LIU JIANHUI v. MAYHO GRAHAM

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES LIST

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JUDGMENT

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1. The Plaintiff, Liu Jianhui ("Mr Liu") was injured in a road accident on 9 July 1993. The accident happened on Clearwater Bay Road, Sai Kung, New Territories.

2. On the day in question, Mr Liu came out of Park'n Shop which was set back from Clearwater Bay Road. Between Park'n Shop and the road was a grass verge and pavement. Clearwater Bay Road is a two-lane country road and situated on the other side of the road was a bus stop. Mr Liu walked across the grass verge of 20 metres or so towards the road and at about 11:40 a.m. he reached the pavement intending to cross the road. The weather was fine and the road was dry. As he stepped off the kerb onto the road, he was knocked down by the Defendant's car which was coming from his right. In his statement to the police taken on 14 July 1993, Mr Liu said that he first took a look to the right and saw no vehicle coming in that direction. He then took a look to the left and also saw no vehicle coming. He then stepped out onto the road. The next thing he knew was waking up in hospital.

3. The stretch of Clearwater Bay Road at which the accident happened runs from a north-westerly to south-easterly direction towards Clearwater Bay. Travelling from the direction of Kowloon, the road slopes downhill just before the Home for the Aged and levels off after the junction with Silver Cape Road to the left, after which is the very wide grass verge outside the Park'n Shop. The road from kerb to kerb is eight metres wide, with each lane measuring four metres. According to the report of Dr Seymour-Hart, although no significant gradient was found to exist at the place of the accident, the road was formed into a steep downsloping gradient for south-east bound traffic approaching that spot. A left-hand bend for traffic flowing in a south-easterly direction existed some 120 metres away from where the accident occurred which was some 20 metres after the junction with Silver Cape Road. The road elevations are shown in Figure 1 of Dr Lingard's report. It is clear from that cross-section that the slope was steep, the angle being at approximately 45^o.

The Defendant's evidence

4. The Defendant ("Mr Mayho") is a maintenance controller employed by Cathay Pacific Airways at Kai Tak Airport. He has lived in Hong Kong since 2 January 1993 and has held a full driving licence since 1974. On the day in question, he was driving his car which is a 1986 Toyota Corolla, from Kowloon to his home in Clearwater Bay. His wife was in the passenger seat beside him. After negotiating the left-hand bend referred to earlier, he travelled downhill towards the junction with Silver Cape Road. Mr Mayho said that his speed was about 50 km/h, that he was not accelerating but coasting down the hill, covering his foot brake. The speed limit for this particular stretch of the road is 50 km/h.

5. The road conditions at the time were good. There was no other vehicle travelling in either direction along that road. The Defendant said that as he approached the junction with Silver Cape Road, he saw a pedestrian walking across the grass area in front of the supermarket. He saw him walk towards the kerb, cross the narrow pavement and stop at the kerb. He looked left and while he was still looking left, without looking right, he stepped onto the road. Mr Mayho said that he was about one and a half to two car lengths away when the pedestrian stepped onto the road. Mr Mayho said that he had no time to do anything other than to swerve to his right and brake. There was no opportunity for him to sound his horn: it was too late. The front nearside corner of the Defendant's car caught the pedestrian as did the nearside wing mirror. The pedestrian then collided with the front passenger door. Mr Mayho reiterated that he did not sound his horn because he did not think that the pedestrian was going to walk out in front of him. He had paused at the kerb and looked left and Mr Mayho expected him to look right but he did not.

6. Mrs Mayho who was a passenger in the vehicle also gave evidence. She said that she saw the pedestrian on the grass verge after the vehicle had come round the bend. She saw him walking towards the kerb and stopping once when he approached the kerb. She could not remember whether he stopped first or looked left first. She also said that he carried on walking after stopping. According to Mrs Mayho, the pedestrian stepped onto the road when the vehicle was about one and a half to two car lengths away.

Was the Plaintiff wholly to blame?

7. Mr Clough submitted that the only possible explanation for the accident is that given by Mr and Mrs Mayho and Dr Seymour-Hart. Had the Plaintiff looked to his right as he asserted, he was bound to have seen the car approaching. Both Mr and Mrs Mayho said that they saw Mr Liu look to his left but not to his right. Dr Seymour-Hart suggested that as Mr Liu had only come from China about 10 months prior to the accident, it might account for his seemingly having looked only to his left for approaching traffic.

8. Did Mr Liu look to his right before crossing? It may well be that Mr Liu did look to his right. If this occurred, it must have been fairly early on when he was crossing the grass verge. Dr Seymour-Hart's evidence was that the Defendant's car would have taken 9.2 seconds to cover the distance from the left bend if the Defendant was driving at 47 km/hr. Even if he was travelling at 50 km/hr, it would have taken 8 seconds or so during which period the car would have been visible. For this reason, Mr Liu could not have looked to his right during the 8 second period immediately before stepping onto the road.

9. Mr Clough referred to a report of the Defendant's expert Dr Seymour-Hart to the effect that even if, which was Dr Seymour-Hart's view, the Defendant was driving at a speed that was too fast in the circumstances, and had slowed down to a more prudent speed, he would still have struck the pedestrian down. This conclusion which is at paragraph 32 of Dr Seymour-Hart's report, follows paragraph 31, the material part of which reads as follows:

"... I conclude the car driver had approached the accident spot at a speed which was close to the speed limit in force and therefore a speed which was too fast in the circumstances. The circumstances being the location of a supermarket, junction, bus stop and approaching pedestrian at that place. He (the driver) also should have sounded his horn to warn the pedestrian, who was standing there looking the other way according to the driver. A prudent driver would have slowed down to a more moderate speed of say 35 km/h (22 mph) and sounded his horn to warn the pedestrian and hence dissuade him (pedestrian) from stepping onto the road."

10. The basis for the expert's conclusion that the accident could not have been avoided even if Mr Mayho was driving at a more prudent speed is not apparent: in particular, there are no calculations to support it. I am therefore not satisfied that the conclusion reached was necessarily correct.

11. Be that as it may, I now turn to consider Mr Clough's submission that the only issue left is whether or not Mr Mayho was negligent in failing to sound his horn as he was descending the hill.

12. Mr Clough relied on the decision of the Court of Appeal in Lau Shun Hing v. Ng Ching Hung [1991] 1 HKC 179. In that case, the driver saw a maxicab stop ahead of him to pick up passengers. The driver steered his car to the right in order to overtake the maxicab. When his car levelled with the front of the maxicab, a man suddenly ran out from the front of the maxicab and was struck by the driver's car. It was submitted by the plaintiff in that case that it was incumbent upon the defendant to sound his horn. To this the Court of Appeal said:

"... The suggestion that the defendant should immediately have sounded his horn places too heavy a burden on the driver. The defendant drove his vehicle so that it was well clear of the maxicab. He was not shown to have proceeded at an unsafe speed in the circumstances and there is no evidence that he failed to keep a proper lookout."

13. But the facts of the present case are very different. For one thing, according to his own expert, the Defendant was driving at an unsafe speed. Then according to Dr Lingard's report, the photographs that were taken of the scene of the accident show very clearly that a pedestrian at the kerb outside the supermarket is clearly visible for at least 100 metres to a driver coming from the northwest. The visibility line was at least 100 metres if not 120. Mr Mayho admitted that after negotiating the bend, he could see the pedestrian on the grass verge outside the supermarket heading towards the kerb. He assumed that the pedestrian would cross the road eventually. The car was engaged in the drive gear and Mr Mayho was, in his words, "coasting" down the slope. He said he kept the pedestrian in sight and was covering his foot brake as he drove downhill. That was his posture all the way down the slope. It is, I think, plain from Mr Mayho's evidence that other than keeping the pedestrian in sight, he made no special manoeuvre or take any action to cater for the possibility of the pedestrian stepping onto the road. Mr Mayho also admitted to travelling at about I' from the side of the kerb. From the ordinance survey map, it would appear that each lane was 4 metres wide. The car involved in the accident was a medium size car, hardly more than 1.5 metres in width. In the circumstances, there was no special reason for the Defendant to be hugging the kerb.

14. Mr Lai referred to a number of authorities in support of his proposition that the Defendant was negligent. In Kayser v. London Passenger Transport Board [1950] 1 All ER 231, Humphreys J. (at page 233) held as follows:

"... Where a driver is satisfied that persons who are lawfully entitled to cross the road - whether they are on a pedestrian crossing or not - are well out of any danger from him if he goes on in the normal course, he is perfectly entitled to go on, but, of course, only at such a pace as will enable him to stop almost immediately in the unlikely happening of those persons doing something dangerous and negligent themselves."

15. In Baker v. Willoughby [1970] AC 467, the plaintiff was crossing a main highway when he was struck by the defendant's car. The plaintiff was standing on the kerb behind a van. Before he left the kerb, he looked to his right and only saw one car and he did not look again. When he reached the centre of the road, he looked to his left. It was at this point that he was struck by the defendant's car which he had not seen and which had overtaken the car which he saw. The trial judge held that the plaintiff was negligent in not seeing that more than one car was approaching, in not waiting until they had passed and he was also negligent in not looking to his right again. The trial judge held that the defendant was driving at an excessive speed or failing to keep a proper lookout or both. In his speech, Lord Reid said:

"The pedestrian has to look to both sides as well as forwards. He is going at perhaps three miles an hour and at that speed he is rarely at danger to anyone else. The motorist has not got to look sideways though he may have to observe over a wide angle ahead : and if he is going at a considerable speed he must not relax his observation, for the consequences may be disastrous. And it sometimes happens, though I do not say in this case, that he sees that the pedestrian is not looking his way and takes a chance that the pedestrian will not stop and that he can safely pass behind him. In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian."

Lord Reid restored the trial judge's finding on this issue which is that the plaintiff was 25% to blame and the defendant 75%.

16. Mr Lai also referred to the decision in Williams v. Needham [1972] RTR 387. In that case, the driver saw on his nearside a pedestrian standing by a parked car, clearly intending to cross the road and not looking in the direction of his approaching. Without looking in that direction, the pedestrian began crossing the road when the driver's car was so close that he was unable by braking to avoid colliding with her. The following passage from the judgment of Judge Stabb explains why the driver was negligent.

"... In circumstances in which a driver knows or accepts that a person is standing, not looking to see what is coming, but nevertheless intending to cross the road, the driver should either take some precautions to draw that person's attention to the approach of his car or take some precaution against the possibility of that person taking a step which would be regarded as being a risky step.... I do not mean by that that a car driver has to proceed in such a way as to suspect that the untoward is going to happen anytime, but in this case the defendant himself had said that he assumed that the plaintiff was going to cross the road. He knew that she was not looking towards him at that time and merely assumed that she would do the right thing before she put into effect the purpose which she had in mind. I think that in that respect - by doing nothing and taking no precautions - he has to bear some part of the blame for the accident. He took no precautions when he knew that she was about to cross and when he knew that she had not seen him coming."

17. It seems clear to me, applying the principles from those cases, even if I were to accept the evidence of Mr and Mrs Mayho that Mr Liu did not look right at all, he could not be held to be wholly to blame for the accident. In my opinion, the case of Lau Shun Hing v. Ng Ching Hung is distinguishable on the facts. The observations of the Court of Appeal as to the duty of a driver to sound his horn cannot be a statement of general application without regard to the facts. On the facts of this case, the Defendant should have done something to alert the Plaintiff of the presence of the car. He executed no manoeuvre and took no precaution at all although he was well aware that Mr Liu was intending to cross the road.

Contributory negligence

18. During his closing submissions, Mr Lai pointed out that the Defence was that the accident was caused solely by the negligence of the Plaintiff. Contributory negligence was not pleaded. In view of this submission, Mr Clough applied at the eleventh hour (after all the evidence and his own closing submissions) for leave to amend his Defence to include the defence of contributory negligence. Mr Lai objected to the application for the following reasons: first, we are not here dealing with a litigant in person. The Defendant has been assisted by a team of experts. It was therefore a conscious pleading decision. Secondly, Mr Lai submitted that he would have re-examined the Plaintiff differently had contributory negligence been an issue. He also submitted that he would have examined the Defendant with a different degree of thoroughness. It was therefore now far too late to alter the basis upon which the whole case had been conducted.

19. I have had the opportunity of checking the recorded version of Mr Lai's opening and I can confirm that he made it quite plain that "the Defence is that the whole accident was caused solely by the negligence of the Plaintiff and nothing else". It is therefore not correct (as Mr Clough appeared to suggest) that the effect of the pleadings had not been canvassed in the Plaintiff's opening.

20. Given the manner in which this case has proceeded and been conducted, I am satisfied that the Plaintiff would be prejudiced if I were to grant leave to amend to include a plea of contributory negligence. In the circumstances, I have little alternative but to refuse leave. In the result, on the question of liability, and in default of any defence of contributory negligence, the defence fails and I find the Defendant liable.

21. If I were wrong in my decision regarding the refusal to grant leave to amend, and contributory negligence were a relevant consideration, I would have apportioned liability between the parties with the Plaintiff being 25% to blame for the accident and the Defendant 75%.

Quantum

22. Mr Liu came to Hong Kong in September 1992 under the Imported Labour Scheme to work as an accounts clerk for a Hong Kong trading company. His maternal uncle was the manager of the company. Mr Liu left school after completing Form 2 and worked as a farmer for about nine years. Thereafter he worked for one or two years in different jobs as a mechanic before coming to Hong Kong. Under the Scheme, each contract were for a period of two years. It is not in dispute that the maximum period of time that an employee under the Scheme could work in Hong Kong could not be longer than six years or three two-year terms. At the time of the accident, Mr Liu was earning $7,550 a month. His salary at the date of the trial had his contract been renewed in 1994 would have been $9,920. Mr Liu was 29 years of age at the date of the accident. Mr Liu worked in the godown. He was responsible for getting orders together ready for delivery and made lists of goods to be re-ordered. He also helped out with delivery after one of the delivery workers left and before his replacement could be recruited. The company was engaged in the business of importing and selling liquor.

Injuries

23. Mr Liu was rendered unconscious by the collision. The first thing he remembered was waking up in the hospital where he had been admitted for emergency treatment. After radiological examination he was diagnosed to suffer from:

He was operated on his right shoulder on 23 July 1993, two weeks after the accident and was subsequently transferred to the Margaret Trench Rehabilitation Centre for convalescence.

24. The expert medical evidence adduced by the Plaintiff and the Defendant concentrated on his shoulder and ankle injuries. These medical reports were prepared by orthopaedic surgeons.

Head injuries

25. That Mr Liu sustained injuries to his head as a result of the collision cannot be disputed. When he was examined on 4 March 1995 by Dr Lau, the Defendant's medical expert, he was found to have suffered laceration over the scalp. Treatment he received included conservative treatment for his minor head injury and suturing of the scalp laceration. When he was seen by Dr Lau, Mr Liu complained of frequent attack of dizziness, headache and poor memory.

Dr Lau's comment was as follows:

"Mr Liu claims that he had head injury in the traffic accident as well. This was not mentioned in the medical report from UCH. At the present examination, he is observed to be neurologically intact. I am of the opinion that he is not suffering from post-concussion syndrome."

It seems tolerably clear that Dr Lau was a little sceptical as to whether Mr Liu sustained head injuries in the accident. This, of course, is surprising in view of what he had found upon that examination of Mr Liu. He simply opined that Mr Liu was not suffering from post-concussion syndrome.

26. Mr Liu's expert, Dr Tsoi, had this to say:

"Mr Liu complained of persistent headache and dizziness since the head injury. These symptoms are however common after head injury known as post-concussional syndrome. The relevant permanent disability as well as loss of earning capacity should be more appropriately assessed by a neurosurgeon."

27. I have no doubt that on this issue, the approach of Dr Tsoi is to be preferred. Dr Lau is not a neurologist. Accordingly I attach little weight to his medical opinion as to whether or not Mr Liu was suffering from post-concussional syndrome.

28. During cross-examination, Mr Liu continued to maintain that after the accident he constantly felt dizzy. He said he was unable to resume his old job because something had happened to his brain. There is also the evidence of Mr Lau Kwai who is Mr Liu's uncle. When he was cross-examined by Mr Clough as to the reason why his company decided not to renew the Plaintiff's contract when it expired on 8 September 1994, Mr Lau replied that:

"It was because he could no longer work. I did ask him to come back to the company, but because of his brain, he could not write coherently and could not discern things. In the past, he was very smart."

29. The Court would no doubt have benefitted from medical evidence from a neurosurgeon regarding the Plaintiff's head injuries but none was adduced. Nevertheless, the absence of such medical evidence is not fatal. The Plaintiff clearly sustained head injuries during the accident: he was treated for it. He has consistently and repeatedly complained of his dizziness. There is, in my view, sufficient evidence for me to make a finding that the Plaintiff did sustain head injuries which clearly affected his ability to work. I do not accept Dr Lau's finding that Mr Liu's neurological complaints are unfounded.

Shoulder injury

30. Mr Liu's right acromio-clavicular joint was dislocated. Despite surgery for open reduction and wire fixation of the dislocation, dislocation has persisted. In other words, the operation was not successful. According to Dr Lau, there are masses of new bone formation around the distal one-third of the clavicle. Dr Tsoi explained that the human response to this type of injury was the ossification of the ligament. The healing process resulted in the formation of new bone around the damaged ligament. It is a new obstruction, so far as the patient is concerned and, of course, it causes pain.

31. Dr Lau found that there is a mild limitation of movement of Mr Liu's right shoulder as well as tenderness over the distal end of the clavicle. Dr Lau concluded from the absence of any significant muscle wastage around the shoulder that Mr Liu is actively using his right shoulder and that therefore he cannot have much pain in that joint. He found the condition of Mr Liu's right shoulder to be permanent and that no further treatment was indicated. He assessed Mr Liu to have suffered 4% of permanent disability as a result of the shoulder injury resulting in a 5% loss of earning capacity.

32. Because this operation was unsuccessful, the right shoulder remains in a dislocated position. This dislocation has left an unsightly prominent end of the distal clavicle. Dr Tsoi considered that this pathology is the main cause of permanent pain as well as weakness over his right shoulder. In summary, apart from a 10 cm surgical scar over the front part of his right shoulder and the prominence over the distal end of the clavicle, Mr Liu feels pain on palpating the acromio-clavicular joint, especially on pulling down his right arm. Although he has full passive movement of his right shoulder, there is a weakened abduction and flexion. In his supplementary report, Dr Tsoi opined that residual pain, weakness and cosmetic deformity would definitely contribute a certain degree of impairment. Dr Tsoi assessed the permanent disability resulting from the dislocated shoulder to be 8%.

33. The difference of 4% between Dr Tsoi's assessment and Dr Lau's assessment is possibly attributable to the different view they take of the significance of the absence of muscle wasting. Dr Lau plainly concluded from the absence of muscle wasting in the shoulder that the patient was not at all handicapped. Dr Tsoi took a different view. Muscle wasting would occur if there was severe pain and the patient is unable to move his joint in all directions. Although it would be an indication of the severity of the injury, the fact that this does not fall into the very severe category, it is nonetheless a serious injury. In Dr Tsoi's assessment, Mr Liu is unable to lift weights in excess of 30 kilos and certainly not beyond shoulder level. Whilst this factor may not be relevant to the Plaintiff's earnings whilst resident in Hong Kong, it would affect his job prospects back in China. On balance, I prefer the evidence of Dr Tsoi regarding the disability suffered by Mr Liu as a result of the injury to his shoulder. Having heard both medical experts give evidence, the evidence of Dr Tsoi appeared to me to be impartial and the more reliable. As will appear below, Dr Lau's examination of Mr Liu appeared to be a little perfunctory. His evidence did not quite tally with his report. It is apparent when he gave evidence that he thought Mr Liu was exaggerating his complaints and that he was malingering. Had he thought so at the time he examined Mr Liu, one would have expected some reference to it in the report. There was none.

Ankle Injury

34. It is recorded in Dr Lau's report that when he examined Mr Liu, Mr Liu complained of pain in his left ankle. On inspection, he noted that Mr Liu walked with a mild limp and that he could not walk on tip-toe. He had a full range of movement for his ankle and there was no muscle wastage in his left calf. Dr Lau concluded that that constituted good evidence that he did not have significant pain in his ankle. In his evidence in chief, Dr Lau took the view that sensory loss and scarring to the ankle would not affect Mr Liu's earning capacity. As far as pain was concerned, he acknowledged that that could affect Mr Liu's earning capacity but because of the full range of movement in his ankle, the absence of muscle wastage and a good gait, Dr Lau concluded that he did not suffer any pain. Dr Lau said that Mr Liu walked perfectly normally which was an indication that there was no significant pain.

35. This evidence appears to be inconsistent with his report in which it is stated that he noted that Mr Liu walked with a mild limp and was unable to stand on tip-toes. Moreover, when cross-examined as regards Mr Liu's gait, Dr Lau admitted that he examined Mr Liu in total for 20 minutes in his surgery, that Mr Liu was asked to walk about 10 paces. Dr Lau appeared to suggest that Mr Liu was exaggerating his injuries and that he was malingering. I do not find Dr Lau's evidence very convincing. He did not give a satisfactory explanation of the apparent discrepancy between the Plaintiff's condition when he was examined for the purposes of the report and what he considered Mr Liu's condition to be when he gave evidence. There was no suggestion whatsoever in his report that he had any reservations as to the genuineness of Mr Liu's complaints. Dr Lau gave the impression that he was departing from the findings he made in his report.

36. In Dr Tsoi's view, the absence of muscle wasting in the left calf does not necessarily mean that the Plaintiff does not suffer from any pain. In his opinion, wasting would not occur if the pain is mild or moderate. He pointed out that the x-ray of the ankle showed that the fracture hadn't healed. The non-union of the fracture would give rise to pain around the joint. In his opinion, this avulsion is a cause for his persistent ankle pain and together with the scar and impaired sensation, he thought a 5% permanent impairment for the ankle disability as wholly justifiable. These symptoms may affect his working performance when the jobs require long distance walking or long duration squatting.

37. It is the Plaintiff's evidence that his ankle feels numb and that it starts hurting if he walks over 30 to 40 paces. I accept his evidence and for the reasons explained above, Dr Tsoi's evidence is to be preferred to Dr Lau's and accordingly, I also accept his assessment of the ankle disability.

Chest injury

38. At the time of the accident, Mr Liu fractured his right ribs which was complicated by pneumothorax. A chest drain had to be inserted to release the air the chest cavity. However, Mr Liu has made a full recovery from his chest injuries which have not left him with any permanent disability.

Loss of earnings

1. Pre-trial loss

39. It is common ground that at the date of the accident, Mr Liu was earning $7,550 a month. Had his contract with the company been renewed for another two years commencing 8 September 1994, he would be earning $9,920 a month. Based on those figures, his pre-trial loss of earnings are as follows:

Mr Lai submitted that the salary received by Mr Liu from his company (at the basic rate of $5,500 a month for a period of 80 days) ought not to be deducted from the total amount. As Mr Liu seeks to recover pre-trial loss of earnings, to the extent that he had been paid by his former employer, it is only fair that he should bring that into account and I so hold.

40. Mr Clough challenged the figures on the following grounds: first, according to both medical experts, Mr Liu's ability to work as an accounts clerk was not affected by the injuries. Second, there was inherent uncertainty about the renewal of the contract. No discount had been given of receiving the salary in advance. He therefore submitted that the approach was not correct.

41. The opinion of the medical experts regarding Mr Liu's ability to work was purely from the perspective of an orthopaedic specialist, and from that perspective Mr Liu's ability to work in the same job was not affected by either the injury to his shoulder or his ankle injury. Neither doctor was seeking to opine as a neurologist. Having had the benefit of hearing Mr Liu's evidence, as well as that of his uncle, I am satisfied that his head injuries did affect his ability to work. Although Mr Lau Kwai is related to Mr Liu, I have no reason to doubt that he was a truthful witness. His evidence as to his reason for not renewing his nephew's contract is particularly significant in that respect.

42. It was suggested in the course of the hearing that what Mr Liu did for his previous employer was anything but as an accounts clerk. As he was admitted under the Scheme to do that specific task, the suggestion was that it was at least uncertain whether or not the contract would be renewed.

43. It is to be noted that the issue of illegality was not before the Court. There is no evidence that Mr Liu would not succeed in getting his employment renewed but for the accident. Nor was there any evidence that Mr Liu could not have his contract renewed under another job description permissible under the Scheme. I am therefore not satisfied that on the balance of probabilities the contract would not be renewed so as to justify any discount.

2. Post-trial loss

44. Mr Liu remains in Hong Kong for the purposes of this litigation only. He is unable to take up any other kind of employment in Hong Kong. But for his injuries, he could expect to earn something in the region of RMB1,500 a month. As a result of the accident, he will not be able to undertake any work that involves manual labour. The kind of employment he can now expect to undertake such as being a watchman or caretaker would pay RMB300 - 500 a month. On this basis, Mr Lai submitted that Mr Liu would continue to suffer a partial loss of earnings of $9,420 a month for the balance of the six year period that he would otherwise have expected to be in Hong Kong. He further submitted that as the period concerned is just over 30 months, a discount would not be appropriate. The interest element is not important as it is counter-balanced by the fact that no account has been taken of any salary increase for the third two-year period.

45. I accept these submissions and using the multiplier of 31.76 months, being the balance of the six year period post-trial, the total loss comes to $299,179.20.

Miscellaneous damages

1. Medical expenses

46. The amount claimed is $5,307. However, under Mr Liu's contract of employment, his employer was responsible for medical expenses including those arising from non-occupational injuries. $5,000 of medical expenses had been met by his employer. In the circumstances, it would appear to me to be appropriate to award Mr Liu the balance of $307 which he has had to meet out of his own funds.

2. Nourishing food

47. Mr Liu has spent a total of $6,280 on bird's nest, tinma and ginseng. The Defendant does not challenge this item. I will therefore allow a sum of $6,280 for tonic food.

3. Travelling expenses

48. The amount claimed is $520. It represents the costs of travelling to the Rehabilitation Centre for treatment 13 times at $40 per visit. The sum claimed is reasonable and the Defendant has not sought to suggest otherwise. I am satisfied that the travelling expenses claimed were reasonably incurred.

General damages

1. Pain, suffering and loss of amenities

49. Mr Liu claims a sum of $450,000 under this head. Mr Clough submitted that a figure of $150,000 would be more appropriate.

50. The quantum of damages for personal injuries was recently revised by the Court of Appeal in Chun Yat Nam v. The Attorney General (Civil Appeal No.92 of 1994). The relevant category for present purposes is the first category which is for "serious injuries". This category covers an "injury which leaves a disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim, e.g. a loss of a limb replaced by a satisfactory artificial device or bad fractures leaving recurrent pain." It was revised from $60-80,000 to $250,000 - $350,000.

51. The figure of $450,000 sought by Mr Lai is not within this category. Rather, it falls into the third category which is gross disability. Having regard to the injuries sustained by Mr Liu, it is clear that he is not within the category of gross disability. If anything, those injuries are at the lower range of the serious injuries category. At the trial, Mr Lai amended his Schedule of Damages and acknowledged that the injuries sustained did not fall within the top end of that range.

52. In my judgment, allowing for 10% inflation since the Chun Yat Nam decision, $275,000 is a fair assessment and I so hold.

2. Loss of earning capacity

53. Mr Lai submitted that the appropriate figure to reflect Mr Liu's loss of earning capacity is $300,000. This figure is arrived at as follows. But for the accident, Mr Liu would be earning $10,000 a month today. As a result of the injury, had he been allowed to work in Hong Kong, he would have obtained employment as a caretaker earning $5,000 a month. On this basis, the annual loss is $60,000. Applying a multiplier/ multiplicand of 20, were Mr Liu a Hong Kong citizen, the loss would have come to $1.2 million. $300,000 represents a quarter of that sum to reflect the lower salaries that obtain in China.

54. However, it is to be noted that had Mr Liu's contract been renewed, his earnings today would be more like 5-6 times of what he would have been able to earn in China. It would therefore seem that the figure of 25% is far too generous and that a more accurate assessment would be 18% to 20% of the amount that a Hong Kong citizen would have recovered.

55. An alternative method of assessing this loss which, afterall, relates to the period commencing September 1998 after the six year period that Mr Liu could otherwise have remained in Hong Kong. In RMB terms, according to Mr Liu's evidence, the loss would be approximately RMB1,100 a month. Using a multiplier of 20, the figure is RMB$220,000. Whilst Mr Lai submitted that a multiplier of 20 was fully justifiable, he referred to no authority. Mr Clough merely submitted that an extraordinary multiplier had been used without any elaboration.

56. In my judgment, the appropriate multiplier for a male aged 29 at the date of the accident is 14. I base this on Poon Man Chung HCA No.2294 of 1992, Chun Yat Nam op.cit., Chun Sung Yong HCA No.A118 of 1990 and Wong Hung Fan HCA No.A7480 of 1988.

57. But the correct assessment of future loss of earning capacity requires an adjustment to be made to the multiplier to reflect the future loss of 2 1/2 years that has already been taken into account on the assumption of Mr Liu working in Hong Kong until September 1998. Accordingly, the multiplier to be used in Mr Liu's case is 12.

58. Given Mr Liu's only evidence as to his earning capacity if he were to go back to China both post and pre injury, the loss is around RMB 1,100 a month. The current exchange rate is RMB 1.00 equals HK$0.912. On this basis, and using the multiplier set out above, the appropriate amount to be awarded for loss of earning capacity is HK$150,000.

Summary

59. The total award of damages is as follows:

60. Interest on pain, suffering and loss of amenities will be at 2% p.a. from the date of the issuance of the writ to judgment and thereafter at judgment rate until payment. Interest is at 6% p.a. from the date of the accident to judgment on special damages.

61. There should be costs nisi of the action to the Plaintiff.