Hong Wai Chun v. Hui Ka Tung

DCPI 3708/2022

[2025] HKDC 2077

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3708 OF 2022

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JUDGMENT

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A.  INTRODUCTION

1.This is a claim by the Plaintiff against the Defendants arising from a traffic accident which occurred on 6^th November 2019 at about 7:11 pm (“the Material Time”) near Chainage 26.4(A) on the Fanling Highway, Fanling, New Territories (“the Accident Location”).

2.The Plaintiff was at the Material Time the driver of a taxi with registration number ST6424 (“the Taxi”).

3.The 1^st Defendant was the driver of a truck with registration number VH324 (“the Truck”).

4.The Plaintiff initially brought a claim against the 2^nd Defendant as the employer of the 1^st Defendant and the owner of the Truck. By Order dated 4^th October 2024, leave was granted by Master Vivian Lee for the Plaintiff to discontinue his claim against the 2^nd Defendant.

5.Hence, the present Trial only concerns the Plaintiff and the 1^st Defendant. It concerns both the issue of liability and quantum.

B.  THE PARTIES’ CASE

B1.  The Plaintiff’s Case

6.The Plaintiff’s case can be summarised as follows.

On Liability

7.The Plaintiff is a male. He was born on 21^st October 1962. At the time of the Accident, he was 57 years old and was working as a self-employed urban taxi driver.

8.At the Material Time, the Plaintiff was driving the Taxi behind a private car with registration mark WH6931 (“the Private Car”) at a speed of 50 km/h along the Fanling Highway towards Tai Po.

9.As the Taxi was approaching the Accident Location, the 1^st Defendant negligently and/or recklessly drove the Truck, causing it to collide with the rear of the Taxi. This impact pushed the Taxi forward, causing it to hit the Private Car ahead, triggering a chain collision (“the Accident”).

10.The Plaintiff alleges that the Accident was caused by the negligence, breach of common duty of care and breach of statutory duties by the 1^st Defendant, in:

(a)  Failing to exercise due care and attention in driving the Truck;

(b)  Failing to stop, slow down, brake, swerve, and/or manage or control the Truck to avoid hitting the rear of the Taxi;

(c)  Failing to exercise or maintain any proper or effective control of the Truck to avoid the Accident;

(d)  Failing to take any reasonable and/or sufficient measure to avoid the collision with the Taxi or to safeguard the safety of the other road users;

(e)  Failing to pay any proper attention to the condition of the road;

(f)  Failing to properly drive, operate, and control the Truck so as not to cause injuries to the other road users, including the Plaintiff;

(g)  Driving the Truck to hit the rear of the Taxi violently, causing a chain of collisions;

(h)  Driving the Truck in a careless and dangerous manner, which caused injuries to the Plaintiff; and

(i)  In the premises, failing to drive and/or manage the Truck up to the standard of a reasonably competent driver and failing to ensure the safety of the other road users, including the Plaintiff.

11.The Plaintiff further relies on the doctrine of res ipsa loquitur to establish that the Accident was caused by the negligence of the 1^st Defendant.

12.On 22^nd December 2020, the 1^st Defendant was convicted of the offence of using vehicle without insurance, contrary to Sections 4 (1) and 4 (2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap 272) (“the Conviction”) in the Fanling Magistrates’ Courts (Case No: FLS 3218/2020) (“the Criminal Proceedings”).

13.In the Statement of Claim, the Plaintiff contends that the Conviction in the Criminal Proceedings relates to the matters complained of and is admissible and relevant to the trial of this Action as evidence to establish that:

(a)  The brief facts admitted by the 1^st Defendant are true;

(b)  The Accident admitted at the time, place and manner alleged;

(c)  The Accident was caused by the negligence of the 1^st Defendant; and

(d)  The onus of proof is shifted to the 1^st Defendant to show that he was not negligent.

14.At the Trial, the Plaintiff adjusted his position and takes the stance that the Conviction and documents in relation to the Criminal Proceedings are not admissible in the present action.

On Quantum

15.The Plaintiff’s contended injuries and damages have been pleaded in §§3 and 9 of his Statement of Claim and particularised in his Revised Statement of Damages It is the Plaintiff’s case that as a result of the Accident, the Plaintiff sustained injuries to his neck and back.

16.The Plaintiff was granted a total of 524 days of sick leave, from 7^th November 2019 to 13^th April 2021.

17.The Plaintiff underwent various treatments, including physiotherapy and occupational therapy at the Orthopaedics ward (“O&T”) of the North District Hospital (“NDH”).

18.In his Statement of Damages, the Plaintiff claims damages for Pain, Suffering and Loss of Amenities (“PSLA”), Pre-trial Loss of Earnings, Loss of Earning Capacity and Special Damages in the total sum of HK$780,787.23.

B2.  The 1^st Defendant’s Case

On Liability

19.The 1^st Defendant admits that the Accident occurred but contested both the issue of liability and quantum.

20.The 1^st Defendant denies that he was negligent, in breach of common duty of care and/or in breach of statutory duties, or that the Accident was caused by his alleged breaches of duties. The 1^st Defendant says that at the Material Time, he was driving the Truck on the third lane of the Fanling Highway eastbound towards Tai Po with due care and skill.

21.The 1^st Defendant says that, at the Material Time, an unknown white vehicle (“the Untraced Vehicle”) suddenly cut from the first lane to the third lane directly in front of the Truck. To avoid a head-on collision with the Untraced Vehicle, the 1^st Defendant was forced to take emergency evasive action by swerving the Truck. However, despite exercising reasonable care and skill, the 1^st Defendant was unable to avoid colliding with the Taxi.

22.The 1^st Defendant contends that the Accident was solely caused or contributed to by the negligence, breach of common duty of care and/or breach of statutory duty of the driver of the Untraced Vehicle.

23.As to the Criminal Proceedings, the 1^st Defendant admits his conviction. However, in §9 of the 1^st Defendant’s Defence, the 1^st Defendant denies that:

(a)  there were any brief facts admitted by the 1^st Defendant;

(b)  The 1^st Defendant’s conviction of using vehicle without insurance relates to and/or admissible and/or relevant to establish that:

(i)  The Accident happened at the time and/or place and/or in the manner alleged by the Plaintiff;

The 1^st Defendant was negligent (which is denied), whether as alleged or at all, of the Accident was caused thereby; and/or

(ii)  The onus of proof is shifted to the 1^st Defendant to show that he was not negligent in causing the Accident.

24.In the Trial, the 1^st Defendant indicated that his latest position is that the Brief Facts, the Ruling and the Witness Statements of the Criminal Proceedings (“the Documents”) should be admissible as to (a) credibility; (b) the circumstances of the Accident; (c) and to support the 1^st Defendant’s plea of contributory negligence of the Untraced Vehicle.

On Quantum

25.In respect of quantum, the 1^st Defendant disputes the majority of the Plaintiff’s claim. While admitting the information stated in the medical reports insofar as they are consistent with the documentation, the 1^st Defendant disputes the extent of the Plaintiff’s injuries and the amount of damages claimed. Specifically, the 1^st Defendant contends that:

(a)  For PSLA, a reasonable award should be HK$80,000;

(b)  The Plaintiff is not entitled to claim any pre-trial loss of earnings beyond the sick leave period;

(c)  The Plaintiff is not entitled to any claim for loss of earning capacity. The Plaintiff was able to resume his pre-accident work with only mild impairment. The Plaintiff did not suffer from any disadvantage in the labour market;

(d)  As for special damages, 1^st Defendant will admit the claim for medical expenses only insofar as they are supported by documentary proof. He does not admit the claims for travelling expenses or tonic food, and puts the Plaintiff to strict proof.

C.  DOCUMENTS IN THE CRIMINAL PROCEEDINGS

26.As a preliminary issue, the parties are in dispute as to what documents in the Criminal Proceedings are admissible in this Action.

27.As mentioned above, according the parties’ latest stance at the Trial:

(a)  The 1^st Defendant contends that the Documents should be admissible for 3 purposes, namely (a) for credibility; (b) for the circumstances of the Accident; and (c) to support the 1^st Defendant’s case that the Untraced Vehicle was contributorily negligent.

(b)  The Plaintiff opposed reliance on the Documents. The Plaintiff contends that the Conviction is irrelevant to the issues in this action, hence the 1^st Defendant cannot rely on Section 62 of the Evidence Ordinance (“EO”) (Cap 8) to have the Documents admitted and the rule in Hollington v F Hewthorn & Co Ltd [1943] KB 587 should apply.

28.Having considered the parties’ submissions and the authorities cited to me, I am not prepared to allow the Documents to be admitted as evidence in this Action.

29.The principle in Hollington is well-established. It has been succinctly summarised by the Court of Appeal in Pong Man Ting v Chinese Temples Committee [2025] 1 HKLRD 997 at §51, citing Phipson on Evidence (20^th Edn) as follows “At common law, a judgment in personam (whether delivered in civil or criminal proceedings) is no evidence of the truth of the decision or of its grounds (whether findings of facts or the legal consequence of those findings), between strangers, or a party and a stranger, except upon questions of public and general interest; in bankruptcy, administration and patent cases, to a limited extent; or when so operating by contract, admission or acquiescence”.

30.The Hollington principle was partially abrogated by Section 62 of the EO which provides that past convictions before a Hong Kong Court are admissible in civil proceedings provided that the following conditions are fulfilled:

(a)  Section 62 (1): “In any civil proceedings the fact that a person has been convicted of an offence by or before any court in Hong Kong shall, subject to subsection (3)[1], be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section”;

(b)  Section 62 (2): “In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in Hong Kong: (a) he shall be taken to have committed that offence, unless the contrary is proved; and (b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge on which the person in question was convicted, shall be admissible in evidence for that purpose.”.

31.In Hong Dau Construction Company Limited v The Incorporated Owners of Garden Vista HCA 2290/2016, (unrep., HCA 2290/2016, 8.9.2017), the plaintiff contractor claims against the defendant Incorporated Owners of Garden Vista to recover the outstanding balance under a renovation contract. One of the issues before the Court was whether the renovation contract was tainted by illegality arising from the conspiracy between the plaintiff and a Mr. Lai who was one of the directors of the defendant and was convicted of bribery offences relating to the renovation work undertaken in Garden Vista procured by tender-rigging.

32.DHCJ Kent Yee at §§27-30 referred to the Hollington principle, Section 62 of the EO and Wei Xing v Willwin Development (Asia) Company Limited (unrep., HCMP 1922/2016, 13.4.2017), and held that Mr. Lai’s convictions are admissible as they relate to the issues in dispute in the civil case. The Court is entitled to take into account Mr. Lai’s criminal convictions and the contents of the Reasons for Sentence for the purpose of identifying the facts on which his convictions was based. The Court made clear that nothing in the Reasons for Sentence is admissible as evidence of the facts found therein. However, such matters are relevant to and supportive of the bona fide of the defence of illegality.

33.In Chan Kiu Yeung v Mak Shung Wai [2021] HKDC 598, the plaintiff and the defendant respectively claims that she/he was assaulted by the other party in an incident (“the Incident”) and suffered injuries. In relation to the Incident, the plaintiff’s two sons and the defendant were charged for the offence of fighting in a public place. The defendant was convicted on his own plea whereas the sons were acquitted after trial. At §32, HHJ KC Chan considered that the criminal conviction by the Hong Kong Court against the defendant or the brief facts were not probative to the determination of the factual issues in the civil action. and the Court was only prepared to consider the above materials for the limited purpose of credibility.

34.The cases of Hong Dau (supra) and Chan Kiu Yeung (supra) are distinguishable from the present case. In Hong Dau, as the Judge observed, the convictions of Mr. Lai there were clearly relevant to the issue of illegality of the renovation contract. In Chan Kiu Yeung, the defendant’s conviction was more closely related to the issue in dispute in the civil case, namely, whether the plaintiff and the defendant have assaulted each other in the incident.

35.In the present case, the Conviction regarding the 1^st Defendant’s failure to have a third-party risks insurance pursuant to Sections 4 (1) and 4 (2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap 272) is completely irrelevant to the issue in dispute in the Action, namely, whether the Accident was caused by the negligence of the 1^st Defendant.

D.  WHETHER THE ACCIDENT WAS CAUSED BY THE 1^st DEFENDANT’S NEGLIGENCE

36.Having held that the Documents in the Criminal Proceedings are not admissible in the present case, I will proceed to consider the liability issue based on the evidence before this Court.

D1.  Legal Principle

37.A driver, as a road user, owes a duty of reasonable case to all other road users. The duty of a person who drives a vehicle on the highway is to use reasonable care to avoid causing damage to persons, vehicles or property of any kind on or adjourning the highway. Reasonable care means the care which an ordinary skillful driver would have exercised, under all the circumstances, and connotes an “avoidance of excess speed, keeping a good lookout, observing traffic rules and signals and so on”: see Charlesworth & Percy on Negligence (15^th Edn) at §11-202; see also Tort Law and Practice in Hong Kong (4^th Edn) §2-112.

38.Even if the precise manner in which a driver has driven negligently cannot be specified, the court is not precluded from making a finding that the driver has driven below the standard of a reasonable driver.

39.Since the duty is to drive with reasonable care and prudent, a driver will seldom be held liable for the outcome of a split-second decision where a number of courses of action are open to him and each has potential disadvantages. Just because an accident could have been avoided by the taking of a particular measure does not necessarily mean that taking of the measure which in fact caused the accident was negligent: see Percy on Negligence (supra) §§11-203 to 11-204.

D2.  How the Accident happened

40.On top of the oral evidence from the Plaintiff and the 1^st Defendant, how the Accident happened was recorded by the car camera install in the 1^st Defendant’s Truck (“the Footage”). Based on all the evidence before me, I find that the Accident happened in the following way:

(1)  As recorded in the Footage, the 1^st Defendant was talking on the phone throughout his driving up until the Accident happened. During cross-examination, the 1^st Defendant admits that he was having a casual chat on the phone with his friend, but says that he was using a bluetooth device to do so;

(2)  The Truck was initially on a local road. As shown in the Footage, at around 19:22:30, the 1^st Defendant drove the Truck onto Fanling Highway. As confirmed by the 1^st Defendant during cross-examination and in his Witness Statement, as a professional driver, it was his habit to drive at a speed close to the speed limit on highway. Therefore, when the Truck entered Fanling Highway with a speed limit of 100km/h, the speed was around 90km/h;

(3)  At 19:23:58 of the Footage, it was recorded that the 1^st Defendant said “依家試車嘅，試吓踩到幾[foul word]快”. At 19:24:07 and 19:24:16 respectively, the 1^st Defendant further said “反應係快咗嘅，架車爽咗嘅” and “好[foul word]夠力嘅依家”. At 19:24:27, the 1^st Defendant said “試吓會唔會刷新紀錄”. During cross-examination, the 1^st Defendant claims that the conservation was not referring to the Truck, but was referring to his friend’s car. I do not accept the 1^st Defendant’s explanation. As shown in the Footage, the 1^st Defendant accelerated the Truck (as he overtook a number of vehicles) while he was making the above remarks. It is clear to me that he was referring to the Truck and his acceleration of it in the conversation;

(4)  At around 19:24:28 of the Footage, the Untraced Vehicle appeared in the Footage, it entered the Fanling Highway from the left and was on the acceleration lane (the leftmost lane). From around 19:24:30 to 19:24:32, the Untraced Vehicle moved from the acceleration lane to the first lane with the right direction indicator flashing. At that time, the Truck was on the second lane, it can be seen from the Footage that the Track maintained a similar speed during the above period;

(5)  From 19:24:33 to 19:24:34 of the Footage, the Untraced Vehicle moved from the first lane to the second lane (the lane which the Truck was on) (“the 2^nd Lane”), with its right direction indicator continued flashing. As shown on the Footage, the Truck was driving at about the same speed as before. During this period of time, all the lanes on the Fanling Highway were occupied by cars;

(6)  At 19:24:35 of the Footage, the Truck swerved to the right and entered the third lane (the rightmost lane), and then immediately swerved to the left and lost control. The Truck toppled and glided towards the left and collided with the Taxi, causing the Taxi to collide with the Private Car, causing the Accident.

D3.  Was the 1^st Defendant negligent?

41.Having considered all the evidence before me, I find that the Accident was caused by the 1^st Defendant’s negligence as he was driving at an excessive speed while talking on the phone. In the present case, the combination of the above conduct of the 1^st Defendant resulted in him failing to notice the Untraced Vehicle moving to the 2^nd Lane and reacting to it promptly.

42.As the 1^st Defendant accepts, he was driving at a speed of at least 90km/h while he was on the Fanling Highway. As shown in the Footage, in particular the number of cars which the 1^st Defendant had overtaken, and corroborated by what the 1^st Defendant said about testing how fast the Truck could accelerate to (see §40(3) above), I find that after the 1^st Defendant entered the Fanling Highway, he had at least maintained the speed of 90km/h. As could be seen from the Footage, the 1^st Defendant was traveling at about the same speed when the Untraced Vehicle moved from the first lane to the 2^nd Lane.

43.As the 1^st Defendant also accepts, he was having a casual chat with his friend over the phone throughout the time he was driving on the Fanling Highway.

44.There is also no dispute that the Accident took place at nighttime.

45.While there was no evidence to show that the 1^st Defendant had exceeded the speed limit of 100km/h at the Material Time, given that he was talking on the phone, driving at a speed of 90km/h was in my view excessive. Considering the matter from another perspective, as the 1^st Defendant was driving at a high speed of 90km/h, allowing himself to be distracted by his phone conversation with his friend rendered the 1^st Defendant failing to keep a sufficiently good lookout of the condition of the road.

46.As expressly stated in the Road Users’ Code (May 2000 Edition) (“the Code”), which was the Code applicable at the Material time:

(a)  A driver should always avoid driving too fast. He should observe the speed limit and match his/her speed with the traffic flow, taking note of the road and weather condition and weather conditions and one’s own ability. As speed increases, one’s reaction time, stopping distance and severity of any accident increases (p. 43);

(b)  A speed limit is the maximum speed allowed. It does not mean that it is safe to drive at that speed – always take into account all the conditions prevailing at the time (p. 47);

(c)  Driving at night can be more difficult than driving during the day. It is suggested that a driver should reduce his speed so that the overall stopping distance is well within the range of his headlamps (p. 76);

(d)  A driver is advised to use a hands-free device if he wishes to use mobile phone while driving. It was pointed out that telephone conversation may distract the driver (p. 43).

47.As to whether and when the 1^st Defendant had braked the Truck, there were different versions in the 1^st Defendant’s evidence. In the 1^st Defendant’s Witness Statement, he said that when he noticed the Untraced Vehicle moving to the 2^nd Lane, he immediately applied the brake and swerved right. There was no mention whether he applied the “soft brake” or the “hard brake”. During cross-examination, the 1^st Defendant said he applied “soft brake” when he saw the Untraced Vehicle starting to move from the first lane to the 2^nd Lane. In his re-examination, the 1^st Defendant said that he had already applied “soft brake” after he overtook the last vehicle and he applied “hard brake” when he saw the Untraced Vehicle. I do not believe the 1^st Defendant’s evidence regarding his braking of the Truck. The assertion that he had applied the “soft brake” only came out in his cross-examination and his re-examination. As for the assertion that he had already applied the “soft brake” after he overtook the last vehicle was inconsistent with his evidence during the earlier part of his cross-examination that he did not reduce his speed after he saw the Untraced Vehicle because he was on the main lane.

48.I find that the 1^st Defendant did not reduce his speed or apply the “soft brake” after he overtook the last vehicle. He only braked the Truck when he swerved the Truck to the right after he saw the Untraced Vehicle moving to the 2^nd Lane.

49.The 1^st Defendant’s failure to sound his horn reinforced my conclusion that he was driving at an excessive speed and had failed to keep a proper lookout of the road condition. During cross-examination, when the 1^st Defendant was being asked why he did not sound the horn, his initial answer was that the horn may be broken. He quickly changed his answer and said that he thought the driver of the Untraced Vehicle would see him. Neither of the 1^st Defendant’s above explanations is acceptable to me. According to the 1^st Defendant’s Witness Statement, he had been driving the Truck regularly. Before the Material Time on the same day, the 1^st Defendant was driving the Truck to carry out the duties assigned by Entrée Ingredients Limited. There is no reason for him to be uncertain whether the horn was functioning. As to the 1^st Defendant’s other explanation, it is no excuse for him to say that he assumed the driver of the Untraced Vehicle would see him as that driver should pay attention to him. As the 1^st Defendant eventually admitted towards the end of this line of questioning, as a professional driver, he needs to pay attention to the road condition too.

50.The 1^st Defendant repeatedly emphasised that it was a split-second decision as he did not expect the Untraced Vehicle to move to the 2^nd Lane. However, given my findings in §§42-45 above, it was due to the 1^st Defendant’s own conduct of driving at an excessive speed while talking on the phone which resulted in him not being able to notice that the Untraced Vehicle was moving to the 2^nd Lane until the Truck was very close to it.

51.In §21 of the 1^st Defendant’s Closing Submissions, he complains that the Plaintiff did not plead speaking on the phone, driving at an excessive speed or failing to sound the horn as particulars of negligence and contends that the Plaintiff should not be allowed to take these points in the Trial. I do not agree.

52.In the Statement of Claim, amongst others, the Plaintiff has already pleaded failure to exercise due care and attention in driving the Truck; failure to pay any proper attention to the condition of the road; failure to stop, slow down, brake, swerve, and/or manage or control the Truck to avoid hitting the rear of the Taxi; failure to exercise or maintain any proper or effective control of the Truck to avoid the Accident; driving the Truck in a careless and dangerous manner, which caused injuries to the Plaintiff; and failing to drive and/or manage the Truck up to the standard of a reasonably competent driver and failing to ensure the safety of the other road users (including the Plaintiff) as particulars of negligence. The speed of the Truck, whether the 1^st Defendant was using the phone and his lack of valid reason for failing to sound the horn are evidence in support the pleaded particulars of negligence. The 1^st Defendant has been cross-examined on the above matters and has been given opportunities to respond to them. It is also not disputed that the 1^st Defendant was driving at least at 90km/h at the Material Time, he was talking to his friend on the phone and he did not sound the horn when he noticed the Untraced Vehicle moving into the 2^nd Lane.

53.The case of Ching Kwong Fat v Fung Din Chung Rickie [2021] HKDC 684 can be distinguished from the present one. In Chin Kwong Fat, the defendants did not plead failure to sound the horn as a particular of negligence. The defendant’s counsel withdrew his cross-examination in this respect, and the plaintiff did not have the chance to explain why he did not sound the horn.

54.Here, the 1^st Defendant’s failure to sound the horn is not a particular of negligence per se. Rather, it is a piece of evidence which, without valid explanation, would go to show that the 1^st Defendant was driving too fast and did not pay a proper lookout of the road condition. Further, the 1^st Defendant had been given opportunity to explain the reason for his failure to sound the horn in his oral evidence.

55.In the 1^st Defendant’s Written Closing Submissions, he for the first time raised the argument of apportionment of liability between him and the driver of the Untraced Vehicle. I am unable to accept the submissions.

56.First, in the Defence, at §7 (b), the 1^st Defendant only pleaded that “the driver of the [Untraced Vehicle]...cut from the first lane to the third lane in one go to overtake the Truck”. In §7 (e), the 1^st Defendant pleaded that “the Collision was solely caused or contributed to by the negligence, breach of common duty of care and/or breach of statutory duty on the part of the driver of the [Untraced Vehicle]”. The 1^st Defendant has not pleaded any particulars of the alleged negligence of the driver of the Untraced Vehicle.

57.Second, the suggestion of “apportionment” was not raised in the 1^st Defendant’s Written Opening Submissions, there was no opportunity for the Plaintiff to test the 1^st Defendant’s case in this regard in cross-examination. It is unfair for the 1^st Defendant to raise the argument of apportionment at the last minute.

E.  QUANTUM

58.After the Accident, the Plaintiff was taken to the Accident & Emergency Department (“A&E”) at the North District Hospital (“the NDH”). The Plaintiff was admitted to the Department of Orthopaedics & Traumatology (“DOT”). According to the Medical Report of the A&E dated 17 February 2022, X-ray showed no definite facture. Local tenderness of the back was noted. The diagnosis was back sprain.

59.According to the Medical Report of DOT dated 10 June 2021:

(a)  At the time of admission, the Plaintiff complained of neck and back pain. There was no head injury. On examination, there was no focal neurological deficits in both his upper and lower limbs. Radiographs of his left shoulder, lumbosacral and cervical spine showed no fractures. Computer tomography of cervical spine did not reveal any fractures or dislocations;

(b)  The Plaintiff received a course of inpatient physiotherapy and was able to walk unaided upon discharge on 12 November 2019;

(c)  On subsequent follow ups, the Plaintiff’s back pain improved but he complained of persistent neck pain and subjective upper and lower limb numbness. MRI was conducted with results recorded in the said report;

(d)  On the Plaintiff’s last follow up on 13 April 2021, his neck pain had improved and he was able to walk unaided. His reported numbness was also resolved.

60.According to the Physiotherapy Reports dated 15 June 2021, from November 2019 to May 2021, the Plaintiff received 25 sessions of physiotherapy. In the final assessment on 11 May 2021, the Plaintiff reported that there was a decrease in neck pain, with an overall improvement of 80%. The Plaintiff was discharged on 11 May 2021 with home exercise given, as his overall condition has improved and reached plateau.

61.According to the Occupational Therapy Report dated 4 June 2021, the Plaintiff was ready to resume previous job without major work adjustment. According to the assessment dated 14 January 2021, the Plaintiff marginally matches the work demand of driving a taxi to deliver passengers and providing passengers with assistance and helping them with their luggage.

The Report and Supplemental Report

62.For the purposes of this Action, the Plaintiff and the 1^st Defendant have respectively engaged orthopaedic expert Dr. Ko Put Shui Peter (“Dr. Ko”) and Dr. Chak Hing Chung Eric (“Dr. Chak”). Dr. Ko and Dr. Chak have prepared a Joint Medical Report dated 17^th November 2023 (“the Report”) and a Supplement Joint Medical Report dated 3^rd January 2024 (“the Supplemental Report”).

63.By Order of Master Vivian Lee dated 1^st April 2025, the Report and the Supplemental `Report shall be adduced without oral evidence subject to the trial judge’s directions otherwise.

64.According to the Report and the Supplemental Report, the orthopaedic experts opine as follows.

65.According to Dr. Ko, the Plaintiff has soft tissue sprain injury to the neck and back regions with non-specific upper and lower limb numbness. As to the causation, if the Accident occurred in the manner as described by the Plaintiff at the joint assessment and as documented in the available documents and reports, the injury that the Plaintiff sustained was consistent and compatible with soft tissue sprain injury to the neck and back regions.

66.Dr. Chak’s diagnosis is that the Plaintiff has suffered sprain injury to the neck and back regions with upper limb numbness and MRI Cervical spine showed PID C4/5, C5/6 and C6/7 with bilateral neuroforamen stenosis. As to the causation, if the Accident occurred in the manner as described by the Plaintiff at the joint assessment and also as documented in the available documents and reports, the injury that the Plaintiff sustained was consistent and compatible with sprain injury to the neck and back regions which resulted in PID C4/5, C5/6 and C6/7 with bilateral neuroformen stenosis at the respective levels.

67.Regarding the Plaintiff’s pre-existing condition for his degenerative changes in the cervical spine and lumbar spine, the experts took the view that the Accident might have advanced his condition by around 8-10 years.

68.Regarding treatment progress and present condition, the experts’ joint assessment took place more than 3.5 years after the Accident. The Plaintiff complained of on and off posterior neck pain with right upper limb numbness as well as on and off low back pain. Physical examination found features consistent and compatible with residues from his soft tissue sprain injury to the neck and low back region. The prognosis should be reasonably good and satisfactory.

69.The experts opined that the treatment, investigation and rehabilitation received by the Plaintiff are appropriate and reasonable. They took the view that the Plaintiff’s condition should have reached more or less stable and static and maximal medical improvement status by around May 2021, and he had completed his physiotherapy and occupational treatment at that juncture. He would have been suitable for assessment for any permanent impairment and disability.

70.The total impairment should be 2% whole person impairment, comprising 1% whole person impairment for his neck injury and 1% whole person impairment for his low back injury. There is no indication to recommend any apportionment. The experts recommended an estimate of around 2% loss of earning capacity.

71.Sick leave from 7^th November 2019 to 13^th April 2021 was appropriate and reasonable.

72.The Plaintiff should be able to manage his activities of daily life and self-care activities without significant problem. No significant residues from the alleged injury would pose any significant hindrance or obstacle in the Plaintiff’s resumption of his pre-accident regular sports.

73.The Plaintiff would have been able to resume his pre-accident job as a taxi driver with probably mild impairment of his work efficiency and effectiveness as caused and contributed by the residues from the injury. He had demonstrated his good motivation and resumed working as a taxi driver.

74.The 1^st Defendant now contended that the Plaintiff has exaggerated his condition and raised a serious allegation that the Plaintiff had not been truthful to his examining doctors and experts regarding the level of pain which he had suffered. I do not accept the 1^st Defendant’s submissions.

75.First, the Report and the Supplemental Report contain the joint opinion of the parties’ respective experts after conducting a joint assessment of the Plaintiff. By consent, the experts were not called to give evidence. There was no indication by the experts at all in the Report or the Supplemental Report that the Plaintiff might have exaggerated his condition. Rather, physical examination by the experts of the Plaintiff confirmed that the Plaintiff’s complaints of pain were consistent and compatible with residues from his soft tissue sprain injury to the neck and low back region.

76.Second, as recorded in the Integrated Progress Sheet of the NDH, the Plaintiff repeatedly complained about his back pain, neck pain and shoulder pain during his admission into the hospital. The Plaintiff’s view that he recovered 80 to 90% at the time of his discharge is not inconsistent with the experts’ view upon joint physical examination that the Plaintiff has residues from his soft tissue sprain injury to the neck and low back region.

77.Third, the allegation that the Plaintiff’s opening of his bank account on 13 November 2019 and his seeking of the Social Welfare Department compensation because he wanted to maximise his application by seeking as many days of sick leave are mere speculation on the 1^st Defendant’s part. I also do not see how the Plaintiff receiving treatment from the Chinese doctor and getting 2 days sick leave can bolster the 1^st Defendant’s case that the Plaintiff was wrongfully seeking to prolong his sick leave period. It must be pointed out that both experts had opined that the period of sick leave which the Plaintiff had taken was reasonable and I do not see any evidence to contradict that.

78.Every case turns on its own facts, while the victims in other cases may have fewer days of sick leave, it does not mean that the Plaintiff’s sick leave period was excessive.

PSLA

79.Taking into account the Plaintiff’s injuries as summarised above and after considering all the cases which the parties helpfully cited, I would award HK$150,000 for PSLA. In particular, I consider the following cases to be more relevant.

80.In Tong Chun Yip v. Leung Sau Lai [2019] HKDC 48, the plaintiff suffered from soft tissue neck and back injury as a result of a traffic accident. MRI of cervical spine showed no nerve compression but only minimal disc protrusion of the C3/4 disc. The plaintiff was referred for physiotherapy and occupational therapy but he defaulted. He attended follow-ups at Orthopaedic Outpatient department and, at his last attendance on 12 June 2014, it was recorded, amongst others “Numbness much improved. Neck pain better. Elbow pain much better. Declined analgesics…”. The plaintiff was given sick leave for around 3 months. The plaintiff was examined by his expert 3 years after the accident. The examination showed some residual tenderness, pain and minimal stiffness with no neurological deficit. The expert also found that the plaintiff’s lower back pain might not be related to the accident. The Court awarded $120,000 for PSLA.

81.In Ko Hoi Seung Korin v. Liu Kwok Keung (unrep., HCPI 1206/2014, 12.8.2016), the plaintiff met with a motor accident on 13^th July 2012 whilst she was driving. She was not admitted to hospital immediately for any emergency treatment. She only sought medical consultation 4 days after the accident. Physical examination revealed mild tenderness over her neck without focal neurology. X-ray spine showed no fracture and the diagnosis was neck pain. After 11 sessions of physiotherapy ending on 27 September 2012, the plaintiff reported 60-70% improvement of her neck with pain decreased but easily felt tired after prolonged reading for 15 minutes. Thereafter, she underwent another 25 sessions of physiotherapy and reported 80% improvement in her conditions. The experts agreed that the plaintiff probably had suffered from a whiplash injury causing a sprained neck with soft tissue (paraspinal and trapezius muscles) involvement. She had a satisfactory functional recovery. Further institutional treatment and surgery were not required and maximum medical improvement had been reached. The plaintiff was granted sick leave for around 3 months. The Court awarded $140,000 under PSLA;

82.In Tsang Ho Sang v. Sunbase Environmental Hygiene Ltd (unrep.,DCPI 1422/2013, 7.12.2015), the plaintiff was thrown out from a van and suffered personal injuries. The plaintiff was sent to the hospital. Examination revealed tenderness over left neck, left shoulder and left buttock. He had no fracture. He was hospitalised for 1 day. He attended physiotherapy and occupational therapy sessions. Subsequently about 60% to 70% improvement in respect of his neck pain and range of movement were reported subjectively. He was granted sick leave for about 8 months. The Medical Assessment Board granted 2% permanent disability. The experts of both parties agreed that his impairments would persist, and he would have on and off pain that requires treatment on a need-to basis in the future. Both experts agreed that there were pre-existing degenerative changes. The Court preferred the opinion of the plaintiff’s expert that the accident should have turned the asymptomatic degeneration into symptomatic. The Court awarded $150,000 for PSLA.

Loss of earnings

83.At the time of the Accident, the Plaintiff was working as an urban taxi driver. As could be seen from the 1^st Defendant’s Written Closing Submissions, he does not seem to be seriously disputing that the Plaintiff’s daily net income was HK$1,000. As for the average number of working days during the 12 months prior to the Accident, I accept the figure of 24.583 contended by the Plaintiff, as this was supported by the Plaintiff’s working notebooks, the authenticity of which was not challenged by the 1^st Defendant. The above figure is also in line with the statistics by the Transport Department which show that in 2019, the average operation days per month for urban taxis was 24.9 days. Accordingly, the Plaintiff’s monthly income was HK$24,583.

84.As I have mentioned above, there is no basis for the 1^st Defendant to challenge the view of the joint experts that 524 days of sick leave granted is reasonable. The Plaintiff has confirmed that he will not claim for any days for finding a new job.

85.For the above reasons, I will allow loss of earnings in the sum of HK$429,383 (HK$24,583 x 524/30).

Loss of earning capacity

86.The Plaintiff has resumed work as an urban taxi driver. I do not consider the Plaintiff would be disadvantaged in the labour market or that there would be any substantial of real risk of the Plaintiff losing his job and be thrown on labour market. According to the experts’ opinion that the Plaintiff would only probably suffer mild impairment of his work efficiency and effectiveness as caused and contributed by the residues from the injury. I will not allow this head of claim.

Special Damages

87.The Plaintiff claims special damages in the sum of HK$21,437, comprising medical expenses (HK$5,765), travelling expenses (HK$1,000), tonic food (HK$1,672) and compensation to the Taxi’s owner (HK$13,000).

88.The amount was largely supported by receipts and not challenged by the 1^st Defendant in cross-examination. I am prepared to allow this head of claim in full.

F.  DISPOSITION AND COSTS

89.I order the 1^st Defendant to pay the following damages to the Plaintiff:

Item	HK$
Pain, Suffering and Loss of Amenities (PSLA)	150,000
Pre-trial Loss of Earnings	429,383
Loss of Earning Capacity	0
Special Damages (medical expenses, travelling expenses, tonic food, etc.)	21,437
Total Amount	HK$600,820

90.Interest on special damages at half of the judgment rate from the date of the Accident to the date of Judgment, and thereafter at judgment rate until payment.

91.Interest on general damages at 2% per annum from the date of the service of the Writ to the date of this Judgment, and thereafter at judgment rate until payment.

92.I make a costs order nisi that costs of and occasioned by the Plaintiff’s claim against the 1^st Defendant (including any costs reserved) be paid by the 1^st Defendant to the Plaintiff, with Certificate for Counsel for the Trial. The costs order nisi shall become absolute unless an application to vary is made within 14 days from the date of this Judgment.

93.The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

94.Lastly, I thank Counsel for their assistance.

Mr. Damian Wong, instructed by STN LAW OFFICE, assigned by Director of Legal Aid, for the Plaintiff

Miss Lydia Leung, instructed by Ivan Tang & Co., for the 1^st and 2^nd Defendants