Tai Mei Lin v. Fung King Kong and Another

HCPI 425/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 425 OF 2006

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BETWEEN

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Before: Deputy High Court Judge Gill in Court

Dates of Hearing: 25, 26 and 28 June 2007

Date of Judgment: 12 July 2007

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J U D G M E N T

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1.Just after midnight on 25 May 2003 the plaintiff Madam Tai was one of four passengers in a Honda saloon car driven by her son Fung King Kong the 1^st defendant.

2.The party had been guests at a banquet held in Yuen Long hosted by a relative, and were heading home along Tai Tong Road towards Tai Tong. 

3.But there was an accident.  As they approached a slight left hand bend in the road Mr Fung caused the car to swerve to the left and it struck railings bordering the carriageway.

4.The impact injured Madam Tai.  The most serious injury was a fracture of the neck of her left femur or hip.  This required emergency surgery to repair the break and, some years later, total hip replacement surgery.

5.Madam Tai has not fully recovered and remains permanently partially disabled.  By this action she is suing the driver, her son, and the owner of the car, Mandy Lee, the 2^nd defendant, for her consequential loss arising out of Mr Fung’s negligent driving.

6.The defence as pleaded by both defendants and adduced in evidence is that Mr Fung was undertaking an emergency manoeuvre to avoid a collision with a public light bus.  The PLB had emerged from the exit of a petrol station that was on the right hand side of Tai Tong Road and had turned right into the lane occupied by the Honda and just ahead of it.

7.To avoid hitting the PLB Mr Fung had no alternative but to swerve to the left.  But this action took him into a collision path with the railings which brought the car to a sudden and violent stop.

8.Mr Fung was not negligent or responsible for the accident or his mother’s injuries; that was entirely the fault of the driver of the PLB. 

9.But the PLB driver cannot be brought to answer to his conduct.  Mr Fung was unable in the time available to read and commit to memory the PLB’s registration number before it disappeared into the night; if there were attempts made to trace the driver (perhaps a search of the petrol station’s records) they apparently have not borne fruit.

The Accident

10.The police attended the scene shortly after the accident and there are sketch plans and photographs.

11.Tai Tong Road is a dual carriageway with a broken white line separating the two lanes.  Ms Lee’s Honda had come to rest against railings which divided the left hand lane and a cycling lane with a force that damaged the railings and wrecked the front of the car.  The point of impact was opposite a Caltex Petrol Station, with an exit positioned consistent with Mr Fung’s defence.

12.At the time in question the weather was fine and the road surface was dry.  There were no brake or skid marks left on the road by the Honda.  The speed limit of Tai Tong Road is 50 kph.  There was no suggestion that the car was not mechanically sound.

13.Mr Fung was breathalysed at the scene.  That established there was no alcohol in his blood.

14.All of those in the party were relatives or friends.  As it happened one of the passengers was Ms Lee, the owner of the Honda.  They had been travelling for no more than a few minutes before the accident interrupted the journey home.

15.Curiously, only Mr Fung was able to give a meaningful account of how the accident came about.  His four passengers were invited to make statements and did so.  All including Madam Tai gave the same account:  “At that time I did not see the occurrence of the accident”.  There was no explanation as to why.

16.Of the passengers only Madam Tai made a statement for use as evidence in this action.  In it she stated:  “At the time of the accident, as it was so late, I closed my eyes for a rest so I did not know what happened”.

17.Mr Fung stated in his witness statement (which formed the basis of his evidence-in-chief) that he was driving at a steady pace of around 50 kph.  Traffic was light; there were no other vehicles ahead of him and none in the opposing lane.

18.As he approached the Caltex Service Station he noticed a PLB stationary at an exit point ready to emerge into Tai Tong Road.  He surmised that the PLB’s driver was intending to turn right and thus enter his lane, for the way was clear in the opposite direction and it could have turned left into that lane without interruption.  He assumed the driver was waiting for the Honda to pass, and he held steady his speed and direction.

19.But just before he got to the exit, the PLB suddenly emerged and turned at high speed right and towards and then into his line of travel.  To avoid a collision he braked and swerved to the left.  But this caused him to ram into the railings on the left, bringing the car to a sudden, dead stop.

20.The PLB proceeded on.

21.It is worth noting that Mr Fung’s account to the police at the scene, and again to the police when under caution for the offence of careless driving later in the day at a police station, and again in the witness statement as evidence-in-chief, all more or less matched.

22.In the event there was no prosecution.

23.But further evidence emerged from Mr Fung from the witness box.

24.He got his driver’s licence in 1996.  Since then he has not been a frequent driver save for a brief period in 1999 when he owned a car.  He described himself thus as an inexperienced driver with “not very good skills”.

25.This was the first and only occasion when he had driven his friend’s, Miss Lee’s, Honda. 

26.He allowed that he might have been travelling in excess of 50 kph immediately prior to the accident.

27.He agreed with the proposition that when the PLB suddenly emerged his primary reaction was to swerve the car left rather than apply the brakes.  He agreed that there were no brake marks left on the road.

28.It was put to him:  “Looking back, do you agree that if you had braked you would have avoided the accident.  You over-reacted to the pulling out of the PLB.”  His response:  “I agree”.  And when he was asked:  “Was it possible that the PLB pulled out when you were further away than you have described?”  His response was:  “You could say that.”

Discussion

29.I am satisfied there was a PLB stationary and waiting to emerge into the lane occupied by the Honda as described by Mr Fung.  He was the only eye-witness of this.  But if it were not so then it would have to be because he fabricated his story from the time he was first asked about it at the scene up to his testimony at the trial.

30.I am satisfied he told the truth.  And were there to have been no PLB, there would have been no reason, with no actual or potential interference, for him to swerve left and ram into the railings.

31.But it is his account of events thereafter with which I have some concern.

32.From the standpoint of the PLB’s driver there are questions that arise.  That he had brought the PLB to a standstill before emerging from the petrol station demonstrated proper caution as he assessed the appropriate time to drive back on to Tai Tong Road.  Traffic was light; apparently only the Honda was on this section of the road.  Just as his PLB was clearly visible to the Honda’s driver, Mr Fung, so he would have had a good view of the Honda.  As a professional driver, he would better than most have been able to judge how far it was away and its speed, more or less, and to form a view as to whether there was room and time enough to turn into his path safely.

33.With this in mind, would he have undertaken the dangerous manoeuvre as described by Mr Fung?  Would he have put himself and his vehicle, and the car and its occupants at risk of collision?  Would he have risked the consequent civil action, and prosecution, and possible penalty of a loss of licence and loss of his livelihood?  The answer to all of these questions is an obvious:  “Of course not”. 

34.Further, the advantage gained would have been no more than a second or two of time.  It was not as if the traffic was heavy or even moderate, which might tempt a driver into cutting into a smallish gap between cars, to avoid a tedious delay.

35.Turning to the situation in the Honda, there is the curious feature that not one of the four passengers was aware of the PLB or the role it was said to have played in the accident.  The journey home was a short one and they had been on the road for just a few minutes.  Could they all have been sound asleep?  There was no evidence about that, but it seems unlikely.  Even Madam Tai said she was conscious, albeit “resting her eyes”.

36.It seems to me that if events really did unfold as Mr Fung described, that is with the PLB emerging at a high speed and into a collision path with them, all sorts of things would have happened to alert even a dozing passenger.  Perhaps an involuntary cry of alarm or anger from the driver.  Then a squeal of tyres as he stood on the brakes, and pressure on their chests as the seat belts took the strain of deceleration.  And the sudden close proximity of the PLB, tail lights blazing, before it accelerated away.

37.But all they were able to say was:  “I did not see the occurrence of the accident”.

38.Of course there was no apparent emergency braking.  Mr Fung conceded his primary way of avoiding a collision was the swerve to the left.  That explained why there was no rubber left on the road.  And the extent of damage to both the railings and front of the car indicates it was still travelling at significant speed when brought to a dead stop.

39.In my view the reasonably competent driver would have reacted to the sudden emergence of a vehicle which has cut in by braking with as much force as he could muster, and otherwise hold his line.  With the offending vehicle accelerating away and his vehicle decelerating in this manner, whatever collision might have resulted would have been comparatively minor.  Was it an appropriate option to react by swerving left heading thus for an immobile barrier, striking it with significant force?  I think not.

Determination

40.It seems to me that the PLB emerged because its driver believed that he had adequate room and time to manoeuvre safely, and that this was probably a correct decision.  Had there been a danger of an imminent collision the sudden prospect of danger would have been evident to Mr Fung’s passengers.

41.Mr Fung, an inexperienced driver with as he put it not very good skills, driving a car he had not driven before, over-reacted.  If he were at all concerned about the proximity of the PLB the appropriate course would have been to brake and if necessary brake hard, to allow the PLB to accelerate away, and otherwise hold his line.

42.The course he took, of swerving at speed into the railings, was inappropriate, and the sole or at least primary cause of the accident.

43.I do not discount the possibility that the PLB may have moved off just prior to the Honda passing it, thus to occupy the lane behind the Honda.  Mr Fung may have reacted to that manoeuvre.

44.Whatever it was that triggered his reaction I have to say it was the wrong thing to do.  Adopting the appropriate standards, I find he was negligent and liable in damages for the consequent injury suffered by Madam Tai.

45.I come now to deal with the measuring of those damages.

Background

46.Madam Tai was born in Hong Kong in June 1955 so that at the time of the accident she was nearly 48 and is now 52.  On her account she enjoyed good health up to the accident. 

47.She left school before concluding her primary schooling.  For some 28 years up to 1998 she had been employed as a textile worker.  Then from September 1998 she became a healthcare worker, looking after the elderly, employed by the Hong Kong Society for the Aged.  This lasted until the accident, when she was on $10,260 per month.

48.Madam Tai was widowed in 1993. 

49.Her primary home is in Tai Tong Road Yuen Long where she lives with her son Mr Fung.  She has one other child, a daughter.  The daughter is married with three children.  They have emigrated to the UK where they now live in Milton Keynes.

Post-Accident

50.Madam Tai was taken to Tuen Mun Hospital, examined and x-rayed, and found to have fractured the neck of her left femur, or thigh bone.  On the same day of the accident and admission she was operated on by closed reduction and internal fixation with screws.  She was discharged on 6 June 2003.

51.Thereafter she had regular follow-up out-patient appointments.  But a complication developed.  She was found to be suffering from avascular necrosis of the femoral head.  By all accounts this is a common development.  In September 2003 she was offered surgery to review the screws, but she declined, instead opting for physiotherapy.  Between July and December 2003 she had 11 sessions of physiotherapy. 

52.She was unable to work post the accident because of her disability.  In February 2004 she was certified to be medically unfit to continue as a healthcare worker and was obliged to retire.  In terms of her contract she was paid in full up to mid-October 2003, and after that nothing.

53.She was given sick leave certificates by Tuen Mun Hospital up to June 2004.  But she has not worked at all since the accident and remains unemployed.

54.What emerged from her evidence is that she has spent much of her time since the accident living with her daughter’s family in England.

55.Her first trip was undertaken in February 2004.  She said the deteriorating joint was becoming increasingly painful.  She could not get around without a stick.  She was in pain every day and got little sleep.  Her daughter was troubled and urged upon her to come to live with her so that she could look after her.

56.She agreed and went.  As a visitor she could stay for no more than six months.  But at the end of that time she was in too much pain to fly home.  Instead she took a quick trip to France and was then able to stay until April 2005, when she returned to Hong Kong.  Here she was offered surgery to review the screws, but declined that course.  Instead she returned to England, in May 2005, and her daughter’s care.

57.On her previous trip she had sought medical advice on her condition and it was recommended to her that she have a total hip replacement.  Back in England in 2005 she chose to have the operation; she had the surgery at Milton Keynes General Hospital in October 2005.

58.By all accounts the operation was a success.  There was residual stiffness and the leg is shorter by one centimetre.  She cannot squat, and suffers some pain when she has had to walk or sit for some time.  But the more or less continual pain she was suffering from with the onset of the necrosis is now of the past.  She has a mild limp but no longer needs a walking stick.

59.Madam Tai returned to Hong Kong in February 2006.  These proceedings were filed in May 2006.  There was a pre-trial review in which it was settled that the medical evidence be limited to one orthopaedic expert for each party.  In March 2006 she was interviewed and examined by Dr James Kong, the orthopaedic surgeon appointed by her side.  In October 2006 she was seen by Dr Danny Tsoi, the defence’s orthopaedic surgeon.

60.In the meantime she has made two further trips to England during last year and this year, returning just before the trial.

61.Asked why she had not worked at all since the accident, or at least since recovering from the hip replacement surgery, she responded that in the early years the extreme pain and her lameness rendered all work impossible.  After the second operation she chose not to look for work because of her low level of education and lack of skills or experience.

62.It is pertinent to note that under her contract with the Society for the Aged, Madam Tai might have had to retire when she got to the age of 55.  However it was her experience that a 55-year old in good health could expect to be able to continue working until the age of 60.  Given her state of health she would probably have been allowed to stay on.

The Orthopedic Reports

63.Dr Kong saw Madam Tai in February 2006 and reported a month afterwards.

64.After reviewing her medical history, he noted her leg had been satisfactorily treated with limited movement and residual stiffness and a limp.  He found her disability to be permanent and may require physiotherapy from time to time.

65.He was of the view that she could not revert to being a healthcare worker because of pain after exertion or a long walk, and because she can no longer squat.  But she could settle for less strenuous jobs and he suggested as a cleaner or receptionist.

66.He found the sick leave granted to her (up to June 2004) was reasonable.

67.Dr Tsoi saw Madam Tai on 3 October 2006, and reported two days later.

68.His conclusions following a review of her medical history and examination more or less matched Dr Kong’s.  However he did not agree that physiotherapy was warranted.

69.He agreed that she would have difficulty in carrying out her work as a healthcare worker but could undertake activity which did not require lifting weighty objects or squatting.

70.He also thought the period of sick leave was reasonable.

71.I now come to quantify Madam Tai’s loss.

Quantum

PSLA

72.The amount claimed for under this head is $400,000.

73.Mr Lam representing Madam Tai sought to justify this by reference to two cases involving a fracture of the femoral neck.  These are Yeung Hing Lun v Hao Tong Trading Limited (unreported), HCPI 132 of 2003, in which the award was $300,000, and Lau Tsz Wan v Caltex Oil (unreported), DCPI 1140 of 2001, where the payment was $250,000.

74.He submitted that the injuries suffered in these cases were singularly less serious, with no onset of avascular necrosis and the consequent severe pain, followed by total hip replacement surgery.

75.Miss Lau for the defence proposed $250,000 to $300,000.  However she did acknowledge that Madam Tai had had to suffer considerable pain for a long time.

76.I agree with Mr Lam that Madam Tai’s injury was graver than would justify a payment within Miss Lau’s range.  The pain she had to suffer was considerable and long term, necessitating the second operation.

77.I fix on $350,000 under this head.

Loss of Earnings

78.Both sides accept that realistically Madam Tai could have worked post the accident and I agree.  She conceded that she had not looked for work, had not answered advertisements or otherwise put herself forward at all.

79.Her age, lack of education and lack of work experience may have counted against her.  But these have been buoyant times; I am sure when she became fit enough she could have found something to do.

80.I rather get the impression that she is very close to her daughter given the frequency of her trips; perhaps that has been a reason why she has chosen not to tie herself down in Hong Kong.

81.The areas of dispute under this head are threefold.

82.The first, the date Madam Tai could have resumed work albeit at a lesser income, post the accident.

83.The second, the amount she could have expected to be paid.

84.The third, the appropriate multiplier to be factored in post-trial.

85.Miss Lau noted that both orthopaedic surgeons said that the period of sick leave which lasted until 9 June 2004 was reasonable, and submitted that she should have been able to get alternative employment from that date.

86.Mr Lam submitted that she was not fit to start work until after recovering from the total hip replacement operation, say not before April 2007.

87.I am inclined to this view.  It seems that neither orthopaedic gave adequate consideration to the all-consuming pain Madam Tai was suffering from as the necrosis progressed, and given that and that she had to use a stick to get around, I think it would not have been feasible for her to resume work until a reasonable period after the hip replacement. 

88.I think 1 April 2006 would have been a reasonable starting date.

89.It is Madam Tai’s case that the maximum she could be earning is $6,000 per month.

90.Miss Lau produced tables suggesting she could have earned $6,600 per month.

91.I am inclined to the view that given her age, lack of work experience and disability, the lower figure is the more likely one.

92.As to the appropriate multiplier; Madam Tai has just turned 52.

93.Mr Lam submitted she would very likely have been able to work until 60 but for the accident.  He proposed a multiplier of 7.

94.Miss Lau submitted that that amounted to far too small a discount given that the payment will of course be made in advance.  And there would have been no certainty that Madam Tai would have been taken on to work after she had got to 55.  She was of the view that 5 was the appropriate multiplier.

95.I am satisfied that Madam Tai more likely than not would have been extended, but that 7 is too high a multiplier; I propose to adopt one of 6.

96.The parties agree that the amount of post accident pay Madam Tai received was $43,000.  

97.I come now to quantify the losses.

Pre-Trial

$10,260 x 1.05 x 34 + ($10,260 – $6,000) x 1.05 x 16 - $43,000

= $366,282 + $71,568 – $43,000

Post-Trial

($10,260 – $6,000) x 1.05 x 12 x 6

Loss of Earning Capacity

98.Mr Lam proposes under this head these should be an award equivalent to 12 months’ income.

99.Miss Lau submits there should be none.

100.I agree with Miss Lau.

101.The sort of work that Madam Tai should be capable of engaging in is menial and low paid and she should have no difficulty and be under no disadvantage in the market in finding work.  That she is currently not working is because she has made no effort at all to get a job.

102.There will no award under this head.

Future Medical Expenses

103.The amount claimed for is $10,000.  No doubt this is influenced by Dr Kong’s view that regular physiotherapy may be necessary.

104.Dr Tsoi on the other hand says that no treatment is necessary.

105.I am not satisfied that Madam Tai can justify an award under this head.

106.There shall be none.

Miscellaneous Expenses

107.These are agreed at $1,240.

Interest

108.This is also agreed.

109.There shall be interest at 2% on the PSLA award from the date of the writ to the date of this judgment, and at half the judgment rate on the total special damages from the date of the accident to the date of this judgment.

The Award

110.This amounts to the following:

PSLA	$350,000
Pre-Trial Loss of Earnings	$394,850
Post-Trial Loss of Earnings	$322,056
Miscellaneous	$1,240
	$1,068,146
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And there shall be interest as aforesaid.

Costs

111.These are nisi.  The plaintiff shall have her costs, with her own costs taxed under Legal Aid Regulations.

Mr S Lam, instructed by Messrs Andrew Chan & Co., for the Plaintiff

Miss S Lau, instructed by Messrs Tsang, Chan & Wong, for the 1^st and 2^nd Defendants