Sit Yau Shing v. Yan Yan Motors Ltd and Another
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HCPI 401/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 401 OF 2012 ____________ BETWEEN
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_______________ J U D G M E N T _______________ 1.Mr Sit Yau Shing (“Mr Sit”) was injured in the early hours of 8 June 2009 while he was a passenger on board a green (scheduled service) public light bus (“Minibus”). The 2nd Defendant Mr Wong Kam Hing (“Mr Wong”) was the driver of the Minibus at the material time. The 1st Defendant was the registered owner of the Minibus and Mr Wong’s employer. Mr Sit claims that Mr Wong’s negligent driving caused the accident, for which the 1st Defendant was vicariously liable. The Accident 2.The facts set out in paragraphs 3 to 8 below are not in dispute. 3.Mr Sit was born on 17 August 1950, and was 58 at the time of the accident. Prior to the accident, he was a self-employed construction project manager, working from project to project for different construction or decoration companies. 4.On 7 June 2009, Mr Sit had dinner with a friend in Shenzhen, during which he and his friend consumed some beer. He finished dinner around midnight and travelled back to Hong Kong. He took a taxi to Huanggang and crossed the border at the Lok Ma Chau checkpoint. After clearing through immigration, he boarded the Minibus which ran a scheduled service between Lok Ma Chau and Tin Shui Wai. The route passed through Shui Pin Wai Estate in Yuen Long, where Mr Sit resided. 5.After boarding the Minibus, Mr Sit took a seat on the second row behind the driver. The Minibus did not have passenger seat belts fitted. At the material time, the Minibus was exempted from fitting seatbelts for passengers. 6.The Minibus started the journey once it was full. From the materials available, it would have started the journey at around 01:00am. It took about 20 minutes for the Minibus to reach Yuen Long. 7.While in the Yuen Long area the Minibus travelled westwards along Castle Peak Road Yuen Long section, then turned north/right into Kik Yeung Road, at the end of which it turned west/left onto Yuen Long On Ning Road westbound (“On Ning Road” for short). At the western end of On Ning Road was Ma Miu Road, where the intersection of the two roads formed a “T junction”. The northbound junction (a right turn from the On Ning Road direction) (“the Junction”) had a set of traffic lights. The Shui Pin Wai Estate stop where Mr Sit wanted to get off was on Ma Miu Road just after the Junction. 8.The Minibus did not stop at the Junction because the traffic lights were in green. While the Minibus was turning right, Mr Sit fell from his seat onto the aisle and was injured. 9.The issue on liability is how the accident actually happened and whether it was caused by Mr Wong’s negligent driving. Plaintiff’s case 10.Mr Sit claimed that the Minibus was travelling too fast when it negotiated the right turn at the Junction. Although Mr Sit himself did not drive, he estimated that the speed of the Minibus when negotiating the turn was not less than 45km per hour. He claimed that although he had consumed about one large bottle of beer during dinner, he was sober and did not fall asleep throughout the journey. 11.Mr Sit’s evidence is that the Minibus stopped to let off some passengers on On Ning Road at the stop outside the Family Planning Association clinic (“the Clinic”), which was about 100 metres west of the junction between On Ning Road and Kik Yeung Road, and not far from the Junction. He claimed that after letting off the passengers, the Minibus drove sharply across On Ning Road from the first lane on the left hand side to the outer/third lane from the left hand side towards the Junction. Mr Sit said that at the time he could see that the traffic light at the Junction was green, and the Minibus accelerated to catch the green light. Hence it was travelling at a high speed when it turned right at the Junction, causing Mr Sit to fall off his seat. 12.Mr Sit was adamant that he was always seated in the aisle-side seat on the second row behind the driver (ie. the left hand side seat when facing the front). He claimed that the Minibus was travelling so fast through the right bend that he was unable to grab hold of the handle installed on the back of the seat in front of him. He fell from his seat onto the aisle and rolled forward towards the front of the Minibus. 13.When the Minibus eventually stopped, about 20 to 30 metres after the Junction, he managed to get up by himself and he questioned Mr Wong why he drove so fast, but Mr Wong did not answer him. As other passengers were telling Mr Wong to continue with the journey, Mr Sit got off the Minibus by himself. Once he was on the pavement, he told Mr Wong that he would make a report to the police, but Mr Wong ignored him and drove off. 14.Mr Sit felt pain in his back, right knee, left elbow and his chest. He noticed that there was laceration on his left elbow and forearm. He made a report to the police at the scene. A traffic police officer on motorbike arrived soon afterwards, and he was taken by ambulance to Pok Oi Hospital Accident & Emergency room for treatment. The Defendants’ case 15.Mr Wong’s version is different. He claimed that Mr Sit had a strong smell of alcohol when he boarded the Minibus at Lok Ma Chau. He recalled that Mr Sit took the window seat on the second row behind him, not the aisle seat, but did not notice whether he had moved to the aisle seat during the journey. 16.Mr Wong said that two passengers got off the Minibus at the stop located at the junction of Castle Peak Road and Yau Sun Street, which was a few minutes prior to the Minibus reaching On Ning Road. When the Minibus was travelling westwards on On Ning Road near the Junction, Mr Sit shouted that he wanted to alight at Shui Pin Wai Estate, where there was a stop. The Minibus did not stop at the Clinic. 17.Mr Wong said that he drove at a normal speed along On Ning Road and while turning right at the Junction. When the Minibus passed the green light at the Junction and was entering Ma Miu Road, he heard the sound of someone falling off the seat, so he immediately stopped the Minibus at the nearby Shui Pin Wai Estate stop. He alighted from the Minibus, walked around the front of the Minibus to the door side and opened the door from the outside, so as to check how Mr Sit was doing. By that time, according to Mr Wong, Mr Sit had got up, and was already seated in one of the seats near to the door. 18.Mr Wong said that he did ask Mr Sit whether he was all right and whether he needed to make a report to the police, but Mr Sit said he was fine. Mr Sit then got off the Minibus by himself, so Mr Wong got back onto the Minibus and drove away. Mr Sit did not say that he was injured, or wanted to make a report to the police. It was only some time later, towards 03:00am, that he was informed by his colleagues that the police was trying to contact him concerning the accident. He went to the Tai Hing police station at around 04:00am where he gave a statement. 19.There is no other eyewitness to the accident. Mr Wong was not prosecuted in relation to the incident. Discussion: Cause of the Accident 20.The first issue to decide is how the accident happened and whether it was caused by Mr Wong’s negligence. If Mr Wong was to blame for the accident, there is also an issue as to whether Mr Sit’s own negligence had contributed to his injuries. 21.Both Mr Sit and Mr Wong gave evidence at the trial. Both of them were not able to recall the full details of the accident. This is understandable given that the accident took place more than 4 years ago. Their recollection was probably also clouded by their personal perception of their respective responsibility (if any) for the accident. I must therefore exercise caution when I assess their evidence. 22.I am reminded that in assessing credibility, the court:
23.See: Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd HCA 1957/2005, HCA 714/2007, HCA 886/2007 & HCA 1364/2008, unrep, Poon J 28 July 2001, at para.24. 24.I also bear in mind what Stock JA (with whom Tang JA agreed) said in Esquire (Electronics) Ltd v Hongkong and Shanghai Banking Corp Ltd [2007] 3 HKLRD at §135:
25.In this case, I consider that I should place more weight on the contemporaneous evidence, including in particular the records of the police officers involved in investigating the incident, the contemporaneous medical records, and the statements Mr Sit and Mr Wong gave to the police soon after the accident. 26.I turn first to the statement of PC236, who was the first police officer to arrive at the scene. In a statement prepared on 17 June 2009, he recorded that he was notified of the accident by the police console at 01:48am and arrived at the scene at 01:50am. When he arrived, an ambulance had already arrived and the paramedics were treating Mr Sit. Mr Sit had told him that he (Mr Sit) was seated in the second row behind the driver, but there was no one next to him. Mr Sit had claimed that the Minibus was driving very fast when turning right from On Ning Road into Ma Miu Road, when he fell to the aisle and injured himself. PC236 handed the investigation to PC33477 and left the scene at 02:15am. 27.PC 33477 was the next officer to arrive at the scene. When he arrived at 02:01 hrs, Mr Sit had already been driven away by the ambulance. He made measurements, took photographs and looked for witnesses but could not find any. At 02:13am, he left the scene to go to Pok Oi Hospital where Mr Sit had been taken. He arrived at Pok Oi Hospital at 02:20am where he found Mr Sit waiting for treatment. Mr Sit was conscious. PC 33477 recorded that Mr Sit had said that while the Minibus was turning right from On Ning Road into Ma Miu Road, he lost his balance and fell to the left onto the aisle and was injured (“當去到意外地點右轉入媽廟路時， 自己失平衡向左跌落走廊引致受傷”). 28.PC33477 then made enquiries with the minibus stations and left a message for Mr Wong to contact him. Mr Wong telephoned him at 03:20am. Over the phone, Mr Wong told PC33477 that when Mr Sit boarded the Minibus, he smelled heavily of alcohol. Mr Wong found that Mr Sit fell onto the aisle when he was negotiating the right turn from On Ning Road into Ma Miu Road. The Minibus was travelling at around 30-40 km per hour in third gear at the time. He immediately stopped the Minibus and alighted to check on Mr Sit, but Mr Sit told him that he (Mr Sit) was fine and got off the Minibus, so he drove off. 29.Later on that morning, Mr Wong attended Tai Hing police station where PC33477 took a statement from him. In Mr Wong’s police statement, Mr Wong repeated his evidence that Mr Sit smelled heavily of alcohol when he board the Minibus and had told Mr Wong that he wanted to get off at Shui Pin Wai Estate. He said that Mr Sit was seated in the window seat in the second row behind him. After the passenger next to Mr Sit alighted, Mr Sit was on his own in that row. While he was turning right from On Ning Road into Ma Miu Road at around 30-40 km per hour, he noticed that Mr Sit fell off his seat onto the aisle so he immediately stopped the Minibus at the Shui Pin Wai Estate stop to check on Mr Sit. Mr Sit told him that he was fine and there was no need to report to the police, so he let Mr Sit got off the Minibus and he continued with the journey. 30.Mr Sit gave a statement to PC33477 on 16 June 2009. In this statement, he gave a similar account of the events to PC33477 as the short account he gave at Pok Oi Hospital but the following points are noteworthy. First, he confirmed that nothing unusual happened on the Minibus during the journey prior to the accident. Secondly, he said that he was not sleeping on the Minibus, but he closed his eyes to rest (“我沒有睡覺，只合上双眼休息”). He said that he had consumed 2 large bottles of beer together with his friend over dinner, but he was not drunk. Thirdly, he again said that he lost his balance and fell from his seat onto the aisle because the Minibus was travelling too fast when negotiating the turn from On Ning Road into Ma Miu Road (“當去到路口架車右轉時，我自己失平衡向左手邊走廊方向跌下”). But he said that at the time he did not tell the driver or the passengers that he was injured, because there was no time as some passengers asked the driver to resume the journey quickly because they were in a hurry, and the driver drove off when he was trying to tell the driver that he wanted to make report to the police. 31.As noted above, the ambulance took Mr Sit from the scene to Pok Oi Hospital. In that hospital’s A&E record, the doctor who treated Mr Sit at around 02:33am noted that Mr Sit had “alcohol smell+”, and that Mr Sit had told the doctor that he had consumed 2 large bottles of beer. 32.Mr Sit was transferred to Tuen Mun Hospital in the afternoon on the same day, where he was admitted at 01:33pm. In the Medical Report of the Tuen Mun Hospital, it was recorded that:
33.A similar entry is found in the Discharge Summary printed on 9 June 2009 which stated as follows:
34.From the above contemporaneous reports, a reasonably clear picture emerged that Mr Sit had consumed a substantial amount of alcohol so that both Mr Wong and the doctor at the A&E room of Pok Oi Hospital could smell it. Mr Sit apparently also told the doctors in Tuen Mun Hospital that he fell asleep during the journey. 35.Mr Sit’s consumption of alcohol was naturally a significant aspect of his oral evidence. In the witness box, Mr Sit insisted that he had only consumed about 1 large bottle of beer (2 large bottles shared between him and his friend), and was not drunk. As Mr Wong Chi Kwong (counsel for Mr Sit) pointed out, Mr Sit was able to make his way from the restaurant to the border, crossed the border and got onto the Minibus without any trouble. He was obviously awake shortly before the accident when the Minibus was on On Ning Road, when he made known to Mr Wong that he would like to alight at Shui Pin Wai Estate. 36.However, when the hospital records were put to Mr Sit during cross-examination, he claimed that they were erroneous and did not accurately record what he had told the doctors treating him. I am unable to accept Mr Sit’s evidence in this regard. The contemporaneous hospital records corroborate Mr Wong’s firm evidence that Mr Sit had a strong smell of alcohol when he boarded the Minibus, which indicates that Mr Wong’s memory is more reliable. Moreover, Mr Sit’s insistence on his being sober when there is independent evidence from the two hospitals’ records to the contrary is in my view an attempt to maintain a story which is contrary to the facts, and adversely affects the overall reliability of his evidence. 37.Moreover, Mr Sit did not recall having met PC33477 at Pok Oi Hospital at all. This is another indication that Mr Sit’s memory of the events was very poor. 38.It is unnecessary to make a finding of the precise amount of alcohol Mr Sit had consumed. It seems to me much more likely than not that although Mr Sit was not drunk – in the sense that he was unconscious or unable to control himself – he was nevertheless under the influence of alcohol, the effects of which continued to affect him while he was being treated in Pok Oi Hospital. Moreover, on his own evidence, Mr Sit was tired and closed his eyes to rest during part of the journey. The evidence therefore suggests, and I so find, that Mr Sit was tired and drowsy, even if he was not drunk or was not asleep when the accident occurred. This makes Mr Sit’s recollection of what had happened unreliable. 39.I also find Mr Sit’s evidence that the Minibus stopped at the Clinic on On Ning Road unreliable. Using the police sketch annexed to his police statement which he had signed, he was asked to draw the route of the Minibus after it had stopped outside the Clinic. But the route he drew in court (Exhibit “P-1”) was substantially different from that shown on the sketch which he had signed. In contrast, the routes shown on Mr Sit’s signed sketch and the sketch signed by Mr Wong are similar, and are consistent with Mr Wong’s evidence in this regard. 40.Another aspect of Mr Sit’s evidence which is unsatisfactory is his claim that the Minibus accelerated to catch the green light. There is no evidence to support this claim, or the allegation that Mr Wong was driving at an excessive speed when making the right turn. I reject Mr Sit’s estimate of the speed of the Minibus at the time of the accident. I accept Mr Wong’s clear evidence that he did not accelerate to get to the Junction other than in the ordinary way, and did not drive over the speed limit. 41.Mr Sit’s claim that he had rolled forward after falling onto the aisle is also problematic. As Mr Daniel KK Chan, counsel for the Defendants, pointed out in Mr Sit’s cross-examination, common sense would suggest that he would have rolled backwards rather than forwards if the Minibus had been travelling at excessive speed through the Junction. 42.Mr Sit added in his oral evidence that he had heard beeping sounds during the journey, which he only recently learned from a friend was the warning sound from the speed limit checking device on the Minibus, indicating that the Minibus was being driven at high speed during the journey. I am unable to accept this evidence. Not only is this not mentioned in any of his statements, it is contrary to his police statement where he stated that nothing unusual occurred during the journey prior to the accident. This attempt to embellish his case also adversely affects the overall credibility of his evidence. 43.Mr Wong’s evidence is on the whole consistent with his police statement and witness statement. There are, nevertheless, two notable discrepancies which cast doubt over Mr Wong’s recollection. The first is that in his statements he had said that Mr Sit had told him that he (Mr Sit) would like to alight at Shui Bin Wai Estate when he boarded the Minibus, while in court Mr Wong confirmed that Mr Sit only told him of this when the Minibus was already on On Ning Road. 44.Secondly, Mr Wong claimed for the first time in court that he recalled that Mr Sit was holding a can of beer after the accident. When cross-examined on this, Mr Wong was confused and unable to say who had told him that. I reject this aspect of his evidence. Moreover, this episode also affects the reliability of his evidence generally which I must bear in mind. 45.Taking into account all the evidence in the round, I am not satisfied that Mr Sit has proved that the accident was caused by any negligence on Mr Wong’s part. In my view, Mr Sit’s evidence is so unreliable that I am unable to accept it on any disputed factual issue where it is not corroborated by other objective evidence. There is no objective evidence tending to show that Mr Wong was driving the Minibus at an excessive speed when negotiating the right turn, or any unusual swerve or sway. Rather, the evidence suggests, and I so find, that Mr Sit was under the influence of alcohol and he probably lost his balance and fell off his seat while the Minibus was making the right turn. 46.I note that no one explored the apparent gap of about half an hour between the reported time of the accident (01:20am) and the time when Mr Sit made a report to the police (01:48am as recorded in PC236’s statement and the Investigation Report prepared by PC33477). I can only assume that the reported time of the accident, 01:20am, was an approximate time, as there is no direct evidence as to the precise time when it happened. 47.As to the lack of passenger seatbelts, since at the material time there was no statutory requirement for the Minibus to install them, in my view it cannot by itself form the basis of liability against the 1st Defendant. 48.Mr Chan referred me to Hoadley v Dartford District Council [1979] RTR 359, a case decided by the English Court of Appeal. In that case the plaintiff was driving a goods vehicle when it had an accident caused by the negligent driving of another vehicle by the defendant. At the time, the statutory requirement for seatbelts did not apply to the plaintiff’s vehicle and it did not have seatbelts fitted. One of the grounds on which the defendant appealed was that there was contributory negligent on the plaintiff’s part because his injuries would have been less severe if he had fitted and used seatbelts. The Court of Appeal rejected that argument, holding that the failure to fit seatbelts when there was no statutory requirement to do so did not give rise to contributory negligence. 49.The issue in that case is therefore different from the instant one, as the court there was concerned with whether the owner/driver of a vehicle which did not have seatbelts fitted when there was no statutory requirement for it was nevertheless to be treated as having failed to take proper care of his own safety. In the instant case, what is in issue is whether the failure on the part of the Minibus owner to fit passenger seatbelts, when the Minibus was exempted from that statutory requirement, was nevertheless a failure to take care of the safety of its passengers. Thus I cannot derive too much help from that case. 50.In my view, where the statutory requirement to fit passenger seatbelts did not apply to the Minibus, it would be difficult to argue that the failure to fit them without more amounted to a breach of duty of care. On the facts of this case, I do not find any basis on which one could reasonably suggest that the 1st Defendant was negligent in failing to fit seatbelts on the Minibus at the material time. 51.Accordingly, Mr Sit’s claim fails and must be dismissed. Injuries and Quantum 52.In the circumstances, it is unnecessary for me to go into the evidence concerning Mr Sit’s injuries and quantum. However, in case the matter goes further I will briefly express my views on these aspects. 53.On the basis of liability being established, counsel have helpfully agreed on the following heads of claim:
54.The issues that I was asked to decide are:
55.Before I go into each head of claim, I would make the general observation that on the whole, my impression of Mr Sit’s evidence on his injuries and earnings is unsatisfactory and exaggerated. 56.For example, one of Mr Sit’s complaints is that because of residual pain to his lower back and right knee, he was not able to resume his previous work as a project manager. In particular, he said that because of the pain in his right knee, he found it difficult to climb ladders or onto scaffoldings, or negotiate pass building materials and objects lying around in construction sites. 57.However, the evidence suggests that Mr Sit has exaggerated the injuries and symptoms attributable to the accident. The medical evidence shows that pre-accident Mr Sit already had a past history of hypertension, gout, ischaemic heart disease, gastric ulcer, fatty liver and gallstone with cholecystectomy done. The medical records indicate that after the accident, Mr Sit had not complained of pain in his right knee until some 6 months later, in December 2009. From his past medical history, it would appear that such pain could have been due to the onset of his pre-existing conditions, including gouty arthritis. Indeed, the Joint Medical Report of Dr Lam Chi Keung, Johnson (instructed by Mr Sit) and Dr Tsoi Chi Wah Danny (instructed by the Defendants), both orthopaedic experts were of the view that the symptoms complained of by Mr Sit were consistent with soft tissue injury to his lower back, left elbow and right knee, but the injuries to his elbow and knee were mild. Moreover, both experts considered that the pain to his right knee was more consistent with degenerative arthritis than purely residual pain after injury, and gout might also have been contributed to such pain. The experts also opined that the lower back pain was at least partly due to degenerative changes to the lumbar spine which were pre-existing and not caused by the accident. Mr Sit’s weight did not help his back pain either. 58.Another example of exaggeration in Mr Sit’s evidence is his claim for loss of earnings. Mr Sit’s evidence in this regard was highly unsatisfactory, in that the claimed pre-accident earnings was not supported by the documentary evidence, including evidence from those companies which used to employ him and his bank statements. A good example is that Mr Sit claimed in his evidence that pre-accident he used to be employed for around 26 days each month, earning around $900-$1,200 per day, whereas the evidence he produced showed that he was only employed intermittently and there was no record of work or income for almost 6 months from mid January to 8 June 2009. Also, at least one of the companies which used to employ him continued to do so after the accident, paying him $1,200 per day for 12 working days in June 2011 and also for a period in June 2012. 59.Looking at the evidence in the round, I am not persuaded that Mr Sit had been able to enjoy continuous employment prior to the accident. I am prepared to accept that he was employed on average no more than 15 days per month, at an average daily rate of $900. 60.Turning to the period of unemployment after the accident, Dr Tsoi opines that Mr Sit should have fully recovered after about 3 months and should have been able to resume his pre-injury work. Dr Lam, however, considers that Mr Sit has genuine residual pain and impairment in the low back, but he should have been able to return to his pre-accident work with reduction in work capacity, although he would need short breaks for rest after prolonged period of walling or site work. The overall effect of the injury especially the back injury on his work capacity was mild. 61.Against such assessments, it seems to me that the period of sick leave claimed, some 14 months, was excessive. Although I have no reason to believe that the doctors who saw Mr Sit and issued those sick leaves did not do so professionally, I am not bound to accept that Mr Sit was unable to work over a period of time covered by a sick leave: see, in this connection, the Court of Appeal’s decision in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at paras.17-18 per Le Pichon JA (with whom Cheung JA and Reyes J agreed). 62.On the evidence before me, I am prepared to accept that Mr Sit would have been able to resume normal work after 6 months. I am unable to find on the evidence before me that thereafter, the symptoms Mr Sit complained of were attributable to the accident. 63.Pre-trial loss of earnings is therefore $900 x 15 days x 6 months = $81,000. 64.Given my findings above, there is no recoverable loss of future earnings. I would reject the alternative claim for loss of earning capacity. Mr Sit is now 63 and on his own evidence, he would probably retire by 65. In those circumstances, I am not persuaded that any award for loss of earning capacity should be made. 65.In conclusion, had liability been established, I would have awarded Mr Sit a total of $185,000 ($100,000 + $4,000 + $81,000). 66.Interest is agreed at 2% per annum from the date of the writ to date of trial on general damages, and half judgment rate from date of accident to date of judgment for special damages. 67.Finally, I make a costs order nisi that the Defendants shall have the costs of the action, to be taxed if not agreed. Mr Sit’s own costs shall be taxed in accordance with legal aid regulations.
Mr Wong Chi Kwong, instructed by Tsang, Chan & Woo, assigned by DLA, for the plaintiff Mr Daniel KK Chan, instructed by Winnie Mak, Chan & Yeung, for the 1st & 2nd defendants |
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