LAI JIANXING v. SAKOMA (HK) LTD AND OTHERS

HCPI 757/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 757 OF 2009

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BETWEEN

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J U D G M E N T

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Introduction

1.  The Plaintiff is a Mainland resident.  He is a seaman.  On 8 May 2008, he met an accident on board the Zhonghang 903, a barge commuting between the ports of Guangdong, Macau and Hong Kong in transportation of containers and cargoes.

2.  At the time, the Zhonghang 903 was in Hong Kong waters.  The containers on board the barge were to be discharged onto a dumb lighter, the “Midstream 18”, which was equipped with a derrick.  The crane was operated by the 3^rd Defendant at the time.  As part of the procedure of unloading the containers, the Plaintiff and his co-workers had to join the metal slings of the crane to the anchors at the top of the containers to enable the containers to be lifted out of the hold of the barge.

3.  The discharge of the first 2 containers proceeded uneventfully.  However, in the course of hooking up the third container, the Plaintiff suddenly fell off from its surface and landed at the bottom of the hold.  The Plaintiff alleged that the container was suddenly lifted by the crane while he was standing on it, causing the metal sling to spring onto him which resulted in his fall.  The exact manner of how the accident happened is no longer material for the purpose of this trial.  It suffices to note that the Plaintiff was injured as a result.      

4.  During the opening of the Plaintiff’s case, Mr Szeto (appearing for the Plaintiff) indicated that the Plaintiff no longer wished to pursue the claim against the 1^st Defendant.  The question of costs vis-á-vis the 1^st Defendant remained a live issue but the claim for damages would only be pursued against the 2^nd and 3^rd Defendants. 

5.  Later, during the Plaintiff’s evidence, Mr Kwok (appearing together with Mr Chow for the Defendants) indicated that the 2^nd and 3^rd Defendants would no longer contest liability for the Plaintiff’s injuries.  The main question remaining for the trial is the quantum of the Plaintiff’s claim.  

Background of the Plaintiff

6.  The Plaintiff was born in 1962.  He was 45 years old at the time of the accident. 

7.  The Plaintiff has long been a seaman.  From about 1986, he has been employed by the same company although the company has undergone several restructuring.  His current employer is the ZhongShan Port & Shipping Enterprise Group Ltd (中山市港航企業集團有限公司).  There are several sister companies within the same corporate group.

8.  As a seaman for 22 years before the accident, the Plaintiff had been assigned to work on different vessels and in different positions such as the second-mate, the first-mate and as captain of other vessels.

9.  At the time of the accident he was the Deputy Captain of the Zhonghang 903.

Injuries and Treatment

10.  I accept that before the accident the Plaintiff was a healthy and active person.  He enjoyed sightseeing during his leisure. From time to time, he also liked dinning out with his family. 

11.  Immediately after the accident, the Plaintiff was admitted into the Accident & Emergency Department of Queen Mary Hospital.  Examinations revealed that he suffered (i) bruises to the right posterior upper arm, size 1 x 1 cm; and (ii) anterior wedge collapse of L1 in the spine.  He was given analgesic to relieve pain.  There was no neurological deficit.

12.  He did not, however, stay in Queen Mary Hospital.  On advice from his employer, he considered it better to receive treatment on the Mainland as he would be closer to home and his family.  He was transported back to Zhongshan on board the Zhonghang 903.  I accept that the Plaintiff must have endured pain and discomfort when he was transported from the hospital to the vessel, and during the journey back to Zhongshan in circumstances where the vessel was not designed to carry or offer special comfort to injured passengers.

13.  On his arrival in Zhongshan in the morning on 9 May 2008, he was admitted into Zhongshan City Chinese Medicine Hospital (“ZCCMH”).  There he was treated with IV fluid injections, herbal application, physiotherapy and was in a corset for 48 days. He was hospitalized until 26 June 2008 before he was discharged home for convalescence.  According to the hospital’s discharge record, he had a compressed fracture at L1 and the compression was about 1/3.

14.  During the period in hospital, he was confined to bed rest and was treated with both Chinese and Western medication.  Although the orthopaedic specialists appointed by the parties (Dr Tio and Dr Chun) questioned the appropriateness of prolonged bed rest, nothing turns on the point. 

15.  On discharge from ZCCMH, it was recorded that his pain in the waist and back had lessened.  He still experienced mild limitation of motions but no dizziness or headache.  He had bed rest for another month.  He had been receiving follow-up treatment since. 

16.  In a joint report (“the Joint Report”) prepared by Dr Tio and Dr Chun, it was recorded (and I accept) that the Plaintiff was still experiencing low back pain and dull ache with change of weather, after exertion at work or other activities, big sneezing or when turning in bed.  He also experienced dizziness which was at first severe after discharge from hospital, but had since become mild.  His wedge fracture at L1 has healed with 47% compression ratio.  The doctors expressed the view (which again I accept) that the Plaintiff’s symptoms at the low back were compatible with the residual of the healed wedge fracture.  The Plaintiff’s mild dizziness was likely to be related to the prolonged bed rest in the Chinese hospital and the symptom is likely to improve.

17.  I accept that the Plaintiff will continue to experience intermittent back pain on physical exertion and also in changing weather.  The severity of the pain will reduce with time though it is likely to continue and be persisting.  Notwithstanding his intermittent back pain, the Plaintiff is independent in the usual activities of daily living. 

18.  As is accepted by both doctors, the fracture at L1 did not involve the nerves and therefore the fracture itself would not have as serious an effect on the Plaintiff as one which did.

Impact of Injuries on the Plaintiff

19.  The nature of the Plaintiff’s pre-accident duties on board the Zhonghang 903 and his ability (or otherwise) to resume such duties are disputed issues I have to resolve in this trial.

20.  According to the Plaintiff, his main duties as Deputy Captain was to assist the Captain and be in charge of the steering and general administration of the barge.  In his statement (which he adopted as his evidence), he said that he was often required to assist other crew members in various duties particularly when they were all pressed for time to complete the loading / unloading of the cargoes.  This, for instance, would involve him teaming up with 2 other crew members to hook up the slings of the crane onto the anchors of the containers.  Also there had been occasions when the Plaintiff would be required to assist other crew members in handling or moving cargoes as well as tools and equipment on the vessel.

21.  In the Joint Report, the Plaintiff’s pre-accident duties were described as including “sailing, steering, administration, rigging and as a helping hand.”

22.  The Defendant disputed the nature of the Plaintiff’s duties on the barge.  In cross-examination, it was suggested that the Plaintiff as Deputy Captain would not be required to perform heavy manual labour such as rigging or moving cargoes and equipment.  Such work could be left to his subordinates and there were several other junior crew members on the vessel to do such work. 

23.  On this issue, I accept the Plaintiff’s description of his pre-accident duties. They included not only steering of the vessel and administration, he was required from time to time to perform tasks including rigging, pulling and manoeuvring metal slings, hooking up containers, as well as tasks that involved manual labour such as handling cargoes, tools and equipment.  Such tasks were often strenuous and required physical exertion.  I find that these tasks were among the duties of the Plaintiff as Deputy Captain of the Zhonghang 903, and he had participated in such tasks with other members of the crew.  I reject the suggestion that his position as Deputy Captain would not require him to undertake tasks that involved heavy physical exertion. 

24.  According to the Plaintiff, and I accept, in January 2009 the doctor suggested that he could try to return to work but he should only undertake less strenuous duties.  The Plaintiff related his readiness to resume duties to his employer but was told that owing to his long period of absence his previous post on the Zhonghang 903 had already been filled by somebody else.  The company agreed to look for other suitable positions for him.

25.  He was therefore waiting to be assigned to new positions.  In about May 2009, he was given the post as a guard/watchman guarding scrap vessels on land with a lower salary than what he would have earned as a seaman.  I accept, in this regard, the Plaintiff’s evidence that there had been 2 occasions when he had raised the subject of his posting with his employer.  His employer suggested that he should consider resigning or changing his job to becoming a guard/watchman but neither of those prospects appealed him, as he needed a good income to support his family and especially his 2 sons in university.  I accept also his evidence that one of such occasions took place at around the time he was offered the post as the guard. As to the other occasion, contrary to the submissions of the Defendant, I do not consider the fact that the Plaintiff was unable to remember more precisely when it took place should in any way undermine the credibility of his evidence in this regard. 

26.  The Plaintiff took up the offer as a guard on a temporary basis while requesting to be deployed back to some sea-going duties.  

27.  Eventually, a vacancy as chief mate arose on a tugboat, the Xianxing 703, after the retirement of the vessel’s captain and the consequent promotions of the then deputy captain and chief mate.  The Defendant questioned the veracity of the Plaintiff’s evidence as to emergence of the vacancy, pointing to the allegedly short duration of office if Captain Leung of the Xianxing 703 only became her captain in August 2009 but was apparently replaced in less than 2 year (latest in May 2011).  I do not find any substance in this attack on the Plaintiff’s evidence.  On the contrary, I accept the Plaintiff’s testimony that he had been offered the position as Chief Mate on the Xianxing 703 as the vacancy arose in August 2009, a position he has continued to occupy to this day. 

28.  The posting of the Plaintiff as Chief Mate on the Xianxing 703 was, and I find, the company’s response to the Plaintiff’s desire to return to a sea-going position while having regard to the limitations of his ability to perform the physical duties on a boat and their inherent hazards.  This is evident from the memorandum issued by ZhongShan Port & Shipping Enterprise Group Ltd dated 20 July 2010.  I further accept that he was mainly involved in the performance of light duties as the Chief Mate such as dealing with the paper work for the business operation of the vessel and matters relating to customs and duties.  In this regard, while I have taken note of the Plaintiff’s evidence that there had been occasions he had exerted himself on the tugboat by moving ropes and pulling cables, I accept that because of the pain he experienced afterwards, he had ceased doing such work since. 

29.  I accept that the conditions of the Plaintiff are such that the type of work which required heavy exertion, for instance, manoeuvring metal slings and hooks of the crane, handling heavy cargoes, tools or equipment and activities involving heavy labour, will bring about pain to his back.  Such kind of work will be unsuitable for him especially taking account of the risk of unexpected turbulence at sea (if he were to engage in such work).  Such limitations of the Plaintiff’s ability to perform heavy manual labour on a boat were clearly, and understandably, a concern to his employer in their consideration of his posting, as is evident from the letter dated 20 July 2010 aforementioned.

30.  In coming to the above conclusion, I have taken note of the Plaintiff’s evidence given under cross-examination regarding the training-instructions he had received for the purpose of renewing his Seafarer Registration (in March 2009) and his Certificate of Competence as Second Captain (in May 2009).  The Defendant sought to challenge the Plaintiff’s version that he would not be fit to resume the pre-accident duties as Deputy Captain.  Having considered the evidence, I am prepared to accept the Plaintiff’s explanation that the training for the purpose of renewing the Registration consisted mainly of refreshing their knowledge by way of a video, and for the Certificate of Competence the instructions and examination concentrated mainly on the knowledge of the theory.  Although on the Plaintiff’s own evidence, he did not alert the Marine Bureau or the Health Department as to his physical limitations in the annual health examinations, I do not consider such failure to be a sufficiently weighty piece of evidence to cast doubt on my view that the Plaintiff was indeed suffering limitations as to his ability to perform heavy manual labour on a boat.   

31.  I have also taken note of Dr Chun’s view that the Plaintiff would be able to resume his duties as a Deputy Captain.  This view, however, was not expressly stated in the Joint Report.  But in any event, I think it is more pertinent to take note that in paragraph 35, Dr Chun also agreed that the Plaintiff might have intermittent pain on heavy exertion. That, to me, supports my conclusion from the evidence that the kind of work requiring heavy exertion on a boat as described in the foregoing paragraphs will be unsuitable for the Plaintiff.  In my view, because of the unsuitability and their inherent risks, the Plaintiff is unlikely to be able to resume the full range of the pre-accident duties pertaining to the position of Deputy Captain of the Zhonghang 903.

32.  I will now turn to the different heads of claim.

Pain, Suffering and Loss of Amenities

33.  Under this head, my attention has been drawn to the following authorities:

(a) Choi Siau Bon v Chevalier Construction (Hong Kong) Ltd & Ors, HCPI 913 of 2000;

(b) Wu Choi Lan v Tonge (Hong Kong) Ltd & Anor, DCPI 634 of 2003;

(c) Limbu Muni Parsad v Hyundai Engineering & Construction Co Ltd, HCPI 1167 of 2003;

(d) Khan Amir v Kwok Yui Chor & Anor, HCPI 422 of 2009;

(e) Tsang Shun Keung v Ko Wang International Trading Ltd t/a Ko Wang Design Engineering Co & Anor, HCPI 373 of 2009;

(f) Ho Moh v Tam Yiu Keung t/a Yiu Sun Construction Engineering Co & Anor; HCPI 1251 of 1998;

(g) Shek Kam Ching v Po Kee Construction Engineering Ltd & Ors, HCPI 434 of 2001;

(h) Shea Lai Chuen v Federal Express Pacific Inc, HCPI 1025 of 2003;

(i) So Man v So Ting t/a Fung Kee Waste Wooden & Metal Collection Co, HCPI 566 of 2006;

(j) Shah Nisar v Wai Kit Engineering Co Ltd & Ors, HCPI 1092 of 2003;

(k) Ali Shoukat v Hang Seng Bank Ltd, HCPI 3 of 2003;

(l) Lawati Bhawani Bikram v Ting Kau Contractors Joint Venture, HCPI 1242 of 1999 & on appeal, CACV 3 of 2002.

34.  Having considered the authorities and in light of my findings above, I think it would be appropriate to award $250,000 under this head for the Plaintiff’s pain, suffering and loss of amenities.

Pre-Trial Loss of Earnings

35.  The pre-trial period in this case is 38 months.

36.  The documents regarding the Plaintiff’s pre-accident monthly earnings revealed some minor inconsistencies.  For the purpose of calculating the Plaintiff’s average pre-trial monthly earnings, I would adopt the following figures set out in the 2 memoranda issued by his employer (both dated 16 September 2009): his monthly salary of RMB3,408.66; monthly labour fee (勞務費) of RMB1,400; half-year bonus of RMB2,470; and year-end bonus of RMB3,800.  These averaged RMB5,331.16 per month.

37.  After resumption of duties as Chief Mate on the Xianxing 703, his monthly salary was reduced to RMB2,381 (according to a memorandum issued by his current employer).  There is no dispute that he earned a monthly labour fee of RMB1,000.  Accepting also that he would have earned reduced bonuses for half-year and year-end, I would adopt the figure of RMB3,700 as his average monthly earnings as Chief Mate since mid-August 2009.

38.  In this connection, apart from the loss resulting from a reduction in monthly earnings as Chief Mate, the Plaintiff further claimed that he had suffered an additional loss in income by reason that he had lost the opportunity of being promoted to be the Captain of the Zhonghang 903.  The Plaintiff contended that if he had not been injured in the accident, he would have been promoted by January 2011.  This, he argued, should entitle him to calculate the pre-trial loss for the 7 months between January and July 2011 with reference to the higher earnings pertaining to the position as captain of that vessel.

39.  The Defendant took issue with the approach of assessing the loss of promotional prospect.  Mr Kwok submitted that the claim for loss of pre-trial earnings and future earnings should both be approached by way of a percentage assessment of the chance of promotion. 

40.  With respect to Mr Kwok, I think that submission has overlooked the distinction between assessment of pre-trial and post-trial losses.  It is a well-settled principle that pre-trial loss has to be established as a matter of probability, but calculation of future loss can take possibilities into account: Charlesworth & Percy on Negligence, 12^th edition, para 5-113.  The distinction in the approach must apply to loss of earnings on account of loss of promotional prospect. 

41.  A claim of pre-trial loss is, in nature, one of compensation for accrued loss.  It is incumbent upon the claimant to prove on a balance of probabilities both the elements that such promotion would have occurred and the timing of the promotion.  In this connection, it is perhaps worth repeating that such loss, being claimed as part of the special damages, must be pleaded with particularity: Charlesworth & Percy on Negligence, ibid, para 5-112.

42.  In this instance, the Plaintiff would be required to show that it was more likely than not that he would be promoted at the latest by January 2011 to justify his claim for the 7 months’ loss of additional earnings: see Balasing Gurung v Ng Lay, HCA 4567 of 1985, judgment of Cough J at p 11.   

43.  Focusing on the evidence relevant to this issue, I would accept the 2 letters from ZhongShan Port & Shipping Enterprise Group Ltd, respectively dated 10 February 2010 and 20 July 2010, as reflective of the employer’s intention with regard to the Plaintiff’s promotional plan.  I am satisfied that there was indeed a good prospect of the Plaintiff’s promotion to the position as Captain of the Zhonghang 903 had he not met the accident.  I am also satisfied that that chance is now lost consequent upon the Plaintiff’s injuries.  Contrary to the Defendant’s submissions that the employer’s letters were questionable and should be given no weight, I find nothing in the evidence or the cross-examination of the Plaintiff which would cast doubt on the veracity of the contents of the said letters.

44.  That said, it is noted however that neither of the 2 letters gave a clear indication as to when promotion would likely take place.  I do not find the lack of precision on timing surprising given the question of promotion had become hypothetical after the Plaintiff’s accident. While the letter of 20 July 2010 stated that the company, before the accident, had planned to promote the Plaintiff “within a short period of time”, that statement in fact referred back to the earlier letter of 10 February 2010.  The earlier letter, in turn, merely suggested that the Plaintiff would have been promoted to be the Captain “in a few years’ time” after he had become familiar with the operation of the vessel. 

45.  Bearing in mind the approach requiring proof as a matter of probability, I think the evidence falls short of establishing that the position as Captain of Zhonghang 903 would more likely than not become available by 2011, even if the Plaintiff was ready for that post.  The Plaintiff has not satisfied me that by January 2011 he would be promoted to the position as Captain of that vessel on a balance of probabilities. 

46.  Accordingly, the Plaintiff’s loss of pre-trial earnings would be the amount of gross income he would have received as Deputy Captain less the amount he actually received during this period.  His income for the months between April 2008 and March 2009 is set out in his employer’s letter of 20 April 2008.  Those figures are not challenged and I would accept them as evidence of the Plaintiff’s earnings for those months.

47.  I find the Plaintiff’s actual earnings for the pre-trial period to be:

May 2008		RMB 3,500.70
June 2008		RMB 4,899.70
July 2008		RMB 2,714.70
August 2008 – January 2009 at RMB 2,520 / month		RMB 15,120.00
February 2009 – May 2009 at RMB 1,065 / month		RMB 4,260.00
June 2009 – August 2009 at RMB 3,408.66 / month		RMB 10,225.98
September 2009 to June 2011 at RMB 3,700 / month		RMB 81,400.00
Total:		RMB 122,121.08

48.  The total loss of earnings for the pre-trial period is thus RMB5,331.16 x 38 months - RMB122,121.08 = RMB 80,463.

Future Loss of Earnings / Loss of Promotional Prospect / Risk of Redeployment

49.  There are three aspects of the claim which need to be considered under this head:  first, the reduction in earnings as Chief Mate when compared with the pre-accident earnings as Deputy Captain; second, the loss of earnings on account of the loss of promotional prospect to be Captain of the Zhonghang 903; and third, the possibility of a reduction in income by reason of being required to take retirement or being redeployed to a job with a lower salary.

50.  On the first question, at the time of the trial the Plaintiff was 2 months from 49.  Taking retirement at the age of 60 and considering also the nature of work as a seaman, I think a multiplier of 7 is appropriate.  I think it is reasonable to take into account a 10% rise in the level of income in the coming years.  Accordingly, the loss of future earnings if the Plaintiff continues to be employed as the Chief Mate will be:

RMB (5,331 – 3,700) x 110% x 12 x 7 = RMB150,704.

51.  On the second question concerning the loss of promotional prospect, as already discussed, the treatment of such loss is different depending whether a claim is made for pre-trial or future loss. 

52.  If, on the evidence, the claimant establishes on a balance of probabilities that there would have been a promotion before trial, the promotion is to be treated as an event certain which straddles the trial date.  The increased level of income on promotion will have to be adopted as the basis for assessment of future earnings.  On the other hand, as in the present case, the claimant has failed to establish that he would have been promoted during the pre-trial period, the claim for future loss will be assessed by way of an evaluation of the chance of the prospect of such promotion.

53.  The relevant principles are summarised in Cheung JA’s judgment in Liu Chun Kow Joe v Lee Sau Wing, CACV 304 of 2007:

“41. In Davies v Taylor [1974] A.C. 207 at 213, Lord Reid stated that:

‘ ... You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent.: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.’

42. Consistent with this approach, the English Court of Appeal in Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602 at 1610 per Stuart-Smith LJ held that

‘Questions of quantification of the plaintiff’s loss, however, may depend upon future uncertain events. For example, whether and to what extent he will suffer osteoarthritis, whether he will continue to earn at the same rate until retirement, whether, but for the accident, he might have been promoted. It is trite law that these questions are not decided on a balance of probability, but rather on the court’s assessment, often expressed in percentage terms, of the risk eventuating or the prospect of promotion, which it should be noted depends in part at least on the hypothetical acts of a third party, namely the plaintiff’s employer.’

43. This was expanded later in the judgment under the third category of situations which may arise where the plaintiff’s loss depends upon the action of an independent third party.

44. The three situations are best summarised by Otton LJ in Doyle v Wallace [1998] PIQR Q146 at Q149 as follows :

‘(1) In his first category fell cases in which the defendant’s negligence consisted of some positive act or misfeasance and the question of causation was one of historical fact, in which event proof on the balance of probability prevailed.

(2) In the second category fell cases in which the defendant’s negligence consisted of an omission where caution depended not upon a question of historical fact but upon the answer to the hypothetical question “what would the plaintiff have done if there had been no negligence?”; here the answer is provided by the application of proof on the balance of probabilities.

(3) In the third category fell cases in which the plaintiff’s loss depended upon the hypothetical action of a third party, whether in addition to action by the plaintiff or independently of it; here the plaintiff need only show that he had a substantial chance of the third party acting in such a way as to benefit him. The Court of Appeal held that the plaintiffs needed to show only that there was a significant chance, which could be less than likely, that the third party would have been prepared to offer them this protection and held that the loss of such a chance had been made out and it was assessed at 50 per cent.’

For ease of reading I have numbered the three situations.”

(emphasis added)

54.  In assessing future uncertain events and where such contingency will have to depend upon the action of a third party, for instance, the prospect of promotion or risk of redeployment, the court should adopt the approach for the category-three cases as explained in paragraph 44 of Cheung JA’s judgment above: see Cheung Mun Yi v Tam Siu Wing & Anor, HCPI 809 of 2006; Attorney General v Chun Yat Nam [1995] 1 HKC 218, at 236D - 237B.  The approach is to inquire, first, whether the evidence discloses a “substantial chance” or “significant chance” (which could be less than likely) of the event or risk materializing, and if so, such contingency should be taken into account for the purpose of assessment.  The lost chance or risk is generally assessed as a percentage.

55.  In this case, as earlier noted, the evidence does reveal a real prospect of the Plaintiff’s promotion to be Captain of Zhonghang 903 if not for the accident.  The question is one of timing.  Taking into account the letters from his employers I think it is reasonable to consider that the promotion would likely take place in the near rather than distant future.  In the circumstances, while taking note on the one hand of the good prospect of promotion but also bearing in mind the uncertainty as to timing on the other, I would assess his overall chance of deriving a higher income for the post-trial period to be 60%. 

56.  On the evidence which is not disputed, the monthly salary of the Captain of Zhonghang 903 would have been about RMB3,800. He would also earn a monthly labour fee of RMB1,400; half-year and year-end bonuses of RMB12,000, and an extra annual quarter-bonus of RMB2,000.  These aggregate about RMB76,400 a year or RMB6,367 per month.

57.  Accordingly, I would assess the loss on account of loss of promotional prospect to be as follows:

RMB (6,367 – 5,331) x 110% x 12 x 7 x 60% = RMB57,436.

58.  On the third question, the Plaintiff contends that there is a possibility that he will lose the job as Chief Mate on the Xianxing 703.  On the evidence from the employer, the Plaintiff’s present position as the Chief Mate is a tailor-made position for him.  In the letter from the employer (dated 20 July 2010), the Plaintiff’s present job was described as a “temporary arrangement”.  The evidence further suggests that the employer is keeping the Plaintiff’s situation under review.  I accept the Plaintiff’s evidence that the company had raised with him the possibility of early retirement or redeployment to some other duties such as a guard / watchman.  It is quite apparent, and I find, that whether the Plaintiff will be able to keep his present job as Chief Mate will depend not only on his physical ability to discharge his present duties but also on the employer’s assessment of whether he should be allowed to continue in that position.  As is evident from the said letter, the employer may have regard to the overall efficiency and safety of the vessel’s operation in coming to a decision whether the Plaintiff should be redeployed.

59.  Whilst noting that the evidence does not indicate an imminent danger of redeployment, I would nevertheless consider that the risk should be taken into account given the somewhat precarious nature of his present position.  I would assess the overall chance of that eventuating to be 25%. 

60.  Accordingly, the loss on account of the risk of redeployment is calculated as follows:

RMB (5,331 - 1,100) x 110% x 12 x 7 x 25% = RMB97,736.

61.  The aggregate amount for future loss of earnings is therefore: RMB (150,704 + 57,436 + 97,736) = RMB305,876.

Loss of Earning Capacity

62.  This is a separate head to compensate him for the disadvantage in the labour market should be he lose employment with the present employer altogether. 

63.  The Plaintiff has all along only received training as a seaman.  He does not have other special skills.  I will accept that he would suffer disadvantage if he were asked to retire or otherwise lost his job with the present employer altogether.  In this connection, I think it is right to have regard to the possibility of the employer redeveloping him (for which he is already compensated) and hence the chance of losing the job completely will be reduced.  Taking all matters into account, I think it will be appropriate to assess the loss arising under this head by a sum equivalent to about 6 months’ earnings, say RMB32,000.

Loss of Congenial Employment

64.  The Plaintiff’s case for a claim under this head is that before the accident, he was the Deputy Captain of a vessel, a position that commanded respect from others and gave him much satisfaction.  He is now only granted a lower position on a smaller vessel, a situation which undermines his self-esteem.  It is contended that the Plaintiff’s case is comparable to that in Wong Sau Lai v Cathay Pacific Airways Ltd, HCPI 111 of 2002 (on appeal, [2005] 4 HKLRD 395: and (2006) 9 HKCFAR 371) on this issue.

65.  I do not think a separate award should be made under this head in the present case.  The present case is quite unlike the situation in Wong Sau Lai’s case where the claimant was forced to quit her “dream job” as a cabin attendant.  In the present case, the Plaintiff is still employed as a seaman, and occasionally he would take over certain navigation duties of a captain or deputy captain.

Care and Attention of Wife

66.  A sum of RMB10,000 is claimed under this head. It is claimed that the Plaintiff was bed-ridden during the period in hospital. His wife looked after him closely by preparing food for him, bathing him and assisting him in toileting etc.

67.  However, despite some reference to family members visiting him in hospital regularly, there is hardly any other evidence to support this claim.  On the available information I do not think I am able to accept the claim under this head.

Medical Expenses / Tonic Food / Travelling Expenses

68.  I would allow in full the claim for medical expenses incurred at Queen Mary Hospital in the sum of HK$570 and the sum of RMB47,328.90 incurred in the hospital on the Mainland.  The Defendant argued that since the experts had questioned the appropriateness of prolonged bed rest and that some of the expenses were incurred to treat the resulting dizziness, such expenses should be disallowed.  However, even if the expenses were incurred to treating dizziness, such treatment clearly flowed from the Plaintiff’s injuries which were occasioned by the 2^nd and 3^rd Defendants’ wrongdoing.  I do not consider the treatment received by the Plaintiff in the Mainland hospital has broken the causal link between the wrongdoing of the relevant Defendants and the loss incurred.  Nor do I regard such costs of treatment as too remote to be recoverable: see Clerk & Lindsell on Torts, 12^th edition, paras 2-115 to 2-117. 

69.  I would also allow in full the claim of RMB5,000 for tonic food and the claim of RMB4,000 for travelling expenses.

Summary

71.  Due to the rise in the conversion of the RMB against the HK dollar, a submission was made by the Defendant that special consideration should be given to various conversion rates during the pre-trial period for the parts of the award in RMB. However, having regard to the fact that the Plaintiff works on the Mainland, received his salaries in RMB, and has and will continue to suffer loss in income in RMB, I think it is fair that he should be compensated in RMB for the relevant items.

72.  The reasons aforesaid, the Plaintiff will be entitled to judgment for the sums of HK$250,570 and RMB474,668, and I will so order.

Interest

73.  Interest for general damages for pain, suffering and loss of amenities will be awarded at 2% per annum from date of commencement of the claim to date of judgment. In this case, the relevant date is 10 February 2010 when the 2^nd and 3^rd Defendants were joined in the Action.

74.  Interest for special damages and pre-trial loss of earnings will be awarded at 4% per annum (being half judgment rate) from date of the accident, that is, from 8 May 2008.

75.  I will leave it to the solicitors to work out the interest on the claims.

Costs

76.  As noted in the early part of this Judgment, the Plaintiff has withdrawn its claim against the 1^st Defendant at the beginning of the trial. The 1^st Defendant seeks costs against the Plaintiff.

77.  It would appear from the correspondence between the parties that soon after the Action was commenced, the 1^st Defendant’s solicitors had already warned the Plaintiff that his claim against the 1^st Defendant was misconceived. This led eventually to the 1^st Defendant’s application to strike out the Plaintiff’s claim. The application was refused by the Master who ordered costs against the 1^st Defendant for the unsuccessful application. The 1^st Defendant did not appeal the Master’s decision and I do not think that those costs should now be reopened.

78.  In resisting the 1^st Defendant’s application for costs here, Mr Szeto submitted that the Court should not assume that the Plaintiff’s claim against the 1^st Defendant would fail. However, nothing put forward by the Plaintiff had convinced me that the Plaintiff had a valid claim against the 1^st Defendant. I have little doubt that his claim would fail had it not been withdrawn. Therefore, in relation to any costs incurred by the 1^st Defendant (up to the time of the Plaintiff’s withdrawal of the claim) which are over and above those for the striking out should, in my view, be awarded in favour of the 1^st Defendant. The extent of those costs is a matter for taxation (unless agreed by the parties). Further in this connection, it should be noted that all three Defendants are represented by the same counsel and solicitors. The part of the costs which was common to all three Defendants in defending this Action cannot be regarded as costs exclusively incurred by 1^st Defendant. Therefore, in taxation, it will be incumbent upon the 1^st Defendant to identify precisely that part of the costs incurred exclusively by it which is over and above those incurred for the striking out.

79.  Subject to the aforesaid, I would make an order nisi for Plaintiff’s costs of the Action to be borne by the 2^nd and 3^rd Defendants, to be taxed if not agreed.

80.  The Plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.