Cheung Hung Chak v. Tsang Lai Hong and Another

HCPI 793/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 793 OF 2004

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BETWEEN

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Before: Deputy High Court Judge Carlson in Court

Dates of Hearing: 20 and 21 September 2005

Closing submissions in writing completed: 27 September 2005

Date of Judgment (Handed Down): 19 October 2005

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J U D G M E N T

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INTRODUCTION

1.This matter involves a double collision between a motor cycle ridden by the Plaintiff, a 4-wheel drive vehicle driven by the 1^st defendant who was driving in the course of his appointment for the second defendant which owned the vehicle, and a goods lorry driven by Mr Tang Wing Che.

2.The facts and the respective allegations are uncomplicated and can be briefly stated. The accident occurred on 21 May 2002, which was a working day, at about 8:15 a.m. on the Kowloon–bound carriageway of the Tuen Man Highway.  It was the height of the morning rush hour and the Highway was congested.

3.The layout of the carriageway at the point where the collision occurred is helpfully shown in a sketch plan at E1 prepared by the police and in photographs that follow the plan, E2-6.  This section of the carriageway is uphill and comprises 4 lanes.  The nearside lane is reserved for buses.  The second lane was the one used by the Plaintiff on his motorcycle FH 103 and Mr Tang’s goods lorry GG 9965 which was immediately ahead of the Plaintiff.  The 1^st Defendant, in his 4 wheel drive vehicle FZ 2804, was travelling in the third lane.  This part of the Highway also has a fourth lane which merged into the third lane a few hundred metres ahead, shortly before the Highway went into a tunnel.  I have no doubt that the effect of 4 lanes merging into three would have added to the congestion.

4.I have been told, and I accept, that the traffic ahead had become so congested that a tailback of traffic had formed in front of the parties vehicles and that of Mr Tang.  A direct result of this was that the traffic that was still moving before arriving at the start of the stationery tailback was travelling slowly.

5.The Plaintiff says that as he was travelling in his lane close to the dividing lines between his and the third lane, the 1^st Defendant without warning moved up along side him and started to enter his lane (the second lane).  This wholly unexpected manoeuvre by the 1^st Defentant resulted in the Plaintiff having to take evasive action by trying to steer around the front nearside of the 1^st Defendant’s vehicle.  In doing so the rear of his motorcycle clipped the front nearside bumper of the 1^st Defendant which caused the Plaintiff to become unbalanced with the result that he temporarily lost control of his motorcycle and collided into the offside rear of Mr Tang’s lorry who was travelling immediately ahead of him in the second lane.  The force of the collision caused the Plaintiff to come off his motorcycle, which was damaged, and resulted in his sustaining a number of injuries for which he now brings this action to recover damages from both Defendants.

6.The 1^st Defendant’s account differs in one really material  respect.  He says that he was travelling in the third lane as he approached the beginning of the stationery tailback of traffic.  As he did so he heard a dull “clunck” sound from the front nearside of his vehicle and that as he looked he saw a motorcycle go past him, and then wobble and run into the back of the lorry ahead of it in the second lane.  He is adamant that at no time did he attempt to move from his lane into the second lane.  He thought that the motorcycle was doing about 50 km/h at the time.  The first time that he had become aware of it was after he heard the noise coming from his front nearside.

7.Mr Tang’s evidence is that just prior to the collision he had looked into his offside rear view mirror and he saw a motorcycle approaching him travelling very close to the dividing lines between the second and third lanes.  He describes it as travelling at a high speed and he felt that it was going to ram into the back of his lorry, which is what happened.  When he first saw it was 20’ to 30’ behind him travelling at between 30 to 40 km/h.  He has told me that it ‘zig-zagged’ just before it collided with him.  What he was not able to say was whether it had come into contact with any other vehicle before colliding with his lorry.  He could say nothing about the 1^st Defendant’s vehicle prior to the collision.

ISSUES

8.The main issue is whether the 1^st Defendant had attempted to move into the second lane causing the Plaintiff to ride around the front of the 1^st Defendant’s front nearside which caused him to clip the corner of the 1^st Defendant’s nearside bumper which in turn made him lose control and crash into the rear of Mr Tang’s lorry or whether, as the 1^st Defendant contends, the Plaintiff who was driving close to the dividing lines between the second and third lanes strayed slightly into the third lane where he clipped the 1^st Defendant’s bumper.  It seems to me if the Plaintiff’s version is accepted then the 1^st Defendant must be at fault and the Plaintiff ought to succeed.  It would have been negligent of the 1^st Defendant to attempt to move into the second lane from the third lane having regard to the presence of the Plaintiff’s motorcycle virtually abreast of his vehicle as he did so.  Nevertheless, if the 1^st Defendant is correct then the Plaintiff must be wholly at fault for striking the 1^st Defendant vehicle when the 1^st Defendant was travelling within the confines of the third lane and had made no attempt to get into the second lane.  The Plaintiff must be guilty of misjudging the situation by riding too close to the 1^st Defendant’s vehicle which was travelling perfectly lawfully in its own lane.

THE POLICE INVESTIGATION

9.Following the accident the police were called. They investigated the matter and took statements from the Plaintiff, the 1^st Defendant and from Mr Tang.  Having completed their assessment of the matter they decided the Defendant had been guilty of careless driving by riding his motorcycle so close to the dividing line between the second and third lanes that this caused him to strike a glancing blow to the 1^st Defendant’s nearside front bumper with the result he lost control of his motorcycle and careered into Mr Tang’s lorry that was in front of him in the second lane.

10.The Plaintiff was summonsed for careless driving. At his trial the 1^st Defendant and Mr Tang were called as prosecution witnesses.  The Plaintiff also gave evidence.  The Magistrate was not disposed to accept the 1^st Defendant’s evidence.  He described him as “arrogant” and “evasive” and dismissed the summons.

11.Whilst that view of the 1^st Defendant cannot bind me, there has been some cross-examination of the Plaintiff and the 1^st Defendant on their evidence before the Magistrate, a transcript of that evidence having been provided for this purpose.

CONSIDERATION OF THE EVIDENCE AND ANALYSIS

12.Given the fact that traffic in both the second and third lanes was slow and about to come to a complete stop as it joined the tailback of traffic, the Plaintiff was invited to say why he thought the 1^st Defendant might have wished to change lane from the third to the second lane when no obvious advantage could have been obtained by him in doing so.  His explanation was the 1^st Defendant had attempted to insert himself into a gap in the second lane between the Plaintiff’s motorcycle and Mr Tang’s lorry ahead of him.

13.I have come to the firmest conclusion that at no time had the 1^st Defendant deviated or given an impression of deviating from the third lane.  Firstly, there was no sensible reason for him doing so.  Both lanes were about to become stationery due to the back log of traffic ahead.  Secondly, had such a manoeuvre been attempted Mr Tang would have seen it happen.  I say that notwithstanding the fact that he had not observed the 1^st Defendant’s vehicle at all prior to the collision between his lorry and the Plaintiff’s motorcycle.  In my judgment this serves to confirm that the 1^st Defendant have not driven in any untoward way such as attempting to change lane.  Had he done so I have no doubt that Mr Tang, who was observing the approach of the Plaintiff from his offside rear view mirror, would have seen this happen, and would also have seen the Plaintiff take evasive action as the Plaintiff had said he had by trying to ride around the 1^st Defendant nearside front bumper which he clipped in the process.  In reaching this conclusion I have not overlooked the fact that Mr Tang did not observe any contact between the Plaintiff’s motorcycle and the 1^st Defendant’s vehicle.  This perhaps is not as significant as it might appear because if the 1^st Defendant is right, as in my judgment he is , and he never left the confines of the third lane, the manner of his driving would not have attracted Mr Tang’s attention and the fact that the motorcycle merely clipped the front  nearside of the 1^st Defendant’s vehicle, which both the Plaintiff and 1^st Defendant agree had happened, could well have gone unnoticed by Mr Tang whose evidence is to the effect that the motorcycle was travelling close to the dividing lines between the second and third lanes.

14.I find as a fact that this accident occurred because the Plaintiff, on seeing that the traffic was slowing down to a complete stop, was travelling down the middle between the second and third lanes in order to get a view of the road ahead but steered his motorcycle too close to the 1^st Defendant’s vehicle so that he made contact with the nearside front bumper which caused him to become unbalanced with the consequence that has temporarily lost control of his motorcycle and careered into the back of the lorry.  This accident was entirely due to the negligence of the Plaintiff in riding his motorcycle as he did.  The 1^st Defendant is completely blameless.  I find that he was travelling slowly with a view to slowing to a stop with the rest of the traffic in the third lane driving within the confines of the line markings between the second and third lanes, albeit  close to those lines.  He was driving perfectly competently in the circumstances and no possible blame can attach to him.  This being my view the claim must fail and there must therefore judgment to the 1^st and 2^nd Defendants.

DAMAGES

15.For the sake of completeness, and in the event of an appeal, I propose to indicate what damages I would have awarded the Plaintiff had he succeeded. 

THE INJURIES

16.The medical evidence is agreed.  The main consequence of the accident was what the Plaintiff’s medical expert Dr Brian Choa describes as a significant head injury with a fracture of the ethmoid bone, which is a light spongy bone located between the eye sockets forming part of the wall and septum of the upper nasal cavity.  The Plaintiff was concussed and had post traumatic amnesia of not more than an hour.  He also sustained multiple abrasions to his limbs but with no bony injury.  He was treated conservatively without the need for surgical intervention and allowed to go home from hospital after three days.  His main complaints have been    frontal headaches and double vision.  He controls these by taking proprietary painkillers, such has paracetamol, and herbal medicine.  Fortunately, Dr Choa reported that there are no associated symptoms such as nausea or dizziness.  As to his double vision the Plaintiff has mild horizontal separation of images when he uses both eyes together.  This is worse when looking to his left.  Looking up and down makes no difference.  His visual acuity is better in his left eye.  He was examined in detail by the ophthalmologist at the Yuen Long Clinic but no diagnosis was given nor was treatment suggested or offered.  In May 2004, two years after the accident.  Dr Choa asked him what he felt he could do.  He told the doctor that if his headaches could be controlled he might be able to return to his surveying work.

17.Dr Choa is of the view that his headaches could be improved by the use of both stronger painkillers (occasionally, as needed) such as diclofenac and a muscle relaxant such as tolperisone.  This treatment supervised by a private doctor and extended over a six month period would cost $8,000,00.  He also suggests prismatic lenses costing $2,000.00 to help with his double vision.  The Plaintiff has tried these lenses on but rejected them because they are made of thick lenses and make him look rather strange.

CONSEQUENCES OF THE INJURIES

18.The Plaintiff feels unable to return to his pre-accident job as a surveyor due to his headaches and double vision.  He needs to climb step- ladders and scaffolding on building sites.  The physical demands are much too strenuous for him.  He tried to go back to surveying but gave up almost immediately when it was clear that he could not do the work. He used to earn as much as $12,000.00 or $13,000.00 a month as a surveyor but now earns far less, about $6,500.00 a month on average.  He says this is all that he can  reasonably manage.

THE ASSESSMENT

Pain, Suffering and loss of Amenity

19.Iwould have awarded $250,000.00.  He has had to put up with headaches and double vision but I am satisfied that provided he follows Dr Choa’s advice both conditions can be ameliorated.

Pre-trial loss of earnings

20.These are agreed at $75,246.00 being his pre-accident income of $12,541 x 6 months of sick leave.  The next aspect concerns his ability to earn an income similar to his pre-accident rate of pay as a surveyor.  In this regard I accept that he must be allowed time to adjust.  I would have thought that he could have returned to work as an air-conditioning maintenance technician initially, which he had done successfully in the past.  The evidence is that he could earn as much as $9,500.00 in that occupation.  I assess the post sick-leave award until trial on the basis of earnings at this level making a loss of $3,000.00 a month.  This would come to a further $102,000.00 from the end of his sick-leave until the date of trial.  The total pre-trial loss of earnings would therefore have come to $177,246.00.

Future loss of earnings

21.Whereas I have been prepared to allow him from November 2002 to September 2005 (being the expiry of sick leave until trial) to adjust to problems caused by headaches and double vision I am persuaded by Dr Choa’s report that he could return to his pre-accident employment provided the headaches can be controlled.  In my judgment they can be with the stronger painkiller that Dr Choa has referred to in his report.  This being the case I am satisfied that he can now return to work as a surveyor in what is these days a vibrant construction industry sector.  Accordingly, I would have made no award for future loss of earnings.  Equally, I do not consider that this is a case for an award of loss of earning capacity or for a Smith v Manchester Corporation payment for being handicapped in the labour market.  I believe the Plaintiff is now back up to speed. 

Loss of retirement benefits

22.I would have awarded him his loss of retirement benefits under the MPF Scheme during his time off work and on his reduced earnings from the expiry of sick leave until trial.

Medical treatment as recommended by Dr Choa

23.Painkillers and relaxants under the supervision of a

private doctor $8,000.00 and prismatic lenses $2,000.00.

Pre-trial medical and associated expenses

24.These would appear to be reasonable, including taxi fares which I would have allowed in full giving a total at $30,204.00.

Interest

25.Interest would have been awarded on the usual basis.

CONCLUSION

26.As the award would have been well within the District Court’s scale the Plaintiff, if successful, would have had his costs on that scale only.

27.The action having been dismissed with judgment to the Defendants, the Plaintiff must now pay their costs on a party and party basis in the usual way.  This will be an order nisi.  If the Plaintiff is on legal aid his costs will be taxed accordingly.

28.I am grateful to both counsel for their assistance, particularly for the very full and helpful final written submissions which has avoided a further hearing in court.

Mr Wong Chi Kwong, instructed by Messrs Chau & Associates, for the Plaintiff

Mr David T.W. Hui, instructed by Messrs Fung, Wong, Ng and Lam, for the 1^st and 2^nd Defendants