CHAN TAK CHI v. WONG SIU TAO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

ACTION NO. P. I. 1223 OF 1996

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Assessment of Damages

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1. This assessment of damages arises out of a traffic accident which occurred on 15th April, 1994, in which the plaintiff, aged 29, sustained injury, including a fracture of 5th cervical vertebral body extending from the anterior to the posterior of the vertebra, a fracture C5 spinous process, a fracture right side facet with no dislocation, a 5 cm deep laceration over left parietal area of the head, multiple abrasions over the left side of the face, mild bruised swelling at the left antero-lateral aspect of the neck with significant pain, and superficial abrasions over both knees.

2. By consent interlocutory judgment was entered on 15th December, 1997, and a notice of appointment to assess damages was fixed on 18th March, 1998. The assessment came before me on 29th May, 1998, and again on 31st July, 1998. The plaintiff and a friend and colleague of the plaintiff, LI chi ming, gave evidence. Two medical experts, Dr. LAU ho kuen, for the plaintiff, and Dr. CHUN siu yeun for the defendant, gave evidence.

3. After the accident, the plaintiff was transferred to the Accident and Emergency Department of the Tuen Mun Hospital and then to the neurosurgical ward on 16th April, 1994. X-ray and CT scan revealed the fractures and he was transferred to the orthopaedic ward for further management. He was placed in a Halo ring with body jacket on 20th April, 1994. He was discharged on 27th April, 1994. On 4th July, 1994, he was admitted to Tuen Mun Hospital for removal of the Halo ring and body jacket. X-ray examination showed that the fracture was healded. He was discharged on 8th July, 1994, and thereafter received follow up and outpatient physiotherapy treatment. He was granted 738 days of sick leave from 15th April, 1994, to 22nd April, 1996.

4. The plaintiff was in the halo ring jacket for 2.5 months, was hospitalised on the first occasion for 13 days and on the second for 5 days. He received physiotherapy for about 1 to 2 months, with regular follow up at the orthopaedic clinic. He was granted sick leave for 738 days from 15.4.94 to 22.4.96.

5. The plaintiff was examined by Dr. Chun siu-yeung, the defendant's medical expert, on 11th November, 1997, when he complained of (1) mild headache on the right side, sometimes twitching, intermittent and lasting for a few minutes, once to twice per day, spontaneous onset and subside, (2) left shoulder pain, dull ache in character, intermittent, worse at night, occurred with elevation of the shoulder, or holding newspaper for a while, (3) neck pain, dull ache, lasting for 1 to 10 minutes, intermittent, occurred sometimes on movement of the neck or when he had 'influenza', (4) bilateral scapular stiffness in the morning and tender on pressure.

6. The plaintiff's doctor examined the plaintiff on 26th January, 1998, when the complaints were (1) right sided headache, (2) right sided neck pain radiating to right shoulder, (3) pain over the back between the shoulder blades, (4) morning stiffness of upper part of the body, lasting for 3-4 hours.

7. The two doctors did not differ significantly as to his condition. The only significant difference is in their assessment of his ability to return to work, specifically as to when he could have returned to work and the type of work he can undertake.

PSLA

8. The plaintiff submits that the plaintiff's condition should fall near the lower end of the 'serious injury' category, "....where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain" per Cons JA in Lee Ting Lam (1980) HKLR 657 at 659. Inflation of 20% for the two years that have passed since the decision in Chan Pui Ki (7/96), should be added, so that the lower end of the 'serious' category in July 1998 should be $480,000 ($400,000 x 1.2).

9. Referring to the most recent awards concerning cervical spine injury, counsel referred to Charles Douglas Joy v. Hong Kong Macao Hydrofoil Co. Ltd., (1991) 1HKLJ, where the Master classified the injuries as 'serious' and awarded $150,000 in December, 1989, a year before Wong see mo (1991) 1 HKLR 361, decided 1 November 1990, when the lower end of the 'serious' category was increased from $135,000 to $150,000. So the award in Charles Douglas Joy fell slightly above the lower end of the 'serious' category. In that case, the neck and head of the humerus was broken, a sprained neck and degenerative changes of the cervical spine with fusion of neural arches, double vision due to fracture of the left orbital floor, bruising and abrasions. The claimant was hospitalised in Hong Kong and subsequently underwent lengthy medical treatment in the USA, the last operation being in 1988, the year before the assessment. There was permanent restriction in movement of the right arm, neck stiffness and double vision. Before the accident, he was extremely active in sports, and after the accident he gave up (inter alia) golf, tennis, sailing, swimming, jogging and fishing.

10. In Bou Kwok Leung (HCA 2706/87) Master awarded $100,000 in June, 1989, when the lower end of the 'serious' category was about $135,000 - a decision post Lau Che Ping in July 1988 but prior to Wong See Mo in November 1990 - so the award was about 75% of the lower end of the 'serious' category at that time. The plaintiff sustained multiple abrasions of the forehead, face, left side of back, chest and right arm and fractures of the cervical spine at C2 level, left clavicle, left scapula and left pubic bone. Cervical traction and conservative treatment were given and he was hospitalised for seven weeks. He wore a clavicle brace for six months and continued to receive treatment for one year after the accident. More than 3 years after the accident, a healed compression fracture of LI was discovered also attributable to the accident. He complained of back pain on sitting for more than two hours and some interference with the movements of the left arm, especially on raising the arm. There was some scarring over the arms and elbows and deformity of the C2 vertebra. Total impairment was 10%.

11. In Fu Chee Kong (HCA 1247 of 1988), decided in March 1989, the Master awarded $110,000, which was about 80% of the lower end of the 'serious' category at that time, ie, $135,000. The plaintiff suffered a broken rib and laceration of the liver. The tear to the liver was repaired by operation and he spent 15 days in hospital initially with a further stay of 6 days the following month. He started to complain of low back pain shortly after the accident and this was attributed to the accident. There was no evidence of continuing disability as a result of the fractured rib and lacerated liver. He remained with persistent low back pain as a result of a sprained posterior intervertebral joint of the lumbar spine and the condition would continue unless made worse by further injury or heavy manual labour. Impairment was assessed at 10%.

12. In this case, the plaintiff's fracture of the cervical spine was severe, involving fracture of the C5 spinous process and the right side facet. He was hospitalised on the first occasion for 13 days and 2.5 months later he was hosptialised for 5 days. He wore a Halo ring and body jacket for 2.5 months, and had physiotherapy for 1-2 months. There is continuing pain in the neck and in the scapula region, and considerable stiffness of the neck. There is some loss of normal curvature of the spine and a slight decrease in the disc height, being a sign of early degeneration. There is also a frozen shoulder which he suffered for about 2.5 years until the end of 1996, with pain continuing to the present, resulting in more than 2 years' sick leave and follow up. There was a head concussion with a period of loss of consciousness, with post concussion syndrome such as headaches and dizziness, sometimes requiring painkillers. There was also a feeling of distress and difficulty in temper control. Total disability was assessed at 9% with loss of earning capacity assessed at 12%.

13. Counsel submitted that the total effect of the plaintiff's injury was more serious than those in Bou Kwok Leung and Fu Chee Kong, and that his award should fall into the range between 75% of the lower end of 'serious' to the lower end of 'serious', namely, between $360,000 and $480,000, and that the appropriate award should be around $400,000.

14. The defendant's case is that it is clear that the plaintiff's injuries fall well below the 'serious' category. Counsel referred to Chan Pui Ki, where the Court of Appeal affirmed Cheung J's revised figures of $400,000 to $540,000 for the 'serious' category and adopted them as guidelines.

15. In Li Yee Yuen v. Tam Wing Keung & anor., (HCA 9964 of 1982) which was decided in March 1985, the plaintiff was awarded general damages for PSLA of $35,000, placing the injury well below the 'serious' category. The plaintiff sustained whiplash injury, he was unconscious for a short time. He had to wear a collar for one year. Thereafter, he suffered from generalized discomfort in the lower neck on the left side. Movement of his head was somewhat restricted. Reflexes in his right arm were affected. He suffered from loss of grip in both arms and substantially reduced grip in the left hand. Assessed to have 20% initial disability.

16. In Lee Miu Ling v. Wong Nim Chee & anor., (HCA 1947 of 1984), decided in November 1985, general damages for PSLA was agreed at $35,000, placing the injury below the 'serious' category. The plaintiff sustained fracture of the second cervical vertebra which had united in a good position with residual restriction of movement. Assessed to have 10% to 15% loss of earning capacity.

17. In Chan Yuk Lee v. Chan Chiu Ying & or., (HCA 235 of 1985),. the plaintiff was awarded $65,000 for PSLA, placing the injury below the 'serious' category. The plaintiff sustained a Jefferson fracture (broken neck) of the first and second cervical vertebra. He was hospitalised for 75 days and in traction for 53 days. After being discharged for about six months, the plaintiff experienced cramps and numbness of his hands and forearms as well as restricted movement in his neck. He was unable to walk fast and got tired easily. Assessed to have 20% loss of earning capacity.

18. As to Bou Kwok Leung, referred to above, $100,000 was awarded, placing the injury short of the 'serious' category. The plaintiff in that case was a professional organist, aged 24 at the time of the traffic accident. Clearly the plantiff in this case suffered less serious injuries than the plaintiff in Bou Kwok Leung.

19. In Yip Yuen v. Lam Sai Cheong & Anor., (HCA 6632 of 1987), damages of $185,000 were assessed, placing the plaintiff's injury below 'serious.' The plaintiff suffered a whiplash injury to his neck and was hospitalised with neck traction for one week. After discharge, he suffered pain and discomfort in the neck.

20. The defendant's counsel submitted that, in comparing the injuries suffered by the plaintiff and the authorities referred to, the plaintiff's injuries are less serious than those in Chan Yuk Lee and Bou Kwok Leiung. and that an award of $250,000 is appropriate to the injuries under the head of PSLA.

21. Having considered the comparable cases placed before me, and exercising the best judgment I can under this head of damages, I award the sum of $360,000.

22. Interest shall run at 2% from the date of issue of the writ (12th November, 1996) to the assessment (31st July, 1998), for 20.5 months, being $12,300 ($360,000 x 2% x 20.5 months).

LOSS OF EARNINGS

Mitigation of Loss

23. The defence alleges that the plaintiff failed to take reasonable steps to mitigate his loss of earnings in that (a) he failed to follow the doctor's advice to do more physiotherapy to cure his shoulders, and (2) that he failed to work more either in decoration jobs or in other jobs.

(a) The defence alleges that the plaintiff failed to follow the doctor's advice to do more physiotherapy to improve his shoulders. In his evidence, the plaintiff said that he did follow the hospital doctor's advice and did physiotherapy for about 1-2 months but he found it too painful. He discussed this with the doctor who advised him to do light exercises at home. The doctor only advised him to do physiotherapy on one occasion, at the early stages of his treatment. Dr. Lau's evidence is that he did not tell the plaintiff to do physiotherapy.

24. The plaintiff submitted that, given the painful nature of the physiotherapy, the plaintiff's refusal to complete the course because of his inability to stand the pain is reasonable in the circumstances. He did seek the doctor's approval and did other exercises in accordance with the doctor's advice. His frozen shoulder was caused by soft tissue injury and made much worse by wearing the Halo jacket for 2.5 months when his shoulder joint was immobilised. The defence cannot prove on a balance of probabilities that the plaintiff's failure to complete the painful course of physiotherapy was other than reasonable.

(b) The defendant's case is that the plaintiff should only be compensated for loss of earnings suffered despite reasonable efforts on the part of the latter to mitigate his loss. In the absence of satisfactory evidence as to reasonable efforts on his part, I should only award compensation up to 22 April, 1996.

25. With reference to the Average Daily Wages of Workers Engaged in Government Building and Construction Projects, in April 1996 the daily wages of a bricklayer was $717.40 on average. The plaintiff's average pre-trial monthly earning is ($600 + $717.40) /2 x 26 = $17,126.20. The plaintiff's pre-trial loss of earnings is ($17,126.20 x 24.25) - $325 (deducting only one job in March 1996) = $414,985.

26. In support of that position, the defendant relies on Dr. Chun's opinion that the plaintiff should have been able to return to his pre-accident occupation about 6 to 9 months after the injury. The sick leave period ended on 22nd April, 1996, and there is no satisfactory explanation or evidence as to why the plaintiff could not resume his previous trade on the sick leave period ending. It is obvious that the plaintiff's attitude rather than his physical condition is the problem. His negative attitude no doubt prolonged the period of his unemployment. His evidence about his efforts to return to work is wholly vague and general. He repeatedly said he could not remember on how many occasions he resumed work as an interior decorator. He was not interested in other jobs. He normally spent his day at home watching TV.

27. In Bou Kwok Leung, at page 8 and 9, the Master said that "The plaintiff's evidence on his post-accident income is evasive and unsatisfactory .... I am not satisfied on the evidence before me that the fact that the plaintiff is working as a substitute only is due to his back condition. It appears to me that probably it is due to his negative attitude towards work after he sustained the injuries."

28. In Law Sai Leung v. Ho Chai Man & The Kowloon Motor Bus Co (HCA 8498 of 1993), the Judge said "The effect of these injuries upon the plaintiff's earnings and earning capacity is even more difficult to assess. I have had no practical guidance. The doctors were agreed that the plaintiff was fit to resume some light work about 12 months after the accident. But the plaintiff in fact did no work until he started to hawk vegetables near his home in November 1984. Both before that date and since he has made very little effort to get a job more commensurate with his true skills. In his mind he seemed to give up his old trade when he sold the bulk of his tools some time in 1993. He seems to have done little more than ask his friends about available jobs. Unwisely I think he has not sought the help of the selection placement service of the Labour Department. If the plaintiff thinks that he can never return to his old trade, my belief is that he is wrong. I accept that his pre-accident employment is not open to him because that involved climbing ladders and carrying weights. Building sites as a whole are probably excluded for the same reason. But I feel sure that he could have obtained, and could no obtain employment, in a carpentry workshop or factory as a skilled man. I accept that this would not be easy and may well involve more than one try before a satisfactory job is found. What I do not accept is that he is now excluded completely from his old trade."

29. On this issue, the plaintiff referred to Dr. Lau's opinion that with the plaintiff's condition of the neck he cannot return to decoration work at all. He found that the plaintiff's condition at the end of 1996 so bad in the shoulder that he felt that the plaintiff would have difficulty working as a security guard. He found that the plaintiff's shoulder restriction should have resolved spontaneously some time in 1997, after which the plaintiff should have been able to work as a security guard, shop assistant or messenger.

30. As to Dr. Chun's evidence that the plaintiff should have resumed his pre-accident occupation some 6-9 months after the accident. In cross examination as to whether the plaintiff, with the bad shoulder conditions found by Dr. Lau in December, 1996, could do decoration work such as painting, Dr. Chun agreed that with that condition the plaintiff could not do decoration work. He doubted medically whether the frozen shoulder was a direct result of the accident. He thought the frozen shoulder was an indirect complication of his neck injury for which the accident should not have been responsible. He also thought that, if physiotherapy were given, the frozen shoulder should have improved sooner. In effect, when he assessed the 6-9 months recovery period, he did not take into account the shoulder injury at all, which is not acceptable. If the shoulder injury is taken into account, he agreed that the plaintiff should not be rquired to resume work in decoration before the spontaneous recovery of the shoulder restriction some time in 1997, about 3 years after the accident.

31. In cross examination, the plaintiff said that he did not work more days in decoration because he could not get many offers since he could not do heavy duties and could only paint walls, and it was only his friends who gave him jobs out of sympathy, and there were not many. There were no jobs where he could paint only the walls without the ceilings. Because of his poor education level - Form 4 - and the fact that he had trained as a decorator and was skilled in that job, he wanted to continue in that field and did not seriously consider changing his field until early 1998, when he finally realised and accepted that he would not be able to return to decoration work in the future, after many attempts in the past to resume decoration work. He registered with the Labour Department for jobs firstly in decoration, but later in other jobs, such as security guard, but he was never offered an interview. Newspaper advertisements for jobs usually specified at least F3 education. He also asked friends to find jobs for him.

32. Counsel submitted on behalf of the plaintiff that it is natural to expect a skilled worker with little other education to feel that way. He needs a period to realise and accept the reality of his situation. It is reasonable that the plaintiff did not seek work as a security guard prior to early 1998. After he did seek such work, he was not offered any.

33. In Lau Wing Shing, (1987) 2 HKC 180, at 184H and 185A-H, it was held that 'The condition of the labour market was not a matter of 'notorious' fact which a judge was able to rely on without further proof. There being no evidence that the plaintiff could have obtained a job as a watchman, the judge could not apply his own knowledge of the conditions of the labour market to find that the plaintiff could have obtained such work.' The defence bears the onus of adducing evidence of availability of such jobs, such as calling the Labour Department's officers, in order to establish failure on the part of the plaintiff to take reasonable steps to mitigate his loss.

34. In the light of the plaintiff's evidence and in the absence of evidence to the contrary on the availability of suitable jobs for the plaintiff, the defence has failed to establish on balance that the plaintiff failed to take reasonable steps to migitate his loss.

35. The plaintiff worked 3 half days in March, August and September, 1996, and about 10 days, out of which for 1-2 (1.5) days he did not earn, for 1-2 (1.5) days he earned full days, and for about 7 other days he earned half days. The total income was $325 x 3 + $325 x 7 + $650 x 1.5 = $4,225.

36. The plaintiff seeks pre-trial loss of earnings for 51.5 months from 15th April, 1994, to 31st July, 1998, that is, $15,300 x 51.5 - $4,225 = $783.725.

37. The issue before me whether this plaintiff in the circumstances of his case took all reasonable steps to return to work in his pre-accident occupation and, failing that, whether he took all reasonable steps to find other employment. I did not find the plaintiff to be a convincing witness on the issue. While on a balance of probabilities, I cannot feel sure that he could have obtained employment in his pre-accident occupation, or employment connected with that, I feel sure that he could have found employment in another field. Although he says he spoke to friends, approached the Labour Department and checked the newspaper advertisements, I am satisfied that the plaintiff did not make sufficient efforts to mitigate his loss by obtaining employment in another field. While I also accept that he may have taken some time to accept the reality that he could not find employment in his pre-accident employment, he should have been more robust in accepting the reality and in finding a job.

38. On the basis of the evidence of Dr. Chun that if the frozen shoulder is taken into account, the plaintiff should not be required to return to work in decoration before the spontaneous recovery of the shoulder some time in 1997, I find that to be the time at which the plaintiff should have been able to return to work rather than 22nd April, 1996, when the sick leave period expired. I cannot be precise as to when in 1997 that would have occurred. The plaintiff's counsel mentioned about 3 years after the accident. I find that 36 months after the accident is the appropriate period to use in calculating the plaintiff's loss of earnings.

Future Occupation

39. As to the plaintiff's future occupation, the defendant submits that it is clearly not right to regard the plaintiff as only capable of being re-employed as a security guard or in jobs of a sedentary nature. There is no reason why the plaintiff could not work in a factory or as a craftsman utilising his skills acquired as a decoration worker which does not require any prolonged strain to the neck. From the statistics produced, the plaintiff could earn $7,500 per month for these kinds of work or as a general worker. It is unrealistic to suggest that he could only earn $6,000 per month. However, for the reasons given, the defendant submits that the plaintiff should be able to earn more than $7,500 by reason of his skills which he should be able to capitalise on, even if he does not work as an interior decorator. He should be able to earn about $9,000. On the evidence of his colleague, the job of interior decorator is not a steady one and during these two years the average number of days worked per month was less than in the past, being only about 15-20 days at $800 per day. Even on the basis that I were to find that the plaintiff could not return to work as an interior decorator, which is not the defendant's primary case, the plaintiff's loss of earnings would only be [(18 x $800) - $9,000] x 12 x 15 = $972,000.

40. The plaintiff submitted that Dr. Lau's evidence should be preferred to Dr. Chun's as the latter's is only based on his own unreliable 'observation' evidence. As to the 'observation' evidence given by Dr. Chun, I place no weight on this since it is clearly outside the area of his expertise.

41. In the future, the plaintiff is likely to obtain a job as a security guard. The sophisticated jobs listed in the statistical evidence filed by the defence are unlikely to be suitable to the plaintiff in the light of his low education. Jobs such as a garbage disposal worker or cleaner (general) or miscellaneous non-production worker at page 55 of the statistics might be the kind of jobs that the plaintiff could get.

42. The Labour Department's Vacancy Order in 1997 shows jobs much more suitable to the plaintiff in view of his physical condition and his education. Security guards are among the highest income in the Orders. The Vacancy Orders were compiled before the financial crisis at the end of 1997, and are unlikely to have increased since then. On the evidence before the Court, the realistic salary the plaintiff could hope to get in the future would be either as a security guard, a messenger, a watchman or a shop assistant, and is unlikely to be more than $5,500 per month. On that basis, the plaintiff's loss of earnings would be calculated on a monthly multiplicand of $8,850 ($14,350 - $5,500), as follows - $8,850 x 12 x 15 = $1,593,00.

Pre-accident earnings

43. In his witness statement the plaintiff said he was earning $650 per day for 26 days a month. In his statement to the insurer shortly after the accident, he said he was earning about $600 a day for 28 days. He accepted in the witness box that he might have earned $600 as it was said in the statement to the insurer. The plaintiff's colleague said that at the time of the accident in 1994, there was an equal chance of earning $600 and $650 a day.

44. I find that $625 per day should be the figure used in the assessment. There is no challenge to the use of 26 days per month for the calculation. These figures would produce a monthly income of $16,250 ($625 x 26).

Current earnings

45. The plaintiff's colleague said in evidence that currently had there been no accident, the Plaintiff would be earning between $800 and $850 per day, mostly $800. The plaintiff gave evidence to a similar effect, that is either $800, $820 or $850. The plaintiff's colleague gave evidence that currently the number of days worked is between 15 and 20.

46. I find that $820 per day and 17.5 days per month should be used in the assessment. These figures would produce a monthly income of $14,350 (820 x 17.5).

47. Those figures produce a median of $15,300.

The multiplicand

48. I have before me the Half-yearly Report of Wage Statistics, dated September 1997. Under Security and Detective Services, found at page 55, the wages for a guard are $7,196 and for service workers $7,274, which averages $7,235. I find that this is the figure on which I should base my calculations for partial pre-trial loss and future loss. This figure results in a monthly multiplicand of $7,115 ($14,350 - $7,235).

Pre trial loss of earnings

49. I accept the evidence of the plaintiff as to his earnings of $4,225 during 1996.

50. On the basis of my findings, I assess the plaintiff's loss under this head as follows -

51. Interest on the pre-trial loss of earnings is awarded at 6.45% for 51.5 months, which according to my calculation is $185,900.

Post trial loss of earnings

52. There is no challenge to a quantifier of 15.

53. On the basis of my findings, the plaintiff's loss is assessed as follows -

54. $7,115 x 12 x 15 = $1,280,700

Loss of Earning Capacity

55. In Lau Che Ping (1988) 2 HKLR 650, it was held that an award for loss of future earnings on a partial basis did not preclude an additional award for loss of earning capacity where there was evidence to show that it would take the plaintiff as a disabled man longer to find replacement employment than an able-bodied man. An award of $15,000 was made to a plaintiff who had undergone a below knee amputation and was fitted with an artificial leg. It was also said that it was not the proper approach to adopt conventional figures with regard to this head of damages. Each case must be considered on its own merits.

56. In Chan Wai Tong v. Li Ping Sum (1985) AC 446, it was said that "A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The court has to evaluate the present value of that future risk ... Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment."

57. In Lam Nam Fui v. Wong See mo (1990) 2 HKC 319, it was held that consideration for this head of damages should be made in two stages. Firstly, was there a substantial or real risk that the plaintiff would lose his present job at some time before the estimated end of his working life. Secondly, if there was, the court must assess and quantify the present value of the risk of the financial damage which the plaintiff would suffer if that risk materialized, having regard to the degree of the risk, the time when it might materialize, and the factors, both favourable and unfavourable, which in a particular case would, or might, affect the plaintiff's chances of getting a job at all, or an equally well-paid job. A judge must look at all the factors which are relevant in the particular case and do the best he can. In that case, an award of $40,000 was made to a plaintiff who was employed as a carpenter at the time of the accident, and who was working as a watchman at the time of the assessment.

58. The plaintiff submits that given the recurrent pains due to his injury, it is conceivable that he will have a real risk of periods of unemployment even as a security guard when he will need to take leave for rest or to seek medical treatment when the pain becomes unbearable after long hours working as a security guard. On that basis, he suffers a disadvantage in the labour market as a result of his injuries. He is now aged 32 years and six months, with over 30 years working life ahead of him. It was submitted that 3 years income as a security guard would be the appropriate award, that is, $5,500 x 12 x 3 = $198,000.

59. The defendant submitted that in the absence of any evidence as to any reasonable effort on the plaintiff's part to find alternative employment, no award should be made under this head.

60. I am satisfied on the evidence before me that the plaintiff will in the future suffer a disadvantage in the labour market because of his injuries. Under this head of damages, I make an award of $86,820, being one year's income ($7,235 x 12).

Investment Advice

61. In Leung On & Anor. v. Chan Pui Ki (1996) 2 HKC 565, it was said that "The object of the lump sum award is to compensate the plaintiff, once and for all, for the lost income stream. But to achieve that purpose, that sum must be wisely invested. This involves a fair degree of investment and management skills: skills which, by the nature of the head injuries sustained, the plaintiff is most unlikely to acquire. It is logical to make some allowance for this in the award, as the plaintiff will clearly need to pay for such advice." In Francis v. Bostock it was said that once the award is made, the plaintiff, on attaining majority, is entitled to spend it as she wishes, and the defendants should not be called upon to find further moneys to assist the plaintiff in the proper administration of the award which, in itself, affords adequate compensation. Francis v. Bostock was distinguished on the grounds that in the reality of Chan Pui Ki's situation, the award in the plaintiff's hands would not achieve its intended purpose of compensating her for the lost income stream unless it is wisely invested.

62. The plaintiff in Chan Pui Ki was aged 17 at the date of trial and suffered brain damage leading to cognitive impairment. In the case before me, an adult plaintiff with cervical spine injury seeks an award under this head on the basis that, due to his education level, he is unlikely to possess the investment skills and expertise necessary to compensate for the lost income stream. I do not accept that the principle applied in the circumstances of the Chan Pui Ki case should be extended to apply in the circumstances of the case before me, and I make no award for investment advice.

Special Damages

63. Other special damages have been agreed at $4,749, with interest at 6.45% for 51.5 months = $1,314.

SUMMARY

Costs

64. Costs of the action and of this assessment be to the plaintiff to be taxed if not agreed, with certificate for counsel.