Fung Ping v. Chan Ka Ching

DCPI 3558/2021

[2024] HKDC 1210

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3558 OF 2021

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.This is the trial of the claim by the Plaintiff Mr Fung Ping (“P”) for damages for personal injuries arising out of an accident allegedly occurred to him on 4 December 2018 (“Accident”).

2.The Defendant Mr Chan Ka Ching (“D”) was the driver of a private car bearing registration number NS8929 (“Car/D’s Car”) involved in the Accident.

3.Both liability and quantum are in issue.

4.There is no dispute that on 4 December 2018 at around 1 pm. D was driving the Car along northbound Camp Street, Sham Shui Po, Kowloon. He was making a U-turn intending to park at a space on the opposite (southbound) carriageway by the roadside (“Space”) to his right. It was not a proper car parking space, merely a gap between other parked vehicles by the roadside.

5.The Space was near a garage operated by P in the vicinity, some 15 to 20 metres away (according to P’s unchallenged evidence).

6.After D’s Car had made the U-turn and was approaching the Space, P was standing at the Space out on the road, signaling to D not to park there. At the same time, P signaled his customer Mr Kung Chi Ting (“Kung”) (who later became P’s witness in this action), driver of another private car nearby, to park at the Space. D stopped the Car, but he refused to drive away. Arguments between P and D ensued.

7.P’s case is that during the encounter/arguments D suddenly drove forward, as a result the right front wheel of the Car rolled over and pressed on P’s right foot for about 10 seconds, causing him injuries in the Accident. After D backed up the Car, P’s right foot was released and he fell to the ground landing on his right hand, thereby injuring his right hand and thumb as well.

8.D denies that the Car had ever come into contact with or rolled over P’s foot. He argues that after he had stopped the Car but refused to leave, P came over to the Car near the driver’s seat and scolded him. Later P suddenly yelled out and sat on the ground during their arguments accusing D of injuring him, in gist, faking the Accident.

9.Both P and D called the police. The ambulance came. P refused to go to the hospital. Later that night he sought treatment at the Accident & Emergency Department (A&E) of Yan Chai Hospital (YCH).

10.Adduced in evidence are photographs taken at the scene showing D’s Car on the southbound carriageway with its front encroaching into the Space at an angle pointing south. Parties agree that the Car was at this stationary position after (according to P) it had backed up to release P’s right foot, or (according to D) after it had stopped upon P’s blocking the Space.

11.No criminal prosecution arose out of the Accident pursuant to the investigation by the police.

P’S CASE

P’s pleaded case and police/witness statements

12.P’s case as pleaded in the Statement of Claim (SOC) is that Kung was driving along northbound Camp Street on the opposite carriageway of the Space. He was on his way taking his car to P’s garage for inspection. Upon reaching near the Space, Kung intended to turn right to park at the Space. P was standing at the Space waiting for Kung.

13.At the same time, D’s Car, travelling along the same carriageway behind Kung’s car, suddenly overtook the latter at a high speed and made a right turn onto the opposite carriageway and into the Space.

14.P signaled D not to park there and D stopped the Car in front of P. Suddenly D set the Car in motion again by steering left. As a result, the right front wheel of the Car rolled over and pressed on the right foot of P for about 10 seconds. After the Accident, P fell to the ground landing on his right hand. He sustained injuries to his right foot and right hand as a result.

15.In his witness statement adduced in these proceedings, P provides further details that D had stopped the Car when it was ½ to 1 foot away from P when the latter signaled D not to drive forward. D also raised his right hand signaling P to go away. All of a sudden, D steered to the left and drove forward, causing the right front wheel of D’s Car to roll over and press on P’s right foot (右腳掌). P yelled out in pain. At the same time, Kung alighted from his car and rushed to knock on the window by the driver’s seat of D’s Car, yelling at D that he had rolled over someone’s foot and should back up (“你碌到人哋對腳，快啲退後”). D backed up the Car, and P fell to the ground (after his right foot was released). Kung helped P up to sit by the roadside. P reported to the police.

16.P’s evidence on the Accident is corroborated by that of Kung, as set out in the latter’s witness statement. Kung states that P, standing at a distance of about ½ to 1 foot in front of the Car, had signaled D to stop. However D had continued to drive forward for a distance of 1 foot, causing the Car’s right front wheel to roll over and press on P’s right foot. Kung witnessed the Accident when he was sitting in his car, about 10 metres away from D’s Car.

17.P reported to the police immediately after the Accident. The police and ambulance came after 15 minutes. P’s right foot was painful and swollen. However, P had work to do that afternoon and he did not want to wait for a long time for treatment at the hospital A&E. He therefore told the ambulance people that he would not need to be sent to the hospital.

18.As set out in their respective police statements dated 6 January 2019 and 13 January 2019, P and Kung later gave similar accounts of the Accident to the police, except that P states in his police statement that in the Accident D had steered left and driven forward for a distance of 3 feet until the Car’s right front wheel rolled over P’s right foot.

19.P has specifically stated when giving a statement to the police that the right front wheel of D’s Car had come into contact with his right foot (右腳掌), and not any other body parts.

P’s evidence given at trial

20.P under cross-examination gave further details on the circumstances of the Accident and his injuries sustained, some of which are materially different (underlined below) from his pleaded case and police/witness statement, as follows:

(1) D’s Car was turning right from the opposite carriageway slowly into the Space. Upon P signaling him not to drive into the Space, D stopped the Car at a distance of ½ to 1 foot from P. P said to D that his/P’s car was on the opposite lane (“我架車喺對面”) waiting to park at the Space, pointing to Kung’s car;

(2) P then looked into the direction of Kung whose car was on the opposite carriageway and signaled Kung to drive to park at the Space. About 1 to 2 seconds later, he suddenly felt sharp pain and noted immediately that the right front wheel of D’s Car had rolled over and pressed on his right foot. He did not see the movement of D’s Car but had inferred that D must have steered left and drove forward such that its right front wheel came close and rolled over P’s right foot;

(3) He felt great pain in his right foot and had to hold onto D’s Car at its right side bonnet in order not to fall. He yelled and urged many times D to back up the Car. D said to P, “Do you own the road?... I have a car camera installed! (條路你㗎…我有車cam㗎!)”. D later backed up the Car after about 10 seconds when Kung came over and scolded him. P’s right foot was released and he fell on his bottom to the ground. P landed on his right hand and injured his thumb upon the fall;

(4) He is an experienced car mechanic and estimates that D’s Car should weigh at least 1 to 1.5 tons;

(5) In the Accident, the right front wheel of D’s car rolled over and pressed on the front of his right foot causing him injuries and great pain to his 4 toes (except the little toe), not the dorsum or midfoot. He felt so painful at his right toes that he walked with a limping gait after the Accident;

(6) P reiterated that he had injured his 4 toes and right thumb in the Accident. When challenged by D’s counsel Mr Law Ka Sing as to why the medical records and reports all record injuries and treatment to the right forefoot and midfoot, P answered that the doctors might have misunderstood him or made the records by mistake;

(7) In court, P further elaborated on his right toes injuries as follows: He was wearing safety shoes with built-in steel plates at the front. The front of the right shoe became dented (鞋頭扁晒) upon being pressed by D’s Car in the Accident. The steel plate was also crushed and it pressed on his right toes so that the ambulance people had difficulty taking the shoe off from P;

(8) P was operating his own garage business near the scene. It was a one-man business, though his adult son had just started to work with him and learn to help with the garage works. On the day of the Accident, the son was away on holiday so P was working on his own;

(9) He refused to be taken by the ambulance to the hospital because he had work to attend to that afternoon and could not afford to wait for a long time for treatment at the A&E, plus the pain was not unbearable at that time. The ambulance people examined his right foot, put on some topical medication and bandaged it before they left;

(10) The right foot and right hand pain became worse in the evening after work. P attended the A&E of YCH that night to seek treatment;

(11) He continued to suffer persistent pain in his right hand and right foot for which he was granted intermittent sick leaves from the day following the Accident up to 30 January 2019;

(12) As a result of the injuries sustained in the Accident, he could not work at all during the sick leaves. The garage was closed for 2 months during that period; he has suffered loss of income as a result of the Accident; and

(13) P’s evidence is that his son had started to work with him in the garage business as a partner since July 2018, but he was green and still had much to learn. When asked why he did not open the garage for business after the Accident as he should be able to attend to customers and handle light duties such as taking delivery of vehicles, attending to paperwork and preparing the vehicles for tests and renewal of licences (as he normally did in his business), and teaching or supervising the son to do the more strenuous work, he replied that “he (the son) was lazy”.

Kung’s evidence given at trial

21.The evidence of P’s witness Kung on the circumstances of the Accident is on the whole consistent with that of P, as stated in Kung’s witness statement.

22.At trial, Kung testified initially that he noticed D’s Car moving forward and rolling over P’s right foot in the Accident. He had witnessed the occurrence as he was only 10 metres away sitting in his car when it happened.

23.Later he explained that he first saw D’s Car had stopped for 1 to 2 seconds, and then moved forward for a foot. At the same time he saw P’s facial expression of pain so he knew P was injured by D’s Car.

24.When queried by D’s counsel that Kung could not have seen P’s facial expression as P should at that time be facing D’s Car at its right side and with his back facing Kung, Kung explained that in fact he had seen P suddenly stooping forward seemingly in pain. So Kung immediately alighted from his car and went over to D’s Car. Upon seeing P’s right foot being pressed by D’s Car at its right front wheel, he knocked on the driver’s window and yelled at D to back up the Car. D then backed up the Car after pressing on P’s right foot for about 10 seconds. P’s right foot was released and he fell to the ground. Kung helped P up to sit by the roadside. P called the police. The police and the ambulance came about 15 minutes later.

25.D’s counsel challenged Kung during cross examination on the latter’s witness statement where it is stated that despite P’s intervention, D had not stopped the Car at all but continued to drive forward until its right front wheel rolled over P’s right foot in the Accident. Kung replied that D might not have stopped the Car which had continued to move forward slowly (慢溜). He nevertheless agreed that D might have stopped the Car momentarily before driving forward again but he might not have applied the handbrake; he added that he could not be certain as the Accident had happened long ago.

26.During cross examination, Kung volunteered further information and testified that P’s right shoe front had become dented after being pressed by D’s Car in the Accident. Such evidence about the crushed and dented right shoe, same as P’s evidence, was never mentioned by Kung before in his witness statement or police statement.

THE DEFENCE CASE

27.D’s case, as set out in the Defence and stated in his witness statement, is more or less consistent with his evidence given at trial as follows:

(1) He was driving the Car and making a U-turn from northbound Camp Street at a slow speed intending to park at the Space on the opposite carriageway;

(2) After turning right into the opposite lane, he noticed P coming out from the pavement and blocking the Space. P raised his hands gesturing D to stop. D stopped the Car at a distance of about 6 feet in front of P;

(3) P scolded D with foul language for parking at the Space. D replied that P had no right to block the Space and forbid others from parking there;

(4) P then walked close to and stood by the driver's seat of D’s Car. He continued to scold D and at the same time waving at someone on the opposite carriageway to park there;

(5) D refused to move the Car. Suddenly, P yelled out and sat on the ground near the right front of D’s Car, alleging pain and injuries;

(6) Later a male came over to help P up and take him to sit by the pavement;

(7) D called the police who arrived shortly thereafter. The ambulance also came;

(8) D did not move the Car at all during the incident until after the police had arrived;

(9) P accused D of injuring him with the Car, but refused to be taken by the ambulance to the hospital. D insisted to the police that P should go to the hospital immediately for medical examination to prove that he had not suffered any injury as alleged. The police however said that P had the right to decide for himself whether he would go to the hospital;

(10) Later that evening at about 7:30 pm, when walking past the scene after work, D saw P lying on the ground engaging in inspection/maintenance/servicing of a vehicle. It was apparent to D that P had not suffered any injury;

(11) He was asked by the police and attended the police station on 9 March 2019 to give a cautioned statement on the suspected offence of Careless Driving;

(12) D gave evidence in court that he did mention to the police (though it was not recorded in his cautioned statement) that he had installed a car camera in the Car but the footage recorded on the day of the Accident had long been erased/overwritten automatically; and

(13) He received a letter from the police on or about 20 July 2020 informing him that pursuant to the police investigation, no prosecution of any party would ensue as a result of the Accident due to insufficient evidence.

MEDICAL EVIDENCE AND RECORDS

28.Ambulance journey record dated 4 December 2018 records, inter alia, “(P reported) right foot injury (right foot rolled by a private car)…(complained of) [pain] [swelling]…no pain relief requested… refused conveyance to hospital. Refusal form signed…” Nil treatment nor medication was provided or prescribed.

29.Later that evening P sought treatment at the A&E of YCH at 2139 hours. As shown in the A&E consultation record, he reported “right foot rolled over by a car today…fell, landed on R thumb…c/o pain…”. Examination revealed “no external wound…walk unaided”. The A&E record shows, as interpreted and referred to by single joint expert (SJE) Dr Lam Kwong Chin (“Dr Lam”) in the Single Joint Expert Report dated 28 August 2023 (SJER)): His right foot dorsum did not show tenderness or bruises … Right toe showed minimal bruising and tenderness. Diagnoses of right thumb sprain and right foot contusion were made.

30.P sought treatment from private orthopaedic specialist Dr Yam Cheong Fat (“Dr Yam”) on 3 occasions on 20 December 2018, 2 January 2019 and 17 January 2019. P’s main complaint was pain at the right hand, right ankle, forefoot and midfoot. He was treated with medications and physiotherapy with improvement shown. X-rays revealed osteoarthritic changes at the right thumb and right big toe joints.

31.P had 3 sessions of physiotherapy during the period from 27 January 2018 to 17 January 2019 for treatment of pain in the right hand and thumb, right ankle and forefoot, with satisfactory improvement shown.

MEDICAL EXPERT EVIDENCE

32.SJE Dr Lam was jointly instructed by the parties herein to examine P on 14 August 2023.

33.As set out in the SJER, based on the medical records and reported findings, Dr Lam concludes that P had sustained the following injuries if the Accident did happen as alleged:

(1) Right thumb sprain, with swelling at the 1^st joint; and

(2) Right foot contusion, with tenderness and swelling at dorsum midfoot and forefoot.

34.P reported to Dr Lam that his right foot was pressed by the wheel of D’s Car in the Accident for 30-40 seconds. After the Accident, he had worked till 7 pm that afternoon. He first sought treatment at the A&E that night when he felt gradual increase in pain at night after he returned home.

35.Almost 5 years after the Accident, P during examination by Dr Lam still complained of intermittent right thumb pain and intermittent right foot pain for which he required application of medicated oil every night, and painkillers once a week. P also complained of right elbow stiffness and right wrist pain.

36.Dr Lam concludes that if P had sustained a right thumb injury in the Accident, it had recovered satisfactorily. The present right hand complaint is largely due to degeneration, considering in particular the X-rays which show prominent degenerative changes with radial deviation at the right thumb joint.

37.In regard to the right foot complaint, Dr Lam also concludes that the pain due to the soft tissue injury sustained in the Accident should have subsided. The present right foot complaint is largely due to degeneration of (the right big toe joint).

38.On work capacity, Dr Lam opines that on the current right hand and foot findings, P should be able to continue with his previous work as a maintenance garage owner, in a manner compatible with others of his age and degenerative status.

LEGAL PRINCIPLES ON ASSESSING CREDIBILITY OF WITNESSES

39.In assessing credibility of factual witnesses who gave wholly different accounts of the incident, like P and D in the present case, I have borne in mind the relevant principles and helpful approach set out in the often cited case of Hui Cheung Fai v Daiwa Development Ltd (HCA 1734/2009) (8 April 2014) at §§77-82, by DHCJ Eugene Fung:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)...

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ))…

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd's Rep 1 at 57:

‘Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination…”

40.On the question how the court should approach the witnesses’ evidence, tainted with minor inconsistencies particularly on accidents which happened long ago, I have found guidance in the judgment of Seagroatt J in Kristan Bowers Philips v The Hong Kong Philharmonic Society Ltd & Others (unrep, HCPI No 580 of 1996) (31 July 1997), at para 155:-

“It is always difficult for people to recall events of a year or two previously, unless etched into their memories by a particular detail. For people to recall events of a decade earlier, even if aided by contemporaneous records or a dramatic detail, it is a struggle of varying dimensions. Conflicting versions, inconsistencies in the testimony of a particular witness, omissions in recall, surprising additions to what had been stated on an earlier occasion, always call for great care in assessment and sometimes give rise to a sceptical approach. But they are only to be expected in the circumstances. A witness may be extremely reliable on some aspects and yet quite unreliable on others. Some testimony may have to be rejected in total even though it is apparent that the witness is doing his or her honest best to state the position. Other testimony may be exaggerated because time and other factors have distorted the picture. I have not found it necessary to state in this judgment a detailed and analytical assessment of each witness's evidence. Some testimony is more relevant than others. I have used what I accept as relevant and convincing evidence, to establish the picture of events of that morning on the basis of probability; in some matters the picture is one of certainty.”

DISCUSSION

41.The parties do not dispute that there was an unpleasant encounter/argument/exchange between P and D when P prevented D from parking at the Space on the road.

42.It should not matter in my view whether anyone of them was angry, holding a cigarette, spoke foul language, etc, as the parties sought to cross-examine the other side on. The real issue is whether D’s Car had rolled over/treaded or pressed on P’s foot as alleged, causing him injuries in the Accident.

43.Whilst P’s pleaded case gives an impression that D had sped the Car in overtaking Kung’s car at a high speed and turning into the Space until he was stopped by P, both P and Kung gave evidence under cross examination that D’s Car was in fact turning into the Space slowly. D did stop the Car according to P, or according to Kung slid slowly (慢溜) close to a halt (though he was not certain whether D had applied the handbrake) when P intervened.

44.P’s case of the right front wheel of D’s Car, a heavy vehicle, rolling over and pressing on his right foot for about 10 seconds, is inconsistent with the minor injuries sustained in his right foot. Had the Accident happened in the way P described, it would defy all common sense that he had not suffered any fracture, not even bruises or swelling of his right foot. The ambulance journey record does not record any objective medical findings other than P’s complaint of [pain] and [swelling] as indicated on a diagram of the right foot. P had refused to be taken to the hospital by the ambulance.

45.P’s report to Dr Lam of being rolled over and pressed on for 30-40 seconds by D’s Car in the Accident is wholly unreasonable, and was in my view a poor attempt to exaggerate his injuries.

46.At trial, P gave evidence for the first time that the right safety shoe that he was wearing had its front and the in-built steel plate crushed and become dented, thereby crushing on his right toes, and rendering it difficult for the ambulance people to take off his shoe – this is some new evidence never mentioned in his witness statement or police statement. Had this really been the case, the dented safety shoe (and serious injuries of the right foot) would mostly likely have been informed by P to the ambulance people and the police, and later to his legal representatives, and recorded in the ambulance record, his police statement and witness statement. No doubt P would also likely have taken a photograph of the dented shoe as proof of the Accident/ his right foot injuries.

47.The stark similarity in the evidence of P and Kung about the crushed and dented right safety shoe, also never mentioned in Kung’s police statement or witness statement but volunteered for the first time during cross-examination in court, suggests concoction and preparation by the duo for giving evidence in court.

48.Kung is not an independent witness as P seeks to argue. He was P’s customer for whom P was trying to reserve the Space in the Accident for taking the customer’s car for service.

49.P’s evidence of the ambulance people putting topical medication on and bandaged his injured right foot is contradicted by the ambulance journey record which shows that nil medication/treatment was provided/administered. This is in my view another example of exaggeration by P of the alleged injuries.

50.P’s evidence is that he felt very painful in his right foot and had to walk with a limp when he attended the A&E at night. This is contradicted by the A&E record: P was noted to walk unaided, and only had minimal tenderness of the right foot dorsum as indicated on a diagram.

51.P’s case is that the serious right foot and right hand injuries necessitated sick leaves over a period of about 2 months during which he was unable to work. This is incredible given that he had refused to go to the hospital and was able to continue to work until 7 pm (as he reported to Dr Lam) on the day of the Accident. He was also seen by D to be lying on the ground inspecting/servicing a vehicle on the evening after the Accident.

52.For the same reason, I consider P’s evidence that he could not work at all and had to close his garage during the 2-month sick leave period is also not credible.

53.P’s own most damaging evidence relates to his description of the injuries which he allegedly sustained in the Accident: For the first time he clarified in court during cross examination that he was injured at his 4 right toes, but not the right dorsum or forefoot/midfoot.

54.D’s counsel challenged P that the contemporaneous medical consultation and treatment records by the A&E, Dr Yam, the physiotherapist and Dr Lam all record dorsal/ forefoot and midfoot injuries and examination findings. It has also been P’s case all along that he suffered pain and stiffness to his dorsum midfoot/forefoot/foot/ankle as pleaded in the SOC and Revised Statement of Damages (RSOD), and supported by his witness statement.

55.P explained in court that he did inform the doctors, the physiotherapist and Dr Lam, also his legal representatives, of his right toes injuries all along, but they might have mistaken or made the records wrong. This is a convenient, yet wholly unreasonable and unacceptable, excuse which I have no hesitation rejecting.

56.There are no objective medical findings in support of the alleged injuries to the right foot and hand, apart from P’s subjective complaints. X-rays taken shortly after the Accident on 20 December 2018 revealed prominent osteoarthritic changes of the right thumb and right big toe joints. These in Dr Lam’s view are degenerative in nature, and account largely for the current permanent symptoms and impairment shown in the joint examination 4 years later on 14 August 2023.

57.It is clear that P could not even give a consistent account of his injuries which are not supported by contemporaneous medical records.

58.In my view the only logical reason why P could not recall or describe his injuries consistent with what he had reported and recorded in the medical notes and reports is that he did not suffer the injuries in the Accident as alleged.

59.On the other hand, D’s evidence is on the whole reasonable and consistent with his accounts given in his witness statement and cautioned statement. His testimony in court is straightforward and unshaken upon cross examination.

60.Much criticism was made by P’s counsel Miss Rachel Kwong on D’s failure to produce the car camera footage to the police or in these proceedings in support of his account that he did not drive the Car forward or injure P in the Accident.

61.D explained that he did not consider this to be important at the time as in his mind no “traffic accident” had happened. Later when he was asked to go to the police station (which he did on 9 March 2019) to give a statement upon P’s report, it was already 3 months after the Accident. By then the relevant camera footage had long been overwritten automatically and lost.

62.I found D’s explanation reasonable and credible. Initially the car camera footage would unlikely seem important and D would not see the need of preserving the relevant footage. One would not imagine that P’s allegation of injuries would escalate to a litigation when P saw it unnecessary and refused conveyance by the ambulance to the hospital for treatment, and was seen by D to continue to work in garage works of car maintenance/service on the evening of the Accident – this was admitted by P to Dr Lam as well. Later the relevant footage would have been overwritten, as with the usual car camera setting.

63.No adverse inference should in my view be drawn on D’s failure to produce in evidence the car camera footage.

64.D was cross examined at length by P’s counsel on details of his encounter with P at the time of the Accident such as (i) whether P was holding a cigarette and used foul language at D when standing at the Space; (ii) whether D had completed the U-turn in one steering action or by a 3-point turn; (iii) whether D had said that P had no right to prohibit D from parking at the Space; and (iv) why D did not specify in his cautioned statement taken by the police that he had stop the Car at a distance of “6 feet” in front of P, which should be an important information for the purposes of the cautioned statement taken in contemplation of a criminal prosecution against D of Careless Driving.

65.These are in my view peripheral matters which not surprisingly may not be asked by the police or mentioned by P when giving statement. The minor discrepancies should not impugn the overall credibility of D as a witness.

66.Following the approach stated by Seagroatt J in Kristan Bowers Philips (supra), I do not find it necessary to state in this judgment a detailed and analytical assessment of each witness' evidence and all inconsistencies on peripheral matters. I am able to establish a clear picture of the events, on a balance of probabilities, based on what I accept as relevant and convincing evidence.

67.I found the evidence of P and his witness Kung, in many aspects inconsistent with and not supported by contemporaneous evidence, incredible. I reject their evidence on the occurrence of the Accident.

FINDINGS OF FACT

68.I prefer D’s evidence and accept his account, and make the following findings of facts on what actually happened at around 1 pm on the day of the alleged Accident:

(1) D had made a U-turn and was turning slowly into the Space by the roadside on the opposite southbound carriageway of Camp Street;

(2) P stood at and blocked the Space preventing D to drive into the Space, at the same time waving at Kung whose car had stopped on the northbound carriageway waiting to park at the Space;

(3) D did stop the Car but refused to leave;

(4) During exchange/arguments between P and D, P went closer by D’s side of the window and scold D. D did not move the Car which did not come into contact with P;

(5) P yelled and fell to the ground, accusing D of injuring him with the Car;

(6) Both P and D called and reported to the police;

(7) The Car wheel did not roll over or press on P’s right foot/toes and P was not injured, hence P refused conveyance by the ambulance to the hospital. P’s right safety shoe was not crushed in the alleged Accident and did not become dented;

(8) P did not require treatment or medication, hence none was provided by the ambulance people; and

(9) P was able to continue with garage/car inspection and maintenance works after the Accident as usual until he went off work that evening.

CONCLUSION ON LIABILITY

69.On the above analysis, I come to the only logical conclusion that D’s Car did not roll over or press on P’s foot as alleged. The alleged Accident did not happen. P’s claim herein is dismissed.

QUANTUM

70.In the unlikely event that I am wrong on the issue of liability, I shall deal with briefly the issue of quantum for the sake of completeness.

Pain Suffering and Loss of Amenities (“PSLA”)

71.P sustained mild soft tissue injuries to his right foot and right thumb/hand as a result of the Accident. He did not require treatment or medication and refused to take conveyance by the ambulance to the hospital. He continued to work in the afternoon and sought treatment at the A&E of YCH that night. He had minimal tenderness and bruising in the right foot and big toe. A diagnosis of right thumb sprain and right foot contusion was made.

72.Intermittent sick leaves were granted during the period from 5 December 2018 to 30 January 2019. P had 3 sessions of physiotherapy treatment and was prescribed analgesics. He did not require or seek further treatment after January 2019.

73.SJE Dr Lam considers the sick leave granted appropriate and the soft tissue injuries had recovered. The present right hand and right foot complaints are largely due to degeneration of the right thumb and right toe joints.

74.P claims a sum of $100,000 for PSLA. Miss Kwong, counsel for P, relies on the following cases for making this claim:

Leung Hoi Wai v Po Leung Kuk [2018] HKCFI 356

Ho Kwok Kei v A.S Watson & Company Limited & Ors [2019] HKCFI 1618

Yeung Kiu Ying v Fairwood Fast Food Ltd [2020] HKDC 69

75.The plaintiff in Leung Hoi Wai (supra) suffered right big toe fracture and that in Ho Kwok Kei (supra) had his right foot crushed by a loaded pallet jack. These cases involve more serious injuries not comparable to those of P in the present case. The plaintiff in Yeung Kiu Ying (supra) had a pre-existing trigger thumb; it is not a comparable case.

76.D submits that an appropriate award for PSLA should not be more than $30,000. D’s counsel Mr Law relies on the following cases in which the PSLA awards were made at $50,000, where the plaintiffs sustained contusion and soft tissue injuries seemingly more serious than those of P and required lengthier sick leaves and treatment:

Yeung Chi Lun Gregory v The Secretary for Justice for and on behalf of the Postmaster General [2022] HKDC 780 (unreported, DCPI 2771/2020, DDJ Gary Lam, 1 August 2022)

Lo Yim Wong Chau Wan v Incorporated Owners of Nos 11-12 Canal Road West, Hong Kong (unreported, DCPI 227/2013, DDJ KL Cheung, 14 September 2016)

Yuen Wai Yip Gavin v Leung Chi Shing (unreported, DCPI 1426/2014, HHJ Alex Lee, 17 July 2015)

77.I find that P has recovered well from the minor contusion and soft tissue injuries sustained in the Accident. The present right hand/big thumb and right foot/big toe symptoms are largely due to degeneration. He could continue with his pre-accident garage works and business after the Accident.

78.With reference to the authorities cited by D’s counsel and taking into account inflation, damages for PSLA, if granted, would be no more than $50,000 in my judgment.

Pre-Trial Loss of Earnings

79.P pleads that he has suffered as a result of the Accident loss of earnings/profit from his garage business as he could not work for 2 months and had to close the garage.

80.His evidence is that pre-accident annual revenue from the garage business was around $300,000. Deducting annual expenses of $100,000, his net monthly profit was about $16,667 ($200,000/12).

81.He claims as pleaded in the RSOD pre-trial loss of earnings based on the 32 days of sick leave granted in the sum of $17,780 ($16,667 x 32/30).

82.P gave evidence under cross-examination on a rough breakdown of the garage business overheads as follows: $8,000 for renting the garage premises, $200 for electricity and $1,000 for purchasing spare parts for car maintenance.

83.He has not adduced any documentary proof in support of the alleged revenue and expenses, such as invoices, pay-in slips, bank statements, rental receipts, utilities bills, purchase receipts, etc.

84.On the other hand, tax return record filed with the Inland Revenue Department shows that P had reported nil income for the year of assessment 2018/19.

85.I find this claim highly doubtful when P had continued to work through the afternoon until the evening immediately after the Accident. Also, based on his evidence that he has ever since the Accident (due to residual pain) engaged mainly in the light work of receiving customers, handling paperwork and arranging for vehicle tests, leaving the heavier duties to the son, there is no reason why he had to close the garage after the Accident. He could handle the light work whilst his son could take care of the more strenuous garage works under his supervision.

86.On the evidence, I am not satisfied that P has discharged the burden of proof in claiming loss of earnings. No award is made accordingly.

Loss of Earning Capacity

87.P’s case is that he continues to suffer permanent residual right foot, right ankle and right thumb pain and weakness, and will be disadvantaged in the labour market. He claims damages for loss of earning capacity at $50,000.

88.P’s evidence is that he has continued to run his own garage business; he can decide and plan on retirement as he wishes.

89.The legal principles as stated in the Privy Council judgment in Chan Wai Tong v Li Ping Sum [1985] HKLR 176 at 183B-D are well established in that this head of damages is not a conventional award made in the abstract but a specific mode of compensation that has to be based on evidence:

“A claim for loss of future capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk: see Moeliker VA Reyrolle & Co Ltd [1977] 1 WLR 132...”

90.In Lo Hin Kin Nelson v Personal Representative of Lam Yuk Wan (deceased) [2017] 3 HKLRD 294 at §§32-34, the Court of Appeal held that where the injured person in fact continued to operate his business, and the original case that he would have to settle for a sedentary job was not pursued, there was really no evidence of any risk that should be compensated by an award of this nature.

91.SJE Dr Lam considers P’s injuries minor; he should be able to continue with his work as a vehicle maintenance garage owner, in a manner comparable with others of his age and degenerative status.

92.I accept the submission by D’s counsel that where P in the present case has continued to run his own business, there is no disadvantage to be suffered in the labour market as he is not competing in the labour market at all.

93.In any event the injuries sustained were so minor and would have no impact on P’s future work capacity.

94.I make no award under this head of claim.

Other Special Damages/Misc Expenses

95.P claims $5,670 for medical expenses. These are supported by receipts of payments made to YCH, Dr Yam and for physiotherapy, and are allowed.

96.He claims $500 for travelling expenses in attending treatment and $500 for nourishing food, ointment and medication. These claims are modest and reasonable, and are allowed.

97.I allow the claim for $6,670 in respect of medical and miscellaneous expenses incurred and paid as a result of the Accident.

Interest

98.Interest on PSLA should be assessed at 2% pa from the date of service of the writ to the date of judgment, and interest on pre-trial special damages at half of judgment rate from the date of the Accident to the date of judgment.

Summary on Quantum

99.To conclude, if P were to succeed on the issue of liability, the total damages I would award in this case would be $56,670 ($50,000 + $6,670) plus interest.

ORDER

100.P’s claim herein is dismissed.

101.Costs should follow the event. I make an order nisi that P should pay D the costs of this action, to be taxed if not agreed, with certificate for counsel.

102.In the absence of application from the parties to vary this costs order nisi within 14 days, the order will become absolute.

103.Lastly, I thank counsel for their assistance.

Ms Rachel Kwong Hei Tung, instructed by Au & Associates, for the Plaintiff

Mr Law Ka Sing, instructed by Winnie Leung & Co., for the Defendant