Chan Yik Kwan v. Yuen Chak Man and Another

HCPI000781/1998

HCPI 781/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 781 OF 1998

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Coram: Deputy Judge Gill in Court

Dates of Hearing: 22.- 24 and 27 September 1999

Date of Handing Down of Judgment: 6 October 1999

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J U D G M E N T

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1. This is a claim for damages arising out of loss suffered by the plaintiff Chan Yik Kwan following a stroke which partially disabled him, causing him pain, suffering, loss of amenities and financial loss.

2. The 1st defendant Yuen Chak Man was at all material times in the employ of the 2nd defendant Asia World Enterprises Limited and, at the particular time, was in charge of a goods van owned by the 2nd defendant.

3. The plaintiff claims the 1st defendant whilst driving the van was negligent and wholly or in part caused the plaintiff to suffer his stroke and is thereby liable, in whole or in part, for his loss. He joins the 2nd defendant as being vicariously responsible.

Background

4. The plaintiff, whom I shall call Chan, was born in Hong Kong in 1937. He spent the first 20 years of his life in China. He was brought up on a farm. He received little or no formal education. He is capable of reading and writing but only simple Chinese. He returned to Hong Kong in the 50's, and was variously a construction site worker and factory worker.

5. He was married and there are five children, all now adult and independent. His marriage recently ended in divorce in 1997 and since then he has lived alone.

6. In 1982, at the age of 45 years, he joined the Post Office as a security guard. In 1997 he retired, having reached the compulsory retirement age of 60 years.

7. In or about 1992 a medical check up found him to be suffering from hypertension. He was prescribed medication thereafter to keep his blood pressure down to regular levels. On his account he faithfully took his medication and was able to carry out his employment duties and otherwise lead an active life without health problems.

8. Those duties comprised being an attendant at the Kowloon Central Post Office Carpark in Yau Ma Tei. His responsibilities included checking vehicles in and out of the carpark. Only those government vehicles displaying permits were allowed to use the carpark. Any other vehicle was not authorized and liable to be evicted unless there was instruction to the contrary. This rule was particularly to be enforced during the peak period of vehicular activity from 10 a.m. to 12 noon.

9. He was on duty on the morning of 19th August 1995. Then it was that the 1st defendant, whom I shall call Yuen, driving a van owned by the 2nd defendant, whom I shall call Asia World, in the course of his employment, entered the carpark. His van was not a government vehicle and displayed no permit. But nevertheless Yuen wanted to use the carpark. He was there to carry out some maintenance work in the Post Office and flourished the work order to encourage those in charge of the carpark to allow him to park there. He had in the past sought and been given this right and hoped for the same leniency on this occasion. He was on his own and there was no feasible alternative without risking a parking ticket. But Chan would have none of it. The carpark was full and busy. He ordered Yuen to drive on through and out the exit. Yuen had no wish to obey and said so. There was a place for his van, albeit not a designated parking space, and he insisted he should be allowed to use it. Chan stood firm. The argument became loud and heated and abusive.

10. What happened next is in dispute. Chan's account is that during the course of the row Yuen got down from the cab and they squared off at ground level, both standing at the side of the vehicle. Then Yuen got back in the cab. Chan thought he did so to drive forward and out the exit. Chan went to stand at a position behind the rear offside corner of the van to get out of the way and watch him depart. But the van reversed on a right hand lock and he was struck in the region of the right upper chest. The blow was firm though it did not particularly hurt and did not knock him down. But it was unexpected and he took two paces back and shouted at Yuen to stop.

11. After he was struck he felt a numbness on his right arm. He took himself to the guardroom where the numbness persisted. He began rubbing embrocation into his right arm and shoulder believing it was a reaction to the collision. But it got worse. Soon he was paralysed down the right side and lost the power of speech. He was taken off to hospital. He was diagnosed to have suffered a vascular haemorrhage, or stroke, caused by the pre-existing hypertension precipitated by a sudden surge of blood pressure. He spent a number of days in hospital. He was discharged after all that could be done was done. But he has right sided hemiplegia, which amounts to partial paralysis, from which there is no prospect of recovery. This means his movements are significantly permanently impaired . He walks clumsily and then only with the aid of a stick. Having been retired by his former employer he has no prospect of alternative employment. He needs ongoing medical treatment and domestic help.

12. Yuen's account is that he did not leave his cab and continue the argument at ground level, and then reboard his vehicle and reverse. When he could not persuade Chan to let him park he resolved to do so anyway and then seek approval from a Post Office supervisor. He engaged reverse gear and was intending to go backwards on a right hand lock when he saw in his mirror Chan standing in his path. So he did not proceed. His vehicle did not strike Chan. He could not have done so because the van remained stationary.

13. Then he climbed down and went to where Chan was standing at the rear of the vehicle to remonstrate further. Shortly a Post Office supervisor called Mr. Lung approached. He showed him his work order and Mr. Lung said he could park after all. He climbed back into the cab. He watched as Chan and Mr. Lung walked clear and then he drove back and parked. At no stage did Chan complain to him he had been hit, nor, within his earshot, did he say so to Mr. Lung. It was only sometime later that he got to hear that Chan had been taken ill and off to hospital and that he had said there had been a collision.

The plaintiff's claim

14. Chan's claim is that the surge in his blood pressure which gave rise to the intracerebral haemorrhage was a direct result of the trauma of being struck by the vehicle when it was negligently driven by Yuen for which Asia World is vicariously responsible. He holds both jointly and severally liable for the pain, suffering, loss of amenities past and future, loss of wages and specific expenditure arising as a result.

The 1st defendant's defence

15. Yuen denies that he drove the vehicle negligently. He denies that there was a collision with Chan. If, which he denies, there was a collision, then it was caused solely or largely by Chan's own negligence in failing to keep clear, failing to keep a proper lookout and failing to exercise proper care and attention whilst in the vicinity of a moving vehicle. As a consequence he is not liable to meet any of the relief claimed.

The 2nd defendant's defence

16. Asia World relies on the 1st defendant's defence, and denies liability.

The evidence

17. Chan gave evidence. He recounted what I have already set out in the background. He said the rule about reserving the carpark only for authorized vehicles is not rigidly enforceable, but generally is so when it is full, especially at peak hours with Post Office vans coming and going. He reasoned with Yuen that he should come back in the afternoon. Yuen refused to listen. In the meantime the presence of his van disrupted other traffic. The collision when it came took him by surprise. He expected the van to go forwards not backwards. He was struck in the region of the right shoulder. In cross examination he agreed that Yuen did not say he was going to leave; he just assumed that. He denied that he went to stand where he did in order to block Yuen's path. He went there in order to give him a clear run forwards. When it was that Yuen reversed instead he had no chance to get clear though he was keeping a lookout. When Mr. Lung arrived he thought it possible he did not tell him he had been struck because it was a trivial incident causing no pain.

18. Following his discharge from hospital he could walk only with the aid of a stick and he has had to rely on one ever since. He needed his wife to help him with bathing and dressing, but following the divorce in 1997 he has had to make do as best he can. He was permitted to return to work after two months off and continued until pre-retirement leave in 1997, though he had to take sick leave from time to time. He gets help with household chores from his neighbours, but he has to employ a part time amah for shopping, laundry and such like. He regularly visits a private doctor and Chinese herbal specialist to relieve him of various ailments associated with his partial paralysis.

19. When he retired he received a lump sum and modest annual pension. Much of the lump sum has been spent on stroke related expenses. He was hoping to work as a night watchman for a few years following his retirement to supplement his resources. The stroke put paid to that.

20. Yuen also gave evidence. He recounted his different version as I have set out in the background. As he had a job to do and as he had been permitted to park in the past in similar circumstances he was aggrieved at Chan's intransigent attitude. He admitted he was frustrated and lost his temper. He was especially upset when Chan went to stand behind his van, which he took to be a deliberate act to block his path. But he did not reverse into him. He did not reverse at all. He climbed down, and the row continued, unabated, until Mr. Lung's intervention. Only when Mr. Lung arrived on the scene did he return to his cab and, authorized by Mr. Lung, reverse into a corner. There was no complaint from Chan or anyone else that Chan had been hit. He saw Chan return to the guardhouse.

21. When police came to be involved he explained all this in a statement. But then he was summonsed for careless driving. He attended court on the first day and pleaded not guilty. But on the day for trial, some months later, he changed his plea to guilty and admitted the Crown's brief facts. These described the dispute and then went on to state that he reversed his van and in doing so came into contact with Chan. When he was invited to mitigate he said:-

"I was too impulsive at the moment. I admit I was careless, but the victim seemed to be tipsy."

22. To me he said he made the decision to change his plea, admit the facts and mitigate, not because it was true, but because he wanted to be rid of the matter once and for all, and pleading guilty and admitting the facts was the easiest way. But he really did not collide with Chan at all.

23. Mr. Lung also gave evidence. As a senior postal officer he was in charge of the carpark. He came to hear that there was dispute between one of the attendants and a driver and went down to investigate. There he saw the parties at each other hammer and tongs, and he went forward to mediate. When he learned of Yuen's reason for being there he told him he could park his van in a vacant corner and the driver proceeded to do so. He was concerned for Chan, who was still visibly agitated. He walked him back to the guardhouse to calm him down. Chan did not say that he had been hit. He did not complain of any injury or physical discomfort. Nobody reported to him that there had been a collision. Then he went back to his office. Ten or so minutes later he returned to the carpark to see if all was well. The van was still there, with no sign of the driver. Chan was in the guardhouse rubbing some ointment on his arm. He did not ask him what he was doing or whether he was all right. Chan made no particular comment. He went back to his office, satisfied peace had been restored.

24. Then it was, some twenty five minutes after the altercation, that he came to hear that Chan was in great physical discomfort and had to be taken to hospital. It was then, for the first time, that he came to learn that he was claiming he had been struck by the van.

25. Two doctors gave evidence. Dr. Lau Hoi Kuen was called by the plaintiff, and Dr. Au Ka Kau was called by the defendants. The expertise of both was not challenged by the opposing party. Both had interviewed and examined Chan and had studied reports arising from his admission to hospital, diagnosis and treatment. Both prepared and filed reports. Dr. Lau from the witness box conceded that he made a wrong assumption that Chan had been knocked down by a van which caused a head injury. This led to a wrong conclusion that the head injury was the cause of the cerebral vascular accident. Having dealt with and corrected that, the opinions and findings of the doctors, whilst expressed differently, were close to being the same.

26. Common ground was that on the day in question Chan suffered an intracerebral haemorrhage resulting in right hemiparesis. Prior to then Chan suffered from hypertension which was controlled by medication. But this made him susceptible to a cerebral vascular accident, that is, predisposed him to an intracerebral haemorrhage. For a person already having that predisposition a haemorrhage could result from a sudden rise in blood pressure, and any trauma causing fear, pain, anger, excitement might be enough to trigger that.

27. Both doctors said that once the rupture had been suffered the symptoms of that would quickly become apparent to the victim. Chan having stated that the numbness became noticeable shortly after the impact that would have been the first of such symptoms, and supported the proposition that the rupture occurred just prior to the onset of that. But there can be a time gap between the rupture and a conscious awareness of it and the length of that can vary. Dr. Lau said it depended on the individual. Dr. Au said it was the degree of severity of the stroke which would determine how quickly it manifested itself. The more serious the stroke the more speedily would the victim be aware of and be affected by it. Chan's stroke was by its outcome a relatively minor one, giving rise to the prospect that the haemorrhage took place a period of time, exact length unknown, prior to the onset of the numbness.

Findings of fact

28. The material dispute of fact for resolution is whether Yuen negligently reversed his van into collision with Chan. I am satisfied he did. Chan said he did. Yuen said he did not. No one else could assist. But Yuen pleaded guilty to driving carelessly and without demur admitted that he reversed into Chan. Yuen explained why he chose that course. If he really did plead guilty in order to be rid of the matter quickly whilst being innocent of the offence he would not have been the first to do that. But to admit to actually striking the victim and then volunteering in mitigation:- "I was too impulsive at the moment. I admit I was careless but the victim seemed to be tipsy", are factors which weigh against the plea and admission being for convenience only. Yuen in the witness box displayed a highly strung temperament. He admitted he was frustrated and lost his temper with Chan.

29. I am satisfied that this affected his reason. I find as a fact he did drive backwards, negligently, and in doing so his van collided with Chan.

Causation

30. The burden is on Chan to prove, on a balance of probabilities, that Yuen's negligence in driving his van into him caused or materially contributed to the stroke which gave rise to his disability and resultant loss.

31. In the House of Lords case of Bonnington Castings Limited v. Wardlaw [1956] AC 618, Lord Reid said at page 620:-

"It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury ..."

32. What amounts to a material contribution is a question of degree.

33. In the Court of Appeal case Ocean Tramping Co. Ltd. v. Lee Kin Kai [1991] 2 HKLR 236 Hunter J.A. said at page 235:-

"In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributory cause of the injury."

34. In deciding whether an injured party has proved his case the Court is entitled to adopt a common sense approach to the evidence, and the findings of fact that are arrived at, rather than philosophical, scientific or medical theories of causation.

35. In the House of Lords case McGhee v. National Coal Board [1973] 1 WLR 1, Lord Salmon said at page 11:-

"I consider that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory."

36. Was the impact the primary or a materially contributory cause of Chan suffering his stroke?

37. To answer this question I need to recap the facts now established.

38. Chan with his hypertension was susceptible to a cerebral vascular accident. On the morning of 19th August 1995 he suffered intracerebral bleeding caused by a sudden surge in his blood pressure.

39. That morning he was undertaking his normal duties as attendant of a carpark used by vehicles operating out of Kowloon Post Office. At 10 a.m. Yuen drove a van into the carpark, expecting to be given permission to park there because he was there to carry out certain maintenance work in the Post Office. He displayed no permit and Chan told him he had to leave. Yuen did not. There developed between them a heated, loud-mouthed argument. Both claimed right on his side. Neither gave way. The parties were aggressive and the language was coarse. Both admitted to being very angry. At the height of it Yuen attempted to park in the face of Chan's opposition. During the course of the manoeuvre his van reversed into Chan. The impact on Chan's account was trivial. He was not hurt. He was not knocked down. Yuen climbed down from the cab and the argument raged on.

40. Mr. Lung the supervisor then intervened. By now it was about 10.05 a.m. Mr. Lung gave Yuen permission to park. He noted Chan was agitated and tried to calm him down. He guided him back to the guardhouse. Chan did not tell him he had been hit. He did not complain he had been hurt. He did not complain of ill health, or discomfort, or numbness.

41. At some stage Chan became conscious of numbness in his right arm. If he attributed this to being caused by the impact he would be excused for doing so, for during the row that was the only time there was a physical invasion, and that on the right side of his body proximate to the numb area. But it was not the force of the impact which was the cause. It was the intracerebral rupture which was making its presence known.

42. Just when the rupture happened in the sequence of events is not clear. Chan's case is that as he became aware of it after the impact it must have happened at that point in time, and that logically it was the trauma of his being hit, suddenly and unexpectedly, that triggered it. The flaw in that argument is twofold. First is that on his own account the collision was a minor one, too trivial for him to complain about or even mention. Second is that medically there could have been and probably was a time gap between when the rupture happened and the onset of a symptom which made the victim aware of it, particularly because the stroke, though disabling, was a relatively minor one.

43. I am satisfied on these facts that the surge in Chan's blood pressure which then brought on the intracerebral haemorrhage was caused by the excitement, anger, stress and rage stemming from Chan's altercation with Yuen. The collision was an unfortunate and unnecessary episode of that altercation. But given the timing and the minor nature of it compared with the vigour and duration of what was a vehement and angry exchange, there is no way it can be singled out as the sole, separate cause, or as a materially contributory one.

44. Quite apparently Yuen's arrival sparked a sequence of events which resulted in the unfortunate Chan suffering his stroke and becoming disabled for life. But the burden being on him to establish that the collision was the cause of it, or materially contributed to the cause of it, I find he has not done so. The answer to my question posed is: "No."

Judgment

45. The plaintiff's claim is dismissed.

46. Costs are to the 1st and 2nd defendants taxed if not agreed. The plaintiff's own costs are taxed under Legal Aid Regulations.

47. It would be an omission on my part if I were to close without paying tribute to counsel Messrs Andrew Li and Paul Lam for their comprehensive submissions on the law. They made for me a difficult task a bit less so.

Representation:

Mr. Andrew Li instructed by Hastings & Co. for the plaintiff

Mr. Paul Lam instructed by Jal N. Karbhari & Co. for the 1st and 2nd defendants

Remarks:
On appeal by the Plaintiff to the Court of Appeal: Appeal dismissed with costs. Please refer to CACV000012/2000.