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Lai Chi Wai v Tong Hung Kwok And Another

Judgment Cited authorities 15 Cited in Precedent Map Related
Vincent
Judgment Date23 April 2020
Neutral Citation[2020] HKCFI 628
Year2020
Judgement NumberHCPI1235/2014
Subject MatterPersonal Injuries Action
CourtCourt of First Instance (Hong Kong)
HCPI1235/2014 LAI CHI WAI v. TONG HUNG KWOK AND ANOTHER

HCPI 1235/2014

[2020] HKCFI 628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1235 OF 2014

_____________________________

BETWEEN
LAI CHI WAI Plaintiff

and
TONG HUNG KWOK 1st Defendant
TSUI SIU FAI 2nd Defendant

_____________________________

Before: The Honourable Mr Justice Bharwaney in Court
Dates of Hearing: 10-11, 14-15 January and 6 September 2019
Date of Directions Hearing: 16 May 2019
Dates of Closing and Reply Submissions: 4, 8, 17, 18 and 25 October 2019
Date of Judgment: 23 April 2020

________________

J U D G M E N T

________________

Index

LIABILITY

The Accident

The Pleaded Cases

The Police Investigation

The Plaintiff’s Evidence

The 1st Defendant’s Evidence

My Findings

QUANTUM

Medical Experts

Injuries and Treatment

Damages for Pain, Suffering and Loss of Amenities (“PSLA”)

Agreed Pre-trial Period and Multipliers

Claims which are agreed

Claims which are almost agreed

Other disputed claims

Cost of an exoskeleton

Loss of earnings

Cost of alternative accommodation

Other disputed claims for lesser amounts

Summary

CONCLUSION

1. This is another sad case of a young man cut down in his prime as a result of injury suffered in a road traffic accident. On 9 December 2011 at about 10:25 pm, the plaintiff, who was then almost 29 years of age[1], was involved in a traffic accident on a section of the expressway on Tuen Mun Road which made him paraplegic. All paraplegic persons suffer very substantial loss of amenities from being deprived of the ability to walk and to run. What makes this case particularly distressing is the fact that, prior to the accident, the plaintiff was a world champion rock climber who can no longer pursue and enjoy his sport.

2. The plaintiff brings this action against the 1st and 2nd defendants who have denied liability. Although the defendants had served notices of indemnity and contribution on each other, I was informed before the commencement of the trial[2] that the contribution proceedings between them had been compromised and that there was no need for the court to make any determination in relation to them.

3. In the course of the trial lasting some 5 days, I heard evidence from the plaintiff and his witnesses, Mr Chau Kwok Wai (“Chau”), his wife, Madam Li Mei Lam (“Li”), Mr Cheung Kei Shun (“Cheung”) and Dr Paul Aarne Koljonen (“Dr Koljonen”). The 1st defendant also gave evidence but did not call any witnesses. The 2nd defendant did not give evidence and did not call any witnesses. Accordingly, his witness statements are not in evidence before me[3]. At a directions hearing on 16 May 2019, the Government Motor Vehicle Examiner, Mr Yeung Wai Ching (“Yeung”), who had carried out the examination of the 1st defendant’s vehicle after the accident, answered to a subpoena duces tecum requiring him to produce relevant papers in his possession.

4. The Trial Bundle comprised of 10 bundles marked “A” to “I”[4]. In addition, there is a bundle of the transcript of the proceedings marked “T”.

LIABILITY

The Accident

5. It was common ground that, at the time of the accident, the plaintiff was riding a motorcycle bearing registration number PT5625, the 1st defendant was driving a private car bearing registration number CR692, and the 2nd defendant was also driving private car bearing registration number KM3750. They were all travelling in the direction of Tuen Mun on the Siu Lam section of Tuen Mun Road near chainage marker 57.9. This section of the expressway had 3 lanes for vehicles who were heading towards Tuen Mun. The 1st lane of the expressway was the lane adjacent to the left-hand edge of the road and has been referred to as the slow lane. The 2nd lane of the expressway was the middle lane. The 3rd lane was the lane adjacent to the central reservation of the expressway and has been referred to as the fast lane.

6. At the time of the accident, the weather was fine and the road surface was dry and in good repair. The expressway was well illuminated. The roadside lighting is clearly depicted in the photographs taken by the police[5]. The speed limit over this section of road was 80 kilometres per hour (“kph”).

The Pleaded Cases

7. It was the plaintiff’s pleaded case that his motorcycle was travelling in the 2nd lane at about 60 to 70 kph. Upon reaching the Siu Lam section, there was a rising slope and then a stretch of downward slope. On the downward slope, the plaintiff saw a slow traffic queue and he reduced speed. Suddenly, and without warning, his motorcycle was struck from behind by the 1st defendant’s car. As a result of this collision, plaintiff fell onto the 3rd lane and was hit by the 2nd defendant’s car.[6]

8. The plaintiff also pleaded that:[7]

(1) at the time of the accident, the 1st and 2nd defendants were using the 3rd lane of Tuen Mun Road as their driving lane;

(2) before the accident, the 1st defendant had driven onto the 2nd lane in order to overtake the 2nd defendant and then returned to and continued to drive on the 3rd lane;

(3) thereafter, the 2nd defendant’s car was two to three car lengths behind the 1st defendant’s car;

(4) after the accident, the 1st defendant swerved into the 2nd lane and applied his brake;

(5) white smoke was emitted from the 1st defendant’s car; and

(6) the 2nd defendant continued to drive his car forward and hit the plaintiff on the 3rd lane.

It is implicit from these averments that the plaintiff’s motorcycle was struck when it was in the 3rd lane and that “after the accident, the 1st defendant swerved into the 2nd lane”.

9. It was the 1st defendant’s pleaded case that[8],

(1) immediately before the accident:

(a) he was driving on the 3rd lane at a speed of about 80 kph with the 2nd defendant’s car behind him at a distance of 15 to 20 metres; and

(b) the plaintiff was riding a motorcycle (of the lightweight scooter type) in the 2nd lane in front of the 1st defendant’s car at a speed of less than 70 kph, estimated to be around 50 kph;

(2) the plaintiff’s motorcycle suddenly crossed into the 3rd lane in front of the 1st defendant’s car within a distance of no more than 3 metres;

(3) the 1st defendant braked, but owing to the close proximity, his car come into contact with the rear of the plaintiff’s motorcycle, and the plaintiff’s motorcycle slid from under the plaintiff and deposited him on the 3rd lane;

(4) the 1st defendant swerved into the 2nd lane in order to avoid colliding with the plaintiff and his motorcycle;

(5) at or about the time the 1st defendant swerved, white smoke began to be emitted from the engine compartment of his car; and

(6) following the 1st defendant’s changing of lanes, the 2nd defendant continued to drive along the 3rd lane and his car collided with the plaintiff.

The Police Investigation

10. The sketch plan[9] drawn by the police depicts this section of the expressway[10]. The 1st defendant’s vehicle is depicted as having stopped in the 2nd lane after the accident. The 2nd defendant’s vehicle is depicted as having stopped, after the accident, partly on the 3rd lane and partly on the roadside between the 3rd lane and the central reservation. Where the 2nd defendant’s vehicle came to a stop is also shown on the police photograph[11]. After the accident, the plaintiff’s motorcycle was moved from the expressway and left on the traffic layby reserved for police vehicles on the left side of the slow lane. The sketch and the police photographs show the plaintiff’s motorcycle lying on its left side on the traffic layby[12]. As the plaintiff’s motorcycle was moved after the accident, it is not possible to determine, from the police photographs and the sketch plan, where it had come to a stop after the accident. The maker of the sketch and the person who took the police photographs, Law Sek Wa, had arrived at the location of the accident at about 11:01 pm. In his police statement dated 9 March 2012, he stated that there were no brake marks or vehicle fragments on the road[13].

11. In his police statement[14], PC3798 Lo Chun Man recorded that he reached the scene of the accident at 10.40 pm. The road surface was dry and it was not raining. The 1st defendant told him that he had been driving on the 3rd lane. When the motorcycle cut from the 2nd lane to the 3rd lane, the front of his car collided with the rear of the motorcycle and the motorcycle lost balance and toppled onto the 3rd lane. The 1st defendant turned left to avoid and stopped on the 2nd lane.

12. PC3798 also recorded in his police statement that he performed a breath test on the 1st defendant at 11:08 pm at the scene of the accident, about half an hour after the accident, that gave a result of “28 degrees”, i.e. 0.28 mg of alcohol per litre of breath. Since that was above the prescribed statutory limit of 0.22 mg of alcohol per litre of breath, he arrested the 1st defendant on suspicion of driving while above the limit. A further “approved” test at 1:00 am the following day at the police station, administered some 2 and a half hours later, gave a result of “17 degrees”, i.e. 0.17 mg of alcohol per litre of breach, which was below the prescribed statutory limit. As the initial test was not an approved test, the 1st defendant was not charged with drink driving.

13. A police constable attached to the Marine Police, PC3175, Ng Chi Shing, also gave a statement to the police on 26 March 2012[15]. He stated that, at about 10:20 pm on 9 December 2011, he was riding his motorcycle from his home to work as he was on night shift. At about 10:35 pm, he reached the location of the accident and saw a person wearing a...

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