dressing,[80] dressing by nurse or perhaps even debridement surgery, which inconvenience would persist for the rest of his life. 282.Although P no longer attended follow-up for psychological counselling (see paragraph 370(d) below), it was only due to the fortuity of having supportive teachers and classmates in his theology counselling course (see paragraphs 308 below) who proactively helped him work through his negative thoughts and feelings. P explained he was more upbeat since he had taken up the theology counselling course, but the fact he was able with the help of Lei, his colleagues at the chaplaincy office and his teachers/classmates at the theology counselling course to be positive and to try his best in face of adversity would not lessen the seriousness of the trauma, injuries and disabilities he suffered. Indeed, they spoke well of his determined struggle/journey to reach his current state. It was fortunate that P retained some mobility. He was able to ambulate with walking aid although there was pain on prolonged walking and his walking tolerance was reduced, which was self-evident from the significant muscle wasting over his right lower limb, the limited range of movement at/below the right ankle, the persistent wound/ulceration at right ankle/foot caused by pressure/abrasion on prolonged walking (see paragraph 246 above), and the shoulder ache, pain, stiffness and weakness as a result of using walking stick to aid walking beyond short distances (see paragraphs 255(c), 262 and 270(b) above). So even though I do not think P’s functioning could be said to be no better than a patient with a below knee amputation with prosthesis, P clearly had genuine residual disabilities from the serious injuries he suffered as a result of the Accident. 283.I also agree with Ms Lee there should be an uplift in the award for PSLA due to P’s extensive cosmetic injuries. After all, P was only 29 years old at the time of the Accident. His disfiguring scars from the degloved injury, multiple surgeries, skin grafts, and persistent non-healing foot/heel wounds with discharge would cause him embarrassment, and would deter him from, say, wearing shorts or going swimming. He had to wear high top custom-made boots with adjustments by the P&OD service, and long trousers to cover his scars. P and Lei had a young daughter in 2019, but as Ms Lee submitted, their sexual intimacy after the Accident was curtailed as a result of P’s injuries and persistent wounds (see paragraph 257 above). Plainly, the Accident was as unexpected as it was traumatic for the couple, and it was clear in the course of Lei’s oral evidence that she was still upset by reminders of the Accident. 284.Mr Law reminded me that P was able to manage 3 hours of transport to/from work between Chai Wan and Tuen Mun between February 2017 and July 2019, but as seen in the discussions/findings in paragraphs 330-331 below he did not have to walk very much and could be seated for most of the time for these journeys. Mr Law also noted that by the time of the trial P was able to and would visit patients in TMH, talk to them whilst they waited for medical appointments, visit patients living nearby, and walk them home (see paragraphs 340 below). I agree that by 2021 (ie 9 years after the Accident) P had some improvement, but his permanent disabilities were still substantial as explained above. Further, an award for PSLA is not limited to compensation for work-related impairment, but covers a broad range of range of pain, suffering and loss of amenities that would impact on all aspects of life. 285.I bear in mind each case turns on its own circumstances. In P’s circumstances (including his/Lei’s evidence and treatment/expert medical evidence) as I have found, I have no doubt P’s injuries and disabilities fell within the upper end “substantial injury” category to be enhanced by cosmetic complications and impairments, and I award $1,180,000 as damages for PSLA. (g) Pre-Accident work 286.According to the 1st Jt Report and the P 1st WStmt, P worked as a fast food restaurant worker when he was 17 years old and was promoted as manager when he was 18-19 years old. At the same time, he read a part-time course. P explained in-chief that in fact he repeated Form 5, but still failed the public examination. According to the P 1st WStmt, since 2003 P worked as a shipping clerk for various companies. By the time of the Accident, he had been a shipping clerk for over 10 years. 287.According to the P 1st Wstmt, since 16 July 2008 P was employed by Topocean as a shipping clerk (ie when he was about 24 years old). In/about September 2010 (ie when P was about 26 years old) he was promoted as operation supervisor, and later in/about June 2013 (ie a few months before the Accident and when he was about 29 years old) he was further promoted as assistant operation manager. 288.Topocean was an international forwarding company (國際貨運有限公司), and at the time of the Accident it had offices in HK, ZS, GZ and other cities in Mainland China as well as offices in South East Asia. Topocean’s HK office was situated on the 20th floor of an office building in Tsimshatsui (“HK Office”). P said under cross-examination that at the time of the Accident there were about 20 staff members working at the HK Office. P explained there were essentially 2 departments at the HK Office, ie the administration department and the operation department. P worked in the operation department, and Chun was his direct superior. Francis Ng was 部門總經理 (general manager of the operation department). Carmen Ng was the general manager of the administration department that handled administration and accounting matters. P did not know how many staff members were of his grade (ie assistant operation manger) at the HK Office, but he was the only one in his department, ie the operation department. 289.According to the P 1st Wstmt, P’s work duties included “…… 向上級報告存貨、每天回覆電子郵件, 並管理下屬 ……” (ie reporting to his seniors about the stock situation, dealing with emails and supervising his juniors).[81] P gave evidence under cross-examination that at the time of the Accident he (as assistant operation manager) had his own team of about 10 staff members in HK, SZ, GZ, ZS. He mainly worked at the HK Office, and supervised his colleagues by telephone. P said his workload was quite heavy. 290.According to the P 1st WStmt, P worked from Monday to Friday from 9:30am to 6:30pm with a 1-hour lunch break and usually about 3 hours’ overtime work each workday up to 9:30pm. According to the 1st Jt Report, P told the Experts he worked 5 days a week, and his working hours were from 9am to 6pm with 2-3 hours’ overtime work each workday. The P 1st WStmt stated P had about 13 days’ paid annual leave. The P 1st WStmt claimed P’s average monthly earnings before the Accident were $19,738.64/month, but the schedule based on P’s earnings records for the year before the Accident (F/676) showed his average earnings were $19,510.42/month. (h) Lei’s work history 291.According to the P 1st WStmt, as a result of P’s injuries, Lei returned to work since mid-2015 as a shipping clerk for about RMB3,200/month. This was echoed in the Lei WStmt (ie Lei worked as a shipping clerk at Topocean’s ZS office for RMB3,200/month – see paragraph 259 above). But by the time of the trial, Lei was already a housewife living with P and their daughter in Tuen Mun. (i) Post-Accident work 292.Sick leave According to the 1st Jt Report, P was granted sick leave until 31 May 2014 (see also schedule of sick leave (F/680) that showed P had continuous sick leave from 24 October 2013 to 31 May 2014, intermittent sick leave up to 31 January 2015, and 3 more days of sick leave up to 22 January 2019[82] - see also paragraph 271 above). The Experts agreed that in view of P’s persistent symptoms requiring multiple surgeries and prolonged treatment, sick leave up to 31 January 2015 as well as on 17 August 2015 for follow-up purpose was acceptable. Although I am not bound by the sick leave granted by the treatment doctors, I find on balance that in light of P’s injuries, disabilities and persistent sequelae, his overall sick leave was quite reasonable. Indeed, D2/D4 conceded P should be entitled to full loss of earnings during his sick leave period after deducting any earnings received during such period (see paragraph 316 below). 293.Topocean According to the P 2nd WStmt, P resumed work with Topocean on 1 July 2014. In my view, given the severity of P’s injuries and disabilities, it was more than reasonable for P to attempt return to his pre-Accident employment 3.5 months after his discharge from hospitalisation on 14 March 2014 and a month after cessation of his continuous sick leave on 31 May 2014 (see paragraphs 239 and 292 above). 294.The Chun WStmt confirmed P resumed work at Topocean on/about 1 July 2014 at his pre-Accident position of assistant operation manager. At that time, P was still receiving outpatient physiotherapy treatment (see paragraph 242 above). According to the P 2nd WStmt and the Chun WStmt, before P returned to work, he had told his employer he had to take a day off each week for physiotherapy treatment. 295.P gave evidence under cross-examination that in the 1st week he returned to work, he took one afternoon off for attending physiotherapy session. According to the P 2nd WStmt, 2-3 days after P resumed work, Chun told him 3 colleagues of the GZ office left at the same time, so Chun/P had to take over their work, “…… 但由於 [Chun] 本身亦有其他事務需要跟進, 因此 [P] 接手了絕大部份的工作, 包括與托運人聯繫並檢查出貨日期及徵求装船通知, 與運送人及海外代理人聯繫並查詢運貨價格及船期和準備海運提單等 ……” P’s workload increased significantly when he took over the workload of the 3 colleagues of the GZ office, and he sometimes had to work overtime until after 8pm. The Chun WStmt confirmed P’s above account.[83] 296.P said under cross-examination that it was his impression (although he could not clearly remember) that in July 2014 when he worked at the HK Office, “…… 真係返親去嘅都會有OT囉 …… 如果做物理治療嗰兩日 …… 咁就冇OT喇 …… 但係其餘嘅日子 …… 都會 …… 做全日嘅 …… 個印象就係係有OT嘅 ……” According to the P 1st/2nd WStmts, P’s more intense work and overtime work after his return in July 2014 required him to sit for long hours to reply to emails, and his right leg became swollen after a day’s work. According to the P 2nd WStmt, about one odd week after P resumed work, P discovered his right leg became more stiff and swollen as a result of sitting for long periods at work, and the physiotherapist suggested he should have 2 physiotherapy sessions per week. P said under cross-examination “……跟住就返到第二個星期開始 …… 就每個星期同公司請兩日嘅下午去做物理治療 …… 即係第三個星期同第四個星期個情況都係咁喇, 即係二、三、四嗰三個星期, 每一個星期都有兩日下晝係去做物理治療 ……” According to the P 2nd WStmt and the Chun WStmt, even though P tried his best, his injuries and disabilities made it difficult for him to sit for long at work, so in the 2nd week of July 2014 P applied to Chun for no-pay leave for the whole of August 2014 so he could receive treatment. 297.According to the P 2nd WStmt, in the afternoon of 31 July 2014, Francis Ng and Chun asked for a meeting with P, and at such meeting Francis Ng pointed out P did not have any more unused sick leave. P believed that by this Francis Ng meant P had used up all the paid sick leave he was entitled under labour legislation, so Topocean could have dismissed him at any time. It was suggested to P that “…… [P] 先自行辭職, [Topocean] 會待 [P] 傷患有好轉之後再聘請 [P]。[P] 認為 [Topocean] 實際上就是在辭退 [P], 因此 [P] 在會內與 [Topocean] 達成共識協議離職 ……” P agreed that had the 3 colleagues at the GZ office not left and had he been allowed to take no-pay leave for August 2014 to receive treatment, P might have been able to continue to work at Topocean. But that was not the case, so he “…… 勉強工作一個月 ……” and was constrained to “協議離職” “…… 因為工作量大 …… 就係其實 [P] 嘅工作崗位就一個做三個同事嘅工作嘅時候, 其實都已經辛苦喇 ……” 298.According to the Chun WStmt, Chun was very satisfied with P’s work performance before the Accident, ie “…… [P] 做事勤快和有效率, 是 [Chun] 的得力助手 ……” (ie P was much appreciated for his diligence and efficiency), but when P resumed work after the Accident, he had to attend treatment for his leg injuries and his efficiency dropped, eg “…… [Chun] 注意到由於 [P] 的行動比較不便, 他去上廁所也特別費時 ……” As P explained, the time he took to go to the toilet had significance due to his heavy workload and his right leg disability, ie P received a lot of emails (including group emails) in the course of his work, “…… 如果 [P] 行開去個toilet, 大概五分鐘喇, 返番嚟嘅時候, 咁嚟--返番嚟嘅e-mail亦都會變相就好多 …… 咁就要處理嘅時間亦都係好多 …… 當時就冇時間畀隻腳去喺即係工作期間可以有適量嘅活動囉 ……” (ie P’s sitting posture did not allow him to have appropriate leg activity). The Chun WStmt also stated that when P asked for no-pay leave for the whole of August 2014, “…… 此舉會嚴重影響 [Topocean] 的運作 ……” Chun agreed under cross-examination that although P could finish his work by the time he went off duty, (a) he was slower in his work (eg it took P longer to respond to incoming email even though Chun could not concretely say how much slower P was than before, but “…… 咁時間性即係用多咗, 咁咪會慢啲囉, 覆嘢, 係囉 ……”), and (b) “…… [P] 行動不便嘅話就比較困難 …… 因為時間性長咗 ……”, “…… 咁 [P] 平時如果 …… 即係去洗手間嘅時候可能時間短嘅, 咁 [P] 做啲嘢係咪會快啲同多啲, 即係咁嘅意思 ……” 299.According to the Chun WStmt, “…… 根據 [Topocean] 當時的編制, [Topocean] 必須裁減一位同事, 才能再聘請另一位頂替 [P] 的位置 ……” In my view, Chun plainly meant Topocean wanted to employ another to take over P’s position in order to efficiently discharge the duties and workload of the assistant operation manager, but there was no headcount vacancy to allow Topocean to recruit another employee unless P left. This lead to the meeting between Francis Ng / Chun and P (see paragraph 297 above), and the Chun Wstmt echoed P’s evidence by saying “…… 基於上述原因, 在2014年7月31日下午, [Chun] 及部門總經理 [Francis Ng] 與 [P] 開會, [Chun and Francis Ng] 於會議內向 [P] 提出由於 [P] 沒有新的病假, 因此向 [P] 提議 [P] 先自行辭職, [Topocean] 會待 [P] 傷患有好轉之後再聘請 [P], [P] 在會內與 [Topocean] 達成共識協議離職 ……” 300.Topocean’s Carmen Ng issued a reference letter dated 31 July 2014 (F/637) which stated that “[during] the period of employment, [P] had proved himself to be very co-operative & conscientious. He also had faithfully attended to his duties, proving himself to be industrious and thoroughly reliable. He left of his own accord and we wish his success in his future career” (“Ng Reference Letter”). Subsequently, Felix Wu (then president and most senior person at Topocean’s HK Office) issued a reference letter dated 23 February 2016 (F/638) which stated that “[during] the period of employment, [P] had proved himself to be very cooperative, diligent & conscientious as staff and management. If he is able to stay with the Company, there are opportunities for further promotion” (“Wu Reference Letter”). P could not remember why there was the Wu Reference Letter when, according to Chun, it was usually unnecessary for Topocean’s president to issue a reference letter for a departed assistant operation manager. 301.Finding alternative employment According to the P 1st WStmt, P’s increased expenditures on tonic food and travel expenses put pressure on his family finances, so he diligently looked for work to support his livelihood, “…… 包括申請一些和船務文員相關的工作以及推銷員, 但都沒有成功獲得取錄 ……” (see paragraphs 344-347 below on job applications in the shipping logistics/forwarding industry). 302.Further, P claimed he could not sit, stand or walk for long due to his right leg injuries/disabilities, so he could only look for work with shorter working hours or more flexibility, eg part-time jobs. 303.ACE Life Insurance Company Ltd (“ACE”) According to the P 1st WStmt, since about April 2015 P worked as an insurance agent for ACE. There were no fixed working hours, and P’s work was to market insurance plans to potential customers including (a) distributing promotional leaflets and (b) setting up / manning marketing stands (see clause 3.3 of P’s employment contract with ACE dated 9 April 2015, “ACE Contract”). But P could only distribute promotional leaflets for a maximum of 45 minutes each time, and he helped to man marketing stands for only 2-3 times. P’s monthly income was about $6,000 (of which $5,000 was “…… [ACE] 為鼓勵第一年新人的獎金, 按業績派發” – see clause 2.1 of Addendum I – Financing Advance Scheme of the ACE Contract), which was much less than his earnings at Topocean. P said that since about February 2016 “…… 由於腳傷的關係未能長時間推銷產品, 因此未能達到 [ACE] 的業績要求, 之後 [P] 為保險經紀工作的月薪就只有約HK$550 ……” On 25 October 2016, ACE (then known as Chubb Life Insurance Co Ltd) accepted P’s resignation with effect from 24 November 2016 (F/666). According to the schedule of earnings (F/676), P’s total earnings with ACE from April 2015 to October 2016 were $91,496.64. 304.Telephone interviewer and telemarketer According to the P 1st WStmt, since about April 2015 P “…… 亦開始在香港大學 [ie The University of Hong Kong, “HKU”] 從事兼職電話訪問員 [F/667-670]。[P] 於2015年11月至2016年2月曾短暫離職, [P] 會一星期工作約2-3天, 每天工作約2至3小時, 每月平均月薪約為HK$1,400。此外 [P] 從2016年4月13日至2016年4月29日亦在DR MAX 從事兼職電話銷售員 [F/671-672]。[P] 一星期工作約3天, 每天工作約4小時, 所賺取薪金為HK＄1,122 ……” According to the schedule of earnings (F/676), P’s total earnings from HKU from April 2015 to January 2017 were $22,759, and his earnings from Dr Max for April 2016 were $1,122. 305.Chaplaincy Ltd According to the P 2nd WSmt, P was employed by Chaplaincy Ltd as 義復幹事 (pastoral care serevice worker) since 1 February 2017. P explained in-chief he was looking for work at the time, “…… 就有熟人 …… 有朋友同 [P] 講 …… 就話新界西院牧事工, 即係佢係一個基督教團體嚟嘅, 就請人 …… 叫 [P] 試下去interview ……” According to the employment contract dated 1 February 2017 between Chaplaincy Ltd and P (F/673), P was employed as 義復幹事 (pastoral care service worker) from 1 February 2017 to 31 January 2018 at monthly salary of $9,464 (幹事薪級第二點) working 45 work hours / week. Apart from TMH, Chaplaincy Ltd also served Pok Oi Hospital, Castle Peak Hospital, Siu Lam Hospital, Tin Shui Wai Hospital, and “…… 仲有一個就係喺青松觀路嘅義工及復康綜合服務 ……”, but P worked at the chaplaincy office at TMH. 306.According to the P 2nd WStmt, P’s work duties mainly included visiting patients and some clerical work.[84] As compared with his work as an insurance agent, P “…… 不需要出外勤, 也不需要長時間走動, 因此較不需要體力勞動 ……” As compared with his work at Topocean, P did not have to sit for long periods at work, “…… 因此能避免嚴重加劇 [P] 右腳的傷患 ……” P said he could not sit for the whole day “…… 因為 [P] 隻腳其實坐喺度, 其實都隻腳會好唔舒服, 即係好似 [P] 而家咁 [ie sitting at witness box to give oral evidence], 其實 [P] 隻腳喺下低都即係咁樣喐嚟喐去嘅 …… 平均 …… 三十至四十五分鐘喥喇, 就要起一起身 ……” P said in-chief that 義復幹事 (pastoral care service worker) was a suitable job for him “…… 因為佢係可以畀 [P] 隻腳有即係足夠嘅活動同埋休息, 即係又唔需要成日喺度即係坐喺度做喇, 或者又唔需要整日都喺度行, 佢隻腳即係受壓咁樣 ……” 307.After expiry of the 1st employment contract, P’s employment with Chaplaincy Ltd was renewed for the period from 1 February 2018 to 31 January 2019 for the same position and for the same work hours under a new contract dated 1 February 2018 (F/674), but his monthly salary was increased to $10,374 (幹事薪級第三點). P did not ask and did not know how many wage points there were for幹事薪級, but P knew “…… 之前有位上司叫做高級義復幹事 ……” At the time of trial, P was still employed by Chaplaincy Ltd as 義復幹事 (pastoral care service worker) by contract renewed each year. 308.At the time of trial, P was reading a job-related theology counselling course at 伯特利神學院 (Bethel Bible Seminary). P explained that after he started working at the chaplaincy office at TMH, “…… 咁牧師就同 [P] 講, 就話想 [P] 再喺神學 …… 同埋輔導嗰方面就去進修, 跟住就叫 [P] 去伯特利神學院度 [ie Bethel Bible Seminary] 搵下有冇啲合適嘅課程, 跟住 [P] …… 亦都詢問過神學院喇, 咁佢就覺得 [P] 係做院牧事工嘅話, 咁就去讀下啲輔導學嘅課程囉 ……” 309.When cross-examined about the promotion prospects, P explained there were 2 types of staff at the chaplaincy office at TMH and hence 2 routes for his career path. At the time of trial, the chaplaincy office at TMH had (a) 3 義復幹事 (pastoral care service worker) that belonged to “…… 義工及綜合服務嗰邊 ……”, ie “…… 一位係 [P’s] 上司, 一位就係 [P], 一位就係 [P] 另外一位同事, 都係幹事 ……” and “…… [P] 上司就唔係叫做高級幹事, 佢哋畀佢嘅title叫做「義復負責人」 ……” who worked on pro bono basis with no pay, and (b) “…… 八位院牧 …… 八位院牧其中有位係主任 ……”, so “…… 就成個 [TMH] 院牧部就大概有十一位同事 …… 即係包括埋 [P] 三個 ……” For (a) above, “…… 如果 …… 屬於呢個義工同綜合服務嗰方面 …… 就唔需要係要完成呢一個嘅神學課程, 係以即係一般工作上嘅晉級 ……” For (b) above, “…… 如果要行院牧嗰方面嗰條線嘅 ……” (ie transfer from 義復幹事to 院牧), P would have to complete “…… 一個佢哋叫做CPE嘅神學課程 ……” But “…… 因為 [P] 未完成所有神學課程, 所以其實主任院牧亦都冇同 [P] 再作任何呢方面 [ie possible transfer to 院牧] 嘅溝通過囉 ……” The theology counselling course P was reading was a beginner course (“…… 入門檻囉 ……”) for transfer to “院牧”, “…… 就即係話完成咗 [P] 而家修讀緊嗰個, 都未 …… 達到佢哋做呢個院牧嗰方面嘅神學課程 ……” (ie P had yet to satisfy the CPE requirements for transfer to 院牧). 310.According to the schedule of P’s earnings with Chaplaincy Ltd from February 2017 to July 2021 (F/677), P’s earnings since April 2017 was $9,843/month. P said under cross-examination that usually there would be a pay rise in April.[85] P was at wage point 幹事薪級第二點when he joined Chaplaincy Ltd in February 2017. He said that upon annual renewal of employment contract “…… 主任都會同我哋講 …… 即係原先個人工就 …… 加個生活費, 即係通漲4個per cent上去 ……”, but he did not pay attention to his wage point as stated in his employment contract, eg 幹事薪級第三點in his renewed contract of employment dated 1 February 2018 (F/674). 311.As seen in the above paragraph, the schedule of P’s earnings (F/677) showed his earnings since April 2017 was $9,843/month, but his earnings for December 2017 increased by $2,000 to $11,843, and there was the same increase of $2,000 to his basic salary in December for 2018, 2019 and 2020.[86] P testified that this $2,000 bonus (獎勵) at/around Christmas “……咁呢個就係年年都有嘅 ……” (“Xmas Bonus”). 312.According to the schedule of P’s earnings (F/677), P’s monthly earnings in February 2018 (ie around Chinese New Year) at $14,764.49 was increased from his basic salary at $9,843/month by $4,921, his monthly earnings in January 2019 at $15,789 was increased from his basic salary of $10,789/month by $5,000, and his monthly earnings in February 2021 at $16,587.49 was increased from his basic salary at $13,270/month by $3,317.49, but there was no similar increase in January/February 2020. P said the increase that ranged from about $3,300/month to $5,000/month around Chinese New Year in 2018, 2019 and 2021 “…… 嗰個性質係一樣嘅, 係一個即係特別打賞, 或者特別係獎金畀 …… 職員 ……” (“CNY Bonus”), but he did not know why there was no CNY Bonus in February 2020. But P explained under re-examination that “…… 其實每年到差唔多農曆新年嘅時間, 我哋嘅顧問牧師同主任牧師都會出去問下有冇其他啲醫生或者啲團體去, 即係畀多啲支持我哋, 即係奉獻喇, 我哋院牧部嘅 …… 如果佢哋有呢啲, 即係醫生或者團體或者啲人士大額奉獻就有囉, 如果冇, 就冇囉 …… 即是嗰筆錢就係要睇下街外人對 …… 個院牧部係咪慷慨, 然後先至會有 ……” 313.Under further cross-examination, P said that as at late September 2021 he was not yet told whether he would have Xmas and CNY Bonuses respectively in December 2021 and around Chinese New Year in 2022, “…… 就要到到嗰陣時先知有定冇喇 ……” (j) Pre-trial loss of earnings and MPF benefits 314.1st Jt Report Dr Wong opined P showed good initiative in trying to resume his pre-Accident work on 1 July 2014 (ie about 8 months after the Accident). P reported that after about a month he could not tolerate prolonged sitting that aggravated his right knee stiffness and leg discomfort, which still required continuous treatment and sick leave. P subsequently worked as an insurance agent from May 2015 until the Jt Exam (February 2016), which Dr Wong considered to be suitable as P could meet clients and do clerical work with no fixed hours. On the whole and given P’s condition, Dr Wong opined P would not have been suitable for any job that was mobile in nature, and he regarded P’s competitiveness in the private market gloomy. On the other hand, Dr Chun opined P could resume work as an office clerk and/or an insurance agent, and noted P was able to go out to meet clients. 315.P’s case In the RRRSoD, P pleaded he used to earn on average $19,510.42/month before the Accident. According to the Quarterly Report of Wage and Payroll Statistics (“Statistics”) by the Census and Statistics Department (“CSD”), a documentation shipping clerk earned $13,939/month in 2013 but $17,648/month in March 2021, ie an increase of 26.60% from 2013 to 2021. So but for the Accident, P’s earnings would have increased by like percentage to $24,700.19 by the time of trial, and his pre-trial median monthly earnings would have been $22,105.30, so his pre-trial gross loss of earnings would have been $22,105.30 x 94.5 months (from 23 October 2013 to 8 September 2021) = $2,088,950.85. P then averred his actual post-Accident earnings from Topocean,[87] ACE,[88] HKU,[89] Dr Max[90] and Chaplaincy Ltd[91] (including “ex gratia salaries paid to him by his former employer Topocean”) in the total sum of $918,084.52 (rather than the pleaded total sum of $916,967) should be deducted from P’s notional earnings to arrive at pre-trial loss of earnings and MPF benefits of ($2,088,950.85 - $918,084.52) x 105% = $1,229,409.65. 316.D2’s/D4’s case In the Answer, D2/D4 averred that (a) subject to P’s strict proof of his pre-Accident earnings, they would allow P’s loss of earnings and MPF benefits during P’s sick leave from 22 October 2013 to 31 January 2015 and on 17 August 2015, and (b) subject to discovery they would assume P would have received annual increment of 3% to his pre-Accident earnings of $19,738.64/month, so P’s total pre-trial loss of earnings and MPF benefits should not be more than $330,858.39. 317.As to P’s alleged “協議離職” vis-à-vis Topocean because he could not sit for long hours which aggravated his right leg pain and stiffness, D2/D4 averred (a) P’s pre-Accident work was sedentary in nature, (b) Dr Chun opined he should be able to resume his pre-injury work, (c) Dr Wong only opined he was not suitable for jobs that were mobile in nature, (d) according to the Ng Reference Letter P left Topocean of his own accord (which D2/D4 suggested was a decision “at [P’s] own preference, which is unrelated to the [Accident] on 22 October 2013”), and (e) the insurance agent job with ACE that P chose to take up was more strenuous than his pre-Accident work. 318.D2/D4 further averred that (a) P did not complain of pain or aggravated discomfort when he sat for the Jt Exam on 25 February 2016, (b) there was no written record that P complained to treatment doctors/ therapists of pain/discomfort after prolonged sitting, (c) the physiotherapy report dated 25 July 2015 recorded P’s walking tolerance had improved to 1-2 hours (see paragraph 242 above). 319.D2/D4 further or alternatively averred that if it were found that P was unable to return to his pre-Accident work (which D2/D4 did not admit), P should have been able to take up alterative jobs such as office/administrative supervisor with monthly earnings of no less than $23,559 in September 2018 and/or $24,453 in March 2021 according to the CSD’s Statistics. D2/D4 claimed P failed to mitigate loss by failing to return to his pre-Accident employment or to work in alternative employment with commensurate earnings. 320.Legal principles on mitigation of loss The legal onus to prove a claimant has failed to mitigate loss rests on the defendant.[92] 321.As to the broad principles on mitigation of loss, they have been well summarised in McGregor on Damages as follows:
322.As to the criterion/standard of reasonableness, McGregor on Damages had the following to say:
323.Mr Law referred me to the principles discussed in my own judgment in Chu Hon Chong v Wong Kwan Kit & anor.[95] Those principles were extracted from an earlier edition of McGregor on Damages and from the appellate guidance in Chua Ming Yuen v Hentron Investments Limited & anor,[96] and they did not take the matter any further than what was stated in paragraphs 321-322 above. 324.Discussion It was D2’s/D4’s case that P failed to mitigate his loss to take steps to look for higher-earning job, and Mr Law asked me to bear in mind the paucity of supporting documents to evidence P’s alleged job-hunting efforts to secure work with higher earnings. However, D2’s/D4’s stance as to when P should have resumed work with higher earnings such that there would no further claim for loss of earnings was unclear. The Answer seemed to suggest there was no further loss of earnings after expiry of sick leave on 31 January 2015 and on 17 August 2015 (see paragraph 316 above). But Mr Law’s written closing submissions complained of P’s failure to take reasonable steps to look for higher-earning jobs from September 2018 to the trial in October 2021, and suggested that during those 3 years P had not made many applications for better jobs given his overall health recovery by 2018, and his work attitude, good performance and supervisory experience at Topocean would have stood him in good stead to secure an office, administrative and/or shipping supervisory position that, despite pain in his right leg, he would have been able to manage both for travelling to/from work and at work. Mr Law sought to bolster his submissions by relying on the occupational therapy report dated 20 November 2018 by TMH’s OTD (see paragraph 250 above) that reported P was then working as 義復幹事 (pastoral care service worker) in hospital, which job entailed attending patients in hospital and visiting clients at their homes. It was said that “…… [the] critical physical demand was constant sitting, walking and standing. He reported managed well with job demand. He reported travel by public transportation ……” This line of submissions seemed to narrow D2’s/D4’s complaint of P’s failure to mitigate loss to the period in/after September 2018. 325.In the course of cross-examination, Mr Law suggested the aforesaid occupational therapy report dated 20 November 2018 did not say P had limitations in sitting, walking and standing, eg feeling of discomfort after sitting or walking for an hour. P explained in response that he could manage the sitting, walking and standing required in his job as 義復幹事 (pastoral care service worker) (see paragraph 306 above), but the occupational therapist only met him only once for assessment on 29 June 2018 and “…… 冇問到 [P] 大概要坐幾耐, 行幾耐, 同或者企幾耐囉 …… 佢凈係問 [P] 你日常嘅工作係要做啲乜嘢囉 ……” 326.In my view, it was not quite correct to say the occupational therapist had no reservations about P’s sitting, walking and stamding tolerance. P was right in saying the driving assessment carried out in June 2018 by TMH’s OTD was a one-off exercise for assessing his fitness to drive (see above paragraph). It was not for assessing P’s injuries, treatment, recovery and residues, and/or how his disabilities generally affected him. So it was noted in the report dated 30 November 2018 that (a) P was able to manage the “constant sitting, walking and standing” in his job (which required him to visit patients in hospital and visit the clients’ homes), and (b) even though he could travel by public transport he wished for the convenience of being able to drive on his own (see paragraph 250 above), but (as P said – see above paragraph) it was not necessary for the occupational therapist to assess P’s sitting, standing and walking tolerance in his work and whether he had pain/discomfort when he was engaged in his work. 327.Significantly, upon referral by TMH’s OTD to QEH’s CRSSC for driver rehabilitation service after the aforesaid driving assessment, P was assessed 4 times in July/August 2018 for off-road and in-vehicle assessments in respect of his functional ability to drive (see paragraphs 251-253 above). These more detailed investigations revealed P had dull sensation in right leg and persistent pain in scar of the sole aggravated by “weight-bearing”. In my view, although it was reported by QEH’s CRSSC on 5 July 2018 that (a) P could walk unaided with mild limping gait occasionally requiring walking stick for standby support, and (b) he tolerated walking for more than an hour, it did not mean P could walk unaided by more than an hour. The fact (i) P had equinocavovarus deformity of right foot, (ii) P had restricted right ankle movement and significant wasting of right calf muscles, (iii) P had to wear tailor-made boots with customised insole and raised sole (but still had recurrent callosity, cellulitis, pressure ulceration, abrasion wound with discharge and toe blistering – see paragraphs 244-247, 255(d), 257 and 268-269 above), (iv) P walked with mild limping gait if unaided, (v) P had significant stiffness to the right ankle subtalar and mid tarsal joint and no movement below right ankle (see paragraphs 268-269 above), (vi) the donor graft sites on both thighs were complicated with contracture and decrease in sensation that contributed to P’s foot/ankle condition (see paragraph 267 above), and (vii) P had dull sensation in the right leg and persistent pain in the scar of his sole, which, importantly, would be aggravated with “weight-bearing” meant P could not have walked unaided with limping gait, non-healing ankle/foot wounds and persistent pain for more than a hour, and P must be right in disagreeing with such suggestion under cross-examination (see paragraph 325 above). In my view, the physiology of P’s injured right leg/foot with equino-varus deformity resulting in limp and pain upon ambulation even with special footwear would have made prolonged walking without stick quite impossible. The fact that P had shoulder ache, pain, stiffness and weakness from use of walking stick (see paragraphs 255(c), 262 and 270(b) above) was testament to his regular reliance on walking aid. This was also borne out by (1) P’s complaint to the Experts at the Jt Exam in February 2016 that he had right foot pain particularly on prolonged walking for 15-20 minutes and standing for more than 30 minutes as recorded in the 1st Jt Report (see paragraph 255(a) above), (2) the Experts’ observation at the Jt Exam that P could not walk with good stability without aid and could not perform tip-toes and heel walk, squat or single leg stand on right side (see paragraph 260 above), and (3) the driving assessment in August 2018 when KH’s DoR recorded that P reported he needed to walk with stick and experienced significant pain on walking (see paragraph 253 above). 328.In fact, P had never been shy about the fact that he could manage walking for about 1-2 hours with walking stick even though he had dull sensation and pain. In my view, there was no question that P needed the help of walking aid, eg when he completed his physiotherapy sessions on 30 January 2015, he was able to walk unaided indoors, and walk with stick outsoors for 1-2 hours (see paragraph 242 above), but as TMH’s DOT reported in October 2015, P had pain on prolonged walking (see paragraph 237 above). P’s honesty was demonstrated when he echoed the above professional observations by giving evidence to the effect that he would manage without walking aid if he went downstairs from his home to have a meal in a nearby restaurant or if he went to the toilet whilst at work, but he would require use of a stick when he travelled between the court in Admiralty and his home in Tuen Mun for the purpose of attending trial (see paragraph 249 above). 329.On this last note, P was also frank in agreeing he could travel by public transportation, but that was because he walked with the help of a walking stick and took measures to minimise standing and walking. This was borne out by (a) P’s complaint to the Experts at the Jt Exam in February 2016 that usage of public transportation was manageable but there was need to use walking stick at least outdoors (see paragraph 255(e) above), and (b) how P travelled to work between February 2017 and July 2019 when he lived with his parents in Chai Wan but worked as 義復幹事 (pastoral care service worker) at the chaplaincy office at TMH in Tuen Mun (see paragraph below). 330.P explained under cross-examination that in going to work from Chai Wan to Tuen Mun, he would walk with walking stick for 10 minutes from his home to the bus terminus to take cross-harbour bus no 118. He would have a seat as the bus started from that bus terminus, and if it was full, he would wait for the next bus. Then he would disembark at the bus stop at the tunnel exit of the Hung Hom Cross Harbour Tunnel, walk for 5-7 minutes across a pedestrian footbridge to Hung Hom Station to board the MTR West Rail (as it then was) to Siu Hong Station. He would usually have a seat on the train journey in the morning. After disembarking at Siu Hong Station, he would take the Light Rail and alight at the next station right outside the entrance of TMH. The entire travelling time was about 1.5 hours, but he could cope because he would be seated most of the time, “…… 如果真係要行, 就係 …… 去搭118嗰陣時要行 ……” For returning home from work, P sometimes took the reverse journey, but sometimes he would take the Light Rail from the TMH Station to Kin Sang Bus Terminus to change to bus no 960 to go to Macau Ferry Bus Terminus in Sheung Wan and then change to bus no 788 to go to Siu Sai Wan where he would disembark to walk 5-7 minutes to go home. 331.P agreed under cross-examination he adopted the aforesaid modes of travel for going to and from work at the chaplaincy office at TMH for about 2.5 years before he moved to live in Tuen Mun, but “…… 就係喺呢兩年半，雖然每一日要成近三個鐘頭來回咁樣返工, 放工喇, 同埋要用呢啲咁嘅一般嘅交通工具, [P] 係好多時要頂住唔舒服呀, 或者痛, 即係個右腳痛嘅情況之下, 但係 [P] 就都完成到呢啲任務 …… 因為 [P] 要返工喇 ……” Against the background of his injuries and his residual disabilities in 2016-2018 discussed above, I accept P’s evidence that (a) he walked with a stick for his journeys to and from work, (b) he was able manage because he was seated most of the time and did not have to walk for more than 10-15 minutes at a time, (c) the fact he could manage those journeys did not mean he had no limitations or he was pain-free, and (d) he still had pain/discomfort and his standing/walking tolerance was limited despite adopting a laudable positive attitude to go to work. In my view, the fact P undertook such lengthy and ardous journeys to and from work in Tuen Mun when he lived at Chai Wan for about 2.5 years went a long way to inform on the limited range of suitable jobs open to him, the suitability of his work as 義復幹事 (pastoral care service worker) at the chaplaincy office at TMH for him, and his determined and reasonable efforts to remain in the workforce. 332.On balance, I have no hesitation in coming to the view that P had made reasonable efforts to mitigate his loss, bearing in mind that the standard of reasonableness was not high when, as I have found, D2/D4 were the wrongdoers. 333.I see no basis not to accept P’s account for his attempt to return to his pre-Accident work in July 2014, which was just about a month after expiry of a long period of continuous sick leave, when he still under active weekly physiotherapy treatment, and when P’s account was fully corroborated by Chun who was then P’s direct supervisor. It was plain that P’s pre-Accident job required him to sit for long periods to browse the computer, to respond to a large volume of emails, and to supervise his 10-person team by telephone calls. The volume of email traffic was such that spending longer time at the toilet would cause work pressure due to accumulation of incoming emails that required response during such period. On top of this, there was also 2-3 hours of overtime work each workday. In my view, given P’s injuries and disabilities, it was quite understandable (and it turned out to be the case) that he would find it difficult to manage his pre-Accident work that tied him down to the sitting posture for long periods of time. This was exacerbated by the increased workload and overtime work as a result of the departure of 3 colleagues at the GZ office. Although D2/D4 complained there was no written record of the aforesaid limitation in P’s sitting tolerance, I accept P’s evidence and find on balance that P could not manage long bouts of sitting (which was what the general work of a shipping clerk/supervisor required). Indeed, the fact that (a) P’s physiotherapist recommended 2 sessions of physiotherapy a week shortly after P returned to work and P did attend 2 such sessions in the 2nd, 3rd and 4th weeks of July 2014 despite the workload and (b) P asked for no pay leave for the whole of August 2014 for treatment spoke tellingly of the adverse impact of P’s return to work on his right leg. I also find on balance P could not manage the work as assistant operation manager at Topocean in July 2014 as (i) his right leg was stiff and swollen from sitting for long periods and (ii) he had to spend longer time in going to the toilet, which mattered a great deal given the heavy email workload and given his injuries and disabilities which were still under rehabilitation at that time. In coming to this view, I have taken into account the Experts’ opinion, which helpfully explained the medical perspectives, but which must be viewed through the prism of the factual context as I have found. 334.In all the circumstances, I find on balance that Topocean found P’s then limited capabilities (as a result of his injuries/disabilities caused by the Accident) could not effectively match his work duties, and they needed to replace him with another employee who could discharge the work duties more efficiently. This was why at the meeting on 31 July 2014 Francis Ng and Chun nudged P towards departure from Topocean in order to make way for a vacancy, and P sensibly recognised this and eventually “協議離職”. In my view, it was a reluctant departure by P (who as a result of his injuries/disabilities could not cope with the work) to avoid dismissal. Although D2/D4 pointed to the Ng Reference that stated P left of his own accord, I find it was no more than Topocean’s courtesy to a valued employee who had served Topocean well during his tenure there. In my view, there was no failure at all by P to mitigate loss in leaving Topocean by the end of July 2014. 335.Given such aggravation of P’s right leg condition, it was appropriate for him to turn to treatment and rehabilitation of his right leg. He attended PYNEH’s AED several times between July and November 2014 to deal with non-healing ankle/heel pressure wounds/ulceration with discharge (see paragraph 244-245 above). Further, in November 2014 to January 2015 P was granted extended sick leave (F/680). Although P tried unsuccessfully to look for work due to financial pressure (see paragraphs 301-302 above), I find on balance that due to his medical condition it was not unreasonable for there to be a hiatus from work until April 2015 when P secured work as an insurance agent of ACE (see paragraph 303 above). There was no failure to mitigate loss. 336.It appeared P feared how work that required sitting for long hours would impact on his right leg, so he became an insurance agent with no fixed working hours and whose main job duty was to market insurance plans to potential customers and naturally to solicit business from such marketing (see paragraph 303 above). On such understanding, the Experts seemed to think that medically P would be able to manage with the flexibility afforded by doing clerical work at no fixed hours and meeting with potential customers (see paragraph 314 above). But on balance I accept that factually there was more to the work of an insurance agent with ACE as P had to distribute promotional leaflets and to man marketing stands, both of which required standing (and some walking) tolerance. The fact P was able to distribute leaflets for 45 minutes at a time already spoke of good effort on his part, and his right leg disabilities restricted his ability to man marketing stands to just 2-3 times. I agree such work was physically more strenuous than P’s work at Topocean, but P was hard-pressed to find work at that time. On balance I accept P’s account that he had difficulties with such activities, and that such limitations led to dwindled sales/income and his eventual resignation in October 2016 (see paragraph 303 above). In my view, the fact P took up part-time jobs as telephone interviewer and telemarketer during this period to supplement his income (see paragraph 304 above) spoke of his determined effort to find work. In my view, there was no failure to mitigate loss. 337.It was plain that P continued to look for work, and he was referred to the vacancy at the chaplaincy office at TMH with Chaplaincy Ltd (see paragraph 305 above). In my view, it was not unreasonable for P to take up such position in February 2017 which was referred to him when he was out of a job since October 2016, and the fact he was willing to undertake the long journeys to and from work between Chai Wan and Tuen Mun was testament to his willingness to get back to the workforce. Fortunately, it transpired to be a suitable job for P with his physical injuries and disabilities, and as it turned out, his reading of the theology counselling course (which was job-related) also helped him to find psychological solace and support. 338.First, I have explained how P was able to manage to travel to and from work between Chai Wan and Tuen Mun (see paragraphs 330-331). Indeed, by 2019 the suitability of his work as 義復幹事 (pastoral care service worker) to his condition and the job security such work offered upon annual renewal of his employment contract prompted him to move his nucleus family (ie P, Lei and their daughter) to Tuen Mun, no doubt to ease his travels to and from work and to take benefit of the medical services afforded by TMH. 339.Secondly, P gave evidence that for his job with Chaplaincy Ltd, his working hours were from 9am to 6pm with 1-hour for lunch break, and he did not have to do overtime work for 2-3 hours a day. This would put less pressure on his disabled right leg. 340.Thirdly, the very nature of P’s work as 義復幹事 (pastoral care service worker) with sensible balance between sitting, standing and walking allowed appropriate balance of activity and rest for his right leg (see paragraph 306 above). P explained under cross-examination that in his current job “…… 坐就會佔一日嘅時間嘅一半喇 …… 咁行同企就會佔另外一半 …… 因為 [P] 要由office行出去去搵 [P] 嘅即係patient, 去關心佢哋, 咁有陣時佢哋要去覆診, 排隊, 等𨋢, …… 坐𨋢嗰啲時間, 全部都係企喇。咁有陣時佢哋覆完診, 就陪佢哋返屋企喇, 咁輕鐵嘅時間時有位, 有時就冇位, 冇位嗰段時間都係企囉, 咁個輕鐵通常都係坐幾個站嘅啫 ……”, and for his outreach work, “…… 每日都會出去, 但係平均都係兩三個鐘囉 ……” Thus, P’s work duties were less strenuous than those of an insurance agent of ACE that required standing/walking tolerance, and were more flexible than those of an assistant operation manager at Topocean which required sitting tolerance (see paragraph 306 above). In my view, this explained the observation in the report by TMH’s OTD dated 20 November 2018 that stated the critical demand of P’s work as 義復幹事 (pastoral care service worker) was “constant sitting, walking and standing” and “he managed well with job demand” (see paragraph 250 above). 341.Fourthly, P explained under cross-examination that “…… 而家做緊呢一份工, 咁喺覆診嗰啲科目喇, 都全部喺番晒 [TMH] 入面, 咁所以就即係唔需要刻意去--特別去請假去覆診呀, 或者去特登請半日時間去覆診咁樣囉。同埋 [P] 覺得喺覆診期間, 亦都可以即係做番自己義服幹事嘅崗位, 可以去關心下即係嚟覆診啲人呀, 同佢哋傾下偈呀咁樣 ……” Although P could not remember whether he had sick leave during the 2.5 years when he lived in Chai Wan and went to work at TMH, he said under cross-examination that even if he did have sick leave, “…… 應該唔多掛 …… 印象中就係試過好似有一兩次喥 …… 喺兩年半內 ……” This is not without significance because in his job search, some potential employers were concerned he might take time off for follow-up and/or treatment (see paragraph 344 below). Indeed, Topocean had such concerns when P requested having 2 afternoons off each week for physiotherapy and the whole of August 2014 off for treatment, which inter alia led to the eventual “協議離職” (see paragraph 298 above). 342.In all the circumstances, I find on balance that P had taken reasonable steps to mitigate loss in taking up and remaining at his job as 義復幹事 (pastoral care service worker) and in reading the theology counselling course with a view to taking first steps to meet the threshold requirements for possible transfer to 院牧 with promotion (even though he was paid less than as assistant operation manager at Topocean and/or a supervisory position in the shipping logistics/forwarding industry). 343.As regards possible return to work for Topocean, it was an impossibility and not for want of trying on P’s part. P explained under cross-examination that in/about 2020/2021 (but he could not remember clearly) he made enquiries with a former colleague at Topocean and he also sent WhatsApp message to Chun, “…… 咁都知道 [Topocean] 都請咗人坐滿 ……即係replace …… 坐咗 [P] 個位㗎喇, 已經, …… 即係公司冇位囉 ……” In short, P’s former position at Topocean was already filled and there was no more staff vacancy for assistant operation manager at the operation department of the HK Office, ie “…… 冇空位 …… [Topocean’s operation department] 就係得呢四個位嘅啫 …… 即係冇vacancy …… 四個位都已經坐晒人喺度, 就唔會再請人㗎喇 ……” 344.Indeed, P had 10 years’ experience in the ship forwarding industry and he had tried to look for work at other shipping logistics/ forwarding companies. But P explained under cross-examination (and on balance I accept) an applicant for a position in such companies would need to have his own customer base that would bring revenue to the employer if employed, and P had no such customer base (ie “…… 因為做我哋呢一行 …… 即係個僱主請嗰個人返嚟, 就希望嗰個人自己本身有自己嘅 ……「貨底」俗稱, 即係客源喇 …… 咁就帶埋啲生意入去畀佢嘅 ……”, “…… 見工嘅時候, 唔會講明嘅 [ie requirement for a customer base], 只不過係當interview嘅一部分, 就問你本身自己有冇貨底 ……”, “…… 但係係 [P] 就冇, 所以人哋一問到 [P] 呢個問題嘅時候, [P] 都要老實咁答人哋喇 ……”). Further, P gave evidence that “…… 同埋人哋見到 [P] 攞住拐杖, 都會問「你使唔使覆診」嗰啲嘅 …… 咁 [P] 就如實咁去答人喇 ……” In such circumstances, given P’s lack of a customer base and his need to take leave to attend follow-up, “…… 咁就見完之後就 …… 不了了之囉，即係冇人 …… 打電話嚟話請 [P] 囉 ……” 345.D2/D4 questioned the lack of documentation to demonstrate P had attempted to find work in shipping logistics/forwarding companies, but in my view P satisfactorily explained under cross-examination that “…… 咁喺網上面, 即係佢哋 [ie shipping companies] 有登招聘廣告㗎嘛 …… 咁見到就send過去 [by email] 囉, 即係覺得合適嘅 …… 總之有文件嘅嘢send過去申請咁樣 …… 大約十間八間喥喇 …… 十間入面凈係佔一、兩間 attend interview ……” P further explained that of these 8-10 job applications, they were for vacancies in respect of positions for shipping clerk, supervisor and manager, and the prospective employers expected an applicant for any of the 3 positions to have a customer base, “…… 因為我哋嗰行, 佢要求其實每一個位都需要搲 …… 即係有客返嚟喇 ……” 346.Mr Law in his written closing submissions queried this requirement for a customer base when Topocean did not appear to have such requirement for its staff. But it must be remembered P joined Topocean in 2008 (ie long before P looked for such work after the Accident in, say, 2015/2016), and there was no evidence whether in 2015/2016 Topocean required for shipping clerk, manager and/or supervisor to have his own customer base. As regards P’s enquiries in 2020/2021 for any vacancy at Topocean (see paragraph 343 above), of course Topocean knew P did not have a customer base, and P’s enquiries were premised not on any customer base but on the basis that he was previously known to and valued by Topocean as a good/effective employee who efficiently discharged his work duties. Mr Law’s submissions in this respect did not take the defence case any further. 347.P was cross-examined as to why he would submit job applications for such positions in shipping logistics/forwarding companies with “…… 起薪點大約 $10,000至 $13,000 ……” that was merely commensurate with his earnings as 義復幹事 (pastoral care service worker). P explained that “…… 因為始終本身係做咗呢行都耐喇, 咁同埋喺呢行嘅晉升空間會係大啲囉, 同埋佢哋過咗個probation, 即係試用期, 覺得你表現好嘅時候, 亦都會有相對嘅人工會加番 ……” He went on to say that “…… 因為有段時間覆診唔係好密㗎咋, 所以 [P] 就用嗰段時間嚟嘗試下囉 ……” to see whether he could manage such work. On the whole, I accept P’s account, and find on balance that he made more than reasonable efforts to find work along the line of his pre-Accident work with commensurate or better pay than his earnings as 義復幹事 (pastoral care service worker), but he was thwarted by reason his lack of a customer base and prospective employers’ concern he might need to take leave to attend to follow-up treatment and/or wound care. 348.D2/D4 suggested P could have secured work as an office/administrative supervisor in a non-shipping company and would have earned comparable income as his pre-Accident job. This was not clearly put to P under cross-examination. All that was asked of P was whether he had looked for jobs such as 寫字樓嘅主任呢啲位 in non-shipping companies since September 2018, and P sensibly explained (and on balance I accept) that “…… 咁 [P] 要睇埋佢哋嘅job duty㗎嘛, [P] 嘅job duty就唔合適佢哋嘅要求, 咁 [P] 就冇send [job application] 到過去囉 ……” 349.In the premises, I find that P had taken reasonable steps to mitigate loss, and he was fortunate to have secured his current job as 義復幹事 (pastoral care service worker) that was well suited to his injuries and disabilities, and the fact that this job paid less than his work as a shipping logistics/forwarding supervisor and/or office/administrative supervisor did not mean he failed to mitigate loss. P also took laudable efforts to prepare himself with hope for eventual promotion and to look for other work openings with better pay. 350.On such findings, I turn to assessment of the multiplicand for pre-trial loss of earnings. The RRRSoD claimed that the CSD’s Statistics in 2013 showed the average monthly wage of a shipping clerk was $13,939. But I shall adopt the amount of $14,410/month in Ms Lee’s written closing submissions which was the average monthly wage of a documentation/shipping clerk for “Import/export of clothing, footwear and allied products” ($14,740) and for “Import/export of miscellaneous consumer goods, durable goods and others” ($14,080) in the CSD’s Statistics for March 2013. The CSD’s Statistics for March 2021 showed that the average daily wage of a documentation/shipping clerk for “All selected industries sections@” was $17,648. Ms Lee submitted such data revealed a {$17,648 - [($14,740 + $14,080) ÷ 2]} ÷ [($14,740 + $14,080) ÷ 2] x 100% = 22.47% increase in wages for a documentation/shipping clerk over the years. I agree that if this percentage increase was applied to P’s income as Topocean’s assistant operation manager, his notional monthly income as at trial would have been $19,510.42 x 122.47% = $23,894.41/month, and the pre-trial notional median monthly earnings would have been ($23,894.41 + $19,510.42) ÷ 2 = $21,702.42. I find on balance that it was not unreasonable to adopt the percentage increase of 22.47% for the period from 2013 to 2021.[97] In the circumstances, P’s pre-trial loss of earnings were ($21,702.42/month x 94.5 months[98] - $918,084.52[99]) x 105% = $1,189,433.88. (k) Post-trial loss of earnings 351.On balance, I accept P’s evidence in the P 1st WStmt that “…… 這次 [Accident] 對 [P] 以及家人的經濟及生活有著重大的影響。如果沒有這次 [Accident], [P] 有信心及意願工作至65歲 ……” 352.P’s case In the RRRSoD, P averred he would be 37 years old at the time of trial. By adopting a retirement age of 65 years, the multiplier for males aged 37 years at 2.5% discount rate according to Table 9 of the Chan Tables would be 19.81. Thus, P claimed for loss of future earnings and MPF benefits in the RRRSoD in the sum of ($24,700.10 - $14,137) x 12 months x 19.81 x 105% = $2,636,635.60 (but it should be $2,636,613.14). In her written closing submissions, Ms Lee reduced the monthly multiplicand to $23,894.41 - $14,137 = $9,757.41, and hence the finalised claimed loss was ($23,894.41 - $14,137) x 12 months x 19.81 x 105% = $2,435,508.08. 353.D2’s/D4’s case In the Answer, D2/D4 made no admission to the multiplier adopted by P, and suggested that since P would be 37.33 years old by the time of trial, the corresponding multiplier should be 19.64 according to the Chan Tables.[100] I am prepared to adopt 19.64 as the relevant multiplier. 354.Discussion Mr Law submitted that P was about 37 years and 4 months old at the time of trial, which was a prime age to seek supervisory job. Given P’s condition by the time of trial, his supervisory work experience as well as his industrious and thoroughly reliable attitude, he should be able to secure higher earnings on par with office supervisors within the next 3 years (say, by September 2024) if not by September 2018 or September 2021, and it was unreasonable for him not to do so. On such basis, the relevant multiplier for post-trial loss of earnings should be 3 years. 355.For all the reasons set out in paragraphs 324-349 above, I am not persuaded P failed to take reasonable steps to mitigate loss, and I have set out my reasons why P’s current job was suited to his injuries and disabilities. I find on balance that P would suffer partial loss of earnings for his work career up to 65 years. 356.As for the multiplicand, P’s notional earnings should be reduced by future earnings in his current job. Mr Law submitted it was inappropriate to simply take into account P’s basic salary of $14,137 and ignore the Xmas Bonus of $2,000 (see paragraph 311 above) and CNY bonus of about $3,300 (ie the bottom of the range of the CNY Bonus P received in 2018, 2019 and 2021 – see paragraph 312 above). Mr Law contended that although the CNY Bonus was distributed to P and other employees from donations received, it was part of their emoluments and should be taken into account, so P’s total annual bonus was $2,000 + $3,300 = $5,300 (or about $441/month), and his average earnings should be about $14,578/month. 357.Although Ms Lee in her oral submissions initially claimed the Xmas and CNY Bonuses were not emoluments expressly contracted for in P’s written contracts of employment for 2017 and 2018, she was constrained to accept the annual Xmas Bonus of $2,000 was regularly received throughout 2017-2020 and should be taken into account as part of P’s future earnings. 358.But Ms Lee urged me not to take into account the CNY Bonus because it was dependent on the efforts by the persons-in-charge of the chaplaincy to solicit donations from doctors, organisations and others, and also on the generosity of the potential donors, and there was no distribution of the CNY Bonus in 2020 during the 4 years P was employed by Chaplaincy Ltd. What Ms Lee said about the distribution of the CNY Bonus reflected the evidence (see paragraph 312 above), but the undeniable fact was that P did receive the CNY Bonus for 3 out of 4 years of his tenure with Chaplaincy Ltd up to the time of the trial, and there was no suggestion that the persons-in-charge of the chaplaincy would cease to solicit donations for such purpose. There was also no evidence that such donations had dried up. In my view, the CNY Bonus should be taken into account, but the amount should be adjusted to reflect its discretionary nature, its dependency on donations and the risk that there might no such bonus in a particular year. For such purpose, I shall adopt the sum of $1,500 for future CNY Bonus on annual basis. 359.In such circumstances, the monthly multiplicand should be $23,894.41 – {$14,137 + [($2,000 + $1,500) ÷ 12 months]} = $9,465.74, and the post-trial loss of earnings was $9,465.74 x 12 months x 19.64 x 105% = $2,342,429.88. (l) Loss of earning capacity 360.P’s case P claimed his permanent physical handicap put him at real risk not being able to find a job that would pay as equally well as his current job should he lose it, and he would be at a considerable disadvantage in the open labour market as his choice of work was very limited since he would not be able to manage heavy manual labour or prolonged standing/walking. Thus, P claimed damages for loss of earning capacity at 24 months of his current earnings at $13,164.74 x 24 months = $315,953.76, rounded up to $350,000. 361.D2’s/D4’s case D2/D4 denied P’s claim but would have allowed $100,000 under this head. 362.Discussion P was not yet 40 so he quite many years of working life ahead of him. I note P’s various attempts to find work after the Accident and his changes of post-Accident jobs, which demonstrated his disadvantage in the open labour market. P’s attempts to find work in the shipping logistics/forwarding industry and the rejections he received indicated he was disadvantaged in work required mobility/ambulation, and/or prolonged standing/sitting. He had already faced difficulties with potential employers who were deterred by his use of a walking stick and his need to take time off for medical follow-ups. The convenience of attending follow-up at his workplace (ie TMH) would be lost if he were to lose his current job. 363.Had the Accident not happened, P was a valued staff at Topocean with future possibility of promotion although at the time he left there was no such vacancy. This was borne out by the Ng/Reference Letters. I agree that whilst P’s pre-Accident career path was quite straightforward, his chances of promotion in his current job was not so certain for future transfer to 院牧 (if possible) depended on further studies. The theology counselling course P was reading at the time of trial was just the initial step, and he had to take further studies to meet the threshold requirements (see paragraph 309 above). As Ms Lee reminded, whilst P was an effective ship-forwarding worker, he was not academically inclined, having failed to pass public examination even when he repeated Form 5. This did not give too much confidence in his future career path for 院牧pastoral care work although one hoped that his past work experience might have improved his ability to learn and the possibility of promotion might also incentivise his efforts. But if P did not seek transfer to 院牧 and remained with 義工及綜合服務, promotion would not have required completion of further studies. But at the time of the trial, P’s senior (known as 義復負責人) worked on pro bono basis, and there did not appear to be a position for 高級幹事 at the chaplaincy unit in TMH at the time (see paragraph 309 above). 364.On balance, I am satisfied P suffered loss of earning capacity. But on quantum I find P’s claim too bold and D2’s/D4’s suggestion too conservative. P’s post-Accident work history showed he was able to secure work (albeit work of lesser pay) even though it required effort, but he would be at greater risk of finding suitable work as he grows older if he is thrown onto the labour market, so I allow 15 months of his current earnings as damages for loss of earning capacity, ie {$14,137 + [($2,000 + $1,500) ÷ 12 months]} x 15 months = $216,430.05. (m) Past medical expenses 365.The receipted medical expenses[101] shown at the schedule at F/678 amounted to $27,465, and P claimed for such sum in the RRRSoD. In the Answer, such sum was agreed subject to necessity and reasonableness. Since Mr Law did not challenge the necessity and reasonableness of such receipted medical expenses in his closing submissions, I award the sum of $27,465. (n) Future medical expenses 366.Life multiplier On the basis that P was 37 years old, P adopted a life multiplier of 27.91 in accordance with Table 1 of the Chan Tables for calculating future medical expenses. In the Answer, D2/D3 claimed P would be 37.33 years at the time of trial, so the corresponding multiplier under Table 1 of the Chan Tables should be 27.81.[102] I adopt the life multiplier of 27.81. 367.P’s case P’s claim for future medical expenses were as follows:
368.D2’s/D4’s case D2/D4 adopted the opinion of Dr Chun in the 2nd Jt Report and averred that it would be best for P to continue to attend TMH/PYNEH for further medical treatment, and that public sector P&OD services were more comprehensive and sophisticated than those found in the private sector. Thus, D2/D4 would allow future medical expenses as follows:
369.Legal principles From the above, it appeared that the crux of the dispute was whether P should seek further medical treatment in the public sector or in the private sector. On this public sector versus private sector debate, guidance fell from Bharwaney J in Wong Man Kin v Golden Wheel (C & HK) Transportation Co Ltd (and Mr Law had no quarrel with such guidance):[103]
370.Follow-up treatment According to the RRRSoD, P still had the following follow-ups at TMH which he explained further in his evidence-in-chief:
371.2nd Jt Report In the 2nd Jt Report, Dr Wong opined P should have the right to select his lifelong orthopaedic follow-up and prosthesis maintenance either at government hospital or by private specialist:
372.Dr Chun agreed each individual had a right to select which medical service or which doctor to attend to his/her medical condition. But in P’s case, (a) his injuries had been managed by the TMH team who knew his condition best, and (b) he had been provided with good quality service, so there was no medical rationale for P to switch to private service without familiarity with his overall condition/injuries. Further, public prosthetic and orthotic service in Hong Kong was more comprehensive and sophisticated than private sector service of which there were very few. So Dr Chun opined as follows:
373.Discussion I have no doubt (and Mr Law did not seek to dispute) that P had need of further medical treatment, and indeed Dr Chun acknowledged P would require lifelong orthopaedic as well as prosthetic and orthotic follow-up, wound dressing as and when wound(s) developed and (if necessary) surgery for further debridement. The main questions were (a) whether these treatments should be sought in the public or private sector, (b) the frequency of such treatments, and (c) the costs of such treatments (which largely depended on the findings on (a)-(b) above). I shall deal with these matters vis-à-vis (i) orthoapedic follow-ups, (ii) prosthetic and orthotic as well as podiatry services, and (iii) further debridement surgery and post-surgery wound dressing. 374.As regards orthopaedic follow-ups, P gave evidence in-chief that he preferred to receive such treatment in the private sector “…… 因為私家醫生係一個醫生可以去跟 …… [P] case喇 …… 咁始終私家醫生 …… 即係如果睇開一個, 佢就睇到尾喇, 即係會清楚 [P] 隻腳嘅案件 ……” P further explained under cross-examination that “…… 因為 [P] 自己個主診醫生 …… 已經 …… 出咗去做掛牌㗎喇 …… 即係佢清楚 [P] 嘅病情吖嘛 ……” P said in-chief that he would see a different doctor each time he attended follow-up in the public sector. He also had experience that “…… 每次個醫生畀 [P] 嘅信息, 即係 [P] 嘅病情嘅信息, 都係有唔同嘅 …… 譬如 …… 試過有醫生就話「你想唔想做手術？」咁 [P] 就答佢「想」, 跟住佢就話「咁我要將你個個案轉番畀 …… 我嗰組嘅醫生」。跟住到下一次見 [P] 嗰組嘅醫生, 佢哋就話「應該可能冇得搞㗎喎」, 即係「冇得做㗎喎」, 咁樣 …… 所以兩邊嘅醫生都有唔同嘅講法, 亦都試過有醫生就話「再觀察下先再決定喇」, 咁樣 ……” P felt that “…… 公立醫院嗰啲醫生 ……就即係佢哋講唔同嘅嘢嘅時候, 但係就好似唔想再令 [P] 隻腳更加之好囉……” P also expressed wish under cross-examination that “…… 其實當然可以整好隻腳嘅話, 咁當然係想喇 …… 隻腳其實你見 [P] 咁樣行, [P] 隻腳都歪晒 ……” P went on to say “…… 但係如果私家醫生就即係睇佢哋嘅時候, 希望可以令 [P] 隻腳再即係整番好啲, 唔使彎得咁勁 ……” 375.Ms Lee submitted P had evinced genuine intention of seeking private orthopaedic treatment to improve his disability, and his own treatment orthopaedist had left the public system to enter private practice, so at follow-ups with TMH’s DOT he was seen by different doctors who had different medical opinion. Ms Lee further contended that a private orthopaedist would be more aware of P’s evolving condition, and to have overall management to see if his lopsided right foot could be improved (by operation or otherwise). 376.Mr Law complained there was no treatment medical report that recorded different orthopaedists at TMH’s DOT gave him different/ conflicting opinion (ie a doctor asked P whether he would like to have another surgery, and when P said yes, such doctor referred P’s case to his medical team for consideration, and afterwards P was told by another doctor that after team consideration no surgery could be done and he should monitor his condition – see paragraph 374 above). Mr Law argued the fact that the public hospital declined to proceed with surgery after consideration of his case by the orthopaedic consultation team did not mean the doctor’s initial exploration of possible surgery with P meant surgery was necessarily feasible or beneficial to him, and did not mean P was not given good orthoapedic/medical service in the public sector. 377.In my view, it was easily understandable that P (a) hoped to receive comprehensive/holistic orthopaedic follow-ups, and (b) yearned to have surgery and/or medical treatment to improve his leg condition. In respect of (a) above, he now had orthopaedic follow-ups every 6-12 months in the public sector (ie once or twice a year), but Dr Wong opined he should have 2-3 follow-ups a year. Dr Chun did not disagree with such frequency, and indeed the Answer allowed costs for orthopaedic follow-ups 3 times a year. There was no evidence that such frequency of orthopaedic follow-ups could be catered for in what Bharwaney J described as the already over-burdened public sector. As P grew older, his right leg might require more attention to maintain functionality. In such circumstances, holistic orthopaedic management of P’s orthopaedic condition by the same orthopaedic specialist who had overall oversight of his orthopaedic needs (including further debridement surgery if necessary) instead of different doctors at different follow-ups would be beneficial. Although P received public sector treatment all along, the orthoapedic consultant who had cared for him when he was at his worst condition and who was familiar with his medical history had joined private practice, and it was reasonable for P to wish to seek treatment from him or other private orthopaedic specialist on a continuous basis. 378.In respect of (b) above, I am not persuaded this would be a relevant consideration. P’s wish to seek improvement was understandable, but the available treatment/expert medical evidence showed P had reached maximum medical improvement, and even Dr Wong opined that further surgery (apart from debridement surgery) might not be able to help P’s condition. When this was put to P under cross-examination, he conceded Dr Wong only said “…… 將來睇睇個情況點 ……” Although a doctor at TMH’s DOT raised the possibility of surgery, the considered view of the orthopardic consultation team was conservative monitoring without surgery, which was consistent with the Experts’ views. This was not a factor I took into account in allowing future orthopaedic treatment in the private sector. But P would need lifelong treatment, and medical science might in future develop to aid P with better maintenance if not cure. Having a private specialist who would be more attuned to P’s condition/needs through regular follow-ups would have the benefits explained in the above paragraph, and might facilitate the harnassing of modern medicine to ease if not cure P’s disabilities/condition. P should be allowed 3 orthopedic follow-ups a year at ($1,000 + $1,500) ÷ 2 = $1,250 for each visit. 379.Turning now to prosthetic and orthotic as well as podiatry services, P agreed under cross-examination that he attended follow-up appointments scheduled by public hospital PD and P&OD, but if he required medical help they would also give him an appointment, so it could not be said the public hospitals could not satisfy his medical needs/ requests:
380.Thus, in relation to prosthetic and orthotic as well as podiatry service, P was able to seek treatment and schedule follow-ups as and when needed, ie he could book an appointment and seek treatment at the relevant PD or P&OD clinic. Both PD and P&OD scheduled follow-up appointments and allowed P to fix appointments when he required their services. There was also nothing in the fact that it was P who took the initiative to schedule most of the consultations with PD and P&OD. After all, P would be the one to know when the insoles would need repair, when new shoes would be bought and required adjustments, when a foot would or ulcer would develop, etc. The important consideration was that PD and P&OD were accommodating when P asked for appointments as needed. Further, P had no complaint about their services, which was unsurprising given Dr Chun’s observation that public PD and P&OD services were more comprehensive and sophisticated that those in the private sector of which there were very few (and Dr Wong did not say otherwise). P’s chief concern was that at each session with PD and P&OD, the podiatrist/orthodist told P there was not much else they could do. This was again unsurprising because PD and P&OD offered allied health services (whose aim was to ensure P’s well-being and maintenance of his right leg/foot condition in activities of daily living) and not therapeutic treatment services. For reasons given in paragraph 378 above, P had reached maximum medical improvement and the Experts and treatment othopaedists had not identified further treatment that would improve P’s condition despite his understandable hope for the same. 381.In my view and against the background set out in paragraphs 379-380 above, P should stay with the public sector for PD and PO&D services given (a) they were fully familiar with his right leg/foot condition and his custom-made boots, and they all along made, maintained and repaired raised sole, orthopaedic insoles and abrasion pads for him, and (b) they had time and again dealt with his callosity non-healing wounds, ulceration, abrasion/pressure wounds and discharge from wounds and toenail involution. TMH’s PD and P&OD had the advantage of being close to P’s home (and right at P’s current workplace). More importantly, according to Dr Chun, public sector PD and P&OD provided comprehensive and sophisticated service unmatched by the smaller and fewer private sector services. In respect of (a) above, P should be allowed $2,000-$4,000 (ie $3,000) for prosthesis fitting and maintenance in the public sector. In respect of (b) above, those matters meant P would require regular follow-up and management. I allow 2 times a year at ($1,000 + $2,000) ÷ 2 = $1,500 each time. 382.For similar reasons set out in the above paragraph, I consider P should stay with the public sector for wound dressing which he could not deal with himself (see paragraphs 244-247 above). He had effective wound dressing at TMH’s PD, which was close to his home and right at his current workplace. There was no particular reason to attend private wound dressing which added to travelling time and effort (ie ambulating on right foot with non-healed wound and possibly with discharge). Also P had no complaint about the quality of public sector wound dressing service, which was familiar with his condition. 383.Ms Lee had not explained why P claimed for 12 occasions of wound dressing, ie once a month (see paragraph 367 above) when Dr Wong opined that wound dressing was required as and when wounds developed, but when a wound that required professional dressing would develop, such dressing had to be done on daily basis for 1-2 weeks for the wound to completely heal. A monthly dressing was not understood. Further, there was no evidence from P as to how many times he required professional wound dressing each month since he was discharged from hospital in March 2014 or at least recently. Bearing in mind P confessed that sometimes he could tend to such wounds himself without medical intervention, I consider it appropriate to allow 3 occasions of wound dressings each year, and each occasion, according to Dr Wong, would take 7-14 days (ie average of 11 days) at $100/day. 384.As for debridement surgery, both Experts said debridement surgery would be required if necessary, but neither of them could predict when such need would rise and how many times it would have arisen in the course of P’s lifetime. Again, this was not helped by absence of information from P as to whether he had any debridement surgery from the time he was discharged from hospital stay up to trial, but none was seen in the treatment medical reports. Nevertheless, the Experts recognised there might be need for such surgery depending on the wound condition. Whilst I accept it was reasonable to have surgery in the private sector, especially as I have allowed orthopaedic follow-up by private orthopaedist, I am not persuaded I should allow costs for such debridement surgery for 5 times. I will allow 3 times. As the cost of each such surgery, including operation, anaesthetic and hospital fees, was said to be $20,000 (Dr Chun) or $20,000-$30,000 (Dr Wong), I allow $25,000 x 3 times = $75,000, but rounded up to $80,000 to cover the cost of surgery in the public sector in case P had the misfortune of requiring further debridement surgery. 385.According to Dr Chun, there would be need for wound dressing initially on daily basis after debridement surgery and thereafter on alternate or 3-4 days depending on the condition/size of the wound. The wound would usually heal in 2-3 weeks’ time. In my view, this should be done in the private sector as such wound dressings would be the inevitable sequelae of debridement surgery, which I have allowed to be done in the private sector under the care of P’s private orthopaedist. For each surgery, I agree with D2/D4 that the cost would be [$300 x 7 times (1st week)] + [$300 x 5 times (2nd and 3rd weeks)] = $3,600, but at 3 surgeries the cost would be $3,600 x 3 times = $10,800 and rounded up to $12,000. 386.In the circumstances, I allow $374,490.50 under this head of claim:
(o) Future travelling expenses and loss of earnings for future treatment 387.Travelling expenses In the RRRSoD, P claimed P would incur travelling expenses for future medical treatment. Adopting $100 per return trip on the basis of 495 trips referred above, the claim under this head was $49,500. In the Answer, D2/D4 claimed such expenses would be nominal, and P was put to proof of the reasonableness and necessity of such expenses. 388.P would only incur travelling expenses for seeking treatment when he attended follow-ups, debridement surgeries (which Dr Chun expected would only require hospital stay for 1 day for each surgery) and post-surgery wound dressings in the private sector. There would be minimal travelling expenses for other medical treatment and/or follow-ups at TMH which was close to P’s home and/or at the workplace of his current job. In the circumstances, I would allow round trip fares at $100/each for, say, 123 trips[104] (ie $12,300), but rounded up to $13,000 to cater for small travel costs between home and TMH for wound-dressings and follow-ups. 389.Loss of future earnings In the RRRSoD, P claimed loss of earnings of 3 months to compensate him for leave from work in order to attend various treatments, so the loss was $13,857.62 x 3 months x 105% = $43,651.50. In the Answer, D2/D4 claimed such expenses would be nominal, and P was out to proof of the reasonableness and necessity of such expenses. 390.In my view, P would only need to take half day off from work for orthopaedic follow-up and/or wound dressing, and some of his lifelong orthopaedic, P&OD and PD follow-ups would be after he would retire at 65 years. Taking all matters in the round, I allow loss of earnings of 2 month at $14,137/month x 2 months = $28,274. 391.Thus, the award under this head of claim would be $13,000 + $28,274 = $41,274. (p) Travel expenses 392.Parties’ case In the RRRSoD, P claimed for incurred travelling expenses of approximately $11,000. Ms Lee in her written final submissions conceded that the claim for special damages should be reduced by $1,000. In the Answer, D2/D4 considered P’s claim excessive and would only allow a sum of $5,000. 393.Discussion According to the P 1st WStmt in 2016, P incurred $10,000 in travelling expenses. P explained in-chief that “…… 有陣時都要 …… 坐的士去唔同嘅地方囉, 因為隻腳唔可以即係企得耐吖嘛, 即係如果坐公共交通嘅時候, 就好多時樓下 …… 巴士站 …… 即係架巴士嚟到嘅時候, 就即係啲位就會坐滿晒 ……” P’s claim included receipted taxi fares of $836.20 between 1 March and 30 September 2014 and receipted “Go Go Van” charges of $440 on 6 and 27 March 2014 set out in the schedule of other receipts (F/679) totalling $1,276.20, so it appeared the balance of $8,000 odd would be fares for bus, minibus and the like. P said under cross-examination that although sometimes he took taxi after 2014, “…… 記憶中係有, 不過唔多, 因為通常覆診 [P] 都會提早時間返去嘅 …… 就盡量避開 ……” P agreed that after 2017 he mostly attended follow-up appointments at TMH, so travel expenses were reduced. When Mr Law first suggested to P under cross-examination that the claim for incurred travel expenses of $11,000 was excessive, P agreed. But when pressed further on the amount of travelling expenses actually caused by the Accident, P said “…… 指由 [Accident] 開始到呢一刻 [ie trial] ……其實就算冇$10,000, 都接近㗎喇 ……” 394.I bear in mind that P was hospitalised from 23 October 2013 to 14 March 2014 (ie almost 5 months), and it would not be unreasonable for his family member to visit him in hospital. At that time his family members lived in Chai Wan, and the round trip cost of taking public transportation to Tuen Mun with several changes of types of transport as P explained in paragraph 330-331 above would not be light. Thereafter P had various outpatient follow-ups and physiotherapy sessions, some of which were at PYNEH and some were at TMH. He had to go for various disabled person driving licence assessments. This continued until at least until February 2017 when he received follow-ups at TMH which was the workplace of his current job. Further, I accept P would now and then (but not often) take taxi trips when he was rushed for time and when public transport had no seats (eg bus was full). In all the circumstances, I allow $7,500 for travelling expenses. (q) Tonic food and other expenses 395.Parties’ case According to the RRRSoD and P 1st WStmt, P incurred $50,000 for tonic food and other expenses (eg medical consumables, crutches, insoles, shoes etc). In the Answer, D2/D4 averred there was no medical evidence to suggest tonic food could assist or benefit P’s recovery, so P should only be allowed $5,000 for tonic food and other expenses. 396.The schedule at F/679 showed receipted medical consumables expenses were less than $10,000.[105] P explained in-chief that (a) for tonic food, his wife and/or mother-in-law “…… 會買咗啲即係花膠 [ie fish maw] 呀, 畀 [P] 補下隻腳呀嗰啲囉 …… 都係冇攞到單嘅, 佢哋 ……” and (b) for medical consumables, “…… 因為有陣時 [P] 喺街度嘅時候喇, 咁支拐杖, 咁佢會有陣時個底呢個膠塞 [ie ferrule of walking stick], 就會篤爛咗喇, 咁就要即刻去 …… 附近嗰啲復康舖頭買番呢支膠塞, 咁有陣時呢啲嘅話 [P] 就冇攞單囉, 即係買完就走 ……”, also “…… 咁有陣時行緊街嘅時候, 就feel到自己隻腳出血, 就同樣地都係要去呢啲復康舖頭度即係即時購買啲藥品 …… 買完就要自己去搵地方去清洗咗隻腳先囉, 咁所以呢啲就冇攞到單據嘅 ……” Although P “……. 呢個 [P] 自己冇實際去統計過 ……” whether the claimed sum was mainly spent on tonic food or medical consumables, he frankly accepted that “…… 咁一定係補品嘅多啲 …… 補品係仲有啲湯、湯料嗰啲㗎嘛 ……” 397.Ms Lee submitted that over a period of close to 8 years the amount claimed was not excessive and she urged this court to allow the claim for $50,000 for tonic food and medical consumables in full. On the other hand, Mr Law submitted the supporting documents showed the medical consumables purchased from rehabilitation shop, medicine stores, shoe shop and health shops were about $8,000 (see footnote 105 above), so the bulk of P’s claim of $50,000 under this head was for tonic food bought by P’s wife and mother-in-law to prepare special soup for him, but there was no evidence from medical-related personnel (and neither Lei nor her mother were such) advising such special soup would have been beneficial to P’s recovery. Mr Law therefore urged me to award a sum of $10,000-$20,000 for this head of claim. 398.I agree only a reasonable sum would be awarded where there was no evidence as to the advisability or suitability of tonic food from any doctor or herbalist or person with medical knowledge. But the reasonableness of the sum would to be viewed against the nature of the injuries, the length of hospital stay and rehabilitation, and the extent of the residues/disabilities (which I have discussed above in relation to P). Following Yu Ki v Chin Kit Lam[106] and judging from the nature of P’s injuries and disabilities caused by the Accident, I allow a global sum of $30,000 for P’s claim under this head for medical consumables and tonic food. VI. CONCLUSION 399.In the premises, I summarise the above awards as follows:
400.I therefore grant judgment in favour of P against D2 and D4 jointly and severally in the sum of $5,409,023.31. 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. 401.There was no reason why costs should not follow event. I grant a costs order nisi that D2 and D4 shall jointly and severally pay P’s costs of and occasioned by the present action (including all costs reserved if any) to be taxed if not agreed, and P’s own costs be taxed in accordance with Legal Aid Regulations.
Ms Christina Lee, instructed by Or & Partners, solicitors assigned by Director of Legal Aid, for the plaintiff Mr Dennis Law, instructed by Li & Partners, solicitors for the 2nd and 4th defendant 1st Schedule
[1] P pleaded that D2 was engaged in operating the Service between ZS and HK on the basis that D2, whether alone or jointly with others (ie D1, D3 and/or D4), sold CB Coach Bus tickets to the public and/or operated the Service between ZS and HK [2] P pleaded that the Contract was (a) in writing (ie the Bus Ticket(s)) and made when the Bus Ticket(s) were sold to P and/or (b) made at the time when P used the Service between ZS and HK [3] (a) failing to exercise reasonable care and skill in providing the Service safely, (b) failing to ensure driver(s) of CB Coach Bus(es) would exercise reasonable care and skill to ensure passengers on board would be safe throughout the journey from ZS to HK, (c) exposing P to risk of injury or damage of which D1 and/or D2 knew or ought to have known, and (d) the particulars of negligence in footnote 4 below [4] (a) failing to exercise reasonable care and skill in providing the Service safely, (b) failing to take any or any reasonable and/or sufficient measure to avoid the Accident or to safeguard P’s safety, (c) failing to exercise reasonable care and skill to ensure the Driver and/or the Other Driver were competent drivers and they would discharge their duties, (d) failing to arrange all passengers to disembark from the Coach immediately and to stay at a safe location sufficiently far away from the expressway so as to avoid any accident thereat, (e) failing to put in place suitable warning signs/instruments at a safe distance behind the stationary Coach and the stationary Other Coach to give necessary warning to oncoming vehicles about them, (f) failing to take any or any reasonable/sufficient notice, to keep any proper lookout or to have any or any sufficient regard for the road traffic, (g) failing to switch on hazard lights of the Coach and/or the Other Coach to give necessary warning to oncoming vehicles about the stationary Coach and the stationary Other Coach, (h) failing to put in place suitable and appropriate warning signs/instruments at a distance of no less than 150m behind the stationary Coach and/or the stationary Other Coach contrary to section 68 of the Road Traffic Safety Law of the People’s Republic of China (中華人民共和國道路交通安全法第六十八條), and (i) failing to take any or any reasonable/sufficient measure to safeguard P’s safety while he was retrieving the electric wheelchair from the Luggage Compartment (but Ms Lee, counsel for P, confirmed P would not rely on the statutory provisions of the Road Traffic Safety Law of the People’s Republic of China (中華人民共和國道路交通安全法) for the purpose of the trial) [5] P repeated the particulars in footnote 3 above mutatis mutandis [6] P repeated the particulars in footnote 4 above mutatis mutandis [7] P repeated the particulars in footnote 3 above mutatis mutandis [8] P repeated the particulars in footnote 4 above mutatis mutandis [9] D2 by its Re-Amended Defence filed on 22 August 2018 amended its Amended Defence by pleading HK Woo Hing in place and stead of 深圳和興中港運輸有限公司 (Shenzhen Hexing China-HK Transport Co, Ltd, “SZ Hexing”) as the registered owner of the Coach, but (a)道路交通事故認定書 referred to in para 35(d) below stated the registered owner of the Coach was SZ Hexing, and (b) D4’s witness Mr Wong (referred to in para 18 below) in his redacted witness statement dated 13 September 2021 (ie the Mr Wong WStmt referred to in para 29 below) also stated the Coach “…… 由 [SZ Hexing] 持有 ……”, so Mr Wong clarified under cross-examination that (i) the Coach was a CB Coach Bus that HK Woo Hing purchased, (ii) HK Woo Hing was the HK registered owner of the Coach, and (iii) HK Woo Hing allowed SZ Hexing to become the registered owner of the Coach in Mainland China to facilitate SZ Hexing to obtain vehicle registration under number “粵ZHR00港” and to arrange requisite motor insurance coverage for providing CB Coach Bus service within Mainland China [10] but P (a) averred that in light of the Co-operation Agreement, D1, D3 and/or D4 jointly operated and provided the Service from ZS to HK and were the contracting parties with P to provide such Service, and (b) further or alternatively averred that in light of the Archived Webpages of the Website (the Website Address of which appeared on the Bus Tickets P purchased), D1, D2 and/or D4 jointly operated and provided the Service from ZS to HK and were the contracting parties with P to provide such Service [11] but P averred (a) D2 never informed the public including P that D2 was not the service provider of the Service and did not play any role in selling the Bus Tickets for the Service that was to be provided by a third party, and (b) it was not shown on the front page or reverse of the Bus Tickets or represented by D2’s ticket sales staff orally or otherwise that D2 was not the service provider of the Service [12] presumably D3 with Chinese company name of 環島中港通旅運有限公司 (前稱中港通旅運有限公司), which company, according to D2/D4, was a joint operator (with D4) for the Service between ZS and HK under the Co-operation Agreement (see para 9(a) above) and was entitled thereunder to arrange for its own travel agents to sell the Ticket Packages on its behalf (see para 10(d)(iv) above) [13] presumably for measuring the temperature of the vehicle engine’s coolant to inform the driver whether the coolant was cold, normal or overheating [14] (a) failing to keep any or any proper lookout or to have any or any sufficient regard for other traffic that was or might reasonably be expected to be at the Dongguan-Foshan Expressway, (b) driving too fast in the circumstances, (c) driving the Container Truck into the “safety lane” where both the Coach and the Other Coach were parked, (d) failing to pay heed to the hazard lights of the Coach and the Other Coach, (e) failing to see the Coach and the Other Coach in sufficient time to avoid the Accident, (f) failing to stop, slow down, swerve or in any other way manage or control the Container Truck so as to avoid the Accident, (g) driving without due care and attention, (h) failing to keep any or any proper control of theContainer Truck, and (i) failing in the circumstances to drive up to the standard of a reasonably competent driver when driving the Container Truck at the material time [15] P previously filed (a) his Answer to the Request for Further and Better Particulars of the Statement of Claim on 30 March 2017, (b) his Amended Reply to the D2RAD on 5 September 2018, and (c) his Reply to the D4D on 15 June 2018 [16] 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) [17] [2014] 6 HKC 155, 168-169 – not cited by Ms Lee or Mr Law [18] see Lau Kwai Ping Joyce, the Executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Limited HCA274/2014 (unreported, 10 July 2020) para 44 (see also Hong Chun Tak v Yip Kan Kee Contracting CompanyLimited & ors DCEC849/2017, HHJ K C Chan (unreported, 24 March 2021) paras 20-41) – not cited by Ms Lee or Mr Law [19] Order 38 rule 2A(6) of the RHC provides inter alia that “where the party serving a statement under this rule does not call the witness whose evidence it relates, no other party may put the statement in evidence at the trial” [20] especially when there was still more than 2 weeks until trial by the time, according to Mr Law’s written opening submissions, Zhu allegedly learned at the end of the 1st week of September 2021 that his application for cross-border permit was refused, and when in view of the on-going COVID pandemic litigation prudence would have encouraged D2/D4 (with the benefit of legal advice) to explore the possibility of having Zhu give evidence at trial by VCF and to alert the other parties and the court of such possibility when Zhu was not yet able to secure his cross-border permit by the time of the PTR [21] see Yeung, Abraham v Sun King Kai also known as Deborah King Kai Sun and also known as Deborah King Sun, the Executrix of the estate of Kong Tuen (or Duen) Yee, deceased HCA413/2015, DHCJ Leung (unreported, 3 August 2021) para 6 – not cited by Ms Lee or Mr Law [22] ie whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness [23] ie whether the original statement was made contemporaneously with the occurrence or existence of the matters stated [24] ie whether the evidence involved multiple hearsay [25] ie whether any person involved had any motive to conceal or misrepresent facts [26] road traffic incident investigation report [27] ie whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose [28] ie whether the circumstances in which the evidence was adduced were hearsay such as to suggest an attempt to prevent proper evaluation of its weight [29] HCA382/2009 (unreported, 2 April 2015) paras 33-35 – not cited by Ms Lee or Mr Law [30] see Wisniewski v Central Manchester Health Authority [1998] PIQR P324, P340, Tullett v Tokyo Interntaional Securities Ltd v APC Securities Co Ltd [2001] 2 HKLRD 356, 365, Ip Man Shan, Henry v Ching Hing Constructioon Co Ltd [2003] 1 HKC 256, 307 and Kao Lee & Yip v Koo Hoi Yan & ors [2003] 3 HKLRD 296, 310 – not cited by Ms Lee or Mr Law [31] [2004] 1 HKC 434 [32] CACV10/2010 (unreported, 22 October 2010) – not cited by Ms Lee or Mr Law [33] name of a website [34] in digital terms a website was a collection of web content, often on multiple webpages, that were grouped together under the same domain [35] ie the text, images and other media that visitors would see when they browsed the webpages of a website [36] ie the past or historical text, images and other media that visitors would have seen when they previously browsed the Website but which had since been replaced/ removed [37] ie a party is required to discover documents relating to the matters in question in the action, including documents on any pleaded issue as well as documents reasonably supposed to contain information that may – not that must – either directly or indirectly facilitate a chain of enquiry for advancing one’s own case or to damage the adversary’s case (see The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QB 55, 63) [38] road traffic incident vehicle cooling system analysis report [39] road traffic incident speed calculation and analysis report [40] see also the photograph at G/689 of a CB Coach Bus similar to the Coach, which also suggested the Coach must have been a large CB Coach Bus [41] Bus Tickets nos 06597481 and 06597482 (E/547-548, E/562-563 and E/574-2) [42] Mr Law when cross-examining Madam Wong suggested the 2nd Photo showed the widened Road Shoulder at the Merge Point (referred to in para 65 below) where the Gunagdong-Macau Expressway turned into and merged with eastbound Dongguan-Foshan Expressway, but Madam Wong gave evidence that she “…… 唔肯定, 因為呢兩笪地方 [ie 1st/2nd Photos] 唔同地方 …… [Madam Wong] 肯定唔到 …… 就咁睇呢兩幅相 [ie 1st/2nd Photos], 肯定唔到 …… 同埋佢又冇量度 ……” [43] indeed, Mr Law’s written closing submissions acknowledged “[the] accident place was quite into the Dongguan-Foshan [Expressway] east bound 莞佛高速東行about 50 km + 800 metres” [44] road traffic incident vehicle examination report [45]presumably via the seat reservation hotline in Mainland China as stated on the cover of the Ticket Package [46] see P’s and Lei’s Bus Tickets nos 06597481 and 06597482 (E/547-548, E/562-563 and E/574-2) [47] by which time, according to the Lei WStmt, “…… 已經在大橋上 ……”, which bridge I have found to be Dachong Bridge (see para 74(b) above) [48] [1973] 1 QB 889 [49] HCPI1019/1997, Suffiad J (unreported, 14 March 2001) [50] Bus Tickets nos 06597481 and 06597482 (E/547-548, E/562-563 and E/574-2) [51] [1995] 2 HKLR 541 [52] [1983] RTR 324 [53] (1982) 40 OR (2d) 186 [54] [2007] 1 HKLRD 937 [55] ie (a) all the contractual documents with the plaintiff were headed with the defendant’s name and logo, (b) there was no reference to Z’s name in them, (c) all the indications from the tour were that it was organised and run by the defendant, eg a uniformed employee of the defendant met the tour group at the airport, gavethem badges bearing the defendant’s name, and remained with them and assisted them throughout the tour; the local guide (who presumably worked for Z) introduced himself as representing the defendant rather than Z; and the defendant’s name was displayed in the front windscreen of the coach, (d) the “issues of responsibility” clause in the itinery did not refer to the defendant being the plaintiff’s agent in contracting with third parties or mention the third parties’ names, and it was the defendant who arranged the itinery and decided which airline, hotels, restaurants and transportation companies to use, so all the itinery said was that the defendant’s arranged itinery was subject to alternative arrangements by the airline or receiving units chosen by it, and (e) the other terms of the contractual documents (including the defendant’s right to refuse to accept any application, to adjust the price before departure, to change the accommodation, meals or sightseeing programmes and even to cancel the tour if there were insufficient numbers) supported this conclusion (pp 943-945) [56] DCPI1468/2008, DDJ J Wong (as he then was) (unreported, 23 December 2010) [57] (1879) 4 CPD 267 [58] the 2nd defendant claimed that it was only an agent to sell tickets for and on behalf of its principal, the service provider 廣東奔力冠一旅遊客運有限公司 (“奔力冠一”), and the subject coach was registered in the name of 奔力冠一, which also provided the coach, the driver (ie the 1st defendant) and the insurance overage in Mainland China (para 4(b)(i)) [59] ie Bus Tickets nos 06597481 and 06597482 (E/547-548, E/562-563 and E/574-2) [60] the actual notice to passengers allegedly stuck to the boarding stations and inside the Coach were not part of the evidence at the trial [61] Mr Law in his written closing submissions complained it was not clear how the 1st Copies were retrieved from the 48 captures or otherwise, queried whether there were other webpages that had not been disclosed, and questioned why it appeared different methods were used to retrieve the 1st Copies with “48 captures” and the 2nd Copies [62] HTML (HyperText Markup Language) file path described the location of a webpage file in the website structure for display of the content thereof in a web browser [63] Mr Law in his written closing submissions queried whether or not “8/10/2016” was the “discovery date by [P’s] solicitors”, why such date was not printed on E/575, and why the Date Mark was not shown in E/576-581 [64] Mr Law in his written closing submissions queried why the words “The Wayback Machine” with HTML file path were not found in E/585-586 (so that HTML file paths were seen in the header of 5 out of 7 printout pages), and suggested there was no evidence to explain this, and he also queried from where E/585-586 were retrieved; but in my view, this could be easily answered because E/584-586 were marked on their face as a set of 3 pages (1/3, 2/3 and 3/3), which meant that a single webpage was printed on 3 sheets of paper (see the same HTML file path at the footer of E/584-586) [65] in the P 3rd Aff and under cross-examination, P reiterated “the website of [D2] and [D4]” (ie the Website) was not retrieved until August 2016 [66] in the P 3rd Aff P reiterated he was unaware of the Co-operation Agreement between D3 and D4 until December 2016 [67] including exploration of skin wound, initial skin graft to right lower limb and right foot with full thickness autograft, 15% of total body surface area grafted (taken from own graft) on 24 October 2013, wound debridement and arthrotomy with drainage ankle on 25 October 2013, debridement on 28 and 31 October and 3, 6 and 11 November 2013, excisional debridement to wound, flap reconstruction to foot, right – ditant free, myocutaneous, latissimus dorsi flap on 15 November 2013, close reduction and fixation – screw fixation to right tibia, screw fixation to right fibular, open reduction and fixation – screw fixation to right tarsal on 15 November 2013, flap failure so close reduction and fixation – external fixator to right tibia, vascular repair with microsurgery on 16 November 2013, debridement on 19 November 2013, debridement + partial thickness skin graft (taken from both thighs) + removal of implanted device from foot, deep on 2 December 2013, debridemnt and partial thickness skin graft, removal of AO external fixator, and removal of foreign body without incision from lower limb, except foot on 30 December 2013, removal of implanted device from foot, deep and removal of implanted device from ankle sundesmosis on 12 February 2014 [68] according to the physiotherapy report dated 25 July 2015 by PYNEH, P was referred for physiotherapy and first attended treatment on 25 March 2014; on initial assessment he walked with a pair of elbow crutches; there was some discharge from the wound at his right ankle, decrease in his right knee and right ankle range of motion, and wasting over his right lower limb muscles; his walking endurance was limited; wound care, strengthening exercise, stretching exercise, scar management, electrical stimulation, laser therapy, gait re-education and balance training were included in his treatment programme; there was improvement of right lower limb muscle strength; P’s right ankle range of motion was still limited; P was able to walk unaided indoors and with stick outdoors; P’s walking endurance was improved to 1-2 hours; since his progression was static P was discharged with home exercise on 30 January 2015 [69] Lei WStmt stated that “[P] 在長時間走路 (約10分鐘) 和長時間站立 (約30分鐘)時, 右腳疼痛會加劇, 疼痛感更會令整條右腿不適, 特別在走路時, 要使用枴杖慢慢地一步一步走, 根本不能跑步” [70] Lei WStmt stated that “因為傷患, [P] 只能做一些簡單的家務。[Lei] 在下班以後, 還需要做家務” [71] Lei WStmt stated Lei sometimes would help P bathe [72] [1988] 2 HKLR 650, 653 [73] (a) Ko Chu Keung v Tammuk Engineering Co Ltd HCPI1319/2016, DHCJ Kenneth Wong (unreported, 12 December 2018) (crush injury to right leg with a 10cm x 4cm contaminated wound with exposed bone, fracture of the right tibia and fibula, treated with wound irrigation, tetanus prophylaxis, intravenous antibiotics, skin traction, internal fixation with intramedullary nailing of the right tibia and plating of the right fibula, 2nd debridement 3 days later, implants removed about 5 months after accident, scar on right calf and scar on right arm which scars were prominent and at times itchy and painful, received extensive physiotherapy and occupational therapy treatment, able to return to work as a welder with reduced capacity and efficiency, damages for PSLA awarded at $650,000, which Ms Lee submitted that with inflation would be $682,000 by the time of trial in the present action), (b) Lai Chi-ming v Ng Pak Chuen & anor HCPI1085/1999, Master de Souza (unreported 25 September 2000) (fractures of the right tibia and fibula and laceration to right foot, close reduction of the fractures with intramedullary nail fixation, foot wound was sutured, 2 further operations for debridement and skin grafting as foot wound turned gangrenous and for implant removal, hospitalised for 20 days, 136 sessions of physiotherapy and occupational therapy, substantial scarring of lower right leg which had improved but future cosmetic intervention required, 10% whole person impairment of which 5% for cosmetic impairment,could not squat or carry heavy weights, damages for PSLA awarded at $574,000, which Ms Lee submitted that with inflation would be $818,000 by the time of trial in the present action), (c) Siu Wai Yee v Lau Sin Hang HCPI700/2004, Sakhrani J (unreported, 12 October 2005) (fracture of the left acetabulum and extensive wound with severe soft tissue degloving to left thigh, pin was inserted at the upper leg level, put on skeletal traction in bed for over 70 days, 8 repeated debridement operations for thigh wound and finally skin graft, hospitalised for over 80 days, walked with crutches upon discharge, occupational therapy for 3-4 months, extensive scarring of 17cm x 11 cm, 29cm x 30 cm and 25cm x 23 cm respectively on abdomen, left thigh and skin graft donor site at the right thigh, tenderness at anterior superior iliac spine and left sacro-iliac joint, wastage of proximal quadriceps and left thigh muscles, unable to squat, fractures healed with slight mal-alignment and irregularity and mild decrease of hip flexion and knee extension power, difficulty in carrying and lifting heavy objects, close to the upper range of serious injury category, damages for PSLA awarded at $550,000, which Ms Lee submitted that with inflation would be $774,000 by the time of trial in the present action), (d) Fung Bo Ha v Tang Tik Chung & anor HCPI1368/1999, Seagroatt J (unreported, 29 June 2001) (comminuted fracture of distal region of right fibula and fracture of great tuberosity of head of right humerus, deep laceration over lateral aspect of right ankle, multiple abrasions of forehead, bruising and swelling of right shoulder, multiple abrasions of upper abdomen, right calf and knee, right ankle injury complicated by wound infection and skin flap necrosis, 6 operations for right leg and upper arm, right shoulder healed with stiffness and wasting, right leg healed with deformity of distal right fibula, arthritic change and bony fusion of posterior talocalcanean joint, walked with difficulty and reliant on a walking stick, still needed physiotherapy 3-4 times/week 2.5 years after accident, damages for PSLA awarded at $600,000, which Ms Lee submitted that with inflation would be $902,000 by the time of trial in the present action), and (e) Chui Po Hing, by her father and next friend, Chui Sun v Lo Suen HCA1434/1988, Master Jerome Chan (as he then was) (unreported, 23 February 1990) (knocked unconscious, concussion, facial lacerations, fractured right clavicle, right femur, right tibia and fibula, first metatarsal of left foot and left fifth toe, severe deep lacerations of left calf, ankle and foot, major nerves, arteries and tendons of left ankle severed, quite a number of surgeries to repair arteries/nerves, amputation of 2 toes, skin grafts, exploration and nerve graft in left foot, revision amputation of big toe due to on-and-off ulceration, treated with traction and plaster for half a year, hospitalised 203 days, attended outpatient physiotherapy, horrendous scarring of the left thigh, leg, ankle and foot, less noticeable scarring to the face, left arm, right hand and leg, deformity of left foot with only 3 crooked toes in left foot, inability to carry weight without affecting clavicular region, weakness in right leg, stiffness and restriction of movement in both ankles, numbness in legs after standing for 10 minutes, pain in left ankle after walking for 45 minutes, walked with slight limp, “substantial injury” category, damages for PSLA awarded at $240,000, which Ms Lee submitted that with inflation would be $870,000 by the time of trial in the present action) [74] HCA1434/1988, Master Jerome Chan (as he then was) (unreported, 23 February 1990) [75] [2018] 4 HKC 1, 7-9 [76] HCPI896/2013, Bharwaney J (unreported, 3 May 2019) paras 94-95 (see also Lai Chi Wai v Tong Hung Kwok & anor HCPI1235/2014, Bharwaney J (unreported, 23 April 2020) paras 82-85 – not cited by Ms Lee or Mr Law [77] HCPI110/2018, DHCJ Raymond Leung SC (unreported, 21 June 2019) – not cited by Ms Lee or Mr Law [78] [2021] 3 HKLRD 938 – not cited by Ms Lee or Mr Law (see also Lai For Yau v Gammon Construction Limited DCPI2576/2019, HHJ Andrew Li (unreported, 11 August 2022) handed down after the trial in this action) [79] 2019 ed p 65 [80] P would sometimes feel his right foot was bleeding or there was dischargefrom non-healing wound, so he would have to find a nearby pharmacy to buy medical supplies and find a place to sit down and to clean/dress the wound [81]P’s job duties included (a) “…… 睇住 [P] 嗰個團隊每一日所寫嘅報告, 即係佢哋嗰個daily report, [P] 要check佢哋嘅 …… [P]主要都係要manage佢哋--即係管理, 睇住佢哋入嗰啲data係要絕對啱囉 …… 即係要即係我哋叫做補料畀船公司, 或者畀個客人去對單, 要係全部都要準時去做囉 ……”, (b) “…… 去處理嗰啲運船嘅booking, 即係嗰啲貨物嘅booking…… 即係同船公司去攞位 …… 即係啲客人畀booking我哋去安排 ……”, and (c) “…… 亦都要向 [P] 直屬嘅經理講關於每一日嗰啲 …… 船務程序 …… daily operation issue ……”, but it was not his job duty to chase customers for payment, “…… 如果個team個客人唔畀錢, 我哋就會將呢個問題去交番畀負責呢個客人嘅sales去 …… 負責追囉 ……” [82] 1 day on 17 August 2015 and 2 days on 21-22 January 2019 [83] “…… 由於 [Chun] 得知廣州分公司有三位同事同時間離職, 因此 [Chun] 和 [P] 需要接手三位離職同事的工作, 但由於 [Chun] 本身亦有其他事務需要跟進, 因此 [Chun] 安排了 [P] 接手了絕大部份的工作, 包括協助聯絡貨運各方代表和協助安排各項貨運事宜, 其中主要以電話和電郵作聯繫。有時候當某些交易涉及一些海外公司, 由於時差的關係, [P] 的上班時間有時候會變得不固定, 有時候需要加班至晚上8時多 ……” [84] the job duties of 義復幹事 (pastoral care service worker) included “1. 輸入、整理及更新病人電腦資料; 2. 輸入、整理及更新義工電腦資料; 3. 協助聯絡義工參加各項義工訓練、服務及活動; 4. 安排復康器材捐助服務予有需要病人; 5. 跟進病人的社關需要, 包括關顧回院覆診病人及外出探訪已出院病人; 6. 定期為已出院病人及其家為辦福音聚會” (see “「同工手冊」2016-2017年第二次執委會議2016年6月23日修訂”) (F/675) [85] eg $9,843 up to March 2018, then $10,789 up to March 2019, $12,252 up to March 2020, $13,270 up to March 2021, and $14,137 as from April 2021 [86] ie from $10,789 in November 2018 to $12,789 in December 2018, from $12,252 in November 2019 to $14,252 in December 2019, and from $13,270 in November 2020 to $15,270 in December 2020 [87] $131,655 for the period from November 2013 to July 2014 (F/676) [88] $91,496.64 for the period from April 2015 to October 2016 (F/676) [89] $22,759 for the period from April 2015 to January 2017 (F/676) [90] $1,122 for April 2016 (F/676) [91] $642,777.88 for the period from February 2017 to July 2021 (F/677) and $14,137 x 2 months = $28,274 being projected notional income for 2 months in August and September 2021 [92] see Chua Ming Yuen v Hentron Investments Limited & anor CACV50/2005 (unreported, 30 November 2005) para 73, and Wong Tai & anor v Tang Wing Keung DCCJ4068/2002, HHJ Muttrie (unreported, 25 April 2003) paras 15 and 24 – not cited by Ms Lee or Mr Law [93] 21st ed paras 9-002 – 9-006 at pp 223-224 [94] 21st ed para 9-079 at pp 261-262 [95] HCPI541/2008 (unreported, 14 April 2010) paras 75-76 [96] CACV50/2005 (unreported, 30 November 2005) [97] D2’s/D4’s Answer pleaded that subject to discovery D2/D4 assumed an annual increment of 3% of P’s notional earnings of his pre-Accident job, and Mr Law did not resile from this position in his closing submissions, so on such basis the increment in notional earnings from 2013 to 2021 would have been $19,510.42 x 103% x 103% x 103% x 103% x103% x 103% x 103% x 103% = $24,715.22, which showed that P’s position of increment to $23,894.41 was reasonable and conservative [98] see para 315 above [99] see para 315 above [100] the multipliers for ages 37 years and 38 years at 2.5% discount rate were 19.81 and 19.31 respectively, so D2/D4 suggested that the proportionate discount rate should be 19.81 – [(19.81-19.31) x 0.33 years] = 19.64 [101] for medical treatment at TMH, PYNEH, Saukeiwan General Outpatient Clinic, Yuen Fuk X-ray, Dr Lo Dgok Sing, Dr Wong Tai Loi, KH and QEH [102] the multipliers for ages 37 years and 38 years at 2.5% discount rate were 27.91 and 27.59 respectively, so D2/D4 suggested that the proportionate discount rate should be 27.91 – [(27.91-27.59) x 0.33 years] = 27.81 [103] [2015] 5 HKC 570, 592 [104] 3 x 27.81 (orthopaedic follow-ups) + 3 (hospitalisation for debridement surgeries) + 12 x 3 (post-surgery wound dressings) = 123 round trips [105] $9,207.79 less $836.20 (taxi expenses) and $440 (Go Go Van expenses) = $7,931.59 [106] [1981] HKLR 419 (see also King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54, Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575 and Tsang Hing Yuen v Nishimatsu Kumagai Joint Venture (a firm) & anor [2000] 1 HKLRD 796, 802-802) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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