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Law Sze Chun v Li Mie Chun

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date21 September 2018
Neutral Citation[2018] HKDC 1172
Year2018
Judgement NumberDCPI1700/2016
Subject MatterPersonal Injuries Action
CourtDistrict Court (Hong Kong)
DCPI1700/2016 LAW SZE CHUN v. LI MIE CHUN

DCPI 1700/2016

[2018] HKDC 1172

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1700 OF 2016

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BETWEEN
LAW SZE CHUN (羅仕珍) Plaintiff
and
LI MIE CHUN (李買進) Defendant

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Before: Deputy District Judge K C Chan in Court

Date of Hearing: 12-13 September 2018

Date of Judgment: 21 September 2018

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JUDGMENT

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1. This is the trial of a personal injuries action in which the defendant disputes liability and quantum.

Parties’ respective account on how the accident happened

2. The accident occurred at about 2:25 pm on 14 November 2013. The weather was sunny and the road was dry at the time.

3. At the time of the accident, the plaintiff was aged 73. Her account, as given in her witness statement, which stands as evidence in chief, is this.

4. On that day she left her home at Fung Yi Street to shop. She turned left from Fung Yi Street and walked along the pavement at the right side of Mok Cheong Street towards Kowloon City. She stopped at the junction of Mok Cheong Street and Lung To Street intending to cross Lung To Street. She looked left and saw a private car (later known to be driven by the defendant (“D’s Car”)) approaching along Lung To Street and then stopped to a stand-still at the junction. She waited a short while and D’s Car remained stationary. She then stepped out from the pavement to cross Lung To Street. She walked slowly as she was aged. She then saw the driver’s head turn left and D’s Car started to move. The right front bumper of D’s Car hit her left leg. She fell on the ground. D’s Car then stopped. The defendant then alighted. She felt pain. She could not stand up and was helped by others to sit on the curb. A passer-by then called the police and an ambulance arrived shortly which took her to the hospital.

5. The defendant was aged 55 at the time of the accident. His account, as given in his witness statement, which also stands as evidence in chief, is this.

6. He was then driving D’s Car along Lung To Street intending to turn right into Mok Cheong Street. He saw there were sundry items placed on the side of Lung To Street at the junction such that the view to Mok Cheong Street would be blocked. He therefore stopped D’s Car about 2 feet beyond the double broken white lines “give way” road markings so that he could have a clear look at the traffic coming from his left on Mok Cheong Street. After he stopped there, he pulled the hand brake and waited. He then looked left and right. Suddenly, he saw an old woman (later known as the plaintiff) sat on the ground. He did not see how the plaintiff came to be on the ground. He maintained that before the incident he had not moved D’s Car nor was there any impact. He alighted from D’s Car to take a look at the plaintiff. He said the plaintiff repeatedly demanded monetary compensation at the scene. His case in gist is that the plaintiff manufactured the incident to extort monetary compensation from him.

Oral and other evidence, discussion and findings

7. The following are not disputed:-

(1) The subject junction is a “T” shape junction. Both Lung To Street and Mok Cheong Street are one way streets. Mok Cheong Street consists of 2 lanes with traffic running from Kowloon City towards the direction of Kowloon City Ferry Pier. Lung To Street consists of one lane with traffic running towards and merging with Mok Cheong Street.

(2) There were at the time (and still are) the “give way” road markings at the end of Lung To Street at the junction consisting of 2 broken parallel white lines and a triangle indicating that the Lung To Street was the minor street. The Road Users’ Code published by the Transport Department[1] states that such road markings indicate that the vehicles on the minor road must give way at the lines to traffic on the major road and to pedestrians crossing or waiting to cross the minor road.

(3) Shortly after the accident, the police arrived at the scene and took 6 photographs[2] of the scene of the accident depicting D’s Car at the junction (“Police Photographs”).

(4) D’s Car has not been moved from the time the defendant alighted it until the police took the Police Photographs.

(5) The plaintiff has lived in her present home for over 20 years with her family. Her husband had passed away and her other son moved out such that at the time of the accident and also presently she has been living with the remaining son and has been well supported by him. She has not applied, and has no need of applying, for public assistance.

8. One of the important differences between the parties’ accounts is this : the plaintiff says that the defendant did initially stop D’s Car to a stand-still and then shortly afterwards he moved it out and then the accident occurred; while the defendant says that when he approached the junction he initially stopped D’s Car at a spot two feet beyond the broken lines and since then has not moved the car before the police arrived.

9. The reason given by the defendant for initially stopping at the said spot was that while he was approaching the junction, he observed there were sundry items being placed on Lung To Street which obstructed his view to the traffic.

10. A closer look at the Police Photographs, however, reveals that there were no such sundry items present on Lung To Street or elsewhere at the vicinity of the junction.

11. When cross-examined, the defendant points at a small rectangular pillar-like object (of about 4 to 5 feet high) depicted at the far upper right corner of one of the Police Photographs[3] as being the “sundry items” obstructing his view which he says he observed while approaching the junction. Looking at that photograph, and the defendant admits, the said object was situated on Mok Cheong Street near the curbside, and not on Lung To Street, and was situated at a distance close to the junction at the next street (Kowloon City Road).

12. Judging from the scene as depicted by the Police Photographs and the size and location of the said object, I find it totally incredible that the defendant could have observed the said object while driving along Lung To Street before he reached the subject junction, or that the said object blocked his view to the oncoming traffic on Mok Cheong Street.

13. Moreover, the defendant clearly stated that “由於龍圖街左邊路旁近木廠街擺放大量雜物，阻礙我觀察木廠街行車線……” in the statement he gave to the police and signed by him on 29 November 2013 (“D’s Police Statement”). The same statement was repeated verbatim in paragraph 4 of his witness statement. That statement, by any fair reading, said that the sundry items were situated on Lung To Street near Mok Cheong Street, and not on Mok Cheong Street. When questioned, he explains, in my view very disingenuously, that the statement in fact means that the sundry items were on Mok Cheong Street, and that the word “近” was mistakenly included. I do not accept the defendant’s said explanation.

14. I find it incredible and do not accept the defendant’s account that he initially stopped D’s Car 2 feet beyond, instead of behind, the broken white lines because his view was obstructed at the said junction.

15. In oral evidence the defendant also says that he distinctly remembers that after stopping D’s Car at the junction, he has turned his head and looked first to his left, then to his right, and then to his left again and then to his right again, and then he looked forward and saw the plaintiff on the ground right in front of the right side of the front bumper. However, in D’s Police Statement, there contains no such description of him turning his head left and then right, not to mention doing so twice, to check the traffic or the vicinity. When questioned, while he admits that the above are important details, he cannot give any explanation as to why they were not set out in D’s Police Statement.

16. According to the defendant, he first ever saw the plaintiff was the time when she has already fallen on the ground in front of the bumper of D’s Car. When asked why, having turned his head to the left and right twice to look (according to him), he failed to observe the plaintiff approaching, the defendant explains that he is now certain that there was some object or objects blocking his view from her approach. This allegation that there was an object blocking the plaintiff’s approach from his view was not mentioned at all in D’s Police Statement or his witness statement. When questioned, he admits that this is an important detail and again cannot give any explanation as to why such important detail was not at all mentioned in D’s Police Statement or in his witness statement.

17. I find the defendant’s evidence on having taken the said measures to check the traffic and his vicinity and his evidence that his view to the approach of the plaintiff then was blocked by some object or objects totally incredible and I reject them.

18. I have also observed closely the defendant’s demeanours when giving evidence. I am distinctly unimpressed.

19. In all, I find the defendant an untruthful and unreliable witness.

20. On the other hand, I am impressed by the plaintiff’s evidence. Her account of the events given orally is consistent with that given in her witness statement, which remains unshaken by cross-examination. She may be said to be less than spontaneous in answering questions put to her. I find that it was so firstly because she has slight hearing problems and secondly because her mind often wonders about and remains on the subject of the last question (which is understandable because of her old age) and it has taken her time to switch and comprehend.

21. In sum, I find the plaintiff to be a truthful and reliable witness. I accept...

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