Wong Kwok Wa v. Hung Tin Sun and Others

HCPI 1153/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1153 OF 2004

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BETWEEN

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Before: Deputy High Court Judge Saunders in Court

Dates of Hearing:      10, 12 October 2005

Date of Judgment:     28 October 2005

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J U D G M E N T

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Introduction:

1.This is an action for personal injury damages.  All matters are at issue, including the liability of the defendants for the injury, whether or not the plaintiff himself contributed to the accident, and the extent of any damages.  Also at issue is the contribution between the first and second defendants, on the one hand, and the third and fourth defendants on the other.

The accident:

2.Mr Wong’s injuries arose from an accident of a nature that is far too common on the highway.  It is a direct result of vehicles following too closely.

3.At about 8:45 a.m. on 28 December 2001, Mr Wong was riding his motorcycle on the offside lane of the Tuen Mun Road near Tuen Mun township, going towards Tsuen Wan.  Ahead of him, on the offside lane was a tanker vehicle driven by Mr Hung, owned by Mr Ho.  Further ahead on the same lane was a medium goods vehicle.  On the near side lane, driving in the same direction and ahead of all three vehicles in the offside lane, was an articulated container truck driven by Mr Chan, owned by Lee Wa.

4.Mr Chan was following too close to the vehicle in front of his articulated container truck.  The vehicle in front braked suddenly and Mr Chan was himself required to brake.  As he was following to close, it was plain to him that he would be unable to stop in time, and he swerved right, into the off side lane.  In so swerving he collided with the front near side of the medium goods vehicle.  Mr Hung, in the tanker truck, following too close behind the medium goods vehicle, was also unable to stop in time, and collided with the rear of the medium goods vehicle.

5.Mr Wong, following too close behind the tanker truck, swerved to avoid it, and collided with the concrete median barrier between the northbound and southbound lanes of the road.  He suffered significant injuries.

6.Both Mr Hung and Mr Chan was subsequently charged with careless driving.  Each pleaded guilty, and both were fined.  Mr Hung admitted the brief facts stating that he failed to maintain a safe braking distance.  Mr Chan admitted brief facts that he did not pay due care and attention to the preceding and offside traffic.

7.Mr Li relies upon the provisions of s 62 Evidence Ordinance, and contends that the convictions shift the burden of proof to the defendants to disprove their negligence on the balance of probabilities: see Stupple v Royal Insurance Co Ltd [1971] 1 QB 50.  Mr Hung gave evidence.  Mr Chan did not.

Liability for the accident:

8.Mr Li accepts that Mr Wong was himself following too close and that there must be a degree of contributory negligence.  In submission he said that this should be no more than 30%.  His submission was that Mr Hung was 70% responsible for the accident, and Mr Chan 30%.

9.Mr Lim, for Mr Hung, the tanker truck driver, argued that the degree of contributory negligence should be 50%, and Mr Chan, the articulated container truck driver, was solely responsible for the accident.  He says that claim against Mr Hung and Mr Ho is wholly misconceived.

10.Mr Hemmings, for Mr Chan, accepts that there was a degree of negligence against Mr Chan, as he was driving too close to the vehicle in front of him, but argues that neither Mr Hung nor Mr Chan should be held liable to Mr Wong whose accident was caused by his own negligence in driving his motorcycle both too fast and too close to the tanker truck.

11.In the present case there were three separate collisions each one following the other by a very short space of time.  First, as a result of the articulated container truck swerving into the offside lane, it collided with the medium goods vehicle.  Second, the tanker truck was unable to stop in time and collided with the rear of medium goods vehicle.  Third, Mr Wong on his motorcycle was unable to stop in time and swerved to avoid the rear of the tanker truck, colliding with the median barrier.  This was a chain collision, with each collision following in sequence within just a few seconds of each other.

12.The factual scenario raises the issue of liability when one vehicle swerves into another lane and a chain collision occurs.  The driver of the first vehicle, which swerves into another lane, and causes and obstruction, may be termed the “principal author” of a chain collision.  Such a driver was found to be liable in Rouse v Squires [1973] QB 889.  I agree with the view of Suffiad J in Ling Sai Cheong v Wah Tung Transportation Company Ltd & Law Poon Wai (unreported HCPI 411/2004), that the question of the liability of the leading driver will depend upon whether the sudden stop was as a result of that driver’s negligence or some other cause.  If it was not his negligence, then he may have no liability at all.

13.On the present facts it is plain that the cause of Mr Chan’s sudden swerve to the right, and stopping when in collision with the medium goods vehicle, was his negligence in following the vehicle in front of him too closely.  Had he kept a proper stopping distance he would have been able to stop, and would not have swerved right, thereby causing the collision.

14.Equally, it is plain that Mr Hung, in following too close to the medium goods vehicle, and thereby being unable to stop in time, was negligent, and that negligence was a contributing factor to the accident.  The obligation to keep a proper lookout, and to be able to stop, should the vehicle ahead be required to stop, must extend to keeping a proper lookout upon vehicles in an adjacent lane, and to bear in mind that they, if they are following to close, might swerve, and cause a vehicle ahead to stop suddenly.  Accidents such as these are very common on the Tuen Mun Highway.  It must be within the reasonable contemplation of any user of the Tuen Mun Highway, with its very high density of container vehicles, that such vehicles may at any time be required to suddenly stop, or to swerve to avoid a collision ahead.

15.Mr Hemmings mounted an argument that in a chain collision each driver should only be responsible for the damage to the vehicle immediately in front of it, and that it would be an absurdity to require the first in the line to carry a share of the responsibility for all damage in the chain behind him.  To so hold would be to ignore the reality of the primary responsibility for the accident, which lay with the articulated container truck driver.  It may well be that as a matter of practicality, in vehicle damage situations only, matters are dealt with on the basis suggested by Mr Hemmings.  But that matter of practicality cannot guide the Court in assessing the responsibility for damage and injury on an accident.

16.Mr Chan was following to close.  If he had not been so driving, he would have been able to halt his vehicle in an orderly manner and avoid the collision.  Mr Hung also was following too close.  Again if he had not been so driving he to would have been able to stop his vehicle in an orderly manner and avoid the collision.  I am satisfied that both Mr Hung and Mr Chan are responsible for the accident.  I apportion the responsibility between them, as to 60% to Mr Chan, with appropriate vicarious liability on Lee Wa, and 40% to Mr Hung, with appropriate vicarious liability on Mr Ho.

17.It is right that Mr Wong was following too close, and that accordingly he must bear a share of the responsibility for the accident.  However he was not following so closely that he struck the rear of Mr Hung’s tanker truck.  He was able to avoid it, and had it not been for the median barrier, he may well have escaped injury.  In those circumstances I hold that contributory negligence should be fixed at 30%.

Mr Wong’s present condition:

18.Mr Wong suffered serious injuries to various parts of his body.  He was admitted to Tuen Mun hospital for emergency treatment.  He lost consciousness in the accident, which was only regained two days later.  He sustained fractures to his left acetabulum, nasal bone, teeth and left eye, and injuries to his left knee.  He has undergone operations for the fixation of a dislocated hip, repairs of the nasal bone and broken incisor teeth.  He was hospitalised from the date of the accident, 28 December 2001, until discharge on 1 February 2002.  He was required to undertake physiotherapy, occupational therapy and dental treatment.  He was on sick leave from 28 December 2001 to 31 January 2003.  It is accepted by all that this was a reasonable period to be on sick leave.

19.He is now unable to squat down, has difficulty in climbing, and has walking up and down stairs, due to posterior cruciate ligament laxity in his left knee.  The inability to squat means that he has great difficulty in using an Asian type toilet.  He suffers pain in his pelvis, especially during weather changes.  There is a knocking sound in his kneecap, following damage to, and repair of, the posterior cruciate ligament.  In terms of assessment of whole person impairment, Dr Au has assessed the impairment of 13%, and Dr Wong at 15%.

20.The inability to squat, difficulty in climbing, pain in the pelvis, and the knee, have all rendered Mr Wong unable to continue with his previous work as an elevator maintenance worker.  The work is such that these restrictions significantly inhibit his ability to climb into the spaces on top of or below an elevator; actions that are essential in that type of work.

PSLA

21.In the usual way counsel for all parties provided me with a wide range of comparables in relation to this aspect of damages.  I do not propose to recite them all.  The injuries Mr Wong suffered were extensive and have resulted in pain for the foreseeable future.  The restrictions in his work activities extend to limit his leisure time activities.

22.Mr Wong has suffered an injury which mars general activities and enjoyment of life, but allows him a reasonable mobility, he having suffered bad injuries leaving recurrent pain.  It cannot be said that he merely suffers relatively mild residual symptoms.  Weighing the comparables and all relevant matters, having considered the extent of the plaintiff’s injuries and disabilities as disclosed by his testimony and that of the medical experts, I have concluded that the plaintiff’s injuries reach the level of the serious injury category as described in  Lee Ting-lam v Leung Kam-ming [1980]HKLR 657 CA.  The current lower threshold for injuries that fall into the serious category is $460,000: Lawati Bhawani Bikram v Ting Kau Contractors Joint Venture, (unreported, CA 3/2002).  I fix PSLA at $460,000.

Loss of earnings:

23.There was an issue as to the extent of Mr Wong’s pre-trial earnings.  On the Form 2, filed for the purpose of the Employees’ Compensation claim his employers stated that his salary for November 2001, was $14,195 and the three-month average preceding the accident was $12,485.75.  Mr Wong outlined the basis upon which he was paid, which included an attendance allowance, an allowance for a motorcycle, and various daily wages depending upon whether he was on day shift or nightshift.  The payments he claimed did not accord well with his bank account, but that must be viewed on the basis that his employer was not prompt in paying wages, did not pay wages in full, and occasionally paid in cash.

24.I found Mr Wong to be a straightforward and honest witness and I have no reason to doubt his evidence in this respect.  I find that Mr Wong’s pre-accident earning was $14,195 a month, and that had it not been for the accident he would have continued to earn that sum.

25.Mr Wong has worked in the elevator field for some 19 years.  He has extensive experience in the industry and has in the past been employed as a supervisor, a more senior post which earned even more than he earned at the time of the accident.  When he returned to work, by virtue of the physical restrictions placed upon him as a result of the accident, he was not re-employed in the same capacity, but as an elevator technician.  Apparently the post of technician is a less demanding post, and one which Mr Wong was able to manage.  He received a monthly salary of $7,000 per month, plus an attendance allowance of $2,700 per month.  It is necessary to note that the attendance allowance required attendance for every working day of the month.  One days absence results in the deduction of three days attendance allowance.

26.Mr Wong was obliged to acknowledge that he left that post voluntarily, and for external reasons, other than those related to the injuries arising from the accident.  Although he suffered some difficulties in undertaking the work, he accepted that he did not leave the job because he could not do the work.  He then took a job as a minibus driver where he earned $5,000 per month.  His evidence was that sitting all day in the driver’s seat caused him pain and he has been unable to continue that work.

27.I accept Mr Hemmings’ submission that Mr Wong appears to have adopted a defeatist attitude to his future, and has not done all he can to find suitable employment.  In particular Mr Wong has not satisfied me that he could not continue in a post as an elevator technician, a post in which his monthly earnings were $7,000 per month, together with the attendance allowance.  Having regard to the nature of his injuries I am not satisfied that Mr Wong would have received the full attendance bonus every month, for from time to time he would take time off work.  Taking a broad view of the matter I am satisfied he would have averaged $1,400 per month by way of attendance bonus, giving him a total average monthly salary of $8,400 a month.

28.I am satisfied that Mr Wong has been, since his return to work, capable of earning $8,400 per month.  He has earned less than that, but that is by his own choice, not as a result of the accident. I accordingly fix Mr Wong’s monthly earning loss since his resumption of work at $5,795 per month.

29.The appropriate calculation loss of earnings is accordingly:

28.12.2001 – 31.1.2003   ($14,195 x 13.13 months)	$186,380
4.2.03 – 3.8.03 ($14,195 - $8,400 x 6 months)	$  34,700
3.8.03.03 – 10.10.05 ($5,795 x 26.15 months)	$151,540
Total pre-trial loss of earnings	$372,690

Future loss of earnings:

30.The Plaintiff was born on 24 June 1965.  He was 36 years old at the time of the accident and is now 40 years old.  He contends for a post-trial multiplier of 13.  Mr Lim contends for a post-trial multiplier of 11, and the Hemmings accepts the figure of 13.

31.Weighing in all matters, including the result of future surgery, I find that the 13 is the appropriate multiplier.  Mr Wong’s future loss of earnings therefore are $904,020.

Loss of MPF:

32.I accept that the submission of the plaintiff that he is entitled to a sum for loss of MPF.

Pre-trial loss of MPF is calculated as follows:
$381,300 x 5%	$18,634
Future loss of MPF:
$904,020 x 5%	$45,201
Total Loss	$63,835

Future loss of earning capacity:

33.I accept Mr Li’s submission that this is an appropriate case for an award for loss of earning capacity: see Lau Che Pang v Hoi Kong Ironwares Godown Co Ltd [1988] 2 HKLR 650.  The circumstances of this case this is not a “duplication” of the future loss of earnings, but a recognition of the fact that as a partially disabled person Mr Wong may find it more difficult to find replacement employment in the future.  I award the sum of $60,000.

Special damages:

34.Sensibly, counsel for the defendants did not dispute as being reasonable the claims for special damages of medical expenses, $10,680; travelling expenses, $9,606; chronic food, $5,000; and toilet seat alteration, $250.  The sum allowed for special damages is therefore $25,536.

Interest:

35.I fix interest on PSLA at 2% x 9.75/12 months at $7,475.  Interest on pre-trial loss (earnings and MPF) and special damages totalling $436,525, is fixed at 4% x 45.5/12, a sum of $66,206.  Total interest to the date of trial is $73,681.

36.I now set out a summary of the sums that I have awarded:

PSLA:	$460,000
Pre trial loss of earnings:	$372,690
Future loss of earnings:	$904,020
Loss of MPF:	$ 63,835
Loss of earning capacity:	$ 60,000
Special damages:	$ 25,536
Interest:	$ 73,681
Total:	$1,980,072

This sum must be discounted by 30% for contributory damage bringing the net damages awarded to $1,371,833. 

37.There will be judgement for the plaintiff in the sum of $1,371,833, with interest at judgement rate from the date of judgement. Mr Wong must give a credit for a sum of $651,623.80 received under his Employees’ Compensation Claim.  There will be an order nisi for costs on that sum, that order to be absolute in 14 days.  If required the plaintiff’s costs will be taxed on Legal Aid Regulations.

38.Leave is reserved to apply the event of any error of miscalculation arising.

Mr Andrew S Y Li, instructed by Messrs W K To & Co, assigned by DLA for the Plaintiff

Mr Patrick Lim, instructed by Messrs Chong & Partners, for the 1^st and 2^nd Defendants

Mr John Hemmings, instructed by Messrs Massie & Clement, for the 3^rd and 4^th Defendants