YUM SIU WAH v. WONG CHI SHING

HCPI 473/2018

[2021] HKCFI 1553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERAONL INJURIES ACTION NO. 473 OF 2018

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BETWEEN

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J U D G M E N T

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The Parties and Their Cases

1.  The Plaintiff (“Mr Yum”) as driver of a car was injured in a collision on 28 June 2015.  The Defendant (“Mr Wong”) as driver of the other car has admitted liability.  The parties, however, are very far apart in the terms of quantum.

2.  At commencement of this action, by a Statement of Damages dated 4 May 2018, Mr Yum claimed a total of $32,941,423.  A year later, by a Revised Statement dated 24 May 2019, Mr Yum revised his claims to $25,770,672. On the first day of trial, by a Further Revised Statement dated 3 June 2020, Mr Yum reduced his claims to a total of $10,786,842.

3.  In his Answer to the Revised Statement of Damages dated 24 September 2019, Mr Wong denied most of Mr Yum’s claims and suggested a maximum total figure of $1,047,982.

4.  The major difference between the parties’ figures is due to Mr Yum’s claim that the injuries to his left index finger and to his neck, albeit minor, caused him to lose his highly remunerative job as a salesperson of “super cars”, in his case Ferraris.  Mr Albert Yau, appearing with Ms Man Yin Ting, was forthright about his client’s case.  In his opening he referred to it as “analogous to a claim by a renowned pianist for the injuries to his small finger.”

5.  Mr Wong disputes Mr Yum’s case.  The defence suggests that Mr Yum lost his job because of his own personal reasons and in any event could find similar jobs with comparable income potential selling other cars.  Mr Michael Ozorio SC, appearing with Mr Ashok Sakhrani, argued in his opening that “[Mr Yum’s] claim has always been grossly exaggerated [and this is] now confirmed by the last minute reduction of the claim by more than 50%.”

The State of the Evidence

6.  Given the nature and the magnitude of the difference between the parties, the state of the evidence is surprising.

(1) Mr Yum adduced letters and reports by doctors and therapists from whom he sought treatment after the accident.  Naturally these documents recorded Mr Yum’s complaints at the time.  But they do not actually provide any medical expert evidence on whether the injuries prevent Mr Yum from carrying out his allegedly special job.

(2) The parties adduced a written Joint Medical Report (“JMR”) and a written Supplemental Joint Medical Report (“SJMR”) of their respective orthopaedic experts dated 13 July 2017 and 26 February 2019.  These reports are more helpful.  However, the parties chose not to call or cross examine either of the two experts.  The Court is left to read what they wrote without the benefit of any further explanation or probing.

(3) The parties also chose not to call any witness (other than Mr Yum calling himself) who can speak to what level of driving skills does a salesperson of super cars require in order to carry out his/her job.

(4) Mr Yum called a former customer who said, essentially, that a salesperson of super cars must be a “very good driver” so as to “demonstrate with confidence and competence, bringing the best of the car.”  This is a truism and is something which super car enthusiasts would naturally say.  It does not assist in determining the extent of Mr Yum’s injuries and of the effect of those injuries on his driving ability.  Insofar as this witness has observed that Mr Yum’s left hand “trembles quite a lot” and “cannot hold tightly”, a lay person’s casual observations are not a reliable basis for assessing the severity of a medical injury.  I also note that even Mr Yum himself does not describe his injuries in so stark terms.

(5) Mr Wong called an owner and racer of Ferrari cars who said, essentially, that a Ferrari can be driven by any person with a driver’s license, that one can control the buttons and paddles of a Ferrari car with any finger other than the thumb (not only the index finger), and that he would not hold the wheel “very tight” or “too tight” when “driving fast” since it would lose sensitivity.  The last point engages an issue to be determined.  But it begs the questions of how tightly must and can Mr Yum hold the wheel, which questions this witness does not and is not in a position to answer.

(6) Mr Wong adduced certain hearsay evidence from the former supervisor of Mr Yum and from the human resources manager of Mr Yum’s former employer, to the effect that Mr Yum lost his job not because of his injuries.  There is no explanation as to why Mr Wong (and the insurer who has taken over his case) cannot call these persons to be witnesses.  In their absence, it is difficult to weigh their statements against the likelihood that the statements are made at least in part to avoid accusation of discrimination.  Moreover, it would be unfair to Mr Yum for the Court to prefer what others say against him where he has not had a chance to challenge those people.

(7) Mr Wong adduced some video surveillance footages showing Mr Yum to be carrying on his normal life.  But this does not assist.  The nub of Mr Yum’s case is that he can lead a normal life but cannot continue in the allegedly special job of a super car salesperson.

(8) The parties did not adduce evidence as to the income of a good salesperson of “normal cars”, i.e., not super cars.  By the time of the trial, Mr Yum had taken up a more back-office job at a company which sold normal cars.  But even on his own case, he is a very talented and driven individual. He can do better, whether presently or over time.

7.  One is, of course, mindful that the gathering and presentation of evidence entails costs.  Litigants cannot always be expected to find and adduce every piece of evidence.  There must be a sense of proportionality.  But this case started off with claims amounting to $33 million.  Even after two rounds of reduction, the claims remain in the eight digits.  Four counsel attended the trial.  It is difficult for this Court to understand how the state of the evidence could be what it is.

The Joint Medical Reports

8.  The most objective evidence is obviously the JMR and SJMR.  However, as I will explain below, they do not shed a great deal of light on the issue which fall to be determined.

9.  I have read and reread the JMR and SJMR a number of times.  At core, the two experts actually agree that there was (1) mild subluxation of the left 2^nd metacarpal phalangeal joint (“MCPJ”) causing tenderness and limited movement in the left index finger; and (2) a neck sprain causing some limitation to neck turning.  The experts agree that the latter is due at least partly to pre-existing degenerative changes.  They further agree that, for the injury to the left index finger, a certain surgical procedure followed by vigorous physiotherapy would likely improve the condition (on a 90% success rate), but there would remain some residual limitation of motion.

10.  In the SJMR, the expert appointed by Mr Yum clarifies that he does not think Mr Yum has significant difficulty but only inconvenience in performing shoulder check because of any neck pain and stiffness.  The expert further states that “[Mr Yum’s] neck problem should not affect him significantly in driving”.  The expert appointed for Mr Wong agrees and goes further to state that, even on Mr Yum’s case that he could only rotate up to 45 degrees, this “would allow him to drive effectively and safely”.

11.  The experts differ only on the effect of the injury to the finger.

12.  The expert appointed by Mr Yum essentially says:

“In the [JMR] paragraph 105, I have stated clearly that he is able to resume pre-injury duty as salesman with sales and clerical duties.

He is expected to have difficulty only in using his left hand to control manual clutch or automatic transmission of a ‘super racing car’ Ferrari because of his significant stiffness of left index finger with reduce agility for his left hand. Bearing in mind, a good left hand grip is particularly important and safe for driving a super racing car.

…

As stated above, his left hand finger stiffness with reduced agility chiefly had impact on his driving super racing car particularly with manual gear.  He should be able to drive normal car with automatic gear with no difficulty as left hand is not used during driving.”

(emphasis in bold in original)

13.  The expert appointed for Mr Wong says:

“I have stated [in JMR paragraph 104 that] Mr Yum should be able to work as a car salesman, or have jobs of similar nature. Success in this field would depend more on communication skill and knowledge of the products, rather than actual driving skill.

Even when he is dealing with super racing car, there is no need for him to drive in a car racing manner.”

14.  With respect to the experts, they have ventured beyond their expertise. They both diagnose subluxation in Mr Yum’s finger.  They also appear to agree that the subluxtion could affect grip and agility.  The expert appointed by Mr Yum refers to this several times.  The expert for Mr Wong does not say he disagrees.  Indeed, he must be implicating agreeing since he too suggests surgical procedure to improve the current condition.

15.  What the experts should then consider – being what is within their expertise and would be helpful to the Court to know more – would be the extent of the subluxation bearing in mind the relevance is to driving, e.g., the degree of reduction in grip and loss in agility.

16.  It is not for medical experts to opine on – and it is not helpful for the Court to have their opinions on – whether the subluxation meant Mr Yum could continue to be a salesperson of super cars.  There is no reason to believe that these medical experts are also experts in super cars, still less in what it takes to be a salesperson of super cars.  What the expert appointed for Mr Wong says may seem logical and arguably even common sensical.  But exactly because so, there is no additional value in his opining it.  The matter is simply not for expert opinion.

17.  As for what the expert appointed by Mr Yum says, without a discussion of the extent of the subluxation, it is difficult to follow him to a conclusion that Mr Yum would have any difficulty controlling the manual clutch or automatic transmission of a super car.  Moreover, a close reading of what he says begs the question of whether he is actually opining that Mr Yum would have problems being a salesperson of super cars.

(1) He expressly states in the JMR and repeats in the SJMR that “[Mr Yum] is able to resume pre-injury duty as salesman with sales and clerical duties.”

(2) He says that Mr Yum would have difficulty using his left hand to control the clutch and automatic transmission, and that the subluxation would impact Mr Yum’s driving.  He does not say that the difficulty could not be overcome and/or compensated, or that Mr Yum would have difficulty driving a super car.

(3) He notes that the left hand is important in driving a super car safely. But he does not say that Mr Yum’s difficulty (however the extent) meant he could not drive a super car safely.

18.  As I have noted earlier, the parties chose not to call or cross examine the experts.  I caution myself against trying to “read between the lines”. Ultimately, I can only read the written words for they plainly say: the experts agree that the injury to Mr Yum’s neck has no significant effect on his ability to drive, and that the injury to his left index finger affects his grip and the agility of his finger.

19.  Logic dictates that such injury must have some effect on Mr Yum’s ability to drive, or at least the ease with which he can drive.  The important question for our purposes, however, is not whether there is any effect, but what extent is the effect.

20.  To use the analogy made by Mr Yum’s counsel, any injury to a finger can affect a pianist.  The question is whether the pianist can still play well. That, in turn, depends on (1) what kind of pianist he is; and (2) the extent of the injury.  In the former respect, the experts cannot assist.  In the latter respect, the experts have not really assisted.

21.  The Court is left with only Mr Yum’s own evidence on these matters. This is far from ideal.  It also puts the defence at a disadvantage.

Mr Yum’s Own Evidence

22.  Mr Yum is adamant that a salesperson of super cars must be able to drive the cars with ease, and that his injury has prevented him from doing so.

23.  Counsel for Mr Wong tries the best he can to challenge, even discredit, Mr Yum.  I agree it is difficult to imagine, for a person who does not drive super cars, how a minor injury to one’s left index finger can affect one’s ability to handle a super car.  But, to use again the analogy made by Mr Yum’s counsel, it would equally be difficult for a casual pianist (which I used to be) to imagine how a small but permanent injury to a finger may affect the virtuosity of a maestro (which I certainly am not).

24.  There are video surveillance footages.  As I have noted earlier, they show Mr Yum to be going about his daily live, thus do not address his case. There are the facts that Mr Yum sold a few Ferraris after the accident and before his employment was terminated and also that he participated in a company sports day.  But Mr Yum has plausible explanations, viz., that he did not really play in the field, and that the sales were either completion of earlier efforts or made with colleagues’ help in driving the cars.

25.  Ultimately, counsel is constrained by what evidence has been gathered. He simply does not have a solid ground to contradict Mr Yum.

26.  In the end, the Court is left with Mr Yum’s say-so about how his injury has affected him.  The Court is equally left with only his say-so on how much of a virtuoso in driving a salesperson of super cars must be.

27.  Mr Yum also adduced the Discharge Summary for some visits he made to Queen Elizabeth Hospital between 20 May 2019 and 19 July 2019.  According to Mr Yum, he had gone to renew his driver’s license and the Transport Department referred him to do an assessment.  The Discharge Summary states as follows:

“Report Date: 19-Jul-2019

Date of Referral: 26-Apr-2019

…

Driver Assessment Report

1. The client was referred for Driver Rehabilitation Service and has attended assessments on 20/5/2019, 13/6/2019 and 19/7/2019. The assessments conducted include off-road and on-road assessments.

2. He was a holder of driving license Class 1, 2, 3, 22. He was a victim of a road traffic accident on 26/6/2015 resulted in neck injury and subluxation of left 2^nd metacarpophalangeal joint. He also has hypertension. He works as a customer service representative and requires driving for convenience in mobility.

3. Off-road assessment: The assessments results showed that he did not have any visual or cognitive deficits. Physical assessments showed that he had good control of bilateral lower limbs and right upper limb. He had reduced range of movement and muscle power over left upper limb. He has weak left hand power grip and reduced hand functions. He also had reduced neck movement with pain associated. He was able to walk unaided independently and tolerated 30 minutes of level ground walking. Car simulation assessments showed inadequate neck movement for mirror checking. Motorcycle simulation assessments showed he could not control the clutch with his left hand in manual transmission and the handbrake in automatic transmission due to inadequate hand strength. He also had inadequate neck movement for blindspot checking.

4. On-road assessment: He was tested with a van in manual transmission and a private car in automatic transmission. He was able to perform driver seats transfers of a van and a private car independently without limitations. He was unable to manage the handbrake and gear shifter in manual transmission with his left hand due to pain. He also showed inadequate neck movement for side mirrors and blindspot checking. He could not perform effective steering with bilateral hands and a right spinner knob was required. He showed basic vehicle control and driving behavior when driving in automatic transmission with the use of a right spinner knob. He tolerated 45 mins. of in-vehicle assessments with pain over left hand and neck.

5. We recommended that Mr Yum has the functional ability to drive Class 1 in automatic transmission with the use of steering adaptation for right hand and a pair of wide angle side mirrors. We did not recommend the motorcycle in-vehicle assessment in automatic or manual transmission because Mr Yum failed to manage the motorcycle simulator.

Remarks:

- Approval for driving either private or commercial vehicles will be at the discretion of the Transport Department based upon the medical recommendation.

- As in the case of any driver, no assurance is implied or has been provided that Mr Yum will be collision free from this report.

For further enquiries, please contact the undersigned on …”

(underlining added)

28.  On its face, the Discharge Summary supports Mr Yum’s case. But one much also consider that the circumstances in which Mr Yum came to take and took the assessment.

(1) There is a question about the timing of Mr Yum’s attempt to renew his driver’s license.  On Mr Yum’s own evidence, his license was dur for renewal in July 2019.  He sought renewal as early as in April 2019.

(2) There is no documentary evidence on what Mr Yum stated to the Transport Department which prompted it to refer him for assessment.  Mr Yum says in his evidence, “One of the matters I needed to declare was whether I suffer from any disease or disability likely to render me incapable of effectively driving and controlling a motor vehicle or suitably adapted mote vehicle to which such licence refers without endangering public safety.  I was concerned with my medical condition at the time and I mentioned to the staff of the licensing section.  I was eventually advised to submit myself for an assessment …”  It is somewhat strange that Mr Yum would be so concerned.  None of the doctors and therapists he had been up to that point, including the two experts in their JMR and SJMR, suggested that he could not drive safely, or recorded that Mr Yum said he was worried about driving safely.

(3) There was no effort by Mr Yum to inform the defence ahead of time about the referral of him to assessment or the series of his visits to Queen Elizabeth Hospital for the assessment.

(4) The Discharge Summary refers to neck pain and limitation of neck movement affecting driving.  But the two experts in the JMR and SJMR had long ruled out this issue.

(5) Neither Mr Yum nor the defence has sought to put Mr Yum to a further medical examination or adduce any updated expert report.

29.  Ultimately, the assessment noted in the Discharge Summary was itself based on Mr Yum’s say-so.  Further, it was not performed by an expert who knew his/her findings may, at Mr Yum’s choosing, be used in litigation.  The person does not owe any duty to the Court.  The assessment cannot be treated as adding support to Mr Yum’s case.

Finding on Mr Yum’s Injury

30.  Thus, again, the Court is left with only Mr Yum’s say-so.  In the circumstances, there seems to be two logical options for the Court.

(1) It may be said that since Mr Yum as claimant bears the burden of proof, his failure to adduce medical expert evidence on the relevant issue, in particular on the extent of the injury to his finger, means I should find against him.

(2) On the other hand, it may be said that Mr Yum’s own evidence is already some evidence on issue, and since the defence has not been able to refute it and moreover has chosen not to cross examine the medical experts to press for evidence on the issue, therefore I should find for Mr Yum.

31.  Neither option is attractive.  After much reflection, however, I have decided that the correct course is to take the second option.  This is despite the many serious misgivings I have about Mr Yum’s evidence.  It seems to me that the parties must share equally the blame for not adducing proper medical expert evidence bearing on the real issue.  Further, it cannot be thought that a claimant must prove his case only by expert evidence.

32.  To adopt the analogy made by Mr Yum’s counsel, if a pianist comes to court to say (1) he is in effect a concert pianist and (2) an injury has adversely affected his ability to play, and if the medical evidence turns out to be insufficient on the issue, plus the defence fails to show the pianist to be incredulous, then the court would have to accept, however reluctantly, the pianist’s say-so.

33.  I find that the injury to Mr Yum’s left index finger has affected his driving super cars such that it has affected his ability to be a salesperson of super cars.

Effect on Mr Yum’s Income

34.  After my finding above, the next major questions are whether Mr Yum can find alternative and similar employment, and what the likely income of such employment would be.

35.  The parties are ad idem that Mr Yum would like to and is able to stay in the automotive industry.  This is natural since, on Mr Yum’s own evidence, he was a salesperson of other brands of car before selling Ferraris.  Indeed, on his own case, for the other brands, he rose quickly to be among the “top sales” because of his own enthusiasm and knowledge about cars and natural skills in relating to customers.

36.  By the time of trial, Mr Yum had returned to the industry.  He was a Senior Customer Service Officer in a company which sold second-hand luxury cars.

37.  As I have mentioned earlier, there is a paucity of evidence on the income of a salesperson – indeed, a good salesperson – of normal cars.  Mr Yum tells the Court what he makes in a relative back-office role.  It is substantially less what he used to make.  Perhaps this is unsurprising.  One might expect a sales job to make more money.  But there is no evidence on this.  More importantly, there is no evidence on what Mr Yum would make if and when he takes up a job as a salesperson and excels at it again.

38.  Mr Yum says in his evidence that he could not drive without special aid (the snob and mirror mentioned in paragraph 5 of the Discharge Summary), that he feels useless and distraught for not being able to do what he loves (selling cars), and that he has had to try to “find a job which did not require me to drive.”

39.  This part of his evidence is hardly objective and I cannot rely on it. Conceivably Mr Yum may really feel the way he says he does.  But both medical experts are unequivocal that Mr Yum is able to drive normal cars normally and can be a salesperson of normal cars.

40.  Furthermore, it is difficult to understand why Mr Yum has not tried harder.

(1) Mr Yum does not describe in his evidence how he wanted to pass the assessment without use of special aid but failed.

(2) The Discharge Summary contains no hint of anything to such effect.

(3) There is no suggestion that he disputed the assessment, at the time or consequently to seek to reserve the results.  Indeed, he does not even describe any effort to look into how to improve and/or take a second assessment.

(4) He flatly refuses to undergo the surgical procedures which the medical experts recommend as almost certain to improve his condition.  Indeed, he does not refer to any effort to seek any further treatment or therapy.

41.  As a matter of common experience, it is too extraordinary that a minor injury to one’s left index finger would prevent normal driving.  I cannot accept this part of Mr Yum’s evidence.

42.  In any event, from his background and his giving evidence, I can see that Mr Yum is a talented and driven individual.  Even if he were unable to be a salesperson of cars, I have no doubt that he would be able to find other prosperous employment.

43.  Mr Yum’s current income is not indicative of what he can earn.  But without that figure, one is again left with no useful evidence.  In the circumstances, there seems to be three options for the Court.

(1) It may be said that since Mr Yum as claimant bears the burden of proof, the absence of evidence means I should find against him.

(2) It may that common experience provides some basis to think that a successful salesperson of normal cars, especially luxury cars, would make roughly the same income as a salesperson of super cars.  At least there is no basis to think otherwise.

(3) The medical experts estimate the loss of earning capacity for the injury to Mr Yum’s left index finger at 2% and 4%.  In the absence of cross examination of the experts, and indeed since neither expert really explains why his estimate is better whilst the other’s not, one may simply take the average, i.e., 3%.

44.  After some reflection, I think the third option fairest.  Given what the medical experts have estimated, I cannot say there is no evidence whatsoever.  There is evidence on the issue, albeit from a different angle.  I am also not prepared to guess how the income of salespersons of different cars compare.

45.  I find that the injury to Mr Yum’s left index finger results in a loss of earning capacity of 3%.

46.  With the above main findings, I turn to deal with the various heads of claim.

Pain, Suffering, and Loss of Amenities

47.  Mr Yum claims a lump sum of $550,000 for pain, suffering, and loss of amenities (“PSLA”).  Mr Wong suggests a figure of $250,000 if Mr Yum will undergo the surgical procedure to his finger, and $200,000 if not, subject to a 30% discount for pre-existing degeneration contributing to the neck condition, thus a net figure of $175,000 or $140,000.

48.  The justifications which Mr Yum gives in his Further Revised Statement of Damages for his figure are that (1) he could no longer drive a Ferrari even for pleasure; and (2) his wife is a beauty and his injuries have adversely affected their intimacy.

49.  As to his first justification, the evidence is clear that a Ferrari can be driven for pleasure by anyone with normal driving ability, which I have found him to have.  As to the second justification, I do not think one can increase a claim for loss of intimacy because of one’s spouse’s physical attribute.  But I read Mr Yum’s assertion more as an expression of affection. In any event, there is no evidence and I do not accept that his injuries could affect intimacy in any significant way.

50.  There should be a discount for pre-existing degeneration.  But I do not think whether Mr Yum undergoes surgical procedure to his finger would affect this head of claim much.

51.  I assess the damages for PSLA to be $250,000.

Loss of Earnings

52.  After two rounds of reduction, Mr Yum claims $9,991,262 for accrued and future loss of earnings.  Mr Wong suggests a sum of $577,402 plus possibly another $150,000 for loss of earnings capacity.

53.  The bulk of Mr Yum’s claim flows from his allegation that he is unable to be a salesperson of even normal cars.  I have found against this.

54.  I will accept that there was a period of recovery during which Mr Yum’s ability to work and income suffered.  The evidence supports this.  Mr Yum’s performance did decline.  He also visited doctors and therapists often.  For present purposes, I take this period to be 12 months.  This was approximately the period during which Mr Yum regularly visited doctors and therapists.

55.  A large part of Mr Yum’s income as a salesperson of Ferraris was in commission.  This has given rise to complication and dispute about his pre-accident income.  For example, whether one averages Mr Yum’s income over 5 years or 3 years could make a significant difference.  It also does not logically matter much whether Mr Yum had sick leave, since he could not be working to produce commission during that time.

56.  Having studied the different calculations, I think it fairest to adopt the figure which Mr Yum himself stated in his pre-action letter dated 17 February 2017, of around $55,000 per month.  This also accords with the figures in his tax return and the figure his employer provided.

57.  Mr Wong in his Answer to the Revised Statement of Damages has admitted an accrued loss of earnings of $577,402 on the basis of a very slightly lower figure and substantially the same time period.  Adopting Mr Wong’s approach, I assess the amount to be $600,000.  A quick calculation indicates the tax liability of someone with a monthly income of $55,000 at around 10%.  Thus, deducting tax puts the loss at $540,000.

58.  Post recovery period, i.e., from July 2016 onwards, I look to the medical experts’ estimates of loss of earnings capacity.  As I have noted earlier, the experts estimate the loss due to the finger injury to be 2% and 4%, and I take the average at 3%.

59.  The experts also estimate the loss due to the neck injury to be 2% and 2-3%.  Although the experts agree, and I find, that the neck injury does not prevent Mr Yum from being a salesperson, I am prepared to accept that there is some small adverse effect and allow some compensation.  This is similar in logic to my reasoning earlier that, while the finger injury does not prevent Mr Yum from being a salesperson of normal cars, there is some effect and I would allow some compensation.

60.  The JMR and SJMR are not clear whether the experts meant the estimates to be before or after discounting for pre-existing degeneration.  To be on the generous side, I adopt a percentage of 2% for the neck injury attributable to the accident, i.e., after discounting for pre-existing condition.

61.  In 2016, Mr Yum was 45.  Up to retirement at 65 would be 20 more years.  On a combined 5% loss of earning capacity, the monetary loss would be $660,000.  Deducting tax at 10% would put the figure at $594,000.

62.  I am aware that the above does not account for time value of money.  But it also does not account for likely natural increase of income over time. Taking matters in the round, I believe the methodology sound.

63.  I also note Mr Wong’s argument that since both experts agree Mr Yum could undergo a surgical procedure to improve his condition, his choice not to do so should be regarded as a failure to mitigate.  I am unable to proceed on such a basis.  There is not enough evidence to suggest how much the procedure would have improved his condition, and how it would have affected the experts’ estimates on loss of earnings capacity.

Loss of Congenial Employment

64.  Mr Yum claims $150,000 for loss of the prestige and personal pride and enjoyment in being a Ferrari salesperson.  I am unable to accede to this claim.  The evidence shows that his employer was not assured of the distributorship from Ferrari; Mr Yum could not have expected his position never to change.  Moreover, surely one derives more pride and enjoyment from doing a good job, or from the nature of the job, than from association with a single brand.

Other Accrued Special Damages

65.  Mr Yum claims $95,580.  Mr Wong’s opening states that “[he] would not challenge the sum of $85,580.”  I read this as actually referring to the sum of $95,580.  In any event, I do not propose to dwell on the small difference (if a difference was meant).  I assess the amount to be $95,580.

Total Amount and Interest

66.  Adding the above figures under the various heads, the total is $1,479,580.

67.  For the sake of completeness, I record that Mr Yum has stated he would give credit for any sum received or to be received on account of any employee’s compensation payable to him.

68.  As for interest, Mr Yum claims 2% per annum from the date of service of the Writ to the date of judgment for general damages, and half judgment rate from the date of accident to the date of judgment for special damages.  Mr Wong does not seem to seriously dispute this.  I so award.

Costs and Conclusion

69.  This trial being for assessment of damages, there probably had been pre-trial negotiations and offers between the parties.  Costs may turn on those matters.  On present information, it appears that the defence is the substantial winner.  I make an order nisi that costs be to the defence, to be taxed if not agreed, with certificate for two counsel.

70.  I thank counsel and solicitors on both sides for their patience and skills in taking this Court through issues which are no doubt familiar to experienced personal injuries practitioners like themselves.  My remarks in this judgment about the state of the evidence are not meant to reflect on them.  They too are constrained by what may be available, and what may be cost efficient to gather and prepare.  I only hope that, in future, where a claimant runs a special case such as Mr Yum’s case here, parties may focus early on the special issues and consider what particular evidence would be most helpful.