Cheung Lee Man v. Chan Wai Wing
Read the full judgment text of HCPI 760/2004 on BabelCite. This High Court CFI judgment was delivered on 8 March 2006.
1. In the morning of 20 October 2001, a Saturday, Cheung Lee Man was riding his motor scooter. He had set out from North Point and was heading for his workplace in Yuen Long. But he did not complete the journey. At the entrance to the Hung Hom Cross Harbour Tunnel he was involved in a collision with a saloon car, privately owned. The blow was a glancing one, but enough to unbalance him. He swerved and stayed upright momentarily, before the scooter tipped over to the right. Mr Cheung was tr
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HCPI 760/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 760 OF 2004 ____________ BETWEEN
____________ Before: Deputy High Court Judge Gill in Court Dates of Hearing: 20-23 February 2006 Date of Judgment: 8 March 2006 _______________ J U D G M E N T _______________ 1.In the morning of 20 October 2001, a Saturday, Cheung Lee Man was riding his motor scooter. He had set out from North Point and was heading for his workplace in Yuen Long. But he did not complete the journey. At the entrance to the Hung Hom Cross Harbour Tunnel he was involved in a collision with a saloon car, privately owned. The blow was a glancing one, but enough to unbalance him. He swerved and stayed upright momentarily, before the scooter tipped over to the right. Mr Cheung was trapped by his right leg, and it later emerged that he had broken his ankle to the extent that bones protruded. He claims to have suffered otherwise physically and as well mentally, and is now permanently, albeit mildly, partially disabled. He claims no longer to be able to carry out the duties he performed in his pre-accident job, and now suffers significant financial loss. 2.This is his claim in negligence for damages against the driver of the car. The Scene 3.Vehicles as they approach the entrance to the Tunnel will be in one of three lanes separated by broken white lines depending upon where they have come from. For ease of reference ,I shall call these lanes the 1st, 2nd and 3rd lanes, counting from the nearside. As the carriageway gets closer to the entrance it narrows, and the 2nd and 3rd lanes merge. The two remaining lanes are separated by a broken white line. Just before the entrance the broken white line becomes two solid white lines which continue uninterrupted through the Tunnel. Thus traffic approaching the entrance may change lanes until the entrance when the double lines prevent such manoeuvre. 4.Heavy duty vehicles such as buses are obliged to use only the nearside lane once in the Tunnel. All other vehicles may choose either lane. 5.On the day in question, the weather was fine and dry. The accident occurred at 9:10 a.m. The Participants 6.At the trial there were three witnesses of fact; the plaintiff, Mr Cheung, the defendant called Chan Wai Wing, and the driver of a Citybus double-decker bus called Lam Hong Lim. 7.Of the various accounts the following is incontrovertible, or otherwise not challenged. 8.As at the date in question Mr Cheung was 46 years old. By then he had been driving for 23 years and was licensed to drive various different types of vehicles including the one he was on, which was his, a Piaggo motor scooter. A photo of it indicates nothing remarkable. It is compact in size with an outsized plastic carrying case coloured bright orange affixed to a rack behind the driver’s seat. 9.Mr Cheung lived then, as he does now, in Chai Wan, and was a frequent user of the Tunnel in his commute to work in Yuen Long. 10.At all material times he was in the 1st lane approaching the Tunnel. It was his habit to position his scooter to the right of centre in the lane to avoid a somewhat greasy surface in the middle and that was how he was proceeding that morning. He was intending to use the inside lane in the Tunnel, thus to stay where he was in the 1st lane. 11.Mr Chan, the defendant, was the owner as well as the driver of the car that was to collide with Mr Cheung’s scooter. It was a Toyota Corolla. 12.He was then 31 years old. He had been driving for 10 years. He is, as he was then, a police constable, off-duty at the time. 13.He too was driving in the 1st lane approaching the Tunnel entrance. However unlike Mr Cheung, he formed the intention of occupying the 2nd lane within the Tunnel; thus it became necessary to change lanes. In the course of that manoeuvre his car in the vicinity of the offside rear wheel arch and passenger door brushed against the near side of the scooter’s front wheel. The blow was a slight one, sufficient only to cause slight scratches on the Toyota at the point of contact. But it caused Mr Cheung to loose control. For a short time the scooter kept upright, wobbled, and then fell on its side. It came to rest straddling the broken white line dividing the 1st and 2nd lanes a few metres before the double white lines at the Tunnel’s entrance. The damage to the scooter was also slight. There were scratches on the near side body panel consistent with the nudge from the car. And a piece had broken off the top right of the front mudguard, which probably happened when the scooter fell over. 14.The Toyota was brought to a halt at the entrance of the 2nd lane into the Tunnel. Its front was immediately alongside and perhaps just straddling the very beginning of the double lines. 15.Mr Lam was the driver of the bus. His route to the Tunnel caused him to be in the 3rd lane, then 2nd lane as the two merged. But his vehicle being heavy duty he was obliged to change to the 1st lane before entering the Tunnel. Traffic to his left in the 1st lane prevented his doing so immediately and he braked to a halt in order to give way, about 1½ bus lengths short of the Tunnel’s entrance. 16.It was as he was positioned thus that the collision occurred before his eyes. Police Enquiry 17.Following the accident there was a police investigation. The parties and Mr Lam all gave statements. These were admitted in evidence. In addition an officer, being one of those called to the scene called PC Au Yeung, made a statement. In it he recorded Mr Chan’s particulars and then recorded his, Mr Chan’s, account of how the accident came about. I shall return to this. 18.Suffice to say that the investigation concluded without any prosecution. The Accident 19.Not surprisingly, in the way of these things, the litigants have differing versions of how this came about, and I come to their accounts and as well that of Mr Lam who, as a disinterested observer, had the ringside seat. 20.Mr Cheung said he was driving his scooter at 40 kph with the road clear ahead. As he approached what was to become the point of collision, he felt or sensed a presence immediately to his left; then there was the impact, and he swerved and fell. He had not seen or otherwise had any impression of the presence of the car until momentarily before it struck his scooter. He was not travelling behind it. It could only have come from behind and overtaken him. He surmised that in doing so and then cutting right in order to reach the 2nd lane into the Tunnel its driver had changed direction, but then misjudged his position relative to the scooter or had not seen it. 21.He did not see the stationery bus until after the accident. 22.He denied that in approaching the point of collision he had been driving in close proximity to the Toyota just behind its offside. 23.Mr Chan said as he approached the entrance of the Tunnel his Toyota was doing about 30 kph. He noticed a bus in the 2nd lane was slowing and then came to a stop before the entrance. He too slowed significantly as he came up to the bus; at first he said to a stop. But he corrected that to a speed of somewhere between 0 and 10 kph. 24.Then it was that he decided to drive through the Tunnel in the 2nd lane. The way ahead was clear; the bus was effectively blocking off the lane as it waited for the 1st lane to clear. 25.He checked in his rear vision mirrors and saw no vehicle which might be impeded by his impending manoeuvre. He did not see the motor scooter, and did not know of its presence until he felt the impact. 26.In cross-examination he accepted that had he seen the motor scooter in his rear vision mirror so close to his car, he would not have completed the manoeuvre which led to the collision; but he did not see it. 27.He was asked if when the police statement was taken from him he had stated that he had checked in his mirrors for traffic behind. He conceded that there was no record of that but he was certain he had; when reading the statement over he must have missed spotting the omission. 28.He was taken to PC Au Yeung’s statement where the officer had recorded particulars of the driver of the car involved, and then the following :
29.He said in response that he remembered talking to an investigating police officer at the scene but did not remember his name. He agreed that PC Au Yeung had recorded correctly his particulars, but he denied the officer’s report of what he was told, saying it was completely wrong. And whatever was written, it was not shown to him, for him to check it for accuracy. 30.Mr Lam, driver of the bus, said that the traffic in the 1st lane to which he was giving way and which caused him to come to a stop comprised the Toyota and motor scooter of the litigants. When he first observed them they were approaching and then passing his bus. The Toyota was doing about 40 kph. The motor scooter was doing about the same. The scooter was positioned on the Toyota’s offside, with its front wheel up to an imaginary projected line across the rear of the Toyota and about 1 foot from it. As they passed his vehicle, still stationary, the car moved as if to cut into the 2nd lane and across the path of the motor scooter. 31.And so they collided, in the manner depicted in the undisputed evidence I have referred to. 32.It was his considered view that immediately prior to the collision the motorcyclist must have seen the car. It was also his view that had the car driver used his left wing mirror prior to manoeuvring as he did then he would have seen the scooter. It would not have been in a blind spot. Analysis 33.I have no reason to doubt the evidence of Mr Lam or its accuracy. The accident happened over 4 years ago but he was able to remind himself of events by referring to the statement he gave the police. He had the vehicles in his view from the first time he saw them until the accident. 34.What he was unable to address were the relative positions of the vehicles up to the time they arrived alongside the bus. Did Mr Chan approach and overtake Mr Cheung, then cut across his bows, or was Mr Cheung tailgating, that is, driving at a position too close for comfort and safety, which proved his undoing? As Mr Bharwaney, representing the plaintiff, observed, their relative positions that Mr Lam spoke of represented a snapshot in time, and would not necessarily be as they were a few seconds earlier. 35.What is unusual is that both parties claimed not to have seen the other’s vehicle until after the collision, although Mr Cheung did sense a presence just before he was struck. That may be a pointer to the issue of negligence to which I shall return. 36.One matter I pay heed to is that Mr Chan’s evidence may have been self-serving and questionable. He was variable in his various accounts in writing and from the witness box concerning his speed as he approached the point of impact. His statement to the police was silent on the all important matter of whether he checked his rear vision mirrors before changing lanes. 37.And then there is the account of PC Au Yeung. Of course he was not called and his account of what he was told could not be evidence of what happened. But as Mr Bharwaney submitted, it was evidence of what he was told. Although Mr Chan denied that was what he had said, one would have to wonder how otherwise it was that the statement was thus written. If indeed he was told that, it indicates Mr Chan in pretending he saw the scooter emerging from the other side of the bus was capable of making up on the spot a version which clearly did not happen. 38.Mr Chan’s speed, I am satisfied, was not moments before the collision between 0 and 10 kph. Mr Lam said he was doing 40. It is hard to be accurate about the speed of a vehicle unless one is following it or has a mechanical device such as radar. But, Mr Lam is a driver by profession with much experience, and would have been as good a judge as any of the speed Mr Chan was travelling at. 39.Mr Chan owed a duty of care to himself and others not to undertake the manoeuvre he was to attempt without ensuring the way was clear. The presence of the scooter in the vicinity of his vehicle immediately prior put both vehicles at risk. 40.I am satisfied he did not bother to check his mirrors, or otherwise keep a proper look out, for had he done so he would have seen the scooter. But he did not. 41.It is quite likely that the presence of the stationary bus spurred him to move on ahead and across the front of it without fear of impeding other traffic. 42.What of the part the plaintiff played? 43.If his evidence is to be believed he was not tailgating and thus the only possible scenario is that he was in the course of being overtaken when Mr Lam first spotted him. 44.I see no reason why he should not be believed. As Mr Bharwaney submitted, Mr Cheung did not come across as a daredevil, capable of driving dangerously just for the thrill of it. 45.Why did he see neither the bus nor the car until after the collision? 46.That may be explained by the nature of the vehicle he was in charge of. A motor scooter is highly manoeuvrable given its compact size and small wheels. But it is also less stable having but two small wheels as against four bigger ones. There was no direct evidence of that but it is common knowledge of which I take judicial notice. And Mr Cheung’s habit was to avoid the greasy middle of the lane so as not to exacerbate that comparative lack of stability. 47.He may well have been concentrating on the path immediately ahead; after all, he was not about to change lanes. In these circumstances, it is quite possible that he could have had only a momentary impression of the Toyota if it was coming up to him just before impact. It is harder to justify his not seeing the bus, which was stationary and ahead. Perhaps he simply did not register its presence because it was not a risk. But in any event that is not a matter going to causation. 48.In the circumstances, I am satisfied that Mr Chan in failing to keep a proper lookout before attempting the manoeuvre of changing lanes was negligent and caused the collision, and is thus liable for the consequences in damages. 49.On the other hand, I find it not established that Mr Cheung contributed in anyway. 50.I come now to consider the loss for which Mr Chan is liable. The Injury and Treatments 51.With Mr Cheung’s right ankle displaced, in pain and swollen, he was admitted to hospital forthwith. There he was diagnosed to have suffered a bimalleolar fracture, that is, a fracture of the right tibia and fibular. 52.No other injury was reported or found. 53.Open reduction and internal fixation under spinal anaesthesia was performed on the same day. Post operative x-rays revealed satisfactory alignment. He was discharged on 27 October, that is after one week. The syndemiosis screw was removed under spinal anaesthesia in February 2002. 54.Meanwhile, he began physiotherapy as from December 2001. This continued up to and then after his second operation. That treatment comprised ankle mobilizing and strengthening exercises, proprioceptive training and gait re-education. The course came to an end in July 2002. 55.In December 2002, Mr Cheung began a course in occupational therapy. Then he complained of right ankle pain, a limitation of motion and strength with decreased tolerance in sitting and standing. 56.I mention now that Mr Cheung said in evidence that he began suffering back pain following the accident and blamed it on the accident. But, there is no indication from the medical reports that he had complained of a back injury at the time or subsequently until this time about 14 months later. When he did make the complaint an examination revealed no neurological deficit. 57.During the course of his therapy, Mr Cheung let it be known that his work as a commercial vehicles dealer required him to drive heavy duty trucks and the like so he was referred to the Rehab Aid Centre for driving tests. These were undertaken on three occasions between May and July 2003. Mr Cheung whose own evidence is that he has driven for years and is licensed to drive a wide range of vehicles was found to be able to drive competently and effectively, but save for his reaction time when it came to emergency braking. This was assessed at 1.93 seconds when he was first tested. There was an improvement to one second by the third test in July but that was considered too slow. The normal time is .6 of a second. It was noted that Mr Cheung appeared to be reluctant to apply the appropriate force on the brake pedal because of residual pain. 58.Physiotherapy concluded in September 2003 when it seemed there was no progress in pain and function. He was discharged from occupational therapy in March 2004 when his condition was found to be static. 59.The implants within Mr Cheung’s right ankle were removed in April 2004 and he was last seen in the Department of Orthopaedics in May 2004. He was granted sick leave to June 2004. 60.Meanwhile, a further symptom had emerged. Mr Cheung had been complaining of sleep loss and irritability and of hearing a voice in his head ordering him back to work. He was referring to a Psychiatric Outpatients Clinic and there seen three times between August and November 2003. During this time, he was diagnosed and treated for adjustment disorder with depression. Diazepam (valium) and zopiclose (sleeping pills) were prescribed. Treatment concluded when he failed to show up for an appointment in December 2003. Mr Cheung’s Account 61.Mr Cheung said that at the time of the accident he had been working for Forefront International (HK) Limited as a sales executive of commercial vehicles. There will be more detail about this following; suffice to say for the meantime that his income in the main depended on commissions from sales and from introducing purchasers to insurance agencies, finance companies and the like. He regards an essential feature of the job the ability to drive heavy duty trucks in order to show them off for sale and to test drive and value prospective trade-ins. 62.The accident and consequent injuries put paid to his ability to perform his duties and he resigned or was terminated and has not worked since. This has put severe financial pressure on him; that was exacerbated by reversals he suffered whilst investing in the stock market. He was obliged to borrow and then to sell his house to meet his debts. 63.His marital relationship has suffered and he and his wife are now separated. So he has no income, no assets and no marriage. 64.He currently suffers from pain in his right leg to the ankle and he has tenderness and pain in his back. He has difficulty in walking, standing and sitting, and suffers from sleep deprivation. He is on medication for the pain. 65.The back pain stemmed from the accident even though his medical records are silent on his having complained about this. He said he did mention it and was prescribed painkillers, but the symptoms have persisted. 66.He can drive but only slowly, and cannot react quickly when braking because of the pain and tenderness in his ankle. This was illustrated when he did not react in time to avoid colliding with a taxi which was his fault. So it is that he cannot return to his former employment or previous line of work. Expert Opinions 67.For the purpose of assessing the level of seriousness of his injury and other complaints, Mr Cheung was examined by orthopaedic specialists from both sides (Dr Lau Hoi Kuen for the plaintiff and Dr Au Ka Kau for the defence) and psychiatrists (Dr Chung See Yuen for the plaintiff and Dr Lo Chung Wai for the defence). At a pre-trial checklist hearing a Master ordered a joint medical report from Drs Lau and Au and reports from each of Drs Chung and Lo, with no oral evidence. 68.The orthopaedics examined Mr Cheung together in May 2005. After reviewing the medical history I have already outlined, both agreed that the operative procedure and subsequent treatment and rehabilitation that Mr Cheung received were appropriate and of a high standard. 69.However, Mr Cheung still complained of persistent pain in his back and right ankle with a disturbed sleep pattern. He told them the pain became worse after he had been walking or standing or sitting for longer than 15 minutes. 70.Both doctors were of the view that notwithstanding this subjective tenderness over Mr Cheung’s right ankle, the absence of muscle wasting and the good healing of the ankle fracture suggest he should have recovered well. 71.They disagreed about the low back pain Mr Cheung complains of. Dr Au pointed out that there is nothing in the reports after the accident about this, and it is most unlikely that if there is a problem it was because of the accident. In fact, Dr Au thought he may be exaggerating his symptoms with a view to getting an enhanced award. 72.Of Dr Lau’s view the report states :
That said, there is nothing in the report where he disagreed with or countered Dr Au’s proposition that it is unlikely that it was caused by the accident. 73.Both shared the view that Mr Cheung can return to his former occupation of selling commercial vehicles. 74.As to impairment, both stated that 3% whole person impairment is warranted because of residual pain in the right ankle and stiffness. But Dr Au went on to opine that because there were indications of exaggeration something below that may be appropriate. 75.On the issue of the back, the report reads :
But Dr Au’s opinion was otherwise, as follows :
76.Both differed on the appropriate period of sick leave because of the different approach concerning the back. Dr Lau said it should have run to June 2004, following the removal of the implants. Dr Au said that should be to August 2002, with some time off when the implants were removed. Dr Lau said he regarded that as premature, given that occupational therapy was continuing. 77.I come now to the views of the two psychiatrists. 78.Dr Chung after examining the medical records and an interview with Mr Cheung formed the view that he was suffering from adjustment disorder with depressed mood, which was caused by the accident and its aftermath, exaggerated by his marital separation and financial problems. He said of the examination :
79.He described the impairment as mild, with the treatment he had undergone (in the public sector) as appropriate. He was of the view that treatment should be continued for another year; if in the private sector this would cost $18,000. He estimated impairment at 3%. 80.Dr Lo did not agree with that diagnosis. Mr Cheung did not appear to be depressed and said as much. It was his view that he suffered from “Adjustment disorder of the unspecified type” for a period in 2003. Adjustment disorders typically are cured once the stressor which gave rise to it or its consequences goes away or is resolved. He said this would have been by April 2004, when the implants were removed. He too thought that the public sector treatment was appropriate. As for impairment he regarded that psychiatrically this was insignificant. 81.Dr Chung was presented with Dr Lo’s report and did not resile from his original diagnosis. Discussion 82.On the issues now to be resolved the first concerns the lower back pain of which Mr Cheung now complains. 83.A re-read of the joint report reveals that there were on examination physical signs that this was a genuine rather than made up complaint albeit possibly exaggerated. But I reject Mr Cheung’s assertions that he complained of this as one of the injuries when he was first admitted and thereafter. The complete absence of any note of this satisfies me he did not. And with the first indication of it 14 months after the accident there has been no medical opinion given that the two are related, and how this can be. Dr Lau did not give one; as I have noted, he did not seek to counter Dr Au’s view that there was unlikely to have been a connection. 84.In assessing the loss, I discount the low back pain as a consequence of the accident because it has not been established that it was. 85.Of the differing psychiatric views, I have to say I prefer that of Dr Lo. It may be overly simplistic but if a man says he is not depressed and gives that impression after a detailed interview then it would seem to me that he is not displaying the symptoms of depressed mood. 86.I also note that a significant stressor is and has been financial insecurity. The award that Mr Cheung will now receive should cause that to go away. 87.That said, I pay heed that there has been mild psychiatric impairment, albeit a temporary condition. 88.I come now to the level of compensation under the usual recognized heads. PSLA 89.Counsel put before me several cases where the victim’s injury or at least primary one was a Pott’s fracture (as the ankle fracture can be termed) with future impairment. I am assisted by these. Taking account also of a mild temporary psychiatric condition, I fix the award under this head at $325,000. Loss of Earnings 90.What has been immensely useful in this case has been the production of Inland Revenue returns filed by Mr Cheung and his employers. These are a comprehensive and reliable record of what he earned for the years ending March 1999, 2000, 2001 and 2002. The accident of course occurred in October 2001. 91.Until some time in early 2000, Mr Cheung was employed by Universal Cars Limited. This is a subsidiary of Mitsubishi. Mr Cheung was employed as a salesman selling Mitsubishi heavy duty vehicles. 92.In June 2000 he switched to Forefront International (Hong Kong) Limited. Thereafter until the accident he was so employed, save that his designated employer did switch to Allen Yang, a related person or entity. 93.Through the years of full employment the pattern was the same; a modest basic income of about $5,000 per month plus commission on the sale of each vehicle he sold. He also earned commissions from various finance companies and an insurance company and the like if he was able to persuade a purchaser to put his business for a particular product or service that way. 94.So it was his income varied. 95.For the years I have referred to it was $211,525, $497,634, $270,350 and $301,375. Of course the final year was disrupted by the accident before the end of the 7th month. But the figures are skewed by a lapse of time between the earning of a commission and the payment of it. 96.Mr Bharwaney took time to make calculations which as far as could be ascertained revealed a monthly average at the time of the accident allowing for commissions earned but not paid. I accept his calculations are a reasonable indicator. That comes to about $30,000 per month. 97.As for the period of sick leave; the orthopaedic surgeons were materially at odds about this, probably because of the inclusion, or not, of the low back pain into the equation. I have rejected the back pain as having been caused by the accident; thus I find Dr Lau’s assessment to be significantly too long. 98.Mr Hemmings representing the defendant opts for one year. I think that is about right, but I include a further one month to cover the period of time during which the implants were removed. 99.As for what work Mr Cheung could have returned to; the defence takes issue with his claim that driving is an essential feature of that, and of heavy duty vehicles, and that his disability prevents his being able safely to drive, as demonstrated by the driving tests he underwent in 2003. 100.However, I am satisfied that the driving of the merchandise and prospective trade-ins was a necessary function of Mr Cheung’s duties, and I also accept that he can no longer drive, at least not safely. Thus a change of occupation is necessary. 101.Mr Bharwaney produced tables to show that a salesman in insurance could earn $20,000 per month and that that would be a reasonable expectation for Mr Cheung. I am prepared to adopt that as reasonable. 102.As for the multiplier; given Mr Cheung’s age, I find seven to be also reasonable. 103.The calculations come out as follows :
MPF 5% of $780,000 = $39,000 5% of $840,000 = $42,000 Loss of Earning Capacity 104.The amount claimed is six months loss of earnings and I accept that is reasonable. This figure is $120,000. Other Special Damages 105.There is an almost complete absence of receipts under this head; yet surely Mr Cheung would have been told to keep a record. 106.What are claimed are as follows :
There is also a claim for $18,000 for psychiatric treatment in the private sector. 107.Mr Hemmings points out that these figures in part include the cost of treating the back ailment, and should be reduced as a consequence. 108.I agree. Doing the best I can, I fix on the following specials :
109.I reject as unnecessary and inappropriate the need for psychiatric care, whether in the private or public sector. Interest 110.That will be at 2% on the general damages from the date of the writ to the date of this judgment, and at half the judgment rate from the date of the accident to the date of this judgment. Employer’s compensation 111.This came to $457,236.48 for which credit is to be given, before calculation of the interest. Costs 112.These are nisi. Costs are to the plaintiff, and his own costs are taxed under Legal Aid Regulations. 113.I shall leave it to the parties’ legal representatives to agree the arithmetic, with liberty to apply if they cannot.
Mr M Bharwaney, instructed by Messrs Winnie Leung & Co., for the Plaintiff Mr J Hemmings, instructed by Messrs Massie & Clement, for the Defendant Appeal dismissed: see CACV179/2006 dated 11 January 2007 | |||||||||||||||||||||||||||||||||
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