LEE CHIT MING v. MAN SIU HUNG

HCPI 1242/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1242 OF 2014

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ASSESSMENT OF DAMAGES

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BACKGROUND

1.  An accident occurred on 1 August 2013 at about 08:40 hours, involving a taxi driven by the plaintiff and a private bus driven by the defendant along the 1^st lane of Chun Yat Street westbound in Tseung Kwan O.  The plaintiff gradually slowed down the taxi and stopped on Chun Yat Street near the junction of Chun Cheong Street with its hazard lights on in order to drop off the passenger on board.  The defendant failed to stop the private bus in time and drove the private bus in a manner which caused the front left of the private bus to bump into the taxi in its right rear.  As a result, the plaintiff sustained bodily injuries to his neck and limbs.

2.  By a consent order dated 16 December 2014, judgment on liability was entered against the defendant in favour of the plaintiff leaving damages to be assessed.  The hearing on assessment of damages took place before me on 19 to 20 January 2017.

3.  Evidence adduced includes two witness statements and oral testimony of the plaintiff, reports of Government hospitals at which the plaintiff had been given treatment, the joint medical report of Dr Johnson Lam and Dr David Cheng dated 9 October 2015 (“Joint Medical Report”) and three exhibits submitted on behalf of the plaintiff at the hearing.  The three exhibits are the original monthly calendar sheets with handwritten records of the income of the plaintiff for the periods from July 2012 to July 2013 and from September 2013 to January 2017, copy of Notice of an Application for Legal Aid dated 29 January 2016 and copy of Notification of Successful Application issued by the Traffic Accident Victims Assistance Section dated 13 February 2014.  The witness statements were adopted by the plaintiff at the hearing.  The defendant did not call any witness.

4.  I find the plaintiff to be a credible witness.  He answered questions in a straightforward manner most of the time.  There were a few occasions when he showed hesitation, but that was because he was unsure of what he was asked of.  The plaintiff also keeps good order of his affairs and is a meticulous record keeper.

MEDICAL TREATMENT

5.  Right after the accident, the plaintiff returned home and rested for one to two hours.  Due to persistent neck pain and numbness in his four limbs, he eventually sought treatment from the Accident and Emergency Department (“A&E Department) of United Christian Hospital (“UCH”) on 1 August 2013.  Physical examination revealed mild tenderness over his cervical region, and the range of movement of his neck was diminished.  The power and sensation of the limbs were normal.  X‑ray scan was also conducted and showed no fracture. The plaintiff was discharged on the same day.

6.  Conditions did not improve despite the initial treatments.  The plaintiff felt increased neck pain and numbness over his limbs and he re‑attended the A&E Department of UCH on the next day.  Physical examination revealed decrease in limb power and sensation of his bilateral upper limbs.  The plaintiff was hospitalized from 2 to 5 August 2013 and was admitted to the Orthopaedics & Traumatology Department of UCH (“OTD”) for management and observation, during which X‑ray and a MRI scan of his whole spine was conducted.  MRI result showed mild C5/6 central spinal stenosis, with normal alignment and no cord compression or edema.

7.  The plaintiff attended various follow up sessions at OTD after his discharge.  He also consulted Yau Tong Integrated Medical Centre twice, on 18 August 2013 and 23 August 2013, for his neck injury.  Sick leave from 1 August 2013 to 23 December 2013 was granted to the plaintiff as a result of the accident, a total of 145 days.

8.  The plaintiff attended 15 sessions of treatment at the Physiotherapy Department of UCH (“PD”) from 23 August 2013 to 21 November 2013.  His condition improved but the active range of movement of his neck still could not reach full range. 

9.  The plaintiff started to experience mood disturbance since September 2013, about one month after the accident.  His daily life had been bothered by his low mood, escalated irritability and insomnia.  The plaintiff attended a total of 14 treatment sessions at the Psychiatry Department of UCH (“PSYD”) from 19 November 2013 to 2 September 2015. 

10.  The plaintiff was also referred to the PD by the PSYD in April 2014 and had some improvements after having 7 further sessions of physiotherapy treatment from 12 December 2014 to 6 February 2015.  According to the report of Yip Wai Cheong, Tony of PD dated 31 July 2015, when the plaintiff last attended a session on 6 February 2015, he still could not attain full range in respect of all the movements tested.  There is also reference to a Northwick Park Neck Pain Questionnaire which is expressed by way of a percentage, with 100% = severe disability and 0% = no disability.  The score of the plaintiff on his last attendance was 47.2%.

11.  Among the medical notes and records submitted are four out-patient neck pain questionnaires of PD completed by the plaintiff.  Two of them have the dates shown while the other two do not.  In the questionnaires dated 23 August 2013 and 12 December 2014, the plaintiff indicated that the symptoms in his neck and arms were present continuously all day. In the two undated questionnaires, the symptoms in the neck and arms of the plaintiff were described as present on and off for a total of more than four hours each day.

12.  Dr Pang Pui Fai, the psychiatrist who has been treating the plaintiff at UCH, issued two reports, dated 25 March 2014 and 21 July 2015 respectively.  Various consultation notes of Dr Pang have also been produced.  They show that the plaintiff recalled onset of mood disturbance in September 2013, when his children commenced schooling.  Owing to ongoing neck pain and limb numbness, together with psychosocial stresses from parenting, he reported poor sleep in the form of insomnia and intermittent awakening.  Mood deteriorated gradually and he would throw temper to his parents, wife and kids over trivial matters.  He became increasingly gloomy about himself and the future and blamed himself for being a burden to his family and for not being in a job.  He was socially withdrawn and refused to ventilate inner feelings.  He had suicidal thought but had never carried out the act.

13.  In the report of Dr Pang dated 25 March 2014, the diagnosis was that the plaintiff was suffering from depression and that he was in partial remission.  Continual use of antidepressant and psychological treatment were considered necessary.  The report records that the plaintiff had been suffering from persistent albeit diminishing neck pain and limb numbness.  No sick leave was granted by the PSYD.  Dr Pang opined that there was no evidence that the former job of the plaintiff as a taxi driver or his earning capacity would be seriously impaired by his psychological problem.

14.  According to the 21 July 2015 report of Dr Pang, he had, since the 25 March 2014 report, seen the plaintiff in mid‑2014, end of 2014 and on 20 May 2015.  The resumption of full time taxi driving was recorded, so was the improvement in mood and sleep of the plaintiff and his relationship with his wife and kids.  There is mention of the plaintiff having nearly full time taxi driving ability, as well as the need to take rest after prolonged driving because of on and off neck pain.  Dr Pang held the same opinion about the effect of the psychological problem of the plaintiff on his ability as a full time taxi driver as noted in the report of 24 March 2014.

15.  The two experts had referred to the consultation notes of the treating doctors of the plaintiff when giving their opinion.  Ms Leong also relied on some of the notes of the treating doctors when making her submissions.  I have extracted from these consultation notes the records relating to the level of pain of the plaintiff and the effect on his driving and set them out in the table in Annex 1.

JOINT MEDICAL REPORT

16.  For preparation of the Joint Medical Report, the plaintiff was examined by Dr Lam and Dr Cheng on 23 June 2015, one day before he made the witness statement of 24 June 2015.  According to the section on “Present Complaints” in the Joint Medical Report, the complaints of the plaintiff were on and off neck pain, especially on sustained bending of the head, the feeling of paraesthesia over the neck, and a lack of concentration.  It is also recorded in that section that he managed his daily activities and the taxi without problem, but needed occasional breaks and sometimes had to refuse long journey fare. 

17.  On the matter of residual pain, after going through the medical records of the plaintiff, Dr Cheng stated that, on the basis of the follow-up records of OTD on 2 May 2015 and PSYD on 20 May 2015, there was some residual pain. This was agreed to by Dr Lam who said that the plaintiff had apparently resumed work as a full-time taxi driver, but still had residual pain.  Dr Lam referred also to the neck and thoracic assessment form dated 12 December 2014 and other notes and records of PD.  After doing so, he gave the opinion that by early 2015, the plaintiff still had genuine pain and impairment in the neck requiring physiotherapy treatment. 

18.  The experts then went on to comment on the condition of the plaintiff at the time of their examination.  They found the neck of the plaintiff in a fairly healthy state with satisfactory range of movement except for mild decrease in rotation; that there was mild tenderness over both upper trapezius area, with muscle guarding but no muscle spasm.  These comments were followed by the opinion of the two doctors that “it is possible/probable that some residual discomfort/pain may be present after a sprain”.

19.  Both experts agreed that the diagnosis of the plaintiff’s injury was a sprained neck/soft tissue injury to the neck and the subject accident should be the cause of this injury.  They also agreed that the treatment received by the plaintiff was standard and appropriate and the plaintiff had reached a state of maximal medical improvement for the injury.  The grant of 145 days’ sick leave by the doctors treating the plaintiff was also agreed to by the two experts.

20.  In the view of both experts, the plaintiff is capable of resuming his pre-injury job as a taxi driver, with minimal/mild reduction in work capacity. On the plaintiff’s resuming work only on a part time basis initially, Dr Cheng was of the view that there was little medical indication for such, but considered a period of adaptation of one or two months to be reasonable.  Dr Lam agreed that a period of adaptation would be necessary initially, i.e. part-time work, shorter hours – gradually stepping up to more normal hours and full-time work.  He went on to say that even after resuming full time work, the plaintiff might need slightly more short breaks for rest or stretch after prolonged driving.  Both doctors also agreed that the social and other activities of the plaintiff were not affected in any significant way.

21.  In respect of the seriousness of the injury, Dr Lam had elaborated further in the Joint Medical Report.  He specifically mentioned that the examination he conducted still revealed mild residual tenderness, muscle guarding and mild decrease in neck rotation.  In his view, it is likely that the plaintiff suffered from more significant and probably moderate degree of soft tissue injury to the neck, causing persistent neck pain and impairment as a residue of the accident, and the degree of residual pain and impairment is assessed to be mild.

22.  For assessment of permanent impairment and disability in practical terms, Dr Lam said that the plaintiff would need more short breaks for rest and stretch after prolonged driving since activities that cause increased stress to neck (eg large degree of rotation of neck, say, in inspecting traffic environment; prolonged concentration in driving) could cause discomfort or even pain in neck.

23.  As for the level of impairment or loss of earning capacity, Dr Lam recommended 3% while Dr Cheng suggested 1%.

THE PLAINTIFF’S WORK AND LIFE

24.  The plaintiff was born on 13 December 1980 and was 32 at the time of the accident.  He is married and has two sons.  His wife is a housewife. The plaintiff received full time education in Hong Kong up to Secondary 2 level.  He started to work when he was about 15 and had worked as a hawker and construction worker before becoming a taxi driver since 2011.

25.  On the evidence of the plaintiff, he was a self‑employed full‑time taxi driver, working a 12 hour shift from 5am to 5pm almost everyday.  Before the accident, apart from lunch break, gasoline filling and toilet breaks, the plaintiff would drive his taxi at all times to look for passengers, and seldom waited for passengers at a taxi stand.

26.  According to the plaintiff, the busiest time for his shift is between 7am and 10am when people are getting to work or to school.  There is almost no need to look for customers.  It is a little bit busy from 1pm to 5pm while 5am to 7am is not a busy period.

27.  The plaintiff has a self‑devised system of recording his earnings.  When he returns home everyday after his shift, he works out the net income for that particular day and also the cash he will have with him for commencing work the next day.  He does so by emptying all the money on him and then subtracting from this the taxi rental fee and the total amount of money he left home with when he started his shift that day.  The figure of this daily income is written down on the space of that particular day on a monthly calendar sheet. 

28.  After working out the daily income, the wife of the plaintiff draws the money from the earnings for her use and arrangement.  She also replenishes this pool of money with the coins she has for use as change by the plaintiff the next day.  What remains is the total amount of money the plaintiff will have on him when he starts work the next day.  This figure is also laboriously recorded on the monthly calendar sheet each day.

29.  The actual sheets of monthly calendar on which the plaintiff has recorded the above figures were produced as Exhibit P‑1.  Some of the older ones are quite yellowish, showing the effect of the passing of time.  Apart from the two daily figures entered on those sheets, important occasions were also marked on them, such as dental appointments for the plaintiff’s sons and parents’ day of the schools.  Based on the amounts shown on these calendar sheets, the monthly earnings of the plaintiff from 1 July 2012 to 17 January 2017 are as shown in the table in Annex 2.

30.  The plaintiff was asked a number of questions by Ms Leong about the reasons for his earnings being significantly above average.  Information from the Transport Department shows that the average daily net income per taxi which operates 2 shifts, i.e. 20 to 24 hours per day, was HK$848 in 2012 and HK$1,038 in 2013.  There is also a newspaper article of 22 May 2012 reporting that the monthly net income of the typical urban taxi driver who rents his vehicle fell 7.3% in real term from HK$12,538 between July and December 2011 to HK$11,949 in the first 4 months of 2012.  The earnings recorded on the calendar sheets are much higher than these figures. 

31.  In the plaintiff’s own opinion, he made more money because he did not pick his customers, and would not refuse a flag like other taxi drivers, be it a short distance, long distance or cross harbour journey.  He also pointed out that many taxi drivers would not work the full hours of their shift and he often saw idle taxis still parked on the streets after he had started work for some time.  The plaintiff did say though that he did not know many taxi drivers.

32.  The plaintiff did not resume work immediately after the expiry of the sick leave on 23 December 2013.  He did so on 4 January 2014. According to his witness statements, he was unable then to take passengers who travelled for long journeys because of the weakness, stiffness and numbness in his neck.  He started feeling the pain, stiffness and numbness over his neck after driving 15 to 20 minutes.  He had to rest and get out from the taxi to do some stretching exercise, sometimes resting for 20 to 30 minutes.  In the first few months after resuming work, the plaintiff started work later at 7am and did not work on Sunday afternoons so as to rest more.

33.  From August or September 2014 onwards, the plaintiff tried to work the full 12 hours shift from 5am to 5pm.  After driving for 15 to 20 minutes, the numbness and stiffness over his neck would exacerbate leading to pain and in severe situations, the pain would extend to his shoulders and back and lead to numbness in his thumbs and forearms occasionally.  The plaintiff still had to rest for about 10 to 30 minutes after each journey and the number of occasions he had to rest for 30 minutes or more increased (sometimes 5 or 6 times a day).  The plaintiff would frequently wait for passengers at a taxi stand so that he could get out of the vehicle to do stretching exercise while waiting for passengers.

34.  The situation had slightly improved by the time the plaintiff made his witness statement.  He indicated that he would need to rest for 30 minutes or more four to five times a day and sometimes he could drive two to three short journeys continuously before a rest, depending on the length of each journey.  At the hearing, he added that in total, he rested for about three to four hours a day.

35.  The amount of rest the plaintiff required after resuming work as a taxi driver is a matter that had been gone into some depth.  What the plaintiff stated in his witness statement of 24 June 2015 has been set out in paragraphs 32-34 above.  Ms Leong contrasted this with the record under “Present Complaints” in the Joint Medical Report that he had on and off pain and he needed occasional breaks only.  As the plaintiff was examined by the experts only one day before the making of the witness statement, Ms Leong put it to the plaintiff that he told the doctors of the need for occasional breaks only and not the more number of breaks mentioned in his witness statement or that the breaks could be for 30 minutes or more. 

36.  The plaintiff denied this and pointed out that there had been no quantification by the experts as to the length of rest in the records they made.  To him, “occasional breaks” is not much different from “frequent breaks”.  I pause here to point out that the court interpreter actually used the Chinese phrase “條頸耐唔耐都會痛” for “on and off neck pain” and “時不時都要停吓休息吓” for “occasional breaks” when she first explained the relevant parts of the Joint Medical Report to the plaintiff.  She switched to use the term “偶爾” for “occasional” later on but that was after having heard Ms Leong use that phrase. 

37.  When asked what in fact did he tell the experts about the rest he required while driving, the plaintiff said that he could not recall the exact words used but what he told them would have the same meaning as what was stated in his witness statement.  He expressed his view that driving for 30 minutes was prolonged driving.  The plaintiff also responded in the negative to the suggestion that he had exaggerated the frequency of the breaks for rest required and the length of the rest periods taken, or that the need for the rest taken was not due to the injuries sustained. 

38.  There is a noticeable drop in the earnings of the plaintiff for the month of October 2014, some time after the plaintiff had resumed full time taxi driving.  When asked about this, the plaintiff attributed that to the Occupy Central movement which affected traffic over a large part of the urban area. The plaintiff agreed that, other than the injuries he sustained as a result of the accident, his earnings could be affected by other factors.

39.  In respect of his earnings prior to the accident, another piece of information relied on by the plaintiff is the 2013 Income and Assets Declaration Form submitted to the Housing Authority dated 20 May 2013, a few months prior to the accident.  The plaintiff had set out his monthly income for the period from 1 April 2012 to 31 March 2013, after deduction for taxi rentals and fuel charges.  The figures were given down to the exact dollars for each month and they tally with the sum of the figures recorded on the calendar sheets.  The reported figures for April to June 2012 have also been included in the table in Annex 2.  The net assets held by each household member were set out in the declaration form as well and the plaintiff’s wife was reported to have a cash balance in bank in the amount of HK$22,551.

40.  One other matter that supports the earnings claimed by the plaintiff for the period prior to the accident is the application form for Traffic Accident Victim Assistance (“TAVA”) dated 21 January 2014.  According to the plaintiff, the formal application form and the undertaking form were filled in by a staff of the Social Welfare Department who put down his income as HK$800 per day. The plaintiff was also told by this staff that a daily salary of HK$800 was the upper limit for calculation purpose and the amount of assistance the plaintiff could receive for stating a sum over HK$800 as his daily salary would not be more than what he could receive for stating HK$800 as his daily salary. Despite such advice, the plaintiff crossed out the HK$800 printed on the form and amended it to HK$1,000 in his own handwriting because it was a declaration that he was signing.

41.  There is not much to be gained from the bank passbook of the plaintiff. For the entire year of 2014, he had not used it for any transactions.  He was granted HK$88,825 as TAVA.  The Notification of Successful Application issued by the TAVA Section shows that the HK$88,825 was paid into the bank account of the plaintiff in February 2014, but since he did not update his passbook record until much later, the deposit was not shown in it.

42.  One tax return for the year 2015/2016 has been filed by the plaintiff. He explained that he had not filed any tax return in the past because he did not think he had to pay tax anyway.  He filed the return for 2015/2016 after being informed by the Legal Aid Department, when he applied for legal aid in early 2016, that tax returns should be filed irrespective of whether there is a liability to pay tax. 

43.  The plaintiff has to fill up the LPG fuel tank before passing the taxi to the driver for the next shift at 5pm every day.  Prior to the accident, on average the plaintiff spent about HK$180 for LPG every day, and the list price for LPG was then about HK$5 per litre.  The price of LPG dropped to about HK$2.60 per litre by May 2016 (the time of the supplemental witness statement of the plaintiff) and the plaintiff was then paying about HK$50 to HK$60 for LPG each day.  The plaintiff has not kept any receipts for the LPG, not seeing any need to keep them.  He did say that he was not aware of the need to keep them even for the post-accident period, although he accepted that such receipts would show the distance travelled by his taxi.

44.  As for the taxi rental fees, it was HK$410 a shift at the time of the accident.  Since January 2014, it had been increased to HK$420 a shift and had remained so up to May 2016.  When cross‑examined, the plaintiff said there was a rental card that recorded the days on which he rented a taxi but that was not produced.  He also admitted to being issued traffic offence penalty tickets once or twice a year on average, for speeding or illegal parking, and he paid $320 or $450 for such tickets.

45.  In calculating the notional post-accident earnings, the plaintiff has claimed a 5% increase on the basis that there had been an increase in taxi fare from 8 December 2013.  The increase in flagfall in December 2013 was from $20 to $22 (10%) and the fare for every 200 metres travelled was increased from HK$1.50 to HK$1.60 (6.67%) for the 2^nd to 9^th kilometres.  When asked how this 5% was arrived at, the plaintiff said that was his own estimate, having taken into account the actual increase of fare and the drop in the fuel charges.  He also testified that there was a slight increase in his income when taxi fare was raised in July 2011 but he did not calculate the difference.    

46.  In respect of the social life of the plaintiff, he stated in his witness statements that he used to have outdoor activities (such as playing football, riding bicycle and playing in the park) with his sons four to five times a week and playing mahjong with friends in Tin Shiu Wai at least once a month.  After the accident, the plaintiff has stopped such activities due to persistent neck pain and low mood.  He no longer travels to Tin Shiu Wai for the mahjong games because of the long distance driving it entails.

47.  One other activity he has ceased is the driving around with his family during nighttime on Friday and weekend.  He now rarely does so in order not to exacerbate the stiffness and numbness of his neck.  At most, he drives his family after work to dine with his mother who lives about 10 minutes’ drive away.

48.  The plaintiff also gave details about his mental health at the time of the making of his witness statements.  He still had flashbacks of the accident but only occasionally.  With improvements in his mood, his relationship with his family and friends had also improved significantly since the early days after the accident. 

49.  A table showing the monthly household expenses of the plaintiff before and after the accident can be found in the supplemental witness statement of the plaintiff.  The figure has dropped from the pre-accident figure of HK$25,013 to the post-accident figure of HK$18,638.  The plaintiff was questioned as to how he makes ends meet when the monthly post-accident household expenses exceed his earnings most of the time.  He explained that he used to give money to his parents, but now he has to borrow from them.  His wife has helped out as well. In addition, the TAVA of HK$88,825 that he received in February 2014 also provided some relief.

PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

50.  The plaintiff claims PSLA in the amount of HK$280,000.  The cases relied on by the plaintiff are Yu Wai Kan v Law Cho Tai HCPI 62/2010, 11 May 2011, Law Yau Keung v Chu Sai Chuen HCPI 846/2011, 1 August 2013, Tai Yuk Wong v Chong Kwok Fung DCPI 1405/2005, 8 March 2006, So Kim Lung v Lee Pak Wai HCPI 494/2010, 1 November 2012 and Kwan Wing Leung v Fung Chi Leung DCPI 2489/2013, 24 July 2014.  Ms Leong pointed to the very severe psychiatric condition suffered by the victim in the Yu Wai Kan case which therefore, in her view, should be distinguished from the present case.  The range of PSLA awarded in the other cases cited by the plaintiff is between HK$120,000 to HK$150,000.

51.  Ms Leong has drawn my attention to 8 cases for consideration of the award of PSLA, including the Kwan Wing Leung case cited by Mr Chung. The seven other cases are Cheung Wai Hung v Kwok Fuk Kwan James DCPI 2032/2007, 15 October 2009, Leung Hiu Yan Hilda v Lau Kam Hung DCPI 220/2012, 15 May 2013, Chan Lung Hing v Ng Kam Man HCPI 405/2012, 20 June 2014, Au Suk Man v Chan Chi Wai DCPI 1213/2013, 10 February 2015, Tsang Ho Sang v Sunbase Environmental Hygiene Ltd DCPI 1422/2013, 7 December 2015, Tong Yuk Tai v Nep Holdings International (HK) Ltd DCPI 1121/2014, 11 December 2015 and Ko Hoi Seung Korin v Liu Kowk Keung HCPI 1206/2014, 12 August 2016.  The appropriate award in the present case is, in the opinion of Ms Leong, in the region of HK$120,000.

52.  I agree with Ms Leong that the conditions of the victim in the Yu Wai Kan case are not on par with the present case.  As for the other cases referred to by both sides, I have considered them all in detail as well.  Many of the cases involved injuries of a similar nature to the present case and provide useful guidelines, in particular the Ko Hoi Seung Korin v Liu Kowk Keung case, being a more recent decision.

53.  The injuries suffered by the plaintiff were not of a very serious nature. Having taken into account the age and job nature of the plaintiff, the various treatments he had undergone, the pain that he has been through and which continues to affect him, the effect of his injuries on his life, as well as the effect of inflation, I award the amount of HK$140,000 to the plaintiff for PSLA.

Pre-Trial Loss of Earnings

54.  The plaintiff claims HK$608,253.13 under this head, according to the following formula –

(HK29,300 + HK$30,765) ÷ 2 x 41.61months – HK$630,276 – HK$11,123.20 = HK$608,253.13

HK$29,300 represents the average monthly net income of the plaintiff for the 12 months prior to the accident 

HK$30,765 represents a 5% increase of the figure of HK$29,300

41.61 months is the length of the entire pre‑trial period

HK$630,276 is the total actual net income of the plaintiff for the period from January 2014 to December 2016

HK$11,123.20 is the total actual net income of the plaintiff for the 17 days in January 2017 prior to the hearing

55.  In addition to challenging the above calculation on a few fronts, Ms Leong emphasized that the burden is on the plaintiff to establish the loss he suffers and that such loss is caused by the accident.  One of the major concerns of Ms Leong is the earnings of the plaintiff at the time of the accident.  Against the background of the figures provided by the Transport Department and those gathered from newspaper articles, it has been pointed out by Ms Leong that the actual pre‑trial earnings claimed by the plaintiff are significantly higher than average.

56.  Ms Leong submitted that the explanations of the plaintiff for making more money than average were not convincing.  She pointed out that with taxi driving, not every minute would be income generating because the plaintiff can only make money if there is a passenger on board.  In her view, taxi drivers pick passengers because it is not profitable otherwise.

57.  In relation to the pre‑accident earnings of the plaintiff, Ms Leong referred to the lack of corroborative evidence save for the declaration made to the Housing Authority and the form filed for the application for TAVA.  It is Ms Leong’s submission that corroborative evidence is required because the plaintiff may not be accurate with his records.

58.  As for the 5% increase of net earnings claimed by the plaintiff because of the increase in taxi fare in December 2013, Ms Leong asked me to note that there is no evidence in support.  Pointing to the lack of evidence of any increase in earnings of the plaintiff as a result of the rise in taxi fare in July 2011 or the extent of increase that resulted from it, Ms Leong was skeptical about the accuracy of this estimate of the plaintiff.  Ms Leong also objected to the application of the mean of the two figures of HK29,300 and HK$30,765 for the entire pre‑trial period, even if the 5% increase was to be allowed. 

59.  Ms Leong was also critical about there being no evidence on the gross revenue or the operating costs, in particular the receipts or records for taxi rental which would show the number of days the plaintiff rented a taxi had not been produced.  Since the receipts for LPG would show the level of usage of fuel and hence mileage covered by his taxi, Ms Leong also frowned on the failure of the plaintiff to produce such receipts.  She made the point that such evidence can show whether the plaintiff’s claim that he had to rest for so many hours a day, which ought to be reflected by less consumption of LPG, should be believed.  In particular, Ms Leong pointed out that the plaintiff might not have realized the importance of such receipts and so tossed them away before the accident, he should have become aware of the need to preserve evidence of the operating costs after the commencement of the present proceedings.

60.  Ms Leong also asked me to note that the pre-accident and post-accident earnings of the plaintiff cannot be reflected from his bank passbook, and there are no tax returns to support the earnings he claims, except for the tax return for 2015/2016, which however should be treated with caution since it was prepared after the accident. 

61.  Another matter worth noting, in the view of Ms Leong, is that the post‑accident earnings of the plaintiff per month have for many months been insufficient to meet the total household expenses of his family.  Hence, while the plaintiff’s pre-accident earnings are considered by Ms Leong to have been overstated, it is her suspicion that the plaintiff has understated the earnings he made after the accident.

62.  It is also Ms Leong’s submission that the plaintiff exaggerated the effect of his neck injury on his working capacity, relying mainly on the different versions about the pain felt by the plaintiff and the frequency of rest he needed that can be found in the witness statements of the plaintiff on the one hand and the Joint Medical Report and the reports of the treating psychiatrist on the other.  As she put it, the evidence of the plaintiff on these matters is not truthful because the two experts could not possibly have recorded “on and off neck pain” or “occasional breaks” if the plaintiff told them what he had stated in his witness statement.  Ms Leong also considered the plaintiff’s oral evidence that “occasional” has the same meaning as “frequent” to be incredible.

63.  In addition, Ms Leong put it to me that there is no medical evidence that supports the plaintiff’s case on reduction of earning capacity.  In doing so, Ms Leong referred specifically to the statement in the consultation notes of Dr Lau Ka Chi of OTD dated 6 February 2014 that “injury does not result in significant permanent functional disability” and the opinion in the two reports of Dr Pang that the prognosis of the mental illness is good and that “there is no evidence, from a psychiatric point of view, that his former job as a taxi driver or earning capacity would be seriously impaired by his psychological problem”.

64.  The views of the experts in the Joint Medical Report are also, in the opinion of Ms Leong, not supportive of the plaintiff’s case.  She placed emphasis on the mention of only “some possible/probable residual discomfort/pain”, the need for only “slightly more short breaks for rest or stretch after prolonged driving” even after the plaintiff resumed full time work. Further, even with Dr Lam, the plaintiff’s expert, the degree of residual pain and impairment was assessed to be mild while Dr Cheng, the defendant’s expert, opined that there was no physical impairment detected. 

65.  Mr Chung disagreed with such interpretation of the medical evidence.  He pointed to the fact that Dr Lam had even quantified the impairment for reference purpose.  He considered Ms Leong’s approach to the interpretation of the term “occasional” to be hair splitting. 

66.  I would first say that I find the records of the plaintiff’s earnings on the calendar sheets to be very cogent evidence, not only for the pre-accident period, but also for the post-accident period.  Ms Leong doubted their accuracy.  One can see from the actual calendar sheets that the plaintiff is a person of precision.  He uses different colour pens for the two figures and they are written on a particular spot against each day on the calendar. They go down to the last ten cents.  Although the possibility of mistakes cannot be ruled out, the scale of any such mistakes is unlikely to be significant.

67.  The declaration form filed with the Housing Authority and the undertaking in the form for applying for TAVA are strong corroborative evidence that the net earnings were as recorded in the calendar sheets.  As pointed out by Mr Chung, there is no reason for the plaintiff to lie to the Housing Authority since an extra premium may have to be paid as rent if the household income is higher.  The same goes for the daily income put down in the application form for TAVA.  Despite being told that the amount of assistance would not be any higher if he was to insert a higher figure as daily income, the plaintiff chose to put down the actual figure.

68.  I can understand Ms Leong’s concerns that the pre‑accident earnings of the plaintiff were much higher than the average taxi driver.  I do not however have any reservations in accepting the explanations of the plaintiff. He is a hard working person.  It is not correct for Ms Leong to suggest that a taxi driver only makes money when there is a passenger on board.  The driving around in search of potential customers is as much a part of the business routine.  The more you are on the lookout for passengers, the more likely you are to find one.  Although the plaintiff did not know many other taxi drivers, he did testify to spotting taxis lying idle in the first few hours of the morning shift.  After all, the figures from the Transport Department or the news articles on the earnings of taxi drivers represent the average only and the plaintiff is simply not the average taxi driver.

69.  On the frequency to take breaks from driving, as pointed out in the above, the Chinese phrase first used by the court interpreter for “occasional” was “時不時”, which can encompass a scenario of the plaintiff taking breaks from time to time, that is, at a rather frequent basis.  Further, as can be seen from the extract in Annex 2, the plaintiff did tell a number of doctors about his need to rest because of the neck pain, and on several occasions (even as late as May 2015, one month before the examination by the experts), he did tell them of the need to rest every 15 minutes.  I do not therefore find the evidence of the plaintiff that he needed rest to the extent stated in his witness statements to have been shaken. 

70.  Whilst Ms Leong focused on the part of the Joint Medical Report where the experts referred to “possible/probable residual pain”, a more definitive view of residual pain can be found in other parts of the report, as referred to in paragraphs 17, 21 and 22 above.  Further, it is the finding of both experts that there was mild decrease in rotation in terms of the range of movement of the neck.  I also prefer the view of Dr Lam when he gave a more detailed analysis and in-depth consideration of the medical records of the plaintiff.  His opinion about the likelihood of persistent neck pain and impairment and the need for more short breaks for rest after prolonged driving owing to the demand of the plaintiff’s work on the movement of his neck was very specific. 

71.  The records in the consultation notes of the treating doctors and therapists offer helpful insight as well.  I note the comment in the notes of the consultation on 6 February 2014 where the doctor put down “injury does not result in significant permanent functional disability”.  However, that was only about a month after the plaintiff had resumed working as a taxi driver and the basis for forming such a view is unclear.  It is also not entirely consistent with the position noted in the other consultation notes.

72.  For example, during the consultation that took place only two weeks later on 20 February 2014, the plaintiff complained of his neck pain worsening during driving.  The pain was even described as excruciating in the consultation notes of 3 April 2014 and 15 May 2014.  During the consultation on 18 June 2014, the plaintiff told the doctor that he cut down the hours of driving to avoid neck pain.  The need to rest his neck every 15 minutes was noted by the doctors of both OTD and PSYD, from June 2014 onwards up until May 2015.  The plaintiff was also told by Dr Lai of OTD, on 23 June 2014 and 2 February 2015 that the chronic neck pain would likely persist.  The persistent pain endured by the plaintiff was also recorded in the report from the PD and the various questionnaires referred to above. 

73.  As a whole, I find the Joint Medical Report and the consultation notes to be in support of the case of the plaintiff that his neck pain has been a constant issue to be dealt with and there was the need to rest at such frequency as was indicated in his witness statements. I also find that such records support the case of the plaintiff that the need to rest was caused by the injuries he sustained in the accident.  

74.  As for the receipts for LPG consumed, I note Ms Leong’s criticism about the plaintiff’s failure to produce them especially for the period after the accident.  However, I do not think they can be of great relevance anyway.  Even if the mileage covered by his taxi can be worked out based on the expenses on fuel, it cannot tell us whether the less distance travelled by the taxi was due to the need of the plaintiff to take breaks owing to his neck pain or otherwise. In any event, there is the uncontroverted evidence of the plaintiff about the fuel expenses dropping from HK$180 a day before the accident to HK$50-HK$60 a day after the accident.  Working this out from the fuel price stated in the witness statements of the plaintiff (HK$5/litre before the accident and HK$2.6/litre after the accident) shows that the fuel consumption did drop from the pre-accident 36 litres a day to about the post-accident 19-23 litres a day.

75.  The position is similar with the failure to produce the taxi rental card.  The calendar sheets show that the plaintiff worked almost every day, even for the post-accident period.  The plaintiff’s case that the earnings marked on the calendar sheets are net of taxi rental is corroborated by the information he put down in the 2013 Income and Assets Declaration Form submitted to the Housing Authority.  I do not see any need to fault the plaintiff for not producing the taxi rental card.

76.  The plaintiff did agree that the 5% increase of his earnings after the fare increase in December 2013 was only his own estimate.  Nonetheless he explained how he came up with such estimate.  The evidence of the plaintiff is that there had been an increase in taxi rental from $410 to $420 per shift (increase of 2.4%), but there was a decrease in the price of LPG from HK$5 to HK$2.60 per litre (decrease of 48%).  Although the rise and fall in price for these expenses do not relate to the exact same period of time, I will adopt them for a rough comparison.  The plaintiff paid HK$590 a day for fuel and rental (HK$180 for LPG and HK$410 as taxi rental) before the accident. After the accident, had the consumption of fuel not been affected by the need to rest, the charges for fuel would be about HK$180 x HK$2.60/HK$5 a day, i.e. HK$93.60.  Adding this to the increased taxi rental fees of HK$420, this means that the sum of these two operating costs after the accident would have been HK$513.60, representing a net decrease of about 13%.

77.  Also noteworthy is the set of figures provided by the Transport Department about the average daily net income per taxi for 2012 (HK$848) and 2013 (HK$1,038), which indicates a 22% increase.  Since the figures are net of operating costs, the inference to be drawn is that there had been a decrease in the overall operating costs. 

78.  Another way of looking at this matter is to work out how much the earnings of the plaintiff would have been in 2013 had his earnings from 2012 been increased for 22%. Only the earnings of the plaintiff for 9 months in 2012 are available, and the monthly average of the figures is HK$28,317.  If the average monthly income of the plaintiff was increased by 22% in 2013, the figure is HK$34,546, much higher than what the plaintiff is now claiming for as his notional monthly earnings after the fare increase in December 2013. 

79.  Apart from the analyses above, I note that the plaintiff had, before the accident and except for the month of June 2013, been earning more than HK$30,765 since March 2013.  With all the above comparison and figures as the backdrop, and taking into account the actual fare increase in December 2013, I find the 5% upward adjustment based on the monthly average earnings prior to the accident to be actually conservative. 

80.  I therefore allow the figure of HK$30,765 to be adopted as the notional earnings of the plaintiff after the increase in taxi fare in 2013.  I agree though that the increment should not be taken into account for assessment until the actual effective date, i.e. 8 December 2013.

81.  Indeed the bank passbook of the plaintiff offers no assistance in showing the earnings of the plaintiff.  The plaintiff seldom relies on the passbook and did not use it for transactions for the whole year in 2014. However, since I am prepared to accept the plaintiff’s case on his earnings without reliance on his passbook records, nothing turns on such state of affairs. 

82.  As for the submission that the post‑accident earnings can hardly meet the needs of his family, the plaintiff referred to borrowings from his parents, his wife’s savings and also the TAVA he received.  This is what people in need usually do and nothing can be made out of this.  As for the suggestion that the plaintiff has been understating the earnings he made for the post-accident period, I have indicated in the above that I am satisfied with the authenticity of the monthly calendar sheets.  I accept the plaintiff’s explanation on how he has been making ends meet.

83.  Ms Leong has pointed to a number of factors that may affect the level of earnings of taxi drivers which are wholly unrelated to the accident: operating costs, competition from taxi drivers who offer discount to customers, competition from Uber drivers, extension of MTR service and atmosphere and condition of the economy.  The plaintiff has himself agreed that the drop in the earnings for October 2014 was due to the Occupy Central movement.  Ms Leong therefore cautioned against simply looking at the reduction in the earnings of the plaintiff after the accident even if it is proved.  Mr Chung countered by stressing that there are no data to support a case that these factors do in fact pose any competition and this cannot simply be assumed. 

84.  Most businesses face competition and it is a fact of life.  However, without dedicated studies on the effect of potential factors that may pose competition to taxi services, it would not be right to simply assume that they in fact do.  For example, when asked about the competition from taxi drivers offering discount, the plaintiff answered that they already existed prior to the accident.  He also remarked that users of the MTR service are not the usual customers of taxi service and the MTR is more of a competition to bus service than taxi service.  I am prepared to find, on balance, that apart from the traffic offence tickets and the Occupy Central movement dealt with below, the plaintiff has shown that the reduction in his earnings after the accident was caused by the injuries he sustained.

85.  It is the plaintiff’s own evidence that he had two to three traffic offence tickets every year and the penalty he paid was sometimes $320 and sometimes $450.  It would only be fair for the average of such expenses per month (i.e. 2.5 tickets per year x (HK$320 + HK$450) ÷ 2 ÷ 12) = HK$80.20 to be deducted from the multiplicand for the entire pre-trial period. 

86.  There is also evidence about the effect of the Occupy Central movement on the earnings of the plaintiff for the months of October and November 2014. Although the movement started from end of September 2014 and did not completely end until mid December 2014, the earnings of the plaintiff in September and December of 2014, as shown from the calendar sheets, had not been much affected.  For the purpose of calculating the loss of earnings for October and November 2014, I will replace the actual earnings for the two months by those of August 2014 and January 2015, the two full months immediately before and after the Occupy Central movement.  As a result, the plaintiff’s earnings for the two months should be adjusted upwards by HK$2,585.60 (HK$16,998.80 + HK$16,778.40 – HK$14,713.70 – HK$16,477.90).

87.  Ms Leong also objected to the inclusion of the loss of earnings for the period from 24 December 2013 and 3 January 2014, when the sick leave had expired.  I agree that the extra days of rest taken by the plaintiff should not be the responsibility of the defendant and this period should be excluded from the formula. 

88.  I need to address the length of the adaptation period as well.  When the two experts examined the plaintiff in June 2015, Dr Cheng opined that a two months’ period for the plaintiff to adapt himself to full time employment again to be appropriate.  Dr Lam did not stipulate the number of months the plaintiff would take for transition to full time work again.  Dr Lam did say though that the process would be a gradual one and the plaintiff might need slightly more short breaks for rest even after resuming full time work.  On the basis of the opinion of Dr Cheng, Ms Leong argued that partial loss should, at most, be allowed for an adaptation period of two months.  

89.  It is the plaintiff’s own evidence that he only resumed full time taxi driving in August or September 2014.  When one looks at the figures in Annex 2 in greater detail, it can be seen that the earnings of the plaintiff have been steadily increasing since he resumed work in January 2014.  There are a few months when his earnings were noticeably lower or higher, and of course the relatively low income he had in October 2014 because of the Occupy Central movement; but the general trend of steady increase is clear.  This trend matches the opinion of Dr Lam that the return to work would have to go through a gradual stepping up process. 

90.  The plaintiff’s earnings for the several months immediately after he resumed full time driving, but disregarding October 2014, were not significantly higher than the months of March to July 2014.  In fact, the earnings of the plaintiff for March 2014 were the second highest in that year.

91.  Besides, except for the consultation on 6 February 2014, the consultation notes of the treating doctors in the first half of 2014 clearly record worsening of the neck pain upon the plaintiff’s resuming work.  There is the specific mention of the need to cut down the hours of driving to avoid neck pain in the consultation notes of 18 June 2014.  In view of all the aforesaid matters, I find that when the plaintiff resumed work only on a part time basis, the reason for his making less was more because of the need to rest than the fact that he was working fewer hours.  There is no basis to find that the plaintiff could have made more money by resuming full time work earlier.  I will not therefore make any adjustment to the earnings for the months from March to July 2014. 

From 1 August 2013 to 7 December 2013

92.  The loss of earnings for this period should be (HK$29,300 – HK$80.20) x 4.23 months = HK$123,599.80.

From 8 December 2013 to 23 December 2013

93.  The loss of earnings for this period should be (HK$30,765 – HK$80.20) x 16/31 month = HK$15,837.30.

From 4 January 2014 to 17 January 2017

94.  Having taken into account the HK$2,585.60 upward adjustment in paragraph 86 above, the earnings of the plaintiff for this period are taken to be HK$643,984.80 (HK$630,276 + HK$11,123.20 + HK$2,585.60).  The loss of earnings for this period should thus be (HK$30,765 – HK$80.20) x 36.45months – HK$643,984.80 = HK$474,476.20.

95.  The award for pre-trial loss of earnings is therefore HK$613,913.30, being the sum of HK$123,599.80, HK$15,837.30 and HK$474,476.20.

Future loss of earnings

96.  The plaintiff claims HK$2,433,828.60 under this head, according to the following formula –

(HK30,765 – HK$21,000) x 12 x 20.77 = HK$2,433,828.60

97.  It is Ms Leong’s submission that the plaintiff should not be entitled to any future loss of earnings.  In support, Ms Leong referred to the cases of Kwan Wing Leung, supra, Yip Mau Kei v Wong Kam Tim DCPI 1905/2013, 10 February 2015 and Law Yau Keung v Chu Sai Chuen, supra.  She pointed out that the court did not award future loss of earnings in those cases even though the claimants worked as drivers and they would have to turn their necks while driving.  The Yu Wai Kan case supra was also relied on by Ms Leong.  In that case, the court found that the claimant had reasonable prospect of establishing loss of future earnings, but only for 2 years and specifically for the purpose of the victim undergoing further psychiatric treatment, at the end of which he was expected to be able to resume taxi-driving with some mild limitation.  However, I do not consider these cases to be of assistance to the defendant.

98.  The court indeed did not award any future loss of earnings in the Kwan Wing Leung case.  However, the claimant in that case used to rent the taxi for the whole day and resting at various periods of the day as he so desired, and he did not return to work at all after expiry of the sick leave.  The court in the case commented that the claimant could take additional rest by adjusting his rest period without any reduction to his income.  The plaintiff here only rents his taxi for one shift and does not have this luxury.  It was also noted that the claimant in Kwan Wing Leung reported to the medical officer on the day of expiry of sick leave period that he was “pain free”, but he chose not to return to work.  This is not the case with the plaintiff here.

99.  The claimant in the Yip Mau Kei v Wong Kam Tim were injured in his back and not the neck.  The court specifically pointed to the joint expert reports which noted that the low back pain of the claimant was worse with prolonged standing, but not sitting.  There was no consideration by the experts of the need of the claimant to turn his neck while driving at all.  In addition, it was the court’s finding in that case that the complaints of the claimant of numbness and pain were not supported by any medical evidence. 

100.  Again, no award for post-trial loss of earnings was made in the Law Yau Keung v Chu Sai Chuen case.  Although the claimant maintained that he could not move his neck without pain, the court referred to the various medical records showing that the treating doctors found him to have the full normal range of movement without local tenderness.  Surveillance tapes also showed the claimant to be able to turn his head on a number of occasions.  Both experts appointed in the case were of the view that the claimant had exaggerated his deficit.  In coming to a similar conclusion about the seriousness of his injuries, the court also found him not to be a credible witness.

101.  The case of Yu Wai Kan also involved a taxi driver who sustained injuries to his neck and back.  The experts opined that he could return to his pre-accident taxi driving with mild limitation and more frequent short breaks and with some impairment to his work tolerance, efficiency and adaptation ability after intensive psychiatric/psychological treatment for another two years.  There are indeed some similarities in terms of the injuries that might affect the claimant in resuming professional driving with the present case. However, the early medical records in the case noted full range of movement of the neck.  There is also no mention of any consideration by the experts of the effect of the residual pain on the specific movements that are required of a taxi driver in carrying out his trade. 

102.  I have addressed the other arguments advanced on behalf of the defendant that the plaintiff has not shown that the loss in earnings was attributable to the injuries suffered as a result of the accident in the discussions in relation to the pre‑trial loss of earnings above.  For the reasons stated, I find that on balance the plaintiff has established that the reduction in his earnings was, save for the need to take into account the penalty payable for the traffic offences and the impact of social occurrences like the Occupy Central movement, caused by the injuries he sustained.  HK$80.20 should therefore be discounted from the multiplicand to account for the traffic offence penalty.

103.  The Occupy Central movement is not a recurrent event.  However, from time to time, our economy is susceptible to a drastic downward turn which can have a serious impact on the business of a taxi driver.  The defendant should not be accountable for loss of business of the plaintiff owing to such causes. The plaintiff has been a taxi driver for about 5½ years.  The adjustment in paragraph 86 above is roughly 1.3% of the notional earnings of the plaintiff throughout his taxi driving career [HK$2,585.60 ÷ <{(HK$29,300 + HK$30,765) ÷ 2 – HK$80.20} x 12 x 5.5>].  A further 1.3 % discount will be applied to the total loss of future earnings. 

104.  As for the multiplier, Ms Leong advocated the adoption of 20.29 since the plaintiff turned 36 about a month before the trial and that is the figure for a 36 year old male, with a discount rate of 2.5%.  I agree that the multiplier to be applied should be 20.29.

105.  The plaintiff is prepared to assume that his condition will improve and that he will be able to make a monthly income of about HK$21,000.  The award for loss of future earnings is therefore the amount of HK$2,327,400.40 [(HK$30,765 – HK$80.20 – HK$21,000) x 12 x 20.29 x 98.7%].

Loss of earning capacity

106.  The plaintiff claims a lump sum of HK$50,000 on the basis that he will be at a greater risk to lose his job if he switches to another job.  Mr Chung submitted that the amount represented two to three months of the monthly income of the plaintiff and would be a reasonable amount.

107.  Ms Leong is of the view that no award should be made under this head since the plaintiff is self‑employed and he is able to resume his self‑employed job.  In support, she referred to the cases of Lo Kwok Fai v Ngan Cheung Wah [2003] 1 HKLRD 82, Chan Lung Hing v Ng Kam Man, supra, Yip Mau Kei v Wong Kam Tim, supra, Yu Wai Kan v Law Cho Tai, supra and Law Yau Keung v Chu Sai Chuen, supra.

108.  Mr Chung submitted that the plaintiff might be at a greater risk to lose his job if he were to switch jobs in future, because of his working capacity being limited as a result of his injuries.  He cited the case of Yuk Kok Wing v Lee Tim Loi [2001] 3 HKC 314 in support.

109.  Damages for loss of earning capacity may be awarded where there is a risk that the victim may lose his employment at some time in the future and who, as a result of the injuries he sustained, may be at a disadvantage in getting another job or an equally well paid job.  Unlike the Yuk Kok Wing case where the claimant had worked for different employers throughout his working life, the plaintiff has all along been self-employed.  The evidence shows that the plaintiff can return to his job as a full time taxi driver, even though he has to rest after prolonged driving.  There is no risk of his losing such a job in future.  I therefore make no award under this head. 

Agreed items of damages

110.  Four items of damages claimed by the plaintiff have been agreed to by the defendant.  They are:

1)  special damages for medical expenses: HK$4,320

2)  special damages for travelling expenses: HK$2,500

3)  special damages for tonic food: HK$3,000

4)  future medical and travelling expenses: HK$1,000

Summary

111.  The following table sums up the computation of the damages assessed to be payable by the defendant to the plaintiff:

	HK$
PSLA	140,000.00
Pre-trial loss of earnings	613,913.30
Future loss of earnings	2,327,400.40
Special damages	9,820.00
Future medical and travelling expenses	1,000.00
Total	3,092,133.70

112.  I award damages to the plaintiff in the sum of HK$3,092,133.70 together with interest on damages for PSLA from date of writ to date of judgment at 2% per annum and interest on the pre-trial loss of earnings and special damages at half of the judgment rate from date of accident to date of judgment.  Interest at judgment rate is to be paid on the net amount of HK$3,092,133.70 from judgment until payment.

COSTS

113.  On a nisi basis, I award costs of the assessment of damages to the plaintiff, including all costs reserved, to be taxed if not agreed, with certificate for counsel.

RETURN OF EXHIBITS

114.  The exhibits are to be returned to the plaintiff.

Annex 1

Annex 2