NG WAI TAO v. SIU PATRICK CHUN WAI AND ANOTHER

DCPI 1198/2020

[2023] HKDC 650

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1198 OF 2020

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BETWEEN

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DECISION

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A. INTRODUCTION

1.  On 13 February 2023, I handed down the judgment in respect of the present proceedings (the “Judgment”)[1]: see[2023] HKDC 193.

2.  Whilst I ordered the 1^st defendant to pay damages of HK$166,700.26 together with interest to the plaintiff (see Judgment §83), I dismissed the plaintiff’s claims against the 2^nd defendant (see Judgment §84).

3.  I also made a costs order nisi (the “Costs Order Nisi”) that the 1^st defendant do pay the plaintiff’s costs in these proceedings to be taxed if not agreed (with certificate for Counsel), and that the plaintiff do pay the 2^nd defendant’s costs in these proceedings to be taxed if not agreed (with certificate for counsel) (see Judgment §90).

4.  The plaintiff has applied to vary my Costs Order Nisi. He seeks a costs order along the following lines:-

(1) Insofar as the position of the 1^st defendant is concerned:-

(a) The 1^st defendant do pay the plaintiff’s costs on a party-to-party basis with certificate for counsel.

(b) The plaintiff be entitled to costs on liability on an indemnity basis from 3 November 2020 onwards, and interest thereon at a rate not exceeding 10% above judgment rate.

(c) The plaintiff be entitled to costs on quantum on an indemnity basis from 12 October 2022 onwards, and interest thereon at a rate not exceeding 10% above judgment rate.

(2) Insofar as the position of the 2^nd defendant is concerned:-

(a) There be no order as to costs between the plaintiff and the 2^nd defendant.

(b) In the alternative, the 2^nd defendant do pay the plaintiff’s costs up to 26 March 2021 to be taxed if not agreed, and the plaintiff do pay the 2^nd defendant 1/2 or alternatively 2/3 of the costs of this action after 26 March 2021 to be taxed if not agreed.

B. THE 1^st DEFENDANT’S POSITION

B.1 Background

5.  On 7 October 2020, the plaintiff’s solicitors issued a letter that was marked “Without Prejudice Save as to Costs” and “Sanctioned Offer”. In this letter, it was stated that “[a]s instructed by the Plaintiff and pursuant to Order 22 Rule 4 of the Rules of District Court, Cap. 336H (“RDC”), we hereby make a Sanctioned Offer on liability that the 1^st and 2^nd Defendants be wholly liable in the captioned PI action”. (hereinafter the “1^st Sanctioned Offer”)

6.  Neither the 1^st defendant nor 2^nd defendant had responded to the 1^st Sanctioned Offer.

7.  On 14 September 2022, the plaintiff’s solicitors issued another letter that was marked “Without Prejudice Save as to Costs” and “Sanctioned Offer”. In this letter, the plaintiff put forward a further settlement offer as follows: “the Plaintiff is prepared to accept the sum of HK$100,000 (inclusive of interest but on top of employees’ compensation HK$107,273.41) plus costs to be taxed if not agreed in full and final settlement of the captioned common law action. This offer is made pursuant to Order 22 Rule 4 of the Rules of District Court, Cap.336H (“RDC”)”. (hereinafter the “2^nd Sanctioned Offer”)

8.  Again, neither the 1^st defendant nor the 2^nd defendant had responded to the 2^nd Sanctioned Offer.

B.2 The Plaintiff’s Contention

9.  Insofar as the 1^st defendant is concerned, it is incontrovertible that the plaintiff has achieved an outcome that is more advantageous than the proposals under 1^st and 2^nd Sanctioned Offers. As such, the plaintiff contends that the costs consequences under Order 24, rule 22 are triggered. He asks the court to make a costs order absolute based on the terms set out in §4(1) above.

B.3 The 1^st Defendant’s Contention

10.  The 1^st defendant opposes the plaintiff’s application. He contends that:-

(1) The 1^st and 2^nd Sanctioned Offers were defective, and not in compliance with the formal requirements. They were made to the defendants jointly, and as such they were incapable of being accepted or denied by the 1^st defendant.

(2) The 1^st Sanctioned Offer was merely a tactical one, and it would be unjust if the plaintiff can rely on it to claim indemnity costs and enhanced interests.

(3) The 2^nd Sanctioned Offer was confusing, and came late. As such, the plaintiff shall not be allowed to rely on it to claim indemnity costs and enhanced interests.

B.4 Analysis

Whether the 1^st and 2^nd Sanctioned Offers were defective?

11.  Despite the force of Mr Danny Chan’s submissions, I am not of the view that the 1^st and 2^nd Sanctioned Offers were defective. I am unable to accept the 1^st defendant’s suggestion that the 1^st and 2^nd Sanctioned Offers were made to both defendants jointly, and hence incapable of being accepted by the 1^st defendant alone.

12.  It is true that under the 1^st Sanctioned Offer, it was proposed that “the 1^st and 2^nd Defendants be wholly liable”. However, as pleaded in the Statement of Claim, the factual and legal bases relied on by the plaintiff in pursuing claims against the 1^st and 2^nd defendant are different. In my view, any reasonable bystander with some knowledge of the background of the parties’ dispute would appreciate that the settlement offer in question was made to the 1^st and 2^nd defendant on a “joint and several” basis. Hence, it was open to the 1^st defendant to accept the 1^st Sanctioned Offer, irrespective of the stance taken by the 2^nd defendant.

13.  There is no room for the 1^st defendant to make a song and dance about the words in the solicitors’ correspondence. Litigation is not a game of words. The 1^st defendant (who was legally advised all along) had never sought clarification from the plaintiff’s solicitors as to whether the settlement proposal under the 1^st Sanctioned Offer was put forward to the defendants jointly. It appears to me that the confusion alleged by the 1^st defendant now is just an afterthought, and the reality was that he chose not to accept the 1^st Sanctioned Offer.

14.  The analysis above applies to the 2^nd Sanctioned Offer as well.

15.  Indeed, the 2^nd Sanctioned Offer merely stated that “the Plaintiff is prepared to accept the sum of HK$100,000 (inclusive of interest but on top of employees’ compensation HK$107,273.41)…”. There is no room for the 1^st defendant to contend that the 2^nd Sanctioned Offer was only capable of being accepted by both defendants jointly. Nothing in the letter suggested that this was the case.

16.  In this connection, I cannot see how the 1^st defendant can seek to rely on the following sentence in the letter: “We believe that you will advise the Defendants about the consequence of failing to do better than this Sanctioned Offer”. This sentence did not suggest that the 2^nd Sanctioned Offer was made to both defendants jointly, and hence could only be accepted by both of them on a joint basis. The plaintiff’s solicitors merely stated that the defendants’ solicitors were expected to advise their clients about the proposed settlement. This sentence is neither here nor there, and does not avail the 1^st defendant at all.

17.  In my view, any reasonable bystander with some knowledge of the background would have understood that the settlement proposal under the 2^nd Sanctioned Offer was made to the 1^st defendant and 2^nd defendant on a “joint and several” basis, and as such it was capable of being accepted by the 1^st defendant alone, regardless of the 2^nd defendant’s stance. I am also of the view that there was no confusion on the part of the 1^st defendant, and he knowingly chose not to accept the 2^nd Sanctioned Offer. This was why the defendants’ solicitors did not seek clarification from the plaintiffs’ solicitors.

Whether the 1^st Sanctioned Offer was Genuine?

18.  I now deal with the 1^st defendant’s contention that the 1^st Sanctioned Offer was merely a tactical one.

19.  It has been suggested that all sanctioned payments and sanctioned offers are tactical steps in litigations: see Tsang Chiu Yip v Ho Kwok Leung (HCPI 305/2013, 8 August 2016), §71 (per DHCJ Marlene Ng, as Marlene Ng J then was); and Wharton v Bancroft & Ors [2012] EWHC 91 (Ch), §22 (per Norris J).

20.  The issue is whether it can be said that the 1^st Sanctioned Offer was a genuine and realistic attempt to resolve the parties’ dispute.

21.  In Huck v Robson [2003] 1 WLR 1340, §63, Jonathan Parker LJ stated:-

“it is in my judgment implicit in r 36.21 that, consistently with the philosophy underlying Pt 36 (to which I have already referred), in order to qualify for the incentives provided by paras (2) and (3) of the rule, a claimant’s Pt 36 offer must represent at the very least a genuine and realistic attempt by the claimant to resolve the dispute by agreement. Such an offer is to be contrasted with one which creates no real opportunity for settlement but is merely a tactical step designed to secure the benefit of the incentives. That is not to say that the offer must be one which it would be unreasonable for the defendant to refuse; that would be too strict a test, and would introduce considerations of punishment and moral condemnation which (on the authority of Petrotrade Inc v Texaco Ltd [2001] 4 All ER 853, [2002] 1 WLR 947 and McPhilemy v Times Newspapers Ltd (No 2) [2001] 4 All ER 861, [2002] 1 WLR 934) are irrelevant in the context of para (3) of r 36.21. Indeed, the terms of the offer may reflect a degree of optimism and confidence on the part of the claimant/offeror. Provided only that the offer represents a genuine and realistic offer to resolve the dispute by agreement, it is for the claimant to decide at what level to pitch his offer. In some cases, an offer which allows only a small discount from 100% success on the claim may be a genuine and realistic offer; in other cases, it may not.” (emphasis added)

22.  In Antwerp Diamond Bank NV v Brink’s Incorporated (No 2) [2015] 4 HKLRD 628, §§18-20, our Court of Appeal (per Lam VP (as Lam PJ then was), Lunn VP and Barma JA) stated:-

“18. The suggestion that in order to attract the consequences of Order 22, a sanctioned offer (or payment) must be a “genuine” rather than a “tactical”one was made by Tuckey LJ in Huck v Robson [2002] 3 All ER 263, at paragraph 71. In that case, which involved a claim for personal injuries arising out of a traffic accident, Tuckey LJ expressed the view that an offer that gave only a 0.1% discount on the amount claimed might be regarded as merely “tactical”, and thus not one that would attract the consequences of the English equivalent of Order 22. Further, in the same case Jonathan Parker LJ at paragraph 63 contrasted between offer which represented a genuine and realistic attempt to resolve dispute by agreement and offer which created no real opportunity for settlement but is merely a tactical step designed to secure the benefit of the incentives. The approach was applied by Deputy Judge Lai in Gill Ajmer Singh v Wah Hing Scaffolding Engineering Ltd [2014] 1 HKC 495 in an employee compensation case in which a respondent had made a sanctioned offer on the basis that the applicant shall discontinue with the claim.

19. In Kai Min Fashion (HK) Limited v Fond Express Logistics Limited and anor [2013] 1 HKC 563, a misdelivery case (like the present) where a discount of 2% was offered, Recorder Jat SC said (at paragraph 14 of his judgment):

“… Huck v Robson was a traffic accident case and in that type of cases [sic] issues of contributory negligence often arise, making it uncertain as to the extent of the parties’ respective responsibility for the accident. Thus making a sanctioned offer of the kind described by Tuckey LJ may be seen as a tactical move. This case, on the other hand, is what may be called a “mis-delivery” case and claimants in such cases are often, and justifiably, confident of success if the carrier has delivered the goods without production of the original bills of lading. I do not see why the Plaintiffs should not offer a small discount in this type of case to reflect their reasonably justified confidence in the strength of their claims.”

20. In the present case, the extent of the discount offered is even less than that in Kai Min Fashion. But it does not follow that it would therefore be unjust to make orders of the sort envisaged by Order 22 rules 24(2) and (3). Just as in Kai Min Fashion, the Plaintiff here could well have genuinely regarded its claim as an extremely strong one (and there is no reason to suppose that it did not). We therefore do not think that the smallness of the discount offered of itself renders it unjust to make the orders which the Plaintiff seeks on the basis that the offer was to be castigated as merely “tactical”. Moreover, in this regard, we would, with respect, agree with the observations of Norris J in Wharton v Bancroft [2012] EWHC 91 at paragraph 22 that:

“The concept is not an easy one to apply. All Part 36 offers are tactical in the sense that they are designed to take advantage of the incentives provided by Part 36. A low offer in a case in which the offeror considers that the offeree’s position has no merit cannot be written off as self evidently ‘merely a tactical step’.” (emphasis added)

23.  In Gill Ajmer Singh v Wah Hing Scaffolding Engineering Ltd [2014] 1 HKC 495, §§35-35, Deputy District Judge R Lai (as he then was) stated:-

“35. It can be seen that our system of sanctioned offer is modelled on the Part 36 offer of the 1998 English Civil Procedure Rules. In East West Corp v DKBS 1912 and AKTS Svendborg (No. 2) [2002] 2 Lloyd’s Rep 222 Thomas J considered that an offer from the plaintiff to settle for 100% of their claim was “no offer to settle in the ordinary sense of the word” (see para 15 of the judgment). His Lordship expressed in para 14 of the judgment at 225 his following observations in respect of the Part 36 offer:-

“the Part 36 offer is aimed at an offer to settle, that is to say a genuine offer to settle and not some tactical ploy for the purpose of advancing a claim under Part 36.21 [ie pre 6 April 2007 English Civil Procedure Rules dealing with costs and other consequences where claimant did better than he proposed in his Part 36 offer which provided for sanctions similar to Order 22, rule 23 of the Rules of the District Court in Hong Kong]. The purpose of the award of an enhanced rate of interest or indemnity costs is to encourage parties to make offers of settlement in the ordinary sense of that word.”

36. An offer requiring the opponent to pay 100% of the claim or to wholly discontinue the claim is “no offer to settle in the ordinary sense of the word”. (emphasis added)

24.  Applying the legal principles, I am of the view that the 1^st Sanctioned Offer was not “a genuine and realistic attempt by the [Plaintiff] to resolve the dispute by agreement”. The plaintiff merely proposed that the 1^st and/or 2^nd defendants should admit liability, and be liable for the entirety of his claim. This proposal, which was made at a very early stage of the proceedings, was completely hollow.

25.  If the 1^st Sanctioned Offer were a genuine and realistic settlement proposal that is capable of triggering the costs consequences under Order 24, rule 22, then, any claimant who litigate in Hong Kong may, immediately after the action is commenced, mechanically and mindlessly request the respondent to admit liabilities under a purported sanctioned offer, and if the claims succeed at the end of the day, indemnity costs and enhanced interest would invariably be ordered against the respondent. Bearing in mind that the purpose of the regime is to encourage genuine settlement negotiation (rather than exerting undue pressure on respondents), this cannot be right.

26.  Unlike the scenario in Kai Min Fashion (HK) Limited v Fond Express Logistics Limited and anor [2013] 1 HKC 563, §14 (regarding mis-delivery), I fail see how it could be said that the plaintiff might have a “reasonably justified confidence in the strength of [his] case”. As discussed in §§41-47 of the Judgment, the plaintiff’s case against the 2^nd defendant was utterly hollow, and not supported by a shred of evidence. Further, as observed by Recorder Jat SC in Kai Min Fashion (HK) Limited, in a traffic accident case (which is the present scenario), issues of contributory negligence often arise, and it is uncertain as to the extent of the parties’ respective responsibility.

27.  Based on the materials available to me, the 1^st Sanctioned Offer was nothing more than a mechanical, mindless and effortless attempt inviting the defendants to waive the white flag. How could this amount to a genuine and realistic attempt to resolve the dispute in the present proceedings? How could this constitute an “offer to settle in the ordinary sense of the word”?

28.  In the premises, I am of the view that the 1^st Sanctioned Offer was not a genuine and bona fide attempt to achieve settlement. In my view, it would be unjust to permit the plaintiff to rely on the 1^st Sanctioned Offer, and I am mind to exercise my discretion against the plaintiff.

Whether it would be unjust to allow the Plaintiff to rely on the 2^nd Sanctioned Offer?

29.  In the 2^nd Sanctioned Offer, it was stated the plaintiff was prepared to accept a sum of HK$100,000 in full and final settlement, and this was inclusive of interest. Unlike the 1^st Sanctioned Offer, the settlement proposal under 2^nd Sanctioned Offer was of substance. It was plainly a genuine, bona fide and realistic attempt to resolve the disputes under the present proceedings.

30.  The 2^nd Sanctioned Offer was made around 5 months before the trial of the present proceedings took place. The 1^st defendant had ample time to consider the 2^nd Sanctioned Offer. He did not even need to seek leave from the court in order to accept the same: see Order 22, rule 16(1). I disagree that the 2^nd Sanctioned Offer came late.

31.  For the reasons set out in §§14-17 above, I disagree that the 2^nd Sanctioned Offer was vague or equivocal. I am of the view that the 1^st defendant, who was legally represented all along and who never sought clarification from the plaintiff, had made a knowing decision not to accept the 2^nd Sanctioned Offer.

32.  I do not see any reason why it would be unjust to allow the plaintiff to rely on the 2^nd Sanctioned Offer.

B.5 Sum Up

33.  For the reasons set out above, I am of the view that whilst it would be unjust to allow the plaintiff to rely on the 1^st Sanctioned Offer, the plaintiff is entitled to rely on the 2^nd Sanctioned Offer to seek indemnity costs and enhanced interest thereon against the 1^st defendant.

34.  I am of the view 5% above judgment rate is proportionate in the circumstances of the present case.

35.  In the premises, I am prepared to vary the Costs Order Nisi in respect of the 1^st defendant, and I make a costs order absolute as follows:-

(1) The 1^st defendant do pay the plaintiff’s costs in the present proceedings up to 12 October 2022[2] on a party-to-party basis with certificate for counsel.

(2) The 1^st defendant do pay the plaintiff’s costs in the present proceedings after 12 October 2022 on an indemnity basis and interest thereon at 5% above judgment rate.

C. THE 2^nd DEFENDANT’S POSITION

C.1 The Plaintiff’s Contention

36.  The plaintiff does not dispute that he is the unsuccessful party in respect of the claims against the 2^nd defendant. However, he contends that (i) the 2^nd defendant should not have ignored his pre-action letter dated 14^th May 2020 and refused to provide the motor insurance policy; (ii) the 2^nd defendants’ Defence only contained a bare denial; and (iii) the 2^nd defendant, together with the 1^st defendant, failed on the issues relating to the Traffic Incident (such as breach of duties by the 1^st defendant and alleged contributorily negligence on the part of the plaintiff). Relying on these factors, the plaintiff argues that the costs awarded in favour of the 2^nd defendant shall be reduced, and he seeks a costs order based on the terms set out in §4(2) above.

C.2 Analysis

37.  As pointed out in §§41-47 of the Judgment, there was not a shred of evidence showing that the 1^st defendant was the 2^nd defendant’s agent and/or servant. I cannot see how the plaintiff can blame the 2^nd defendant for making bare denials in his Defence when his own case was completely hollow: §§44 of the Judgment.

38.  It is important to stress that the plaintiff was vested with the onus of proving that the 2^nd defendant was vicariously liable for the 1^st defendant’s wrongdoings. The plaintiff should not have brought a claim against the 2^nd defendant, unless he was satisfied that his claim stood on a solid evidential foundation. The plaintiff could have sought pre-action discovery against the relevant parties. I cannot see how the plaintiff can blame the 2^nd defendant for not assisting him by providing information and/or documents. In the absence of any order made by the court, the 2^nd defendant did not have any obligation to render assistance to the plaintiff.

39.  However, I do not lose sight of the fact that the 2^nd defendant (who was under joint legal representation with the 1^st defendant and who filed a joint Defence with the 1^st defendant) did rely on the 1^st defendant’s pleas, evidence and submissions regarding the Traffic Accident to contest the plaintiff’s claims. The 2^nd defendant’s stance was that the 1^st defendant was not negligent during the Traffic Incident at all, and that the plaintiff’s claim was concocted.

40.  For the reasons set out in §§21-40 of the Judgment, I rejected the defendants’ case regarding the Traffic Incident. Hence, it can be said that the 2^nd defendant failed on the issues relating to the Traffic Incident (such as negligence and alleged contributory negligence). Those issues were certainly crucial. I agree with Mr Tam that they significantly increased the length and costs of the present proceedings.

41.  As pointed out G Lam J[3] (as G Lam JA then was) in Chow Kwan Yee v Leung Mei Yin May[2021] HKCA 832, §6:-

“[w]here a successful party has failed on an allegation that has caused a significant increase in the length or costs of the proceedings, that may be a reason for depriving him or the whole or part of his costs: see e.g. Zuhai International Container Terminals Ltd v Lo Tong Hoi (CACV 181/2011, 31^st July 2012)”.

42.  The present scenario is similar to the scenario in the Chow Kwan Yee case. In that case, the 2^nd defendant was successful in defending the plaintiff’s action against him. However, he, together with the 1^st defendant, raised a defence of gift, which was rejected by the court. The failed defence of gift was fact-sensitive, and it took up substantial time and costs. As such, the Court of Appeal held that it would be just and fair to reduce the costs awarded in favour of the 2^nd defendant.

43.  I have carefully considered the circumstances relating to the present proceedings, including the complexity of the issues relating to the Traffic Accident (which the 2^nd defendant failed) and the complexity of the issues in respect of vicarious liability (which the 2^nd defendant succeeded).

44.  I am of the view that it would be just and fair to reduce the costs awarded to the 2^nd defendant by 50%.

C.3 Sum Up

45.  In the premises, I will vary the Costs Order Nisi in respect of the 2^nd defendant. I make a costs order absolute that the plaintiff do pay 50% of the 2^nd defendant’s costs in the present proceedings on a party-to-party basis with certificate for counsel.

D. CONCLUSION

46.  I order that the Costs Order Nisi be varied in terms of §§35 and 45 hereinabove.

47.  As regards the costs of the present application to vary the Costs Order Nisi, I am inclined to the view that neither party is wholly successful. However, the plaintiff has managed to achieve a favourable outcome. In the premises, I make a costs order nisi that the plaintiff shall have 40% of the costs in respect of the application to vary the Costs Order Nisi with certificate for counsel to be taxed if not agreed. Any application to vary this costs order nisi shall be made within 14 days.

48.  I thank Mr Tam and Mr Chan for their helpful assistance.

Written Submissions by Mr Tam Nok Ting, instructed by Huen & Partners, for the plaintiff

Written Submissions by Mr Chan Kin Keung, Danny, instructed by Francis Kong & Co, for the 1^st and 2^nd defendants

DCPI 1198/2020

[2023] HKDC 193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1198 OF 2020

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BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.  The present action arose from a traffic incident (the “Traffic Incident”) that took place in the afternoon of 12 July 2018 on Mei Wan Street, Tsuen Wan.

2.  It is not in dispute that:-

(1) The Plaintiff is a bus driver employed by Kowloon Motor Bus Co. (1933) Ltd.

(2) The 2^nd Defendant is the owner of a private car bearing vehicle registration number UF3963 (the “Private Car”). He allowed the 1^st Defendant, who is his younger brother, to use the Private Car.

(3) The Mei Wan Street was a two-way road.

(4) Shortly before the Traffic Incident took place:-

(a) The Plaintiff was driving a bus bearing vehicle registration number KK4121 (the “Bus”) along the Mei Wan Street towards the direction of Lau Kok Road (the “SLK Bound”).

(b) The 1^st Defendant was also driving the Private Car along the SLK Bound of Mei Wan Street.

(c) The Private Car was behind the Bus, and there were a few vehicles between them.

(5) At the time when the Traffic Incident occurred, the traffic of the SLK Bound was congested, whereas the traffic of the opposite bound was smooth.

(6) The 1^st Defendant somehow thought that Mei Wan Street was a one-way road[1]. With a view to avoiding the traffic congestion on the SLK Bound, the 1^st Defendant caused the Private Car to cut into the lane of the opposite bound on the right (which was an on-coming lane).

(7) After overtaking a few vehicles, the 1^st Defendant soon saw that a police car with license plate number AM7388 (the “Police Car”) was coming at him from the opposition direction[2]. The 1^st Defendant had to stop the Private Car immediately in order to avoid collusion.

(8) It appeared that the Private Car stopped at a location that was on the right-hand side of the Bus towards its front. The Private Car faced the Police Car diametrically, and there was only a short distance between the Private Car and the Police Car when they stopped[3].

(9) Subsequently, the 1^st Defendant was charged with careless driving pursuant to section 38 of the Road Traffic Ordinance (Cap. 374).

(10) On 7^th March 2019, the 1^st Defendant pleaded guilty to, and was convicted of, careless driving under WKS17478/2018.

SUMMARY OF THE PARTIES’ RESPECTIVE CASE

B1. Summary of the Plaintiff’s Case

3.  It is the Plaintiff’s case that when the Traffic Incident took place, the 1^st Defendant drove the Private Car at a high speed, and he suddenly veered the Private Car in attempt to cut into the left lane of Mei Wan Street (i.e. the SLK Bound) ahead of the Bus[4].

4.  In light of the 1^st Defendant’s action, the Plaintiff had to apply brake abruptly and immediately in order to stop the Bus, such that collision could be avoided. This caused the Plaintiff to sustain personal injury[5].

5.  The Plaintiff contends that the 1^st Defendant was negligent and/or in breach of the duties required of a reasonably competent driver. The particulars in respect of the Plaintiff’s complaints of negligence and/or breach duties include, inter alios, the following: (i) the 1^st Defendant drove the Private Car in a direction that was against prescribed direction; (ii) the 1^st Defendant failed to maintain sufficient distance from the Bus and to ensure that there was sufficient space before he attempted to cut into the lane of the Bus; (iii) the 1^st Defendant failed to pay sufficient notice to the road conditions, and be aware of the presence of the Bus; (iv) the 1^st Defendant failed to give warning to the Bus that the Private Car was approaching; (v) the 1^st Defendant failed to stop or control the Private Car or to apply the brakes sufficiently[6].

6.  The Plaintiff also contends that the 2^nd Defendant is vicariously liable for the 1^st Defendant’s negligence and/or breaches of duties[7]. In this connection, Mr. Tam Nok Ting, on behalf of the Plaintiff, relies on the fact that the Vehicle was owned by the 2^nd Defendant but driven by the 1^st Defendant. Mr. Tam submits that this constituted prima facie evidence showing that the 1^st Defendant was the 2^nd Defendant’s agent or servant[8].

7.  The Plaintiff claims that he suffered from neck and back sprain as a result of the Traffic Incident. Due to increasing neck and back pain, the Plaintiff sought emergency treatment from Princess Margaret Hospital, and he was admitted to the Accident and Emergency Department on 13^th July 2018 at 1:46am[9]. This was a few hours after the Traffic Incident occurred.

8.  As evidenced by the contemporaneous records, during the period from 13^th July 2018 to 21^st September 2018, the Plaintiff:-

(1) attended the Accident and Emergency Department of Prince Margaret Hospital on 7 occasions;

(2) sought diagnosis and treatment from various out-patient clinics and private medical practitioners on 14 occasions; and

(3) attended physiotherapy sessions on 7 occasions[10].

9.  From 13 July 2018 to 4 October 2018, the Plaintiff was granted sick leaves of 84 days in total[11].

10.  According to the Certificate of Assessment dated 4 April 2019[12] issued by the Employees’ Compensation (Ordinary Assessment) Board, the Plaintiff suffered from “neck and back injury resulting in residual neck and back pain”, and his loss of earning capacity was assessed at 1.5%[13].

B2. Summary of the Defendants’ Case

The 1^st Defendant

11.  It is the Defendants’ pleaded case[14] that “the Plaintiff did not and had no need to apply brake to stop the [Bus], suddenly or otherwise, to avoid any crash accident”.

12.  Mr. Danny Chan, on behalf of the Defendants, submits that:-

(1) At the time when the Traffic Incident took place, the traffic on the SLK Bound of Mei Wan Street “was more likely to be stationary, or at best slow moving” [15] .

(2) The evidence appears to show that the Private Car did not actually cut into the lane of the SLK Bound ahead of the Bus[16].

13.  In the premises, it is contended the 1^st Defendant was not negligent and/or in breach of duties. It is further contended that if the Plaintiff had suffered injury as a result of the Traffic Incident, this was wholly (or partially) ascribed to the Plaintiff’s own negligence in that he unnecessarily stopped the Bus in an abrupt manner. There was hence contributory negligence on his part[17].

14.  Knowing that the conviction under WKS17478/2018 is prejudicial to his clients’ case, Mr. Chan skillfully argues that the conviction was irrelevant as the 1^st Defendant was convicted on the basis that he drove “on the wrong side of the road”[18]. He points out the 1^st Defendant was not convicted on the basis that he caused the Private Car to cut into the lane of the SLK Bound ahead of the Bus.

15.  Mr. Chan also stresses that the Traffic Incident did not involve any actual collision, and there is no contemporaneous record showing that the Plaintiff reported his alleged injury to the Police at the scene[19].

16.  Insofar as the Plaintiff’s present disabilities and/or conditions are concerned, Mr. Chan contends that they were ascribed to the previous injuries suffered by the Plaintiffs in 1999/2000[20], 2001[21] and 2011[22]. After all, the Plaintiff was able to continue driving after the Traffic Incident occurred[23], and he did not attend hospital until a few hours afterwards.

17.  Mr. Chan also relies on the opinion expressed by Dr. Chun[24]. According to Dr. Chun, as the Traffic Incident did not involve any collision and breaking was a conscious act, no whiplash injury would be caused under normal circumstances[25]. Dr. Chun opined that the Plaintiff’s conditions were ascribed to pre-existing degeneration[26].

The 2^nd Defendant

18.  The Defendants deny that there was any agency relationship or master-and-servant relationship between them[27]. It is the Defendants’ case that the 2^nd Defendant simply allowed the 1^st Defendant and other family members to use the Private Car[28].

LEGAL PRINCIPLS ON ASSESSING CREDIBILITY

19.  In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at 524, DHCJ Au (as Au JA then was) set out the well-established approach on assessing credibility. In the course of assessing the credibility of a party’s case, the Court shall consider the following matters:

(1) whether the party’s case is inherently plausible or implausible;

(2) whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3) where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4) the demeanour of the witnesses.

20.  This well-established approach has been followed in subsequent cases[29]. I will apply the same in assessing the credibility of the parties’ case.

LIABILITY

D1. The Liability of the 1^st Defendant

21.  Having considered the contemporaneous documents and having heard the oral testimony of the witnesses, I am of the view that the Plaintiff’s case is preferable.

22.  I find that when the Traffic Incident took place, the 1^st Defendant did drive the Private Vehicle at a high speed, and he did attempt to cut into the lane of the SLK Bound ahead of the Bus. At the time, the Bus was moving at a speed of around 30km/hour. In order to avoid collision, the Plaintiff immediately applied brake and caused the Bus to stop abruptly. As a result, the Plaintiff suffered injury on his neck and his back. As the pain increased, the Plaintiff sought medical assistance at the Prince Margaret Hospital in the early morning on 13^th July 2018.

23.  I come to the aforesaid findings for a number of reasons.

24.  First, the medical record of the Accident & Emergency Department of the Prince Margaret Hospital dated 13^th July 2018 (which was signed by a doctor)[30] is a piece of compelling contemporaneous evidence that supports the Plaintiff’s case.

25.  The medical record set out the circumstances in which the Plaintiff suffered injury. It was stated that:-

(1) the patient was a “bus driver”;

(2) “another car tried to overtake the bus”;

(3) “patient saw a car on his right so stepped on brake immediately (speed 30km/hour)”;

(4) “No collision”

(5) “sprained neck and back…”

26.  As Mr. Chan fairly accepted, it is hardly controvertible that the aforesaid information was provided by the Plaintiff to the medical staff at the Prince Margaret Hospital who were expected to perform medical treatment on him. In my view, the Plaintiff provided the information in question because he wanted the medical staff to understand the circumstances in which he was injured, such that he would be given the appropriate medical treatment to alleviate pain and discomfort.

27.  Indeed, the medical record shows that the Plaintiff was admitted to the Accident & Emergency Department of the Prince Margaret Hospital at 1:46am on 13^th July 2018[31], and the whole consultation took 2 hours and 52 minutes. It appears to me that the Plaintiff must be under considerable pain and discomfort at the time. Otherwise, he would not have visited a public hospital so early in the morning (or so late at the night) and spent around 3 hours there.

28.  In the circumstances, the Plaintiff had every reason to tell the truth to the medical staff of Prince Margaret Hospital. It is inherently unlikely that the Plaintiff orchestrated this visit (so early in the morning or so late at the night)[32] for the purposes of generating false records to be used for building up a bogus claim in the future.

29.  In the premises, I find that the information contained in the medical record dated 13^th July 2018 was truthful and reliable.

30.  Second, in my view, the Plaintiff was an honest witness. At the trial, the Plaintiff strived to answer the questions put to him. He was cooperative, and willing to provide information that assisted the Court. His answers were always succinct and to the point. He was also willing to make concession without hesitation[33].

31.  The Plaintiff was unshaken during cross-examination. In this connection, I wish to say as follows:-

(1) The Plaintiff was adamant that although the Private Car did not actually cut into the lane of the SLK Bound in front of the Bus, the Private Car did attempt to do so as it approached at a high speed and stayed very near to the Bus. Hence, he immediately braked to cause the Bus to stop. The purpose of doing so was to enable the Private Car to pass by the Bus, such collision could be avoided.

(2) It appears to me that the version of events given by the Plaintiff is convincing, and consistent with the objective circumstances of the case.

(3) The Plaintiff was also adamant that after the Traffic Incident took place, he did say to the policemen that he felt pain, but he could continue driving.

(4) I do not think that the Defendants can make a song and dance about the fact that the statement made by the police officer dated 12^th July 2018 was silent about the Plaintiff’s injury (see paragraph 34(2) below). This is hardly surprising as the focus of the statement made by the police officer was the 1^st Defendant’s careless driving. In any event, the Plaintiff never alleged that his injury was very serious.

(5) It is true that Plaintiff only attended hospital to seek medical assistance a few hours after the Traffic Incident[34]. However, as Mr. Chan fairly accepted, it is not uncommon that the pain of a person who suffers physical injury might only exacerbate after sometime. As mentioned, the Plaintiff did attend the Prince Margaret Hospital during very late hours. Having observed the Plaintiff, I am not convinced that he is the kind of dishonest person who would orchestrate a self-serving visit to a hospital for the purpose of building up a false claim. In contrast, it appears to me that the Plaintiff is a diligent person who is serious about his job duties. This was why he insisted to complete his driving duties after the Traffic Incident occurred. In fact, the Plaintiff never claimed that his injury was so serious that he had to stop driving immediately.

(6) Insofar as the Plaintiff’s conditions are concerned, I disagree with the suggestion that the Plaintiff was evasive about his previous injuries. The injuries took place a long time ago back in 1999/2000[35], 2001[36] and 2011[37]. There is nothing odd about the fact that the Plaintiff only had vague recollection about the details. In any event, as will be elaborated below, it does not appear to me that the previous injuries had any direct correlation with the present injury.

(7) Lastly, Mr. Chan criticized the Plaintiff’s oral evidence in regard to the pain that he suffered at the time. In his oral evidence, the Plaintiff said that he felt painful on his back/shoulder in the beginning, and sometime later he started to feel painful on his neck. This does not appear to be consistent with the medical records on 13^th July 2018 as well as the medical report dated 9^th July 2020[38], which recorded that the Plaintiff suffered from neck and back sprain and that he complained about back and neck pain.

(8) I agree with Mr. Chan’s submissions that there is an inconsistency. However, I disagree that the Plaintiff is dishonest. In determining whether a witness is dishonest and incredible, it is necessary to consider whether he or she has a motive to lie on the matter in question. I do not see why the Plaintiff would wish to deceive the Court as to when his neck pain started. He would not attain any advantage by alleging that the neck pain only started sometime after the Traffic Incident took place. This even creates an impression that the pain was not caused by the Traffic Incident. It appears to me the reality is such that the Plaintiff’s memory regarding the details of his pain has faded due to lapse of time. I am unable to accept the suggestion that the Plaintiff concocted the pain out of the blue or that he exaggerated his conditions. After all, the Plaintiff’s pain and injury (on both his neck and his back) were well-documented in the contemporaneous medical records[39].

(9) Mr. Chan reminded me that there are unscrupulous claimants who concoct bogus claims out of greed, and they often seek to make a mountain out of a molehill. This might be true. However, having observed the Plaintiff and having considered the contemporaneous records and documents, I am not persuaded that this is one of those cases.

32.  All in all, I find that the case and evidence of the Plaintiff makes sense and are credible.

33.  Third, I am skeptical about the 1^st Defendant’s case and evidence in regard to the Traffic Accident:

(1) In paragraph 5 of the Statement of Claim, it was expressly pleaded that “the 1^st Defendant suddenly veered the Private Car…and attempted to cut into the [SLK] Bound…”, and the “Plaintiff had to bake to stop the [Bus] immediately to avoid crash accident”.

(2) In paragraph 5 of the Defence, the Defendants plead that “the Plaintiff did not and had no need to apply brake to stop the [Bus], suddenly or otherwise, to avoid any crash accident”. However, the reasons why the Plaintiff did not need to apply brake to stop the Bus were not pleaded. It was not pleaded that the 1^st Defendant did not attempt to overtake the Bus; nor was it pleaded that the vehicles (including the Bus) on the SLK Bound were stationary or almost stationary.

(3) In his witness statement, the 1^st Defendant did not spell out the reason why it was not necessary for the Bus to stop immediately and/or abruptly. He did not state that the Bus was stationary (or almost stationary) at the moments shortly before he stopped the Private Car[40]. He did not state that he was not attempting to overtake the Bus at the time.

(4) It is apparent that the circumstances in which the Traffic Incident took place are important in the present dispute. If it were true that the 1^st Defendant did not seek to overtake the Bus and that the Bus was stationary (or almost stationary) at the time, these allegations should have been raised expressly and unequivocally in the pleadings and the witness statements.

(5) As such, I am skeptical about the 2^nd Defendant’s oral evidence that the vehicles on the left lane (i.e. the SKL Bound) were stationary at the time. I am also skeptical about any suggestion that the 1^st Defendant were not trying to cause the Private Vehicle to overtake the Bus at the time.

34.  Fourth, I take into account that the Plaintiff’s case is by and large consistent with the evidence and materials[41] from the driver of the Police Car, namely Mr. Chan Tak-Cheung, Alexander (the “Police Driver”) who was a senior police constable:-

(1) The Police Driver prepared a sketch on 12^th July 2018 (the “Sketch”). It did show that the Private Car stopped on the right-hand side of the Bus towards its front. The Private Car leaned slightly towards the Bus. It was not the case that the Private Car and the Bus were parallel. In my view, the Sketch shows that the Private Car tried to overtake the Bus.

(2) The Police Driver also made a police statement dated 12^th July 2018. There, he mentioned that the Private Car attempted to cut into the left lane (i.e. the lane of the SLK Bound) in front of the Bus. He also mentioned that at the time, he had to apply brake immediately to stop the Police Car in order to avoid collision with the Private Car. Later, he asked the 1^st Defendant whether he understood that it was dangerous to overtake from a lane with on-coming traffic.

35.  The Police Driver prepared the Sketch and his statement within the same day shortly after the Traffic Incident took place. It did not appear that he had any reason to put forward a version of events that was false.

36.  However, I do not lose sight of the fact that the Police Driver did not give evidence in the present proceedings and he was not subject to cross-examination by the Defendants’ Counsel. As such, I remind myself that I should approach the aforesaid materials with some skepticism, and the weight that they carry must be limited.

37.  For all the above reasons, I accept the Plaintiff’s case, and I make the findings set out in paragraph 22 above.

38.  I find that the 1^st Defendant was negligent and in breach of the duties set out in paragraph 5 above. He should not have driven the Private Car on the opposing lane against prescribed direction. He should not have attempted to cause the Private Car to overtake the vehicles (including the Bus) on the SLK Bound without observing and paying sufficient notice to the road conditions. He should not have caused the Private Car to approach the Bus and to stay near to the Bus without giving sufficient warning and/or notice in advance. He should not have attempted to cause the Private Car to overtake the Bus without giving sufficient warning and/or notice in advance. He should not have attempted to cause the Private Car to overtake the Bus when there was insufficient distance between the two vehicles.

39.  I find that as a result of the 1^st Defendant’s negligence and/or breach of duties, the Plaintiff had to apply brakes abruptly in order to stop the Bus immediately, such that collusion could be avoided. I also find that the Plaintiff was reasonable, and he could not be criticized. I accordingly reject the Defendants’ contention on contributory negligence.

40.  For all the above reasons, I hold that the 1^st Defendant is liable to the Plaintiff for damages.

D2. The Liability of the 2^nd Defendant

41.  However, I am unable to find that the 2^nd Defendant is vicariously liable for the 1^st Defendant’s negligence and/or breach of duties.

42.  The mere fact that a person permits his close family members to use his vehicle is ipso facto insufficient to establish various liability: Norwood v Navan [1981] RTR 457 at 461D-K (per Ormrod LJ); Lau Tat Wing v Lo Oi Ming & Anor[2018] HKDC 1203 at para 38 (per Deputy District Judge Christopher Chain).

43.  In the present case, there is simply no evidential basis to suggest that the 1^st Defendant acted as the 2^nd Defendant’s agent or servant at the time of the Traffic Incident. There is not a shred of evidence showing that the 1^st Defendant were carrying out any task or performing any duty for the 2^nd Defendant. I cannot see how I can draw an inference of agency from the mere fact that the 2^nd Defendant paid for the insurance policy in respect of the Private Car that covered the 1^st Defendant as an additional driver. This fact merely shows that the 2^nd Defendant permitted the 1^st Defendant to use the Private Vehicle from time to time.

44.  Mr. Tam fairly accepts that the evidence is thin. This is an understatement. I am afraid to point out that the Plaintiff’s case against the 2^nd Defendant is completely hollow.

45.  During cross-examination, the 2^nd Defendant told the Court that:-

(1) Members of his family, including the 1^st Defendant and himself, lived in the same residential complex (but in different units). His family had two cars (one of which was the Private Car). Whilst the 2^nd Defendant and the Defendants’ father paid the majority of the expenses, the 1^st Defendant also made some contribution.

(2) He was the school manager of a kindergarten in Kowloon, which involved investments from his family as well as outsiders. He received salaries from the kindergarten, but not subsidies for vehicle expenses. Whilst the 1^st Defendant worked as an IT manager for the same kindergarten that employed him, the 1^st Defendant reported to the principal of the kindergarten (not himself).

46.  It appears to me that the 2^nd Defendant was a truthful and honest witness who had nothing to hide. His evidence was direct and succinct. I accept the 2^nd Defendant’s evidence.

47.  On the evidence, there is plainly no room to contend a relationship of agency existed between the 1^st and 2^nd Defendants. As such, the 2^nd Defendant could not be vicariously liable for the 1^st Defendant’s negligence and/or breach of duties.

48.  I accordingly dismiss the Plaintiff’s claims against the 2^nd Defendant.

QUANTUM

E1. Causation

49.  In considering the disagreement between the medical experts of the parties on the question of causation, I bear in mind the guidance given by the Court of Appeal in Lee Kin-kai v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232 on the approach.

50.  In Wong Pou Yin Kennie v Maxim’s Caterers Ltd (HCPI 753/2009, 11^th May 2012) at para 38, To J stated:-

“…Causation is essentially a matter for the judge and not doctors. The judge will be assisted by medical evidence but is not bound by it. The law and medicine apply different standards as regards causation. Doctors practise the science of aetiology. They look for clinical cause or irrefragable chain of causation which is to be proved beyond reasonable doubt. But, in law there is causation if it is shown on a balance of probabilities that the accident was a substantial contributing cause of the injury. It does not need to be the sole cause. In considering causation, the judge is bound to use common sense.”

51.  It is also pertinent to refer to the following propositions in Clerk & Lindsell on Torts (23^rd Ed), para 2-09 and Charlesworth & Percy on Negligence (15^th Ed), para 5-04, which were cited in a recent judgment, namely Leung Mui Yi v Fu Hong Society[2023] HKDC 36, para 85-86 (per Deputy District Judge Teresa Wu):

“85. 正如第二被告人強調，原告人承擔舉證責任，須提出足夠證據證明若非因為第二被告人的疏忽，則原告人不會蒙受相關損害，即在建立侵權責任的因果關係中的「若非」標準（“but-for” test）。Clerk & Lindsell on Torts (23^rd Ed) §2-09對該原則的應用有以下觀察（另見§§2-05 & 2-07）：

“The first step in establishing causation is to eliminate irrelevant causes, and this is the purpose of the ‘but for’ test. The courts are concerned, not to identify all of the possible causes of a particular incident, but with the effective cause of the resulting damage in order to assign responsibility for that damage. The ‘but for’ test asks: would the damage of which the claimant complains have occurred ‘but for’ the negligence (or other wrongdoing) of the defendant? Or to put it more accurately, can the claimant adduce evidence to show that it is more likely than not, more than 50 per cent probable, that ‘but for’ the defendant’s wrongdoing the relevant damage would not have occurred. (粗體底線後加)”

86. 雖然原告人不需證明第二被告人的的疏忽是唯一導致她受傷的原因，但她必須證明那是必要的原因。Charlesworth & Percy on Negligence (15^th Ed) §5-04指出：

“The ‘but for’ rule is generally the starting point in proving a causal connection between negligent conduct and the damage suffered. The claimant seeks to show that but for the defendant’s negligence the injury complained of would not have arisen. If he succeeds, there is no additional requirement to show that the defendant’s negligence was the only, or the single, or even chronologically the last cause of injury. This threshold ‘but for’ test is based on the presence or absence of one particular type of causal connection: whether the wrongful conduct was a necessary condition of the occurrence of the harm or loss. The test does not distinguish between legally relevant and other causes, yet it is not its function to do this. It identifies whether the conduct in question was a factual cause. At this stage we do not need to concern ourselves with all the other factors which combined to produce the total environment in which the damage could happen. So it is often — and for most purposes correctly — described as a minimum threshold test of causation. (粗體底線後加)”

52.  Applying the legal principles, I am of the view that the conditions suffered by the Plaintiff was caused by and/or ascribed to the Traffic Incident, and I am also of the view that the opinion of Dr. Chan (i.e. the Plaintiff’s medical expert) is preferable to the opinion of Dr. Chun (i.e. the Defendant’s medical expert).

53.  I come to these views for the following reasons.

54.  There is no evidence showing that the Plaintiff had been suffering from any pain or discomfort (whether relating to his neck, back or otherwise) before the Traffic Accident took place on 12^th July 2018. The evidence shows that shortly after the evidence took place, the Plaintiff was admitted to the Accident & Emergency Department Prince Margaret Hospital in the early morning of 13^th July 2018 at 1:46am, and he spent almost 3 hours there[42]. As discussed above, I accepted that the Plaintiff must be under considerable pain and discomfort at the time. In light of the proximity between the time when the Traffic Incident occurred and the time when the Plaintiff sought medical assistance, I am of the view it is more likely than not that the Plaintiff’s pain and discomfort was substantially caused by and/or ascribed to the Traffic Incident, and he would not have suffered the conditions in question but for the Traffic Accident.

55.  In the subsequent months, the Plaintiff further (i) attended the Prince Margaret Hospital on 6 more occasions; (ii) sought diagnosis and treatment from out-patient clinics and private medical practitioners on 14 occasions; and (iii) attended physiotherapy sessions on 7 occasions. These medical and/or physiotherapy sessions were evidenced by contemporaneous records. I have no doubt that that the Plaintiff attended these medical and/or physiotherapy sessions in order to alleviate the pain and discomfort that he was suffering at the time.

56.  It is true that the Plaintiff suffered previous injuries in 1999/2000[43], 2001[44] and 2011. However, I am unable to find that these previous injuries were a substantial cause of the conditions suffered by the Plaintiff after the Traffic Incident[45]:-

(1) The injury that took place in 1999/2000 concerned the Plaintiff’s low back, whereas the injury that took place in 2001 took place in 2001 concerned the Plaintiff’s shoulder. These injuries took place almost two decades before Traffic Incident. As mentioned, there is no evidence showing that the Plaintiff had been suffering from any physical pain or discomfort on his back, his neck and/or his shoulder before the Traffic Incident took place. Further, there is also no evidence showing that the Plaintiff had been seeking medical treatment or medical assistance (whether in relation to his back, his neck or his shoulder) before the Traffic Accident took place. As such, I am of the view it is more likely than not that the conditions suffered by the Plaintiff after 12^th July 2018 were not caused by the previous injuries back in 1999/2000 and 2001 (which were almost 2 decades ago).

(2) As regards the injury in 2011, it was concerned with the Plaintiff’s hand (including wrist, scaphoid, metacarpal bone and finger). Obviously, this had nothing to do with the conditions suffered by the Plaintiff in relation to his neck and/or his back. In any event, there was a time gap of 7 years between the Traffic Incident and this previous injury. I cannot see any correlation between the two.

57.  I have also carefully considered the joint medical report prepared by Dr. Chun and Dr. Chan. Dr. Chun opined that the Plaintiff’s conditions were ascribed to pre-existing degeneration. It appears the bases of Dr. Chun’s opinion were that (i) without a collision, there should be no impact force on the Plaintiff’s body; and (ii) the braking was a conscious act that would not cause whiplash injury under normal circumstances[46].

58.  I have reservations about these suggestions:-

(1) I disagree that there was no impact force on the Plaintiff’s body simply because there was no collision. This is a matter of common sense. As the Plaintiff had to stop the Bus in an abrupt manner when the Bus was moving around 30km/hour, there must be some impact force on the Plaintiff’s body.

(2) When the Plaintiff saw the Private Car, he only had a very limited amount of time to react within one or two seconds. This was a matter of reaction. In the words of the Plaintiff, his act of applying brake to stop the Bus immediately was the instinct of a professional driver. It appears what the Plaintiff tried to say was that he applied brake to stop the Bus as a matter of reflex. It was not the case that the Plaintiff had ample time to consider what to do in the circumstances, such that he could adjust and prepare his body accordingly. As a matter of common sense, it was perfectly explicable as to why the Plaintiff would suffer whiplash injury.

59.  In the premises, I prefer the opinion of Dr. Chan (i.e. the Plaintiff’s medical expert), which appears to be more consistent with the facts and objective circumstances of the case.

60.  For all the above reasons, I find that the Traffic Incident (and the 1^st Defendant’s negligence and/or breach of duties) were, on the balance of probabilities, the substantial contributing cause of the neck and back soft issue sprained injury suffered by the Plaintiff, and the Plaintiff would not have suffered these conditions but for the Traffic Incident (and the 1^st Defendant’s negligence and/or breach of duties).

E2. PSLA

61.  Whilst the Plaintiff claims HK$150,000 under this head, the Defendants suggest HK$10,000.

62.  Mr. Tam referred me to Ding Kwok Keung v Moretide Investment Ltd[2018] HKDC 605; So Kim Lung v Lee Pak Wai (HCPI 494/2010, 1^st November 2012); Yeung Ho Man v Shun Kin Leung & Anor[2020] HKCFI 2531; Lee Chit Ming v Man Siu Hung (HCPI 1242/2014, 15th March 2017); Ip Siu Fung v Hung Wai Sum[2021] HKDC 534; and Ki Tak Yan v IO of Kam Yuen Building & Anor[2020] HKCFI 2956.

63.  Mr. Chan referred to Siu Lai Yee v Wong King Hay[2021] HKDC 1304; Wong Pou Yiu Kennie v Maxim’s Caterers Ltd (supra); Wong Tak v Lau Yue Hung (HCA 7526/1981, 14^th December 1983); Lau Tak Ting v Lo Oi Ming[2018] HKDC 1203.

64.  Whilst each case will have to be decided on its own facts, I have considered the cases cited by Counsel as reference. It does not appear to me that the cases cited by Mr. Chan are appropriate comparables. For instance, Siu Lai Yee (supra) concerned a female driver who was sternly criticized by the Court for concocting and exaggerating alleged injuries on multiple respects, and the learned Judge held that she only suffered a minor sprain of the soft issue of her neck. As such, the learned Judge considered that a sum of HK$10,000 was reasonable.

65.  I am of the view that Ding Kwok Keung (supra) and So Kim Lung (supra) are more appropriate comparables:

(1) In Ding Kwok Keung (supra), the plaintiff was a 52-year old driver and lorry worker who suffered a mild sprained back injury without neurological complication. At the time when the joint examination took place, he was in a satisfactory state, and he had full range of back movement. PSLA was awarded at HK$150,000.

(2) In So Kim Lung (supra), the plaintiff was a mini-bus driver who suffered whiplash injury. He suffered injury to his lower back and neck with no neurological complication. He was granted sick leave of 6 months. PSLA was awarded at HK$120,000.

66.  I have carefully compared the factual circumstances of the present case with the factual circumstances of the cases cited by both Counsel. Taking all the circumstances into account, I am of the view that a sum of HK$120,000 would be adequate and reasonable.

E3. Pre-Trial Loss of Earnings

67.  The Plaintiff’s monthly salary was HK$33,164.31, and he was granted 84 days’ sick leave[47].

68.  Whilst Dr. Chun opines that reasonable sick leave should be 2 days, Dr. Chan opines that the sick leave granted by the doctors who treated the Plaintiff from time to time were appropriate[48].

69.  In Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited [2008] 5 HKLRD 210 at para 18, Le Pichon JA held that the Court is not bound by the mere issue of sick leave certificates, and the same are no more than a piece of evidence that has to be evaluated in light of all the available evidence.

70.  Hence, the Court has to form its own opinion on the sick leave granted based on the totality of the evidence: see Rai Surya Prakash v Pacific Crown Security Services Ltd & Anor[2020] HKCFI 917, para 42 (per DHCJ Anson Wong SC).

71.  I have carefully considered the medical evidence before me as well as materials that were used for the purposes of employees’ compensation. It cannot be said that the injury suffered by the Plaintiff was very serious. It appears to me that sick leave of 60 days should be adequate and reasonable in the circumstances.

72.  On this basis, the award for loss of earnings is HK$69,645.05 (i.e. HK$33,164.31 x 60/30 months x 1.05).

E4. Loss of Earning Capacity

73.  The Defendants contend that the Plaintiff has resumed his job as a bus driver without limitation or restriction, and there is no substantial risk that the Plaintiff may lose his job. Hence, he is not entitled to claim any damages under this head[49].

74.  However, as pointed out by the Plaintiff during cross-examination, he was already 60 years’ old, and he wished to extend his employment with Kowloon Motor Bus Co. (1933) Ltd (“KBM”). In considering whether his employment would be extended, KMB would consider the records in respect of the Plaintiff’s injuries, accidents and sick leaves in the past. As of the time when the trial took place, the Plaintiff had not yet known whether his employment would be extended.

75.  The Plaintiff’s evidence makes sense, and is neither contradicted nor seriously disputed.

76.  I accept the Plaintiff’s evidence. I also accept that the Plaintiff will suffer a disadvantage due to the injury arising from the Traffic Incident. There is a real risk that he may not be able to extend the employment as per his wish.

77.  However, bearing in mind that the injury was not very serious, I am only prepared to award a sum of HK$66,328.62 under this head, representing 2 months of the Plaintiff’s salary at the time of the Traffic Incident.

E4. Special Damages/Pretrial Expenses

78.  As pleaded in the Revised Statement of Damages[50], the Plaintiff claims a sum of HK$18,000 that cover medical expenses, travelling expenses and tonic food.

79.  The documentary evidence[51] shows that the Plaintiff incurred no less than HK$24,855 on medical treatments and tonic food[52]. Having considered the available documents and the Plaintiff’s evidence, I accept that these expenses were reasonable and appropriate.

80.  I accordingly award the sum of HK$18,000 as pleaded[53].

CONCLUSION

F1. Claims against the 1^st Defendant

81.  In the premises, the Plaintiff is entitled to damages against the 1^st Defendant, and the summary of my awards is as follows:

PSLA	HK$120,000
Pre-Trial Loss of Earnings & MPF	HK$69,645.05
Loss of Earning Capacity	HK$66,328.62
Special Damages	HK$18,000
	Sub-total: HK$273,973.67
Less Employee’s Compensation (agreed)	(HK$107,273.41)
	Total: HK$166,700.26

82.  I order that the 1^st Defendant do pay HK$166,700.26 as damages to the Plaintiff.

83.  I also award interest in favour of the Plaintiff as follows:

(1) Interest on general damages for PSLA at 2% per annum from the date of service of the Writ of this Action up to the date of the present Judgment (and thereafter at judgment rate until payment); and

(2) Interest on Pre-Trial Loss of Earnings and Special damages at half of the judgment rate from the date of the Traffic Incident (i.e. 12^th July 2018) to the date of this Judgment (and thereafter at judgment rate until payment).

F2. Claims against the 2^nd Defendant

84.  I order that the Plaintiff’s claims against the 2^nd Defendant in this Action be dismissed.

F3. Costs

85.  The starting point is that costs should follow the event, and the winner is entitled to costs.

86.  Whilst the Plaintiff is the winner in respect of the claims against the 1^st Defendant, he is the loser in respect of the claims against the 2^nd Defendant.

87.  I do not lose sight of the fact that the 1^st and 2^nd Defendants retain the same legal representatives and ran the same case based on a joint pleading.

88.  However, in Chow Kwan Yee v Leung Mei Yin May & Anor[2021] HKCA 832 at para 5, G. Lam J (as G. Lam JA then was) stated:-

“The fact that the defendants have jointly incurred costs does not mean that they are to be lumped together for all purposes relating to costs. It is for a plaintiff to choose which persons to sue, and if she chooses to sue, among others, someone who is ultimately found not liable, prima facie she should be ordered to pay the costs of the successful defendant. The fact is that the plaintiff has failed in her action vis-a-vis the 2^nd defendant.”

89.  In the premises, it appears to me that there shall be two sets of costs, instead of one set of costs. Whilst the Plaintiff is entitled to recover his costs from the 1^st Defendant, the 2^nd Defendant is entitled to recover his costs from the Plaintiff.

90.  I make a costs order nisi that:-

(1) The 1^st Defendant do pay the Plaintiff’s costs in the proceedings under this Action, to be taxed if not agreed (with certificate for Counsel); and

(2) The Plaintiff do pay the 2^nd Defendant costs in the proceedings under this Action, to be taxed if not agreed (with certificate for Counsel).

91.  Any application to vary the said costs order nisi shall be made within 14 days.

92.  Lastly, I express my gratitude to Mr. Tam and Mr. Chan who have rendered helpful assistance to me.