Chan Fu Man v. Lam Fook Loi and Another
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HCPI 962/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 962 OF 2004 ____________________ BETWEEN
____________________ Before : Deputy High Court Judge Longley in Court Dates of Hearing : 26-29 June and 25 October 2007 Date of Judgment : 21 November 2007 ____________________ JUDGMENT ____________________ 1.The plaintiff, now aged 44, seeks damages for personal injuries arising from an accident which occurred almost six years ago sometime after 3 a.m. on 3 November 2001, while he was a front seat passenger in a medium goods vehicle GM8449 driven by the 1st defendant and owned by the 2nd defendant, a well-known supermarket company. 2.At the time of the accident, the 1st defendant was driving the vehicle on his third and last delivery round of the night. There were two passengers in the front seat of the vehicle, the plaintiff and a Mr Mak Man Fai, both truck attendants / delivery workers who were responsible for loading and unloading the vehicle. The plaintiff was sitting closest to the front passenger door. Mr Mak sat in the middle. 3.The vehicle was in the vicinity of Jubilee Garden heading in an east bound direction along the Tai Po Road, Shatin, in the direction of Tai Po. The road was a dual carriageway. The vehicle was in the inside lane. 4.Very shortly after passing the entrance to a slip road which by led way of a flyover up over the Tai Po Road to Penfold Park, the vehicle left the carriageway and collided with the offside wall of the flyover to its left causing substantial damage to the left side of the vehicle and personal injury to the plaintiff. He sustained a fracture to the patella of his left knee and the rupture of two ligaments in the same knee as well as the rupture of a ligament in his right knee. 5.The plaintiff claims that the collision was a result of the negligent driving of the 1st defendant. 6.The 1st defendant denies any negligence on his part. He attributes sole blame for the accident to an untraced dark coloured private car which he alleges had suddenly cut in on him at high speed from his right. 7.The 2nd defendant accepts that it is vicariously liable for any negligence by the 1st defendant, which it also denies. LIABILITY The plaintiff’s case 8.The plaintiff admits that at the time of the impact, he was half awake / half asleep and therefore cannot give evidence as to what occurred immediately beforehand. 9.His evidence, however, was that he had noticed a slowness or what he described as “laziness” on the part of the 1st defendant before and at the start of the journey. He said that when the 1st defendant had been informed of the destination of the journey, he had not responded and that it was as if “his mind was not with us”. The 1st defendant had failed to go to the back of the vehicle to check a code number that appeared there. During the course of the journey, the 1st defendant had allowed the engine to stall on one occasion and had needed to restart the vehicle. 10.The plaintiff said that the collision had woken him and as soon as he opened his eyes, before realising that he or Mr Mak had been injured, he saw no sign of any other vehicle on the road ahead. 11.He alleged that the 1st defendant had not stopped the vehicle immediately after the accident but had made a telephone call to someone reporting the accident and saying that it was due to him falling asleep. On hearing these words, Mr Mak had become angry and abused him. The 1st defendant had then apologised to them saying that he had “dozed off”. 12.The plaintiff had asked the 1st defendant to stop the vehicle so he could check his injuries but the 1st defendant had ignored him and continued driving. It was only after the plaintiff had insisted that he stop the truck and make a report to the police that the 1st defendant had made a second call, apparently to his superior, and stopped the vehicle. The defendants’ account 13.The defendant denied that he had stalled the vehicle prior to the accident. 14.His evidence was that just prior to the accident, he was travelling along Tai Po Road on the inside lane at 60 mph. In his right side mirror, he noticed a dark coloured private car coming up behind him in the second lane at very high speed. That vehicle had suddenly, without any apparent reason, cut into his lane about half a car’s lane in front of his vehicle. His reaction was to step on the brake and swerve sharply to the left to avoid the car. Almost immediately his vehicle had struck the wall of the flyover. He had then stopped his vehicle. He had asked both passengers whether they were injured but they had not replied. He had then restarted the vehicle in order to find a safer location to stop the vehicle. Although there were other places where he could have stopped the vehicle before the place he actually did so, he maintained that it had not occurred to him to stop there and that he had been engaged in asking his passengers whether they were injured. 15.On reaching the place where he eventually finally stopped, he made a 999 call and reported his location. He also made a call to his supervisor responsible for planning journeys, Mr Chan Hoi Bun. That was the only call he had made to his company. He denied ever saying that the accident had occurred because he had fallen asleep. 16.The defendants called Mr Chan Hoi Bun to give evidence of the call he received from the 1st defendant. 17.I have no hesitation in preferring the account given by the plaintiff to that of the 1st defendant. 18.If the defendant had been fabricating an account, I consider it most unlikely that he would have admitted that he was not fully awake at the time of the accident. His account of what happened after the accident struck me as having the ring of truth. In particular his account of Mr Mak having become angry upon hearing the 1st defendant informing someone over the telephone that he had fallen asleep and the defendant then having apologised for having done so as well as his account of his attempts to persuade the 1st defendant to stop the vehicle. It was apparent from the video film taken by the defendants’ solicitors that was quite a considerable distance between the scene of the accident and the place that the 1st defendant ultimately stopped the vehicle. Mr Bharwaney accepts that there were earlier places that the 1st defendant could have safely stopped the vehicle. In my view, if the 1st defendant was so concerned about injuries to his passengers, he would have stopped the vehicle at the first safe opportunity rather than continuing to drive as he did. 19.There was no apparent reason why the driver of a private car would have wanted to cut in onto the inner lane in front of the 1st defendant’s vehicle at the point he allegedly did. There is no suggestion for instance that the second and third lanes were obstructed by other slow moving traffic. It was the early hours of the morning and the evidence was that the traffic was light. The next exit from the Tai Po Road which led to the University was half a kilometre ahead allowing time safely to pass the 1st defendant’s vehicle before changing to the inner lane. Mr Bharwaney has suggested that the sign visible on the right of photograph exhibit D5(b) at the entrance to the slip road to Penfold Park (which indicates with an arrow that the next exit for the dual carriageway was ½ km ahead) may have led to the vehicle suddenly changing lanes. It has, however, to be borne in mind that that sign would have made it clear that there was not an immediate need to be in the inside lane as the exit was some distance ahead. 20.Furthermore I am satisfied that the photographs of the damage to the wall and the vehicle taken that night are more consistent with the plaintiff’s version of events than that of the defendant. If the vehicle had struck the wall as a result of suddenly having swerved to the left, one would expect the wall to show more pronounced damage at the point of first impact. That does not appear to be the case in the photographs that appear at page 125(b) and (c) of the bundle. The later marks appear to be more pronounced than the earlier ones which is more consistent with the car drifting off the road. 21.In his police statement, the defendant said when the private car had cut in on his lane, he had immediately “applied the brake” to his vehicle. His evidence-in-chief was that his reaction was to “step on the brake and swerve to avoid the car”. Those would be the immediate and natural reactions of someone in that position. The photographs, however, display no sign of brake marks even though the ground directly beneath the wall along which the vehicle had scraped was grass. 22.The 1st defendant’s later assertion in cross-examination that he had not braked forcibly gave me the impression of a belated attempt to provide some sort of explanation for the absence of marks of braking. 23.The damage to the vehicle is in my view instructive. It appears from photograph (c) that appears at page 172 and (a) at page 126 of the bundle that the damage ran along the whole left side of the vehicle. What appears to be the greater damage occasioned to the front left side of the vehicle can be accounted for by the vehicle ultimately coming in contact with the concrete protrusion that appears in photograph (b) at page 126. 24.This damage appears to be more consistent with the whole vehicle scraping along the wall and then the front coming in contact with the protrusion than with the vehicle suddenly swerving to the left and hitting the wall. 25.I did not find the evidence of Mr Chan Hoi Bun, the journey supervisor at all convincing. It seems to me highly unlikely that if the 1st defendant had reported that an accident had occurred and that someone was injured, he would not have inquired how the accident occurred and how serious the injuries were. If the accident had occurred as a result of someone suddenly cutting in on him, I believe the 1st defendant would have immediately said so to his supervisor. According to Mr Chan, the 1st defendant did not do so. The evidence of Mr Chan did nothing, in my view, to discredit the plaintiff’s evidence that the 1st defendant had made two telephone calls. Whether the first call was made to Mr Chan or to Mr Lo Hing Wah, the “driver supervisor” (which the 1st defendant denied) or indeed someone else, I am not in a position to decide. 26.It follows from these findings that the 1st defendant failed to exercise proper control over the vehicle at the material time. I find that the plaintiff has established liability on the part of the defendants. There is no allegation of contributory negligence. QUANTUM 27.A number of heads of damage are agreed, namely :
28.The plaintiff abandoned his claim for loss as a result of selling back his flat to the Hong Kong Housing Authority under the Tenants Purchase Scheme. 29.It is admitted that the plaintiff received the sum of $359,714.80 as Employee’s compensation for which he will give credit to the defendants. 30.The matters remaining in issue are :
Plaintiff’s working capacity 31.There is little dispute as to the plaintiff’s medical condition. He was the subject of a joint medical report by Dr David Cheng and Dr Arthur Chiang who saw him together on 20 December 2005. 32.The injuries sustained by the plaintiff to his left knee were fracture of the patella, rupture of the posterior cruciate ligament and rupture of the lateral collateral ligament complex. The posterior cruciate ligament in his right knee was also ruptured. He has undergone surgery on a number of occasions. 33.The two doctors said this about his condition :
34.As a result of video film taken of the defendant without his knowledge in December 2005 and on three occasions in the first part of 2006, there was some dispute as to the length of time the plaintiff is able to walk comfortably with and without a stick. 35.The plaintiff now accepts that he is able to walk for 30 to 40 minutes without a stick before he needs to rest by sitting down. It is apparent from the video film that, except when he is going out for short periods, he carries a stick which he uses from time to time. He walks with a limp, which can be more or less pronounced. From time to time he needs to use a handrail when going up and down steps. He is capable of carrying weights of less than 5 kg. Regarding his capacity to undertake employment, the two doctors said :
36.I accept the plaintiff cannot perform the work of a warehouse attendant, delivery worker, forklift truck operator or printing worker, all occupations he has undertaken in the past. In practice the first three occupations all require someone capable of lifting relatively heavy goods. For the reasons given by the doctors, he could not work as a printing worker. 37.As well as the jobs suggested by the doctors, I consider he could also perform jobs such as a security guard or carpark attendant. By reasons of his limp and the need to carry a stick, he is, however, handicapped in competing against other applicants without such disabilities. Pre-trial loss of earnings 38.Drs Chan and Chiang stated in their reports of 2 February 2006 that they would have recommended sick leave from 3 November 2001 until 24 November 2004 (i.e. 36.83 months). They did, however, state that the plaintiff’s treating doctors had recommended sick leave up until July 2005. Bearing in mind that his treating doctors would have been in a better position to assess his condition at the time, I consider a period of 44 months’ sick leave is appropriate. 39.The plaintiff’s evidence was that despite making many job applications, he was not being able to find employment save for a period between about February or March 2006 until September of that year when he worked for Asia Production, a firm belonging to a friend who engaged him to deliver samples to customers at a salary of about $1,200 per month. 40.The fact that he was prepared to accept this job at such a modest salary at this stage and his early attempts after the accident to undergo retraining persuade me that he is someone who has made genuine attempts to find work. 41.It does appear that after his employment with Asia Production, although he had continued to seek work, he did not apply for the full range of jobs available to him. Although the job of carpark attendant may involve some walking, I believe it was andis work within his capacity. He has friends in that occupation. He says that these friends had discouraged him from taking it up because of the low salary and the long hours. 42.I consider that he could reasonably have expected to obtain such a job at a salary of $5,000 per month by the end of 2006. I have being referred to wage statistics. I consider that the plaintiff would have been only likely to be able to earn a salary at the bottom of the available range. 43.The plaintiff’s pre-accident earnings of $9,813 per month are agreed. 44.Had he worked at his pre-accident employment from the date of the accident until trial, he would have earned $704,106 ($9,813.33 x 71.75 months). Deducting his total earnings from Asia Production at $8,400 (i.e. 7 months) and the salary he could have earned as a carpark attendant of $48,750 ($5,000 x 9.75 months) I find his pre-trial loss of earnings as :
His pre-trial loss of MPF is :
Post-trial loss of earnings 45.I consider a multiplier of 10 is appropriate bearing in mind the nature of the applicant’s previous employment.
Loss of earning capacity 46.I consider that there are likely to be periods in the future when the plaintiff finds himself out of employment by reason of his disability. I consider an award of $60,000 (12 months at $5,000 per month) is appropriate under this head. CONCLUSION 47.In summary, the damages assessed or agreed are as follows :
48.There will be judgment for the plaintiff in the sum of $1,624,270. INTEREST 49.Interest is awarded at 2% per annum on damages for PSLA from the date of service of writ until the date of judgment. Interest is awarded at half judgment rate (i.e. 5.375%) on damages for pre-trial loss of earnings, special damages and value of wife’s services from the date of the accident until 27 July 2004 (the date of payment of Employee’s compensation). Interest on the balance outstanding after deduction of the Employee’s Compensation is payable at the same rate until judgment. COSTS 50.I make the following order nisi as to costs that unless either party applies within 14 days to be heard on the question of costs the plaintiff’s costs be taxed and paid by the defendants. The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.
Mr Ashok Sakhrani, instructed by Messrs Simon Si & Co., assigned by the Director of Legal Aid, for the Plaintiff Mr Mohan Bharwaney, instructed by Messrs Munros, for the 1st and 2nd Defendants |
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