CHAK HUNG v. MO TAK YAU AND ANOTHER

1996 P.I. No. 797

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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INTRODUCTION

1. This is a claim for damages for personal injuries arising out of an accident on 21st June 1988. The accident is alleged to have occurred in the course of the Plaintiff's employment by the Defendants. The damages claimed come to about $3.5m. The Defendants were not represented. They withdrew their instructions from their solicitors, and on the first day of the trial I declared that their solicitors had ceased to act for them. Since then, the Defendants, who are brothers, have represented themselves, and they presented their case with courtesy and moderation.

THE ACCIDENT

2. The accident which gave rise to the Plaintiff's claim occurred on the 10th floor of a building in Castle Peak Road. The Plaintiff had originally been working as carpenter and joiner in the building making fittings and partitioning. At the time of the accident, he was helping to install a false aluminium ceiling. In order to align the aluminium frame so that it was level, the Plaintiff had to attach a taut marker line made of string. In order to keep the string in place, it had to be fixed to the walls. It is common ground that he was given no instructions as to the way he was supposed to do that.

3. The Plaintiff gave detailed evidence about the circumstances of the accident. It is uncontradicted, and I accept it. He decided to fix the marker line with nails. The walls were made of brick and plaster, and he therefore drilled holes into the walls for the nails. The holes were about 2" deep. He then plugged the holes with wooden plugs. The wood he used was "quite hard". The plugs were over 1" deep. He then nailed the string into the walls. However, the tautness of the string caused one of the nails to pop out. The Plaintiff was not wearing goggles, and the nail struck him in the right eye. To all intents and purposes, the Plaintiff is now blind in that eye.

4. The nails which the Plaintiff had used were selected by him. Indeed, they came from his own stock of 1½" and 2" nails which he had been using earlier when he had been engaged on carpentry and joinery on the site. No-one had told him what sort of nails he should use, or what sort of nails were suitable for attaching the marker line to the walls. He relied on his own judgment.

THE SUITABILITY OF THE NAILS

5. The nails which the Plaintiff used were wire nails. As it turned out, they were unsuitable. The sort of nail which should have been used for a job of this kind was an annular ring nail. It has a serrated edge. It can be driven in easily, but it resists being withdrawn. That was the effect of the evidence of Mr. S.A.R. Jufri, a professional engineer, who was called as an expert witness for the Plaintiff. I accept his evidence on this topic, which was again uncontradicted.

6. However, the fact that the wrong nails were used did not necessarily mean that one of them was likely to pop out. Mr. Jufri's evidence, which again I accept, was that whether one of the nails would pop out depended on a number of variable factors, apart from the type of nail. They included (a) the length of the nail, (b) the depth that the nail was hammered into the wall, (c) the nature of the wooden plug, i.e. whether hard or soft wood was used, and (d) the degree and angle of the tension applied to it. But the type of nail which the Plaintiff used was clearly a major factor in the cause of the accident. I am satisfied that, although other factors may have contributed to the nail popping out, the nail would not have popped out if a more suitable nail had been used.

THE PLAINTIFF'S EXPERIENCE

7. The Plaintiff was almost 33 years old at the time of the accident. He was a self-employed carpenter by trade. Indeed, he described himself as having been a master carpenter. In fact, his skills were not limited to carpentry and joinery. Although he served a two-year apprenticeship as a carpenter (which he described as "following a master"), he also served an apprenticeship for twelve months as a tiler. Indeed, in the earlier 1980s, he held himself out as available for masonry, painting, carpentry and decorating. It may be that masonry was the word he used for tiling, but the fact remains that he had held himself out as available for masonry. I find that although carpentry and joinery were his core skills, his experience had resulted in him acquiring some skills in other areas. He could fairly be described, I think, as being a general handyman as well as a carpenter and joiner.

8. The Plaintiff himself admitted that prior to the accident he had had some experience in the installation of false ceilings, and in the attaching of marker lines to make them level. However, his evidence, which I accept, was that his experience was limited to wooden false ceilings, and that when installing them he had nailed the marker line vertically into wood. I find that that experience would not have been of particular use to him when it came to nailing a marker line horizontally into brick and plaster. Apart from anything else, the angle of tension would have been quite different.

THE STATUS OF THE PLAINTIFF

9. The Defendants dispute that they employed the Plaintiff. They contend that he was at all times a self-employed independent contractor who had been engaged to provide particular services. In addition, the Defendants contend that if the Plaintiff was an employee rather than an independent contractor, he was employed by the 1st Defendant (D1) alone, and not by the 2nd Defendant (D2).

(i) Issue estoppel. Mr. Neal Clough for the Plaintiff contended that the Defendants are estopped from denying that they employed the Plaintiff. That arises from the Plaintiff's claim for compensation from the Defendants under the Employees' Compensation Ordinance (Cap. 282). D2 did not file any grounds of opposition to that claim, nor did he appear at the trial of the claim. However, D1 in his grounds of opposition denied liability on the grounds, inter alia, that the Plaintiff was an independent contractor and was not an employee of either of the Defendants at the relevant time. He was not represented at the trial of the claim, but he attended the trial and maintained this defence.

10. The claim was heard by Judge Longley in the District Court. He found that the Plaintiff was an employee of both Defendants, and he awarded the Plaintiff compensation against both of them accordingly. In those circumstances, Mr. Clough contended that the Defendants are now estopped from arguing otherwise. He pointed out that all the requirements of issue estoppel are present in this case. The decision of Judge Longley that the Plaintiff was an employee of both Defendants was a judicial decision by a competent court of a final character. The issue was the same as that in respect of which estoppel is now claimed. The issue was decided in proceedings between the same parties. And Judge Longley arrived at his decision after hearing evidence on the issue for over a day, and he gave a reasoned judgment for the conclusion which he reached. In Wong Wang Sum v. Lee Kam Engineering Co. [1996] 3 HKC 627, Cheung J. held (for reasons with which I agree) that a finding in proceedings under the Employees' Compensation Ordinance is capable of founding a claim of issue estoppel in personal injury litigation.

11. On the other hand, the law recognises that there may be special circumstances in which issue estoppel should not apply because it would be unjust to permit it to do so : see Arnold v. National Westminster Bank PLC [1991] 2 AC 93. Proceedings under the Employees' Compensation Ordinance are a case in point. Since proceedings under the Employees' Compensation Ordinance are in substance, if not in form, summary proceedings, intended to give employees a form of interim relief on a no-fault basis pending the determination of their common law claim, the proceedings may not be pursued or defended as vigorously as they might otherwise be. In those circumstances, it may not be fair to bind the parties to findings in such proceedings when those findings could have a very much greater impact on the subsequent common law proceedings.

12. Where does justice lie in this case? I find the facts to be that D1 and D2 had realised beforehand that the issue at the hearing in the District Court was going to be whether the Plaintiff was an employee, and if so by whom he was employed. D2 did not attend the hearing because he was content to let D1 argue the case on their behalf. D1 was confident about the strength of their case, and that was why he did not bother to engage a lawyer. Neither D1 nor D2 knew about the difference between a claim for compensation under the Employees' Compensation Ordinance and a claim for damages in the High Court. They had no idea that the Plaintiff was planning to make a claim in the High Court if he succeeded in the proceedings under the Employees' Compensation Ordinance in the District Court. They believed that the claim for compensation under the Employees' Compensation Ordinance was the only claim they would face from the Plaintiff. They had not addressed their minds to the amount of compensation which might be awarded against them.

13. If the Defendants had realised that an adverse finding on the employment issue in the proceedings under the Employees' Compensation Ordinance was likely to prevent them from being able to rely on an important defence to a future claim by the Plaintiff for almost $3.5m., I believe that they would have treated the proceedings in the District Court much more seriously. I think it more likely than not that they would have engaged lawyers to act on their behalf, and I think that D2 would have been less willing simply to leave the matter to his brother. In those circumstances, I have concluded that it would be unjust to the Defendants to bind them to the findings made by Judge Longley on the employment issue. I therefore rule that issue estoppel should not in this case prevent the Defendants from arguing that the Plaintiff was not employed by either of them.

(ii) The nature of the Plaintiff's engagement. D2 was a builder in a small way of business. He used to engage workers with specialist skills when necessary. One of the workers he used to engage from time to time was the Plaintiff. It is common ground that when the Plaintiff worked for D2 as a carpenter, he was self-employed. He would provide the raw materials necessary for the job and would use his own tools. His remuneration depended on the nature of the job, and although he would be paid periodically if the job was a relatively lengthy one, he would only be finally paid when the job had been completed. The issue is whether the Plaintiff was employed by D2 when he carried out work other than carpentry for D2, because it was while he was doing non-carpentry work that the accident occurred.

14. I find the facts relating to the Plaintiff's engagement for the work in the course of which he was injured to be as follows. In May 1988, D2 agreed to renovate some offices in the building in Castle Peak Road. The work included the erection of partitioning and the construction of cabinets and counters. D2 engaged the Plaintiff to carry out the carpentry which the work involved. However, before that work could be undertaken, the existing partitioning and fittings had to be dismantled. That work was carried out by the Plaintiff and D2 between 3rd and 5th June. On 6th June, the Plaintiff began to carry out the carpentry work. The Plaintiff completed the carpentry work on 19th June. It is unnecessary for me to make any finding about the Plaintiff's status while he was helping D2 to dismantle the existing partitioning and fittings, and it is common ground that the Plaintiff was self-employed while he was carrying out the carpentry work between 6th and 19th June.

15. On 19th June, D2 asked the Plaintiff to stay on for a few days and help with the dismantling of the existing false ceiling and the erection of a new one with an aluminium frame in its place. The Plaintiff did not have any other work fixed for those few days, and so he agreed to do so. However, there is a sharp conflict of evidence as to what was said at the time. The Plaintiff claims that he told D2 that he knew nothing about fixing aluminium false ceilings and that he was a layman in the area. He says that D2 told him that it would be alright. On the other hand, D2 claims that the Plaintiff told him that he had done this sort of work before, that it was easy and that he was able to do it.

16. I do not think that there was any discussion at all about whether the Plaintiff was able to do the work. From the Plaintiff's point of view, the work which he was going to have to do did not require any special skill. He had installed false ceilings before, albeit wooden ones, and he did not think that the work would be particularly difficult. In any event, he did not think that he was going to be doing the work by himself. He was going to be helping D2, and D2 was going to be there to tell him what to do. For his part, D2 did not regard the Plaintiff's skills as limited to carpentry. He regarded the Plaintiff as being able to turn his hand to most things.

17. Over the next couple of days, the Plaintiff helped to dismantle the old false ceiling. On 21st June, the installation of the new false ceiling began. The accident, as I have said, occurred while that was being done. Although the Plaintiff may have used some of his tools in connection with the work, the materials to be used in the installation of the ceiling (e.g. the aluminium rods) were provided by D2.

18. D2 claims that he was not there at the time. His evidence was that he came to the site only occasionally, and that the Plaintiff was doing the work unsupervised because he knew what to do. If the work of the Plaintiff had to be supervised, D1 would be supervising it because he was in the process of taking over the business from D2. For his part, D1 claimed that he was not there at the time either. On this issue, I reject the evidence of the Defendants. I accept the Plaintiff's evidence on the topic. I am satisfied that both D1 and D2 were at the site at the time of the accident. They and the Plaintiff were at opposite ends of the corridor at the moment the accident occurred. D2 was in charge of the installation of the new false ceiling, and he would tell the Plaintiff what to do (for example, to run a marker line between the walls), though not how to do it.

19. On these facts, I have concluded, not without hesitation, that the Plaintiff was employed by D2 at the time of the accident. I do not think that it can be said that the Plaintiff was at that time his own boss. The relatively unskilled nature of the work, coupled with the extent to which the Plaintiff did what he was told to do, is more consistent with the Plaintiff being employed than carrying on a separate business of his own.

20. In the interests of completeness, I should add that in reaching the same conclusion about the Plaintiff's status, Judge Longley regarded three factors as significant which I have not :

(a) Judge Longley noted that the materials and tools used in the installation of the new false ceiling were provided by D2. I have no doubt that the materials were, but I am not so sure about the tools. I do not regard the fact that D2 provided the materials as significant. In the circumstances of the case, the provision of materials by D2 was not necessarily inconsistent with the Plaintiff helping out on a self-employed basis. And whether the Plaintiff was employed by D2 or self-employed, it would have been natural for him to use, when he was working on the installation of the ceiling, such tools which he had used for the carpentry and which were still on site.

(b) Judge Longley noted that the Plaintiff was to be paid a daily wage while he worked on the installation of the ceiling. I agree. I do not think that the basis of the Plaintiff's remuneration while he worked on the installation of the ceiling was ever discussed, but I also think that both the Plaintiff and D2 assumed that he would be paid on a daily rate. However, having regard the nature of the work which the Plaintiff was engaged to do, I think that he would have been paid at a daily rate whether he was employed or self-employed.

(c) Judge Longley noted that the Plaintiff considered that, unlike the times when he was engaged as a carpenter, he did not have the right to recruit other workers to help him on the installation of the false ceiling. I accept that in many cases the ability to delegate work to other workers is a sign of self-employment. I am less sure that it works the other way round. In the circumstances of this case, I do not think that it would have occurred to the Plaintiff, whether he was employed or self-employed, that it might be appropriate to delegate the installation of the false ceiling to anyone else or to recruit anyone to help him.

(iii) The position of D1. The evidence of the Defendants was that D2 wanted to transfer his business to D1. The reasons were to enable D2 to spend more time on a stationery business which he had started and to give D1 a business of his own. Although it was D2 who had obtained the contract to renovate the offices in Castle Peak Road, and who had negotiated the terms of the contract with the owner of the offices, it is claimed that he had done that on D1's behalf only. In support of that, the Defendants relied on an application form completed by D1 dated 24th June 1988 (three days after the accident) for his name to be registered as the owner of the business with effect from 1st June. Accordingly, the Defendants' case is that the brother for whom the Plaintiff was working on 21st June (whether as an employee or as an independent contractor) was D1, because D1 had acquired the business from D2 by then.

21. I reject the Defendants' evidence on this issue. It is far-fetched, implausible and inconsistent with much of what is set out in their witness statements. I have no doubt that the business remained that of D2. Indeed, I do not think that D1 was ever a partner of D2 in the business. He had been released from prison at the beginning of 1987, and had not done much work by the time of the accident. I find that although he was present on the site with D2, he was simply helping D2 out. I believe that after the accident, the Defendants realised that D2 faced a possible claim for compensation from the Plaintiff. Between them, they thought that it would be better for D1 to be found to be liable to the Plaintiff - perhaps because it would be less easy to enforce any judgment debt against him. That was why D1 applied for the business to be registered in his name. That application was made after the accident, because it was the accident which prompted the making of the application. The day when the registration was to take effect was back-dated to 1st June so that D1 would have appeared to have been running the business since then.

22. I appreciate that on this issue I have reached a different conclusion from Judge Longley, but my finding that D1 was not in partnership with D2, but was simply helping him out, means that the Plaintiff was employed by D2 alone. Since Mr. Clough realistically accepted that liability for the accident could only be established against the Defendants if the Plaintiff was employed by them, it follows that the Plaintiff's claim against D1 must be dismissed.

THE PLAINTIFF'S COMPLAINTS

23. Two complaints are made against D2. First, D2 should have provided the Plaintiff with suitable nails for the job, or should have advised him that the nails he was using were unsuitable. Secondly, D2 should have provided him with goggles, or should have advised him that it was hazardous for him to do the job without goggles.

24. I do not think that D2 was negligent in not providing the Plaintiff with goggles, or in not advising him that it was hazardous for the job to be done without goggles. Had suitable nails been used, this was not a job in which the Plaintiff's eyes would have been at risk. There would have been no chance of the nail popping out if nails with a serrated edge had been used. Mr. Clough was not disposed to argue against that when I put it to him in the course of argument. It follows that D2 was not in breach of the Factories and Industrial Undertakings (Protection of Eyes) Regulations ("the Regulations"). Reg.5 provides :

"The proprietor of any industrial undertaking to which these regulations apply shall provide for the use of every person employed in any specified process carried on in that undertaking -

(a) approved eye protectors;

(b) an approved shield; or

(c) an approved fixed shield,

as the case may require for the protection of his eyes, having regard to the specified process in which that person is employed and the risk of injury to his eyes from the carrying on of that process."

On the assumptions that (a) the Regulations applied to the construction work being carried on at the building, (b) that construction work amounted to an "industrial undertaking", and (c) D2 was the proprietor of that undertaking, the risk of injury to the Plaintiff's eyes was not such as to require protection for his eyes. Apart from anything else, the attachment of the marker line to the walls was not a "specified process" of the kind specified in the Schedule to the Regulations.

25. The duty on D2 to provide the Plaintiff with suitable nails for the job is another matter entirely. It was D2's duty to provide the Plaintiff with the materials which were suitable for the work he was carrying out. That included the duty to provide him with suitable nails. The fact that the Plaintiff held himself out as having masonry, painting and decorating skills, in addition to his core skills of carpentry and joinery, did not absolve D2 from that duty.

26. However, although D2 was in breach of his duty as the Plaintiff's employer to provide the Plaintiff with suitable nails, I believe that the Plaintiff himself contributed to the accident in no small measure. Mr. Clough realistically accepted that there was a measure of contributory negligence on the part of the Plaintiff. Most people would have realised that smooth nails of the kind which the Plaintiff used were not suitable for this job. It would have occurred to most people that they would be liable to pop out if the string which they were intended to hold became taut. That applies especially to the Plaintiff with his experience as a general handyman, particularly as he had held himself out as a man with a number of skills. The fact of the matter was that D2 relied to a considerable extent on the Plaintiff's own professed expertise. Although D2 cannot avoid some responsibility for not providing the Plaintiff with suitable nails, I have to say that I think that the Plaintiff was primarily responsible for the accident. In the circumstances, I assess his contributory negligence at two-thirds.

THE PLAINTIFF'S LOSS

(i) Pain, suffering and loss of amenities. As a result of being blind in his right eye, the Plaintiff's three-dimensional vision is now markedly impaired. There has been a diminution in the field and depth of his vision, and he is not able to see things as acutely as he did. He has to wear glasses. He cannot concentrate for long periods without feeling dizzy or getting a headache. He has to use eye-drops occasionally. As a result, he has been unable to work again as a master carpenter. Indeed, he has been working as a "casual odd job worker".

27. In Lam Yau Yuk v. Attorney-General (HCA 5655/86), Duffy J., in dealing with a similar case, except that the injured eye had been replaced with a prosthesis, placed the injury at the top of the "serious injury" category. In Ho Shui Ching v. Chu Dim (HCA 7286/92), Master Woolley, in a not dissimilar case, placed the injury towards the top of this category, though that was in part because the injured man in that case was older. In my view, the Plaintiff's injury also comes within the top half of that category. The current range for injuries in that category is $400,000.00 - $540,000.00: see Leung On v. Chan Pui Ki [1996] 2 HKC 565. I consider that the proper figure to award the Plaintiff under this head of loss to be $480,000.00.

(ii) The Plaintiff's pre-accident earnings. The evidence as to what the Plaintiff earned prior to the accident is unsatisfactory. His evidence was that he worked as a self-employed carpenter for only about one month a year. The rest of the time he worked as an employee for a daily wage. I believe that the Plaintiff was minimising the time he worked as a self-employed carpenter in order to improve his case that he was employed by the Defendants at the time of the accident. However, I cannot ignore the fact that the Plaintiff says that he spent most of his time as an employee on a daily wage. Doing the best I can on the evidence, I find that for 75% of the time he was employed on a daily wage, and that he worked as a self-employed carpenter for only 25% of the time.

28. His evidence was that prior to the accident he used to work 25-26 days a month. That does not square with the statement in the Statement of Damages prepared by his solicitors, which recorded him as working for 22 days on average a month. His witness statement is silent on the point. The evidence about what he earned is equally unsatisfactory. His witness statement records him as saying that his daily wage as an employee was $250.00, but when it comes to his earnings while he worked as a self-employed carpenter, the position is unclear. His witness statement does not deal with the question at all, and the Statement of Damages assumes that he earned the same daily wage of $250.00 as when he was employed. At one stage in his evidence, the Plaintiff said that when he worked as a carpenter he earned "about $200.00 or $200.00 plus a day" (though it may be that he was referring to when he was employed because he spoke of it as his "salary"), whereas later in his evidence he said that he earned about $300.00 a day on average when he was self-employed. At another stage in his evidence, he said that on average he earned about $6,000.00 a month. Moreover, in his application for compensation in the District Court, and in his Statement of Claim in the present proceedings, it is said that he earned on average $7,500.00 a month.

29. The difficulty is that the Plaintiff did not keep any records of what he earned. I must make allowances for what might be an unconscious though understandable tendency on the part of the Plaintiff to exaggerate his pre-accident earnings. All in all, I propose to proceed on the basis that (a) he worked for an average of 20 days a month, (b) his wage as an employee averaged out at $250.00 a day, and (c) his earnings when he was self-employed also averaged $250.00 a day. I therefore find that his pre-accident earnings averaged $5,000.00 a month.

(iii) The Plaintiff's potential post-accident earnings. The Plaintiff's solicitors have used various statistics compiled by the Census and Statistics Department to calculate what the Plaintiff could be expected to have earned but for the accident. Thus, the average daily wage for carpenters and joiners engaged in Government building and construction projects was $809.80 in September 1996 and $901.10 in December 1996. I have a number of worries about the uncritical use of these statistics :

(a) They relate to rates of pay in public sector projects. I have had no evidence as to whether the Plaintiff would have been likely to find work in Government projects, and I simply do not know how rates of pay compare with private sector projects.

(b) I proceed on the basis that for 75% of the time the Plaintiff would have been working as an employee rather than as a self-employed carpenter. I accept that for much of the time that he would have been working as an employee, he would have been working as a carpenter. However, it is plain that for some of that time he would have been working as a general handyman (as he was at the time of the accident). There is no certainty whatever that during those times he would have been earning the relatively high rates of pay earned by experienced carpenters and joiners.

(c) The Plaintiff's solicitors' calculations assume that the rates of pay for carpenters and joiners increased over the years at a consistent rate. However, I cannot tell whether that assumption is correct. I have not been provided with the statistics (assuming that they exist) for the years 1988-95. As it is, such evidence that I have suggests that the rates of pay did not increase at a consistent rate. In the three months between September and December 1996, there was a particularly dramatic increase. If, as that suggests, the increases were proportionately greater in later years than in earlier ones, the Plaintiff's solicitors' method of calculation could be unfair to D2.

30. All these considerations have to be factored into the assessment of what the Plaintiff would have been earning but for the accident. If there is doubt, that doubt has to be resolved in favour of D2, because the burden of proving the Plaintiff's loss rests on the Plaintiff. In these circumstances, I find that the Plaintiff would now have been earning an average of $700.00 a day. I find that he would still have been working an average of 20 days a month. It follows that he would have been earning $14,000.00 per month on average. In reaching that conclusion, I have assumed that his average earnings would have increased at a consistent rate, and accordingly his average earnings from the date of the accident would have been $475.00 a day.

31. I turn to the multiplier. The Plaintiff is now almost 42. But for the accident, he could have expected to continue to work for 20 days a month on average as a carpenter and joiner up to his mid-sixties. However, life is full of uncertainties, and that has to be reflected in the multiplier, as has the fact that his damages are payable immediately, even though the lost earnings for which he is being compensated would otherwise have been earned over the years. In my view, the appropriate multiplier to take in this case is 11.

(iv) The Plaintiff's actual post-accident earnings. The Plaintiff was unable to resume working until 29th October 1990. He did not earn anything during that period. However, there was very little evidence as to what he has been earning since then. According to his witness statement, the Plaintiff now only works for 10-15 days a month. He earns between $300.00 and $400.00 a day, and his earnings range from $4,000.00 to $6,000.00 a month. However, this evidence is unsatisfactory for a number of reasons :

(a) Although the Plaintiff's witness statement contains an estimate of his present earnings, it has nothing about what his earnings have been up to now. The only evidence I have of what his earnings have been in the past is a certificate from a firm which employed him for two weeks in November 1995. In that job, he earned $300.00 a day.

(b) I would have expected the Plaintiff's actual earnings since his accident to have been documented. He became legally-aided not long after the accident. Even if he had not kept records of his earnings prior to his accident, I would have expected his advisers to have told him to keep records of his earnings since the accident. He knew he would be making a claim for loss of earnings, and even an unsophisticated man without knowledge of the law ought to have realised that a factor in the calculations would be his actual post-accident earnings.

32. I am prepared to accept that the Plaintiff has not been able to work as many days a month as he was able to prior to the accident. However, I proceed on the basis that he has worked on average 15 days a month since he returned to work, and will be able to do so for the foreseeable future. I also proceed on the basis that he earned an average of $200.00 a day when he resumed work again, and that he now earns an average of $400.00 a day. In reaching that conclusion, I have assumed that his average earnings would have increased at a constant rate, and accordingly his average earnings from the date of the accident have been $300.00 a day.

(v) Other matters. The Plaintiff's medical expenses and transport costs have been agreed at $540.00 and $390.00 respectively. However, his losses will have to be discounted by two-thirds to reflect his contributory negligence. Finally, the Plaintiff will have to give credit for the sum of $132,896.00 which he was awarded against the Defendants under the Employees' Compensation Ordinance.

CONCLUSION

33. These considerations produce a figure of $555,664.00. The calculations are set out in the schedule annexed to this judgment. I give judgment in favour of the Plaintiff against D2 for that amount. In addition, the Plaintiff is entitled to interest on his special damages of $176,560.00, i.e. the sums awarded for loss of past earnings, medical expenses and transport costs, from the date of the accident at half the average rate of interest payable on judgment debts over the period from the date of the accident. I have not calculated what that average rate is. I shall assume that the average rate is 4 1/2%, but I give the parties liberty to apply, within 14 days of the handing down of this judgment, if this assessment is inaccurate to a significant degree. In addition, the Plaintiff is entitled to interest on the sum of $160,000.00 awarded for pain, suffering and loss of amenities at the rate of 2% from 24th May 1991 when the writ was issued.

34. Although the Plaintiff has succeeded in his claim against D2, his claim against D1 has been dismissed. In my view, the orders nisi which I should make as to costs are (a) that D2 pays to the Plaintiff half the Plaintiff's costs of the action to be taxed in accordance with the Legal Aid Regulations, (b) that the balance of the Plaintiff's costs of the action be taxed in accordance with the Legal Aid Regulations, and (c) that there be no order as to D1's costs of the action. I make that order in relation to D1's costs, because the application form completed by D1 for his name to be registered as the owner of the business misled the Plaintiff's advisers into thinking that the Plaintiff may have had a case against D1.

SCHEDULE