Ho King Lam v. Lee Chien Hua
Read the full judgment text of HCPI 45/2006 on BabelCite. This High Court CFI judgment was delivered on 27 February 2009.
1. At about 9:30 pm on 20 March 2003, Mr Ho (the Plaintiff) was riding his motorcycle along Hing Shing Road. He (and his motorcycle) later ramped into the front right part of Mr Lee (the Defendant)’s light good van.
Cited by 3 cases · Cites 5 cases
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HCPI45 / 2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 45 OF 2006 ----------------------
---------------------- Before: Deputy High Court Judge Au in Court Dates of Trial: 12, 13 14 & 20 January 2009 Dates of Written Closing Submissions: 22 & 23 January 2009 Date of Supplemental Closing Submissions: 27 February 2009 Date of Handing Down Judgment: 22 June 2009 ---------------------- J U D G M E N T ---------------------- A. Introduction 1.At about 9:30 pm on 20 March 2003, Mr Ho (the Plaintiff) was riding his motorcycle along Hing Shing Road. He (and his motorcycle) later ramped into the front right part of Mr Lee (the Defendant)’s light good van. 2.Because of the accident, Mr Ho suffered certain serious injuries. His right hip joint was dislocated. He also suffered what is medically known as brachial plexus injury of his right arm. 3.As a result of these injuries, the uncontroversial medical opinions are that Mr Ho’s right arm is no longer of any practical functional use. He also walks with a limp and could not fully squat because of his right hip problem. He would need replacement of his right hip joint every 10-15 years. At the time of the accident, Mr Ho was 31 years old. 4.This it the trial of Mr Ho’s claim against Mr Lee for negligence in causing the accident and his injuries. Mr Ho claims damages in the sum of HK$5,727,506[1]. 5.Mr Lee denies liability and, if liable, disputes the quantum. Mr Lee also claims on an alternative basis that Mr Ho was contributorily negligent in causing the accident. 6.The core dispute in relation to liability is, as expected in cases of this nature, how did the accident occur. 7.But before I deal with the disputes on liability and quantum in detail, I will first set out what I regard as the essential and uncontroversial facts below. B. The undisputed facts 8.On the night of the accident, Mr Ho attended the evening class for training electricians conducted by the Hong Kong Institute of Vocational Education (“IVE”) held at the Kiangsu-Chekiang College (Kwai Chung) (“the School”). After finishing the class, Mr Ho came out of the School riding his motorcycle at about 9:30 pm. 9.After coming out of the School, Mr Ho turned left onto the lane of Hing Shing Road heading the southwest direction towards Kwai Fuk Road. 10.Hing Shing Road is a long straight two-lane road for two-way traffic. The two lanes are divided by a dotted white line in the middle. The width of each lane is about 4 metres[2]. 11.When one travels along Hing Shing Road in the direction towards Kwai Fuk Road (as Mr Ho did), one first passes the junction with Ko Fong Street on the left side, which is about 120 metres from the School. Further down towards that direction and right after the Ko Fong Street junction is the Lutheran School for the Deaf on the left side of the lane. After passing Ko Fong Street, and travelling for another 80 metres or so after the School for the Death, one passes on his left the entrance of the residential development known as Hibiscus Park. Thus, the total distance between the School and the entrance of Hibiscus Park is about 200 metres. 12.On the night of the accident, it is common ground that the traffic was light and smooth. The weather was fine and Hing Shing Road was well lit with the streetlights. 13.After coming out of the School, Mr Ho travelled along the lane of Hing Shing Road towards the Hibiscus Park direction (i.e., towards Kwai Fuk Road direction). 14.When he was approaching the Ko Fong Street junction, there was a private car entering into Ko Fong Street, with the tail of the car still partly on Mr Ho’s lane. Seeing the private car, Mr Ho steered his motorcycle towards the right and got past the tail of the private car. In doing so, he was still within the lane that he was travelling. 15.After passing the Ko Fong Street junction in the above-mentioned manner, Mr Ho continued to travel along Hing Shing Road on his motorcycle, and went past the School for the Deaf. 16.When he was near the Hibiscus Park, Mr Ho and his motorcycle collided with the right front head of Mr Lee’s van, which was then on its way heading into the direction of the entrance of Hibiscus park. Mr Lee was driving his van from the opposite lane of Hing Shing Road, turning to his right across the lane where Mr Ho’s motorcycle was travelling, heading into the direction of Hibiscus Park’s entrance. At the point where the collision occurred, Mr Lee’s van was partly across Mr Ho’s lane. 17.Upon the collision, Mr Ho fell from the motorcycle, and landed onto the ground. He was then sent to the A&E department of Princess Margaret Hospital (“PMH”), where he was diagnosed to have suffered from a fractured right pelvis and dislocation of the right hip joint. Later he was also found to have suffered from right brachial plexus injury. 18.Mr Ho has since undergone a number of surgeries for his right hip joint and brachial plexus injury. 19.In relation to the accident, Mr Ho was prosecuted for careless driving. However, at the trial on 5 January 2004, the prosecution decided to offer no further evidence, and dropped the prosecution. C. Liability C1. How did the accident occur? C1.1 Mr Ho’s caseand his evidence 20.Only Mr Ho gave evidence in relation to his case on how the accident occurred. His evidence at trial could be summarized as follows. 21.When he came out from the School riding on his motorcycle, he was travelling at a speed of some 40 km/h along Hing Shing Road towards the direction of Kwai Fuk Road. He went past the tail of the private car entering Ko Fong Street by steering to the right but within his own lane, as he saw no risk or danger in doing that way. 22.After passing the junction of Ko Fong Street and the private car, he continued to travel along Hing Shing Road at a speed of about 40 km/h. He noticed for the first time Mr Lee’s van at the opposite lane of Hing Shing Road outside Hibiscus Park when the van was about 20 to 30 metres away from him. The van was then stationery on the opposite lane, slightly turned to its right towards the Hibiscus Park, with its front bumper positioned just above the dividing dotted line. It appeared to Mr Ho that the van was waiting to turn into Hibiscus Park across the lane he was travelling. 23.As the van then was stationery, and he understood that he had the right of way, Mr Ho therefore continued to ride his motorcycle along Hing Shing Road towards the direction of Kwai Fuk Road. He kept his speed at about 40 km/h. 24.However, when he was only about 4 to 5 metres away from the van, the van suddenly and quickly turned into his lane going to Hibiscus Park. 25.As the van moved into the middle of his lane so suddenly and when he was so close to it, Mr Ho did not have sufficient time to brake or slow down the motorcycle. The motorcycle rammed into the right front part of the van. 26.It is Mr Ho’s case that the accident was thus caused by Mr Lee’s negligence in turning into Mr Ho’s lane without a proper lookout of the traffic (in particular in light of Mr Ho’s oncoming motorcycle), in turning too fast and without proper manoeuvre to avoid the accident. 27.The pleaded particulars of Mr Lee’s negligence are as follows:
C1.2 Mr Lee’s caseand his evidence 28.Mr Lee himself gave evidence at trial to support his case. He also called one Ms Leung Lai Ha and subpoenaed one Mr Yip Chi Shu to give evidence. 29.Mr Lee’s evidence and case as to how the accident occurred is in essence as follows. 30.On the night of the accident, he was driving the van after work along Hing Shing Road at the lane towards the direction of Ko Fong Street, intending to go back to Hibiscus Park, where he had been living for some 10 years. 31.When he arrived outside Hibiscus Park, he stopped the van on his lane facing directly forward without touching the dividing line between the two lanes. He also applied the handbrake. 32.He then checked the traffic condition around him to prepare himself to drive and turn the van across the opposite lane to go into Hibiscus Park. He looked to his front towards the direction of Ko Fong Street upto 100 metres and found that there was no oncoming traffic on the opposite lane towards him. He also checked that the pedestrian pavement outside Hibiscus Park was clear without any pedestrians. 33.After making sure that both the vehicular traffic on the opposite lane and the pedestrian traffic were clear, he used the remote control to open the electric gate at the entrance of Hibiscus Park, and released the handbrake. He also engaged the 1st gear of the van and started to turn right into the direction of Hibiscus Park’s entrance. 34.He stopped the van to check the traffic for no more than 10 seconds before he started to drive and turn his van to its right. 35.After turning across into the opposite lane of Hing Shing Road, at a speed of about 1-2 km/h (which according to Mr Lee was the usual speed he kept of the van in entering into Hibiscus Park) for about 2 to 3 seconds, and when his van was already into about two-third of the width of the opposite lane, he suddenly saw a bright light coming from his left front, which was about 100 metres away. He felt that the light was coming towards him fast, although at that time he did not know what was the source of that light. 36.He immediately stopped the van to see and check what was happening. The van thus remained across at about two-thirds of the width of the opposite lane. 37.After about 4 to 5 seconds, he realized that it was the headlight of a fast moving motorcycle (which was Mr Ho’s motorcycle). Mr Lee said Mr Ho did not slow down the motorcycle but tried to steer it to its left seeking to pass in the van’s front, but failed. The motorcycle ramped into the right front part of the van with a big bang, and collapsed. 38.Mr Ho emphasized that the motorcycle was coming at high speed although he would not venture to give an estimate of the speed. C1.3 Ms Leung’s evidence 39.On the evening, before the accident occurred, Ms Leung was waiting outside the School for her husband’s car to come and pick her up. She said she witnessed the accident. Her evidence at trial can be summarized as follows. 40.While she was waiting on the side of the School, Ms Leung was looking towards the direction of Kwai Fuk Road, as she was expecting her husband’s car to come from that direction on the opposite lane of Hing Shing Road. 41.She noted that there was a van (which was Mr Lee’s van) stopping at the opposite lane outside where Hibiscus Park was. She reckoned that the van was waiting to turn into Hibiscus Park. 42.Then she heard a loud engine sound of a motorcycle, which was just coming out from the School and got onto Hing Shing Road in front of her. The motorcycle then went along Hing Shing Road on the lane towards the direction of Kwai Fuk Road. Ms Leung said the motorcycle went off with high speed in front of her, with a loud engine noise[3] signifying that it was accelerating. 43.There is no dispute that this motorcycle was Mr Ho’s motorcycle. 44.Mr Ho’s motorcycle then went past the Ko Fong Street junction at high speed and the tail of a private car that was then entering into Ko Fong Street, by steering steeply to the motorcycle’s right. Ms Leung however confirmed that the motorcycle did not go over to the opposite lane when it steered past that private car. 45.After passing Ko Fong Street, Mr Ho’s motorcycle continued to travel along the lane towards the direction of Hibiscus Park, with similar high speed and the occasional engine sound of acceleration. 46.Under cross-examination, it was Ms Leung’s estimate that the motorcycle should be travelling at about 80 km/h or so. 47.At the time when the motorcycle reached the School for the Deaf (which was just after passing the junction of Ko Fong Street), Ms Leung saw that Mr Lee’s van started to turn into the lane that the motorcycle was travelling heading towards the entrance of Hibiscus Park. It is Ms Leung’s estimate that between the time she first saw the van stopping at the opposite lane, and the time when it started to turn towards Hibiscus Park, the van had stopped and waited there for about 1 to 2 minutes. 48.Notwithstanding the van had started to turn towards Hibiscus Park, she saw that Mr Ho’s motorcycle continued to run at high speed along the lane where the van was crossing. 49.Given these, Ms Leung said she thought to herself at that time that the motorcycle was going to collide heavily with the van, as the van was already at two-thirds of the width of that the motorcycle’s lane. 50.As she did not want to directly see the unavoidable collision, just as the motorcycle was running towards the van without stopping or slowing down, she by reflex closed her eyes and prayed. 51.She afterwards heard a big “bang” sound of collision. Ms Leung accepted in her oral evidence that she did not in fact see how the motorcycle collided with the van as her eyes were then closed. 52.After hearing the sound, she opened her eyes and saw that the motorcycle was lying on the ground. She believed she should tell the police as to what had happened (as she thought that if she did not tell what she had seen, people might think that it was the fault of the van driver which had caused in the accident). She therefore walked all the way from outside the School to the accident scene and, when the police arrived, offered to assist the police investigation. 53.She later gave a police statement on 10 April 2003, which she adopted as part of her evidence in chief at trial. 54.Ms Leung confirmed at the trial that she was not acquainted with either Mr Ho or Mr Lee. C1.4 Mr Yip’s evidence 55.Mr Yip was and still is a security guard working at Hibiscus Park. He was at the entrance gate of Hibiscus Park when the accident occurred. 56.He gave a police statement in relation to the accident on 29 March 2003. 57.Mr Yip however did not give any witness statement for this action. As I mentioned above he was subpoenaed by Mr Lee to give evidence. 58.At the trial, when asked by Mr Lee’s counsel, Mr Yip said he could not remember anything about the accident. He explained that after having been admitted to hospital for a heart problem in 2005, he had only a vague memory of things that happened before the hospital admission. He also said he could not even remember whether there was an accident that involved Mr Lee, although he confirmed that he knew Mr Lee as a resident of Hibiscus Park. 59.When asked about the police statement, Mr Lee again repeated that he could not remember anything. Although specifically asked by Mr Lee’s counsel, he did not confirm whether the content of the police statement was accurate or not. C1.5 Discussion C1.5.1 Mr Lee’s evidence 60.I accept the evidence of Mr Lee as to how the accident occurred. I find him a reliable, honest and credible witness:
61.Mr Lam (counsel for Mr Ho) asked the Court to reject Mr Lee’s evidence that he drove at a speed of 1 to 2 km/h when moving from the opposite lane towards Hibiscus Park as inherently incredible. Mr Lam submitted that any ordinary and reasonable drivers would not have driven the vehicle at such a slow speed, in particular if that driver, as Mr Lee, was familiar with the road surroundings. 62.I do not accept Mr Lam’s submissions. First, I do not find it inherently incredible per se for a driver to move his car at a speed of 1 to 2 km/h, when he is turning at a right angle from a stationery position to enter into the entrance of a car park or residential compound. Secondly, there is no evidence before me to suggest what an ordinary or reasonable driving speed should have been in the situation as that faced by Mr Lee on the night of the accident. Thirdly, given (and as fairly accepted by Mr Lam) that everyone’s driving habit is or could be different, even if there were such evidence, without more, I do not accept that it renders Mr Lee’s evidence on the speed so inherently incredible as suggested by counsel. C1.5.2 Ms Leung’s evidence 63.I also accept Ms Leung’s evidence on the fact that Mr Ho’s motorcycle was travelling at a high speed on the night of the accident. I find her evidence on this aspect reliable:
64.I further accept Ms Leung’s evidence that Mr Lee’s van started to turn towards Hibiscus Park when Mr Ho’s motorcycle was at about the School for the Death. That is about 80 or so metres away from Hibiscus Park. This is consistent with the evidence of Mr Lee (which I have accepted) that after he started turning the van towards Hibiscus Park, he noted the headlight of Mr Ho’s motorcycle coming from about 100 metres away. I do not regard it a significant discrepancy between 80 metres or 100 metres, when these are all estimates of the distance by witnesses recalling events that occurred almost 6 years ago. 65.Notwithstanding the above, I do not accept Ms Leung’s evidence on what the actual speed of the motorcycle was at the time of the accident. As fairly accepted by Ms Leung, it was purely her speculation and assessment, which I do not find it safe to rely on since (a) there is no suggestion that Ms Leung (albeit holding a driving licence) possesses any particular experience or skill to give an accurate estimate on vehicular speed, and (b) the motorcycle only went past in front of her for a very brief moment, which then travelled way from her in a relatively straight line, this is likely to render any subjective assessment or estimation of the speed difficult and inaccurate. 66.I also reject Ms Leung’s evidence that Mr Lee’s van had stopped and waited for 1 to 2 minutes at the opposite lane before turning. This is inconsistent with Mr Lee’s evidence, which I accepted. On the other hand, I do not find this unaccepted part of Ms Leung’s evidence having any adverse impact on my above acceptance of her other parts of the evidence. Ms Leung emphasized a few times under cross-examination that, since these were all her present estimates of time (which she was not good at in any event) of certain fast occurring events 6 years ago, they might well not be accurate. I therefore do not find my rejection of her evidence on the estimated waiting time of the van in any way affects Ms Leung’s credibility and reliability of the other accepted parts of her evidence, which do not depend on her estimate of time. 67.Other than the above accepted parts of Ms Leung’s evidence, I do not attach any weight to her other evidence in determining what happened right before and at the time of collision, as it is her evidence at trial that she did not witness that since she had closed her eyes by then. 68.Mr Ho’s counsel invited the Court to reject Ms Leung’s evidence entirely as unreliable, since her evidence that she closed her eyes before the motorcycle collided with the van was in stark contradiction with what she said in the police statement. It is suggested by Mr Ho’s counsel that she said in the police statement she actually witnessed the collision. The relevant part of the police statement reads as follows:
69.On a proper reading of that part of the police statement in Chinese, I am of the view that it is equally consistent with Ms Leung’s evidence at trial that she saw the motorcycle heading towards the van (where a collision was inevitable), and then she closed her eyes and did not see the actual impact. The Chinese words “直撞向[5]” are in my view consistent with the evidence that the motorcycle was heading towards (but before impacting) the van. They do not clearly or unequivocably suggest that Ms Leung was saying in the police statement that she saw the motorcycle hitting the van (as the translation suggested). In fact, coupled with what she was recorded to have said later in the police statement that “之後我就睇唔到”, it reinforces my above reading of Ms Leung’s police statement. 70.When confronted with these parts of her police statement under cross-examination, Ms Leung said it had twisted or distorted what she meant, and that she had some reservations about that meaning. She also said by now it was really a long time after the accident. When later asked by this Court as to whether she said the police had distorted what she had said, Ms Leung fairly said that she did not mean that. 71.When looked at her evidence in this respect as a whole, I understand what Ms Leung was saying was that it was a distorted reading of the police statement if it was suggested that it meant she personally witnessed the actual moment of collision of the motorcycle and the van. 72.For the reasons set out above, I accept her explanation. I therefore do not find this challenge on the reliability or credibility of her evidence made out or justified. C1.5.3 Mr Yip’s evidence 73.In relation to Mr Yip’s police statement, I do not attach any weight to it for the purpose of the trial. First, he has not adopted it as part of his evidence. Secondly, he did not confirm its contents. Thirdly, he could not remember anything about the accident. C1.5.4 Mr Ho’s evidence 74.I reject Mr Ho evidence insofar as there is any conflict between his evidence and that of Mr Lee and Ms Leung. 75.I do not find Mr Ho a reliable witness in this respect. In giving evidence on the material aspects, Mr Ho was evasive and his evidence was inconsistent:
76.Further, although it is not disputed that he did not brake the motorcycle before the accident, I find his explanation that he did not do so because there was insufficient time inherently incredible. This is so, since if he had seen (as his evidence suggested) the van moving into his lane when it was still 4 to 5 metres away, there should still be time for him to apply the brake, which was simply by pressing the brake handle with his hand. It is important to note that the question was whether he had braked before the collision, but not whether he could have stopped the motorcycle before collision by braking it. C1.5.5 Finding of facts 77.Given the above conclusions on my acceptance of the respective witnesses’ evidence, and coupled with the common background set out earlier in this judgment, I make the following findings of material facts as to how the accident occurred:
78.Since I accept Mr Lee’s evidence and find that the accident occurred after 4 to 5 seconds after he noticed Mr Ho’s motorcycle coming from about 80 to 100 metres away, insofar as necessary, I also find that on the balance of probabilities, Mr Ho’s motorcycle was travelling at a speed between 57.6 km/h (0.08km/5s x 60 x 60) to 90 km/h (0.1/4s x 60 x 60) before the accident. The safety speed limit of the road was 50km/h. C2. Was Mr Lee negligent in causing the accident 79.Given the above finding of facts, I find that Mr Lee was negligent in causing the accident. 80.In my judgment, after noticing that a strong light was coming from about 80 to 100 metres away on the traffic lane, a reasonable driver in the position of Mr Lee would and should have continued to drive the van ahead towards the entrance of Hibiscus Park to avoid any collision with the oncoming vehicle. In my view, it must have been obvious to Mr Lee that the oncoming bright light represented the headlight of an oncoming vehicle (whether a motorcycle or not) travelling on the road. When I asked him what else could the light represent, Mr Lee simply could not answer it. 81.In a situation like this, a reasonable driver should have appreciated the real possibility of a collision, and ought to have taken the precaution of moving his vehicle out of the lane to try to avoid the accident. As said by Lord Dunedin in Fardon v Harcourt-Rivington[7]:
82.Taking into consideration of the fact that the oncoming motorcycle was still about 100 metres away,there should still be sufficient time for a reasonable driver (and Mr Lee) to react and continue to drive away the van, which was occupying the oncoming motorcycle’s lane, to try to avoid the accident by leaving sufficient space on the lane to allow the oncoming vehicle to pass through. 83.Had Mr Lee continued to drive his van towards the entrance of Hibiscus Park, he would have either been able to clear the van from the lane entirely or at least leave sufficient space of the lane to allow Mr Ho’s motorcycle to go through. The accident could have been avoided. 84.I am satisfied that the above finding of negligence falls with the pleaded general particulars[8] that Mr Lee failed to “steer … or manoeuvre the [van] as to avoid accident”. It must be noted that there have not been any request for further and better particulars of this plea, and I am of the view it is general and wide enough to cover the above negligence of Mr Lee as found. 85.In any event, under the authority of Poon Hau Kei v Hsin Chong Construction Co Ltd[9], it is open to this Court to find negligence on the part of the defendant by reference to the defendant’s own case as accepted by the Court. C3. Was Mr Ho contributorily negligent 86.I also find that Mr Ho was contributorily negligent in causing the accident in failing to have a proper lookout of the traffic condition and/or in travelling too fast. Had he paid a proper lookout, he should have noticed that Mr Lee’s van had stopped in the middle of his lane, and slowed down or brought his motorcycle to a halt in time to avoid the accident. The fact that Mr Ho was riding his motorcycle at a relatively high speed also added to his failure to slow down or stop the motorcycle in time. 87.I am also satisfied that the above finding of negligence on the part of Mr Ho also falls within the pleaded particulars of negligence[10] of the Defence, that Mr Ho was “driving too fast in the circumstances” and failed to “keep any or any proper lookout or to have any or any sufficient regard for traffic that was or might reasonably be expected at the said road”. 88.I would attribute 50% contributorily negligence to Mr Ho in the circumstances in causing the accident. D. Quantum D1. Relevant facts 89.I accept and find the following facts as relevant to my determination on quantum. 90.Mr Ho is now about 37 years old. At the time of the accident, he was about 31. He was right handed and worked as an office messenger before the accident, earning HK$8,000 per month. 91.At the time of the accident, Mr Lee was attending the 2nd (and final) year of the part-time evening course of the Craft Certificate for Electricians at IVE. He was likely to have graduated with the certificate for electricians by the summer of 2003 if not because of the accident. 92.As a result of the accident, Mr Ho had been admitted to hospitals on several occasions for a total of 2.5 months or so, and had undergone 5 operations for his fractured right pelvis with the dislocated hip joint, and right brachial plexus injury. He had attended many sessions of occupational therapy and physiotherapy over a period of 3 years. He was given a total of three years sick leave. 93.It is the common medical opinion that:
94.During his recovery, Mr Ho has trained himself to use his left hand and is now generally able to take care of his activities of daily living though with some difficulty and slowness. He would however need help for major household works such as laundry, and cleaning the home if necessary. 95.Mr Ho is living with his retired parents, who take care of him. His mother usually cooks for him. D2. PSLA 96.Mr Ho asks for HK$1,200,000 under this head. His counsel submitted that the injuries fall into the upper limit of the “gross injury” category as defined in Lee Ting Lam v Leung Kam Ming[11] as revised by subsequent authorities in view of inflation. 97.Ms Tsui (counsel for Mr Lee) fairly accepted that Mr Ho’s injuries fell within the “gross injury” category, but contended that it should be at the lower end of the category. She submitted that an award of $800,000 was appropriate. Ms Tsui also said it was only in the cases of injuries of an extreme nature that would attract the Court in awarding PSAL in excess of $1m. 98.Ms Tsui cited a number of authorities as examples in support of her submissions. However, it must be borne in mind that no two cases are of exactly the same facts and of identical injuries and personal particulars of the victim. Thus, authorities on quantum (other than those laying down the general legal principles) should be considered as no more than a general guideline or examples of what had been awarded as damages on a particular set of facts. 99.Bearing this in mind, I find the following authorities of some relevance to my present determination:
100.Gaining some guidance from the above authorities, and having had regard to (a) the severity of the injuries suffered by Mr Ho, the facts that (b) he was only 31 years old at the time of injury and that it is likely that he will have to live with these injuries for a significant part of his lifetime, and (c) both his dominant right upper and lower limbs are seriously affected, I am of the view that his injuries are more serious than the ones in Li Yuet Yee but less than that in Cheung Wai Ping. In my judgment, an award of $900,000 is an appropriate award. D3. Pre-trial loss of earning 101.It is Mr Ho’s case that he would no longer be able to find any gainful employment because of the injuries. He also said in evidence that he had aspired to become a licensed electrician[15], which (if not because of the injuries) he would have been able to become one 3 years after he had obtained the certificate for electricians from IVE (which was expected to be the case in July or so 2003). His original intended career path as a licensed electrician was as follows:
102.I accept Mr Ho’s above evidence on the career path, had there not been the injuries. This evidence is inherently credible, which accords with the common ground that he was studying for the certificate for electricians at IVE before the accident, and was hardly materially challenged at trial. 103.I also accept Mr Lam’s submissions (for Mr Ho) that it is reasonable to expect that Mr Ho (with his previous experience as a decoration worker) would be able to find an electrician job for decoration works 1 year after he had obtained the licence as envisaged[16]. 104.Further, I accept Mr Ho has proved on the balance of probabilities with the following evidence that, prima facie, he is unable to find any gainful employment by reason of his injuries:
105.In rebuttal, in her written closing submissions, Ms Tsui (for Mr Lee) however submitted that Mr Ho should not be entitled to any pre-trial loss of earning after the expiry of the sick leave, as he should be able to find a job such as telephone operator or ticket sales earning at least $8,000 a month. Counsel’s submissions are premised on the following evidence:
106.With respect to Ms Tsui, I am not satisfied that it has been shown that, that on the balance of probabilities, Mr Ho is able to work as a ticket staff or telephone operator. My reasons are as follows:
107.Moreover and in any event, Mr Lee provided no evidence at trial to show what the average earning of a taxi company telephone operator or cinema ticket sale staff is. There is thus no evidence to support the alleged $8,000 per month earning:
108.I therefore reject Mr Lee’s case under this issue. 109.Mr Lee having failed to how a positive case on what Mr Ho is capable of working as in light of his injuries, I conclude that Mr Ho has proved on the balance of probabilities that he is practically unable to find any gainful employment by reason of the injuries 110.In the premises, assuming that he had obtained the certificate in July 2003 and found an apprentice work thereafter, I accept Mr Ho’s case that he is entitled to pre-trial loss up to 19 January 2009 of $596,000, calculated as follows:
111.There would also be loss of MPF in the sum of $29,800 ($596,000 x 5%). D4. Future loss of earnings 112.The parties agreed that the multiplier that should be applied under this head is 15. 113.For the same reasons I set out under the head of Pre-trial loss of earning, I accept also as proved that the future loss of earning is $14,000 x 12 x 15 = $2,520,000. 114.The loss of MPF benefits is thus: $2,520,000 x 5% = $126,000. D5. Loss of earning capacity 115.Since I have concluded above that Mr Ho is unable to work anymore after the injuries, there is no question of awarding any further damages under the head of loss of earning capacity. 116.However, if I were wrong above, and that Mr Ho should have been able to work despite of the injuries, given Mr Ho’s injuries, and the common medical evidence on his permanent physical disabilities and the need for repeated future hip replacement surgeries, it is clear that Mr Ho would have suffered a significant disadvantage in the job market. Under those circumstances, I would have awarded Mr Ho damages in the sum of HK$500,000 under this head. D6. Medical expenses, travelling expenses and special damages 117.This is agreed by the parties in their closing submissions to be $25,988 (for medial expenses), $28,078 (for travelling expenses), $20,000 (for purchase of tonic food) and $17,640 (as special damages). D7. Future medical expenses 118.Mr Ho claimed $600,000 for future medical expenses as the cost for 3 total hip replacement operations anticipated in the future. This is the only pleaded sum under this head. 119.Mr Lee agreed to this sum in the closing submissions. 120.Mr Ho in his submissions further claimed HK$100,000 as continuous orthopaedic treatments following these future operations. This item of future expense was not pleaded and should not be open to Mr Ho. 121.However, Mr Lee in the closing submissions in fact agreed that a sum of $50,000 was reasonable for such an item. 122.As Mr Lee took no objection to this item being claimed despite that it was not pleaded, I would allow $50,000 as agreed as well. 123.The total damages under this head is thus $650,000. D8. Care of parents and domestic worker 124.Mr Ho claimed $464,000 under this head, where $140,000 is attributed to the value of care and attention provide by his parents, while $324,000 to a part-time domestic helper. 125.Mr Lee accepted in principle that continuous care and attention was required to be provided to Mr Ho. But it is Ms Tsui’s submissions (for Mr Lee) that it is only the part-time domestic helper’s cost that should be recoverable, but not the parents. This is so because (a) the parents are retired, (b) it is Mr Ho’s own evidence that he could generally take care of his daily activities. 126.I accept Ms Tsui’s submission, and rule that it is only the part-time domestic helper’s cost that is recoverable. 127.However, there is no evidence before me as to what is the unit cost of such a domestic helper. 128.Mr Ho’s pleaded case is $1,000 per month with a multiplier of 18 (assuming care is to be provided for the remainder of the his normal lifespan). 129.Mr Lee’s in his answer pleaded that a reasonable sum is $800 per month with a multiplier of 18. 130.I would adopt the figures pleaded by Mr Lee as a reasonable one, and thus award under this head damages in the sum of $800 x 12 x 18 = $172,800. D9. Total damages 131.To summarize, the total quantum of damages awarded under the various heads of claim is $5,085,506:
132.Taking into account of 50% contributory negligence, Mr Ho is entitled to damages in the total sum of $2,542,753. E. Conclusion 133.For the reasons given above, I find that (a) Mr Lee was negligent in causing the accident, and (b) there is 50% contributory negligence on the part of Mr Ho in causing the accident. 134.I therefore enter judgment against Mr Lee for damages in the total sum of $2,542,753 with interest on (a) general damages at the rate of 2% per annum from the date of the service of the writ to the date of judgment, and (b) on special damages at half judgment rate from the date of the accident to the date of payment. 135.As Mr Ho succeeds in his claim, there is no reason why costs should not follow the event, I therefore make an order nisi that costs of the action be to Mr Ho, to be taxed if not agreed. This order will be made absolute 14 days from today unless any of the parties makes an application by Summons to vary the same.
Mr. Allen M.Y. LAM & Ms. Elizabeth Y. CHEUNG, instructed by Messrs C.L. Chow & Macksion Chan for Plaintiff. Ms. Jennifer K.W. TSUI, instructed by Messrs Kenneth C.C. Man & Co. for Defendant. [1] This is the final sum set out in Ho’s closing submissions. [2]As shown on the scale sketch made by the police. [3] Ms Leung’s evidence is that there had been repeated engine sound of “hmm hmm” coming from the motorcycle. This as far as she understood meant that the rider of the motorcycle was accelerating the motorcycle. [4] As he was in Court when Ms Leung was giving evidence. [5]Emphasis added. [6] As shown in the photos taken by the police of the accident scence. [7] (1932) 146 LT 391 at 392. [8] At paragraph 3(i) of the Statement of Claim. [9][2004] 2 HKLRD 442 (CFA). [10] At paragraphs (3)(a), (b), (c) and (e). [11] [1980] HKLR 657. [12] Unrep., HCPI 451/2006, 31 October 2008, Master J Wong. [13] [2007] 3 HKLRD 33. [14]Unrep., HCPI 668/2005, 8 February 2007, Deputy High Court Judge Muttrie. [15] Holding what is known as Licence A, entitling him to do electrical works not exceeding 400A, which include electrical works envisaged in general decoration and construction sites. [16] Ms Tsui (for Mr Lee) submitted that the reasonable period should be 18 months, which I reject as too long. [17] Paragraph 70(xii). [18] Halsbury’s Laws of England (4th Reissue) (2002), Vol 17(1), para 666 (p 310); Halsbury’s Statutes of England and Wales (4th ed), Vol 17 (1999 Reissue), section 14 of Evidence Act 1851 (p121) referring to p 115, Notes on public document to Evidence Act 1845; Mercer v Denne [1905] 2 Ch 538; Sturla v Freccia (1880) 5 App Cas 623, 643-644 per Lord Blackburn. [19] As an office messenger being his pre-accident job. [20] As an electrician apprentice. [21] As an employed electrician. [22] As a decoration work electrician. |
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