Sukhdeep Singh v. Chow Kin Hung and Another

HCPI 202/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 202 OF 2010

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Coram : Deputy High Court Judge Mimmie Chan in Court

Dates of hearing : 7 - 9 September, 2011

Date of handing down Judgment : 21 September, 2011

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JUDGMENT

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Background

1.The Plaintiff ("Mr. Singh") was at all material times a delivery worker for Dial-a-Dinner. On 7 July 2007 at about 1:10 pm, Mr. Singh was riding his motorcycle ("Motorcycle") on the second lane of Garden Road ("Road") towards Wanchai. The 1^st Defendant ("Mr. Chow") was driving a taxi ("Taxi")in the same direction, but on the first lane of the Road to the right of the Motorcycle.Mr. Singh claims that without any prior warning, the Taxi moved into the second lane and hit his Motorcycle, causing Mr. Singh to lose control of the Motorcycle, as a result of which Mr. Singh and the Motorcycle fell, and Mr. Singh sustained injuries. These proceedings are instituted by Mr. Singh against Mr. Chow for damages in respect of the injuries Mr. Singh claims he sustained as a result of Mr. Chow's negligence.

2.By way of defence, Mr. Chow claims that the accident in question was caused solely by Mr. Singh's negligence, in that he had swerved right from the second lane of the Road into the first lane, thereby ramming into the left side of the Taxi.

The issues

3.The issues for determination at trial are :

(1) whether the accident was caused by the negligence of Mr. Chow, or Mr. Singh; and

(2) the amount of damages payable to Mr. Singh in the event that the accident was caused by Mr. Chow's negligence.

Whether the accident was caused by the negligence of Mr. Chow, or Mr. Singh 

4.In his witness statement filed for the purpose of these proceedings, Mr. Singh claims that just prior to the accident, he was travelling on the right side of the second lane of the Road, about 1 ½ feet from the dividing line of the first and second lanes. He had just delivered an order to MacDonnell Road, and was on his way to the Viceroy Restaurant in Sun Hung Kai Center in Wanchai to pick up another delivery order. Mr. Singh claims that he was on the correct lane of the Road to Wanchai, and did not have any need to move to the first lane.

5.According to Mr. Singh, the Taxi cut from the first lane into the second lane at high speed, which he estimated to be 60 to 70 km per hour. Mr. Singh claims that as a result, the left side mirror and/or left side of the Taxi hit the right handle and/or side of the Motorcycle, and Mr. Singh consequently fell to the ground.

6.Mr. Chow denies that he had intended to change lanes, or that he had swerved to the left or cut into the second lane. He claims that he was on his way to the taxi stand at the Admiralty MTR Station, and was accordingly on the correct lane when he was on the first lane of the Road. According to Mr. Chow's evidence, when he was driving past Murray Building, he had noticed the Motorcycle traveling along the second lane ahead of the Taxi. Mr. Chow claims that the Motorcycle was decelerating, and was slightly inclined to the right of the second lane, namely, close to or alongside the dividing line of the first and second lanes. According to Mr. Chow's evidence, the accident was caused by Mr. Singh swerving the Motorcycle to the right, into the first lane, just before the accident.

7.Counsel for Mr. Singh argued that it was Mr. Chow who had inadvertently veered into the second lane, when his attention was directed to looking for potential passengers on the right hand side of the Road. It was argued that Mr. Chow was negligent in not paying sufficient heed to the presence of the Motorcycle, or to the close proximity between the Taxi and the Motorcycle as the two vehicles passed, and in failing to leave sufficiently ample space between the Taxi and the Motorcycle, as advised by the Road Users' Code.

8.Contrary to Mr. Hemmings' submissions, I do not regard Mr. Chow's evidence as an admission that his attention at the material time was directed to looking for potential passengers on the right hand side of the Road. When asked in the course of cross-examination whether he was looking to the right hand side of the pavement, Mr. Chow said he was not, as it was not necessary for him to turn his head to the right, or to consciously look to the right, as he could see the pavement from a distance. Mr. Chow only said that he had taken a slight glance.

9.Mr. Chow consistently claims in both his statement given to the police after the accident, and in his witness statements filed in these proceedings, that before the accident, he had seen the Motorcycle ahead of him on the left. Mr. Chow claims that the Motorcycle was decelerating on the second lane, but that the indicator light had not been on. Mr. Chow claims in his testimony that as the Taxi passed the Motorcycle, Mr. Singh had made no prior indication whatsoever of either changing lanes or turning. Mr. Chow accordingly continued his route on the first lane, until he heard a "bang" and felt the impact of the Motorcycle hitting the Taxi.

10.Although Mr. Singh claims in Court that prior to the accident, he had seen the Taxi behind the Motorcycle in his rearview mirror, this fact was not mentioned in Mr. Singh's two statements which were prepared by his lawyers for the police after the accident, nor in the two witness statements filed in these proceedings. If what Mr. Singh claims is true, it is somewhat surprising that this fact was not mentioned in any of these statements, given that this matter must inevitably have been raised when his lawyers questioned him as to the circumstances leading to the collision.

11.I do not accept (as Mr. Hemmings suggests) that Mr. Singh's sight of the Taxi behind him before the accident was implicit in paragraph 9 of his witness statement made on 25 November 2010. There, he was referring to the Taxi "which was cutting from the first lane into my second lane at a high speed. (Mr. Chow) may have been traveling at 60 - 70 km per hour." Mr. Singh was referring in paragraph 9 of his witness statement to the moment when the Taxi was already allegedly cutting into the second lane, at the estimated speed, and not to the time before the collision. Paragraph 9 in fact suggests that the first time Mr. Singh saw the Taxi was when it was alongside the Motorcycle.

12.Both Counsel for Mr. Singh and for Mr. Chow have urged the Court to consider the objective and independent evidence, apart from that of Mr. Singh and Mr. Chow, to determine the question of liability.

13.In relation to the evidence on the damage to the Taxi, this shows that there were scratch or scrape marks and signs of damage along the left side of the Taxi, from the left front door below the left side mirror to the left rear door, and at the edge of the hinge of the left rear door. I cannot regard this as being inconsistent with the collision having been caused by the Motorcycle turning right into the side of the Taxi, as Counsel for Mr. Singh suggests. Mr. Hemmings argued that in such a scenario, the impact would have been limited to the front tyre mark of the Motorcycle on the body of the Taxi. This argument would have carried more force if one was considering a 4-wheeled vehicle turning right into the side of the Taxi, but as Mr. Wong, Counsel for Mr. Chow, has highlighted, Mr. Singh was driving a motorcycle. The damage and scrape marks along the side of the Taxi are, in my view, equally consistent with damage caused by the Motorcycle veering to its right, and the right handle bar of the Motorcycle scraping against the side of the Taxi for a short distance. Far from indicating that either Mr. Singh, or Mr. Chow, is to be blamed for the collision, I would at most regard the evidence of damage to the Taxi as being equivocal.

14.On the other hand, Mr. Wong has referred to the sketch of the scene of the accident prepared by the attending police officer on 7 July 2007 ("Police Sketch"). The Police Sketch shows the respective positions of the Motorcycle and the Taxi at the time when the police officer arrived at the scene of the accident. The Motorcycle was shown to be lying on its side, entirely within the first lane of the Road, to the left of the said lane.

15.It was argued on behalf of Mr. Chow that if the Taxi had come from behind the Motorcycle at high speed, as Mr. Singh claims, and had cut into the second lane, the force of the impact should have pushed the Motorcycle towards its left in the direction of the third lane, and that the Motorcycle should have fallen towards its left. Instead, the Police Sketch clearly indicates the Motorcycle as being within the first lane.

16.Mr. Wong has highlighted Mr. Singh's evidence to the effect that after the collision, he had lost control of the Motorcycle and it traveled a very short distance forward before it fell down. It is also his evidence that after falling, his leg was stuck under the Motorcycle and he had used his hands to push the Motorcycle away from his leg. His friends who were nearby at the scene of the accident also came and helped to push the Motorcycle "a little bit ".

17.Against such evidence, Mr. Wong argued on behalf of Mr. Chow that given the only slight movement of the Motorcycle after the fall, the final resting position of the Motorcycle as depicted in the independent Police Sketch contradicts Mr. Singh's claim that it was the Taxi cutting or moving into the second lane from the first lane that had caused him to lose control of the Motorcycle and to fall onto the first lane of the Road.

18.According to Mr. Chow, the scene of the accident was just before the Road joined a bypass between Murray Building and Citibank Tower ("Bypass"). No serious dispute has been raised that the Bypass is a place where many food delivery workers on motorcycles would stop and gather. It is not disputed by Mr. Singh that right after the collision, his friends or colleagues who had gathered at the Bypass had come to his assistance. He claims however that he had not known that his friends or colleagues would be at the Bypass, that he had not seen them before the collision, and that he was going straight instead of turning right towards the Bypass.

19.Mr. Singh confirmed in his evidence that just before the collision, the traffic ahead of him on the second lane was clear, with only one vehicle a long distance away.

20.Having considered all the evidence, I am not satisfied that the accident was caused by Mr. Chow either cutting or veering into the second lane. It is at least equally likely that it was Mr. Singh who had either cut into, or inadvertently veered towards the right and into, the first lane, without paying adequate heed to the presence of the Taxi. It is more likely than not that Mr. Singh was veering or turning towards the Bypass where he expected to find his colleagues or friends. It was Mr. Singh who should have but failed to heed the proximity of the Taxi next to the Motorcycle at the relevant time, and the accident was caused by Mr. Singh's manoeuvres without any or sufficient prior warning.

The amount of damages payable to Mr. Singh in the event that the accident was caused by Mr. Chow's negligence

21.If I should be wrong on my finding on liability, I will proceed to assess the disputed damages payable to Mr. Singh. Mr. Singh's claims for pre-trial loss of earnings, post-trial loss of earnings and special damages have been agreed. Only the claims of PSLA and loss of earning capacity are in dispute.

PSLA

22.Mr. Singh suffered fractured distal tibia and fibula of his right leg as a result of the accident. He was admitted to the Orthopaedics and Traumatology Department of Queen Mary Hospital, where he underwent surgery for open reduction and internal fixation of the fibula and nailing of the tibia. To repair the fractures, bone was taken from Mr. Singh's right knee. He was discharged on 14 July 2007 with continued follow-ups and physiotherapy. He had to be re-admitted to hospital on 2 February 2009 for removal of the surgical implant due to continued pain and discomfort over the right knee area from where the bone graft had been taken.

23.Mr. Singh was granted sick leave from the date of the accident (7 July 2007) to 30 April 2008. He received regular physiotherapy until March 2008, and resumed work as a delivery driver with his employer on 1 May 2008 until 1 February 2009, when he had to be readmitted to the hospital. Thereafter, he was granted sick leave until 11 March 2009.

24.According to the medical examination made by the experts, there was no length discrepancy, but some girth discrepancy in the muscle bulk between Mr. Singh's two limbs. Dr. Wong considered this was due to muscle wasting in the right leg. There is no gross external deformity, except multiple scars on the right ankle and slightly limited ankle motion with less than 10° difference in dorsiflexion and plantarflexion between the two ankles. There is slightly weaker power in the right ankle.

25.Although Mr. Chow's expert, Dr. Lam, considered that the magnitude of Mr. Singh's complaints of right leg pain and weakness are out of proportion to his leg injury, Dr. Wong considered that Mr. Singh's slightly reduced right ankle movement was due to a bony bridge joining the distal fibula to the tibia which impaired normal rotational movement of the fibula. In the opinion of Dr. Wong, Mr. Singh would continue to suffer residual pain, reduced ankle joint movement and weakness, and his daily activities would be mildly affected, and sports activities moderately affected. According to Dr. Wong, Mr. Singh could return to work as a delivery worker with mildly reduced efficiency and capacity, as he would have to ride his motorcycle with more caution and rest intervals. Dr. Wong considered that it was not advisable for Mr. Singh to return to his part-time work as a bouncer at nightclubs, as prolonged standing would aggravate his leg and ankle pain and would affect his normal delivery work.

26.According to Mr. Singh, pain would still develop in his right ankle and right knee after walking for 15 minutes. After exertion such as walking or standing for a long time, his right ankle would swell. He has a large scar over the right ankle and smaller scars on the left side of his knee. He can no longer run for fitness, nor can he play Kabbadi, an Indian sport which involves running, tagging and wrestling.

27.Bearing in mind the extent of his injuries, and the fact that Mr. Singh had to endure two painful operations, I consider that an award of $300,000 for pain, suffering and loss of amenities would be appropriate.

Loss of earning capacity

28.Although Mr. Singh claims that he has to rest more frequently on his delivery rounds and has difficulty walking long distances and up and down staircases, he has remained at his job with Dial-a Dinner since the expiry of his sick leave in May 2008. Although there has been a drop in his income in terms of the tips received, Mr. Singh admits that this was due not to his performance but to the general downturn of the economy. There is no evidence or even suggestion that his current work performance at Dial-a-Dinner has given rise to any criticism from either his employer or customers.

29.I do not consider that Mr. Singh has made out a case of a real and substantial risk that he might lose his current job, and decline to make any award for loss of earning capacity.

Total Damages

30.The damages to be awarded, should liability be established, include:

Conclusion

31.Since liability is not established, I dismiss Mr. Singh's claims against Mr. Chow, and will make an order nisi that the costs of the action between Mr. Singh and Mr. Chow are to be paid by Mr. Singh, to be taxed if not agreed, with certificate for counsel. Mr. Singh’s own costs are to be taxed in accordance with the Legal Aid Regulations.    

Mr. John D. B. Hemmings, instructed by Messrs. Massie & Clement (assigned by the Director of Legal Aid), for the Plaintiff

Mr. Martin Wong, instructed by Messrs. Deacons, for the 1^st Defendant