Ngan Pik Ha v. Wong Sau Lai

HCPI 415/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 415 OF 2004

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BETWEEN

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Before: Deputy High Court Judge Gill in Court

Dates of Hearing: 16-17 March 2005

Date of Judgment: 20 April 2005

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J U D G M E N T

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Introduction

1.That part of Marble Road, North Point with which I am concerned is a short, straight stretch that is one way for vehicular traffic leading up to Shu Kuk Street.  It has pavements on both sides and there are shops with access from the pavements.  So far, so normal.  But on each side of the carriageway there are erected hawker stalls, selling foodstuffs and other merchandise.  Access to the stalls is from the carriageway, so that a customer at any given stall would have to stand on the carriageway facing inwards.  In the way of Hong Kong shopping streets much of the wares for sale from the shops and stalls are stacked on the pavements and elsewhere, hindering the passage down Marble Road for pedestrians and traffic alike.

2.At 3:20 p.m. 17 March 2002, being a Sunday afternoon, there was an accident involving an elderly pedestrian and a car, in which the victim pedestrian was injured.  This gave rise to an action brought by her against the driver of the car, founded in negligence, for damages for loss suffered by her.

3.This is the matter now before me.

The Accident

4.The Plaintiff gave evidence.  She is a housewife.  She was born in August 1938 so that on the day of the accident she was 63.  On that day she and her husband were living in the vicinity of Marble Road, a neighbourhood that she had lived in for many years.  That afternoon she was by herself shopping for groceries and food.  Having completed her shopping she was heading for home, walking along Marble Road in the direction of Shu Kuk Street, so that any vehicular traffic using Marble Road would be coming up from behind her.  She said because the pavements were congested as described she did what she normally does and what most pedestrians using Marble Road do; she walked on the carriageway.  She said she was conscious of the need to be aware of cars using Marble Road and was alert for the sound of a horn to signify the approach of a car.  But she did not, it seems, periodically look behind her to check on the traffic.  She kept as far left as was possible, bearing in mind that stalls encroached upon the carriageway and there were customers and merchandise she had to step around.  She described the traffic such as it was as light but pedestrian traffic was heavy. 

5.She proceeded without incident for about half the length of this particular stretch of Marble Road.  Then, without warning, she was struck from behind and fell to the roadway.  She felt great pain and cried out.  She found that her right foot was trapped by the wheel of a car; subsequently she came to realize that it was the car that had knocked her over.  She heard someone shout to the driver to move the car to free her foot; that is what happened.  Someone called for an ambulance and she was taken to hospital where she was treated for various injuries.  She says she subsequently came to learn that the car at the time of the accident was being driven by the defendant.

6.I come now to the defendant’s case.  She, too, gave evidence.  She is a woman born in 1971.  At the time of the accident she was 31.  She was licensed to drive cars, but had not held her licence for very long.  That afternoon she was behind the wheel of her own car, a Honda Accord about 7 years old.  At the time she was in Marble Road heading for Shu Kuk Street; thus in the same direction as the plaintiff.  She had a passenger with her sitting alongside her in the front.  She said she is familiar with Marble Road and its characteristics.  She described the road traffic as light but Marble Road, as usual, was congested with pedestrian traffic.  Many of the pedestrians were using the carriageway, going in both directions.  Others crossed the road from time to time.  Aware of this congestion as a particular feature of Marble Road she kept her speed down to 10 kilometres per hour and was particularly vigilant in looking out as she drove.  She used her horn on occasion.  She was not aware of anything untoward, until a man knocked on the window of her car at the passenger’s side and told her that she had struck and knocked down an old lady.  She stopped and immediately got out to investigate.  She saw a woman identified to be the plaintiff sitting alongside the front nearside wheel of her car.  She was unable to detect any visible injuries but the woman appeared to be in pain.  She was requested to move the car forward because the woman’s foot was trapped by the wheel and she did so.  Using her mobile phone she made a report to the police.

7.In due course an ambulance came to take the lady away.  Of the incident itself she had no independent impression of seeing the victim before or at the moment of impact.  She was not conscious of the collision, only having been alerted to it by the person who knocked on her window.  There was no damage to her car.  She gave a statement to the police; no charge was laid.  She has a clean record.

8.That was the evidence of the accident itself.  Neither the passenger nor the person who knocked on the car window were called, for reasons not known.

The Treatment

9.The plaintiff was taken to the Pamela Youde Nethersole Eastern Hospital where a physical examination revealed a fractured right wrist, a fractured right hip and a fractured dislocation of a number of metatarsols in her right foot.  Thereupon she was operated on, undergoing a closed reduction and dynamic hip screw in respect of the fractured hip, and closed reduction, K-wire fixation and fasciotomy of the right foot.  3 days later, on 20 March, she underwent closed reduction of the right wrist with application of an external fixator, and debridement of the right foot wound.  On 22 March skin from her left thigh was grafted to close the wound of her right foot.

10.On 1 April 2002 she was transferred to Tung Wah Eastern Hospital for rehabilitation, which included a course of mediation, physiotherapy and occupational therapy.  On 29 April at Ruttonjee Hospital the external fixator of her right wrist and K-wire from her right foot were removed and she was returned again to Tung Wah to continue her rehabilitation.  She was discharged on 28 May 2002, by which time she could walk with assistance of a quadripod.  Thereafter she attended Pamela Youde as an out-patient for ongoing physiotherapy.  According to a contemporaneous report, by 16 September 2002 she had progressed to being able to walk with a stick and to mount and descend stairs using the handrail for support.  She had 80% of the full active range of her right wrist.  Given a home exercise and treatment programme, she was then discharged.  In early 2003 she was transferred to Southorn Centre Wanchai for further physiotherapy, but that was curtailed with the onset of the SARS epidemic.

The Aftermath

11.I return now to the plaintiff’s evidence, covering the consequences of the injuries.  She and her husband have 3 daughters and 2 sons.  All are adult with their own families, living away from home but in Hong Kong.  For many years she worked as a factory worker earning $4,000 per month.  That came to an end when her husband began suffering from psychiatric problems in 2000 and then had a stroke in 2001.  At that time she gave up work to be his full-time carer as well as performing the usual duties of a housewife. 

12.It is the plaintiff’s case that the accident has put paid to that independence.  She was bedridden in hospital for 2½ months.  Then on her account thereafter for a long while she was housebound and unable to look after herself and her husband.  With the passage of time there has been a gradual improvement in her mobility.  She can make short journeys from home.  She engages in exercises that she was told were a necessary feature of her rehabilitation.  But she finds this onerous.  She is constantly in pain.  She is still on a course of painkillers.  She can undertake simple household chores and simple cooking but nothing more.  She does not venture out alone, for fear of falling.  She has only partial use of her right hand.  She cannot walk any distance without the quadripod.

13.From the date of the accident she has been obliged to call upon the loyal support of family, friends and former work colleagues and this is ongoing.  One of her daughters gave up her work as a cleaner for which she was paid $6,000 per month so that she could be at her mother’s bedside whilst she was in hospital, tending to feeding her nourishing food, washing her and generally taking care of her.  Thereafter at home part-time care has been provided and paid for, at $3,000 to $3,500 per month plus food and travel.  I mention here that these numbers were provided by the plaintiff without documentation or other corroboration; further, no details of the payee or payees who were paid the $3,000 - $3,500 were given.  Nor was I told by whom this money was paid.

14.The plaintiff says that she regards herself as a disabled person and a burden on her family.  That burden would at least be partially eased if she were to have full-time domestic assistance.

15.She claims to recover from the defendant the following in damages:-

16.Without prejudice to the defendant’s dispute on liability, the parties have reached agreement in respect of the last six items, save for interest, as set out in parentheses above; there is dispute as to the balance.

The Medical Evidence

17.There was a pre-trial direction that medical evidence, along with reports of the various hospitals, be limited to the production of one report each from orthopaedic consultants Dr Danny Tsoi for the plaintiff and Dr Julian Chang for the defendant without the doctors being called.  The plaintiff attended at Dr Tsoi’s rooms on 13 February 2004 and his report is dated 16 February 2004.  It begins with his setting out the plaintiff’s history, the accident, the injuries suffered and the treatment to date.  She told him her then present problems which I list verbatim:-

“	Present Problems
	1.	The right wrist and hand is weaker than before.  She is unable to lift up object of more than a few lbs.
	2.	Mdm Ngan cannot hold chopstick with her right hand, she prefers to use a spoon held by left hand for eating.
	3.	Mdm Ngan cannot perform cooking.
	4.	There is tremor over right hand when holding objects.
	5.	The right hip is painful during walking.
	6.	The right foot is more painful than the right hip during weight bearing, she has to use a quadripod to assist walking.  Even so she walks with an unsteady gait.
	7.	There is impaired sensation over dorsum of right foot.
	8.	There is frequent attacks of muscle cramps over small muscle of right foot.”

18.He then carried out an examination of each of the affected areas of her body which included a radiological examination, discussing each in term.  Of the right wrist, he noted that the post-injury operation did not achieve anatomical restoration of the bone structure; there was a deformed distal radius and post-traumatic degenerative changes.  This was manifest in stiffness and weakness of the wrist and a very weak grip.  He opined that the plaintiff’s condition was not going to improve beyond that; that she was going to have to live with a residual deformity, weakness and stiffness of the hand and wrist.  He regarded her as being capable of performing simple household duties but that more strenuous activity would be beyond her.  Of the right hip he reported that the fracture had healed satisfactorily with a good prognosis, with no further treatment required.  There was some stiffness and minimal wasting, but no indication of degenerative arthritis.  He saw no need to remove the implant.  He found that apart from climbing or squatting, the plaintiff’s daily life would not be affected by this injury.  Of the right foot injury he stated that despite a lengthy rehabilitation there was a residual pain stiffness and weakness.  He noted boney deformities and degenerative arthritis which would explain the pain the plaintiff complained of when putting weight on the foot.  He perceived that the accident might have caused present damage to muscle and nerves resulting in weakness.  He said these disabilities would have to be regarded as permanent; that the plaintiff must anticipate that she will always suffer pain when bringing weight to bear.  He recommended proper shoes for the condition and the use of a walking stick.

19.It was his belief that the employment of a part-time domestic helper to assist in household chores and looking after her husband were clinically justified.

20.I come now to the report of Dr Chang.  He saw the plaintiff on 13 July 2004 and made his report on the same day.  He, too, began by setting up the plaintiff’s background, injury and the treatment that followed.  He listed her complaints as follows:-

“	Chief Complaints
	(1)	Weakness of the right hand with stiffness and pain of the right wrist -
		There is also tremor of the right hand and numbness of the fingers.  She says as a result of the difficulty with the right hand and the wrist, she has now almost converted into a left-handed person, using her left hand for feeding, activities of every day living and hygiene.  She is able to use her right hand for simple things such as combing her hair, buttoning her shirt and picking up small objects.
	(2)	She complains of pain in the right hip with stiffness and has difficulty in lifting her right thigh up fully.  She says she is unable to sleep on her right hand side for long periods of time.
	(3)	She complains of pain in the right foot especially over the ball of the right foot.  She complains of numbness on the top of the right foot.  She says when the foot is not bearing weight there is less pain.
		She says with the help of the quadripod and a manual assist, she is able to walk up to one block distance.  She says as a result of the hip discomfort, her sitting tolerance is about 30 minutes.”

21.He then carried out a physical examination and that included the taking of X-rays.  He noted upon her arrival the plaintiff walked with the use of her quadripod but otherwise without assistance.  He opined that she appeared to be in good general health and not in pain (pausing here, this would appear to be at odds with what he had recorded as her chief complaints).  Of the three injuries she had sustained: he found the right wrist fracture had healed with shortening but no change in radiocarpal angulation, and no evidence of post-traumatic arthritis.  The right hip had healed without any complication.  There is residual deformity of the metatarsols but so far no post-traumatic arthritis.  The misalignment of the metatarsol neck fracture is probably responsible for the pain she suffers from in her right foot (again I pause – he recognizes the presence of pain after all).  He makes no account as to the presence or prospect of degenerative arthritis.

22.Dr Chang did not as did Dr Tsoi give a clinical opinion on the extent to which the plaintiff might carry out her pre-accident obligations in the household.

The Surveillance

23.There was one further item of evidence that was not, for obvious reasons, telegraphed.  That was the videoed surveillance of the plaintiff undertaken on instruction by those representing the defendant.  I watched the video and subsequently read the report that accompanied it.  There is nothing to show who took the video or who prepared the report.  But no issue was taken as to the subject matter being the plaintiff or of the dates or locations of the filming.

24.The video essentially comprises two clips; one on 18 November 2004 between 11:00a.m. and 2:35p.m. and the other 6 December 2004 between 10:00a.m. and 11:10a.m.  On 18 November the plaintiff was videoed leaving the building where she lived, accompanied by a man who is her husband.  She was seen to be walking with a pronounced limp, aided by a quadripod.  They took a bus to North Point and entered and browsed in two shops and a betting centre.  They had lunch, then entered a building comprising residential apartments.  On 6 December the plaintiff was filmed coming out of the building where she lived again accompanied by her husband.  They walked to an open space nearby, and proceeded to perform physical exercises.  The plaintiff had with her her quadripod, but put it to one side as she carried out various bodily movements.  After 40 minutes they stopped exercising and took a seat, taking a rest.  After a further 20 minutes they went home.

25.In the course of her evidence the plaintiff explained that the exercise routine had been taught her as a necessary feature of her rehabilitation, but that it hurt.  She said she can only exercise in this way when the weather is favourable; during the winter just past there have not been many occasions when this has been possible. 

26.She concluded her evidence by saying that her rehabilitation had progressed to the extent that she was capable of performing light household duties and cooking simple meals.

Findings of Fact and Law

27.That is the evidence upon which I am now required to rule, first on the issue of liability; then, if the defendant be found to be wholly or partly responsible, quantum of loss suffered.

Liability

28.There is no express admission that the defendant’s car struck the plaintiff thereby causing the accident.  Nor was there any evidence from an eye witness although, by all accounts, there was at least one.  But undoubtedly the plaintiff was struck by something and injured as a result.  The injuries are consistent with her having been struck from behind by a car, with her foot having been run over wholly or partially.  The proximity of the defendant’s car indicates that it was that car, consistent with what she was alerted to by the eye witness.  I am satisfied and so find that the plaintiff was injured as a result of being struck by the defendant’s car.

29.Was the defendant negligent?  A carriageway is the domain of vehicular traffic.  That does not mean pedestrians may not use it, but there is no obligation by the driver of a car to yield right of way.  Of course there is a duty of care owed by any road user to any other road user and himself.  The degree of negligence depends on the particular circumstances.  Marble Road is an extreme example of a congested thoroughfare; one wonders why it was permitted for hawker stalls to be built on its carriageway.  Perhaps that is why typically and on this Spring Sunday afternoon there was little traffic.  But the driver who chooses to drive on it given the congestion must exercise a much higher level of vigilance than usual.  The defendant said she was attempting just that, driving at 10 kph or less, tooting her horn, driving in the middle of the road and alert to pedestrian activity to her left, front and right.  I am sure she did her best.  But she struck and knocked over a pedestrian at the nearside front.  There was nothing to suggest her view was impeded. Yet she had not seen the pedestrian and she was not aware of it until alerted by a bystander.  Even had the pedestrian lurched without warning into her path so that there could have been no chance to avoid her, she would have had to have seen her had she been keeping a constant and sufficient lookout.  But she saw nothing.  It seems to me and I find that prior to the impact the defendant could not have been keeping a proper or adequate lookout and or in the alternative misjudged her position relative to that of the pedestrians of whom the plaintiff was one.  This may have been no more than a momentary indiscretion.  But that is enough.  She failed to exercise proper and adequate care and attention having particular regard to the circumstances and was negligent, which negligence caused the accident.

30.Was the plaintiff partly responsible?  I believe she was.  She was walking on the carriageway. Accepting as I do that the pavements was cluttered with hawker stalls and their produce, there is nothing to indicate that they were so congested as to prohibit passage.  As she had done so often in the past, this being familiar territory, she chose to risk her safety for the sake of convenience by choosing the carriageway.  Exacerbating the risk, she walked with her back to the approaching traffic, and thus the defendants’ advancing Honda Accord.  In such circumstances, a pedestrian mindful of his or her duty of care, should regularly turn to check on approaching traffic.  The plaintiff did not do so.  She must be held to be partly to blame.  To What extent?  She was over to the left.  She was walking slowly.  She made no sudden movement.  She did not change direction.  In the circumstances I find her contribution was 20% of the total. 

31.With the defendant thus liable in damages to the extent of 80% of the plaintiff’s quantified loss, I come to the issue of quantum.

Quantum

32.As already recorded, the plaintiff was 63 at the time of the accident.  She suffered significant injuries in her foot, hip and wrist.  She was operated on 5 times within a few days and there was a 6^th operation for removal of the K-wire and fixator some 6 weeks later.  She was in hospital for 2½ months, and thereafter severely restricted in mobility, gradually improving after about a year.  She has suffered pain and stiffness since the accident and this is on-going.  There is permanent disability where she suffered her injuries.

33.I regard these injuries significant and traumatic.  The surveillance tape, produced to show that at unguarded times the plaintiff was seen to be able to carry on a reasonably normal existence does not alter my viewpoint on the severity of the accident and that the plaintiff has suffered and will continue to suffer pain and disability.  The doctors’ reports are not at odds about this.

PSLA

34.I have had a number of cases referred to me by both sides where the victim has suffered similar injuries.  I have perused them but will not refer to them or their facts.  Suffice to say I regard the injuries suffered by the plaintiff, having regard to the trauma of the accident, the number of operations, the length of time she was in hospital, the lack of mobility thereafter, the on-going pain and the residual permanent disability as being such that the award should be below but in sight of the lower end of the band for an injury categorized as a serious injury.  In that regard I pay heed to the landmark case of Lee Ting Lam v Leung Kam Ming [1980]HKLR 657.  What that lower end figure is depends on the value of the dollar having regard to inflationary trends. In Lawaiti Bhawani Bikram v Ting Kau Contractors Joint Venture (unreported) CACV 3/2002, Rogers VP in an appeal from a Master’s decision in which the Master fixed the lower end at $500,000 said that at the time, being October 2001, that lower end had not increased from $460,000.  He made reference to the economic downturn and deflationary trends.

35.Mr Sakhrani for the defendant submitted that because of deflation that lower end should now be $400,000 and that the appropriate award should be $340,000.  Miss Loh for the plaintiff argued that the range for serious injury cases should be $460,000 to $620,000; that a mid-range award of $500,000 is appropriate in the circumstances.

36.I agree with the proposition that a serious injury warrants an award between $460,000 and $620,000.  On that basis I fix the award under this head at $420,000.

Loss of Gratuitous Services

37.The plaintiff’s claims under this head are effectively divided into three; the first, reimbursement to her daughter who gave up her part-time cleaning work to look after her mother during the time she was in hospital and thus the income from this source of $6,000 per month; for 2½ months this comes to $14,600; the second, reimbursement for the cost of part-time help for herself and her husband to trial at $4,000 per month; this comes to $144,000; and the third, the cost of a full-time domestic helper thereafter on a multiplier of 5 at $4,000 per month; this comes to $240,000.

38.Mr Sakhrani’s complaint about the claim for domestic assistance in the past and for the future is primarily that having regard to her gradual improvement in health and mobility the plaintiff was or should have been no longer dependent on outside help as from September 2002.  But Dr Tsoi professed to be satisfied a part-time domestic helper is clinically justified.  Dr Chang made no finding in this regard.  In the circumstance I am satisfied that the plaintiff is no longer able to look after herself and her husband in the manner that prior to the accident was within her means without assistance.  I fix that at $3,000 per month inclusive of meals and travel and such other incidental expenses as might be incurred.  No argument is raised against the multiplier of 5.  Thus under the third of the claims under this head I award the sum of $180,000.

39.The plaintiff’s claims under the first two are harded to justify.  There was no independent evidence or detail of the daughter’s employment or the temporary cessation of that, when one would have thought it would have been forthcoming.  Further, her help whilst no doubt beneficial for the health and well-being of the plaintiff and which may well have quickened the recovery process was provided when she was in hospital and already enjoying full-time nursing care.  Furthermore, I doubt that the daughter chose to help her mother in expectation of financial reward.  There is also the difficulty of there being no independent evidence of the payment for part-time help rendered up to the date of trial.  One would have thought that in expectation of this litigation receipts would have been asked for and kept.  As it is, I do not know who paid what and to whom.  The plaintiff’s claim is for $4,000 per month, but her evidence was somewhat at odds with her pleaded case as to the duration of this time and just who the paid part-time helpers were.  I am satisfied that help would have been necessary but cannot be sure as to what extent this was from family and friends rallying round.

40.Mr Sakhrani whilst raising these shortcomings in the plaintiff’s case said the defendant was prepared to concede for the daughter’s help an award of $1500 per month, which translates to $3,650.  As for the part-time pre-trial help, he concedes $2000 per month, for 6 months to September 2002.  In the light of the absence of any conclusive evidence to support the first two claims under this head, I accept as appropriate the sum of $3,650 to meet the first.  I accept as appropriate the monthly rate for the second, but not the limited duration.  It shall be for the full pre-trial period.  This therefore comes to $72,000.

Special Damages

41.These are agreed at $22,944.

Interest

42.On the PSLA from the date of service of the writ (12.5.04) to date of this judgment (20.4.05) at 2%, this comes to $7,893.

43.On the pre-trial special damages from the date of the accident (17.3.02) to the date of this judgment (20.4.05) at 4.0345%, this comes to $12,303.

44.The total of the claims is as follows:-

PSLA	$	420,000
Interest thereon	$	7,893
Value of daughter’s services	$	3,650
Value of gratuitous services to trial	$	72,000
Special damages	$	22,944
Interest thereon	$	12,303
Cost of domestic assistance post trial	$	180,000
	$	718,790

Judgment

45.There will be judgment for the plaintiff in the sum of $575,032.  Costs, nisi at first instance, are to the plaintiff taxed if not agreed, with her own costs taxed under Legal Aid Regulations.

Miss P Loh instructed by Messrs David Rovenscroft & Co, for the Plaintiff

Mr A Sakhrani instructed by Messrs Dibb Lupton Alsop, for the Defendant