CHAN KAM MING v. HUEN PO LEUNG

HCPI No. 436/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 436 OF 1999

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J U D G M E N T

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1. This action arises out of an accident that occurred to the plaintiff on 13 October 1996 when he was at an open carpark outside Block 1 of Kwai Shing Estate. The plaintiff commenced these proceedings on 28 April 1999 to claim damages against the defendant in negligence. The defendant denies negligence and contends, on an alternative basis, that the plaintiff was contributorily negligent. Both liability and quantum are therefore at issue in this trial.

The Facts

2. It is common ground that at about midnight on 13 October 1996, the plaintiff, after alighting from a private car driven by his friend, was returning to his home at Block 2 of Kwai Shing Estate. He had consumed some bottles of beer and was drunk. The plaintiff said he was a bit drunk, but as the evidence shows, he was in fact rather drunk. As he went past the carpark outside Block 1 of Kwai Shing Estate, he went past parking space no. 5, which was the only space unoccupied, in order to reach the building. The spaces on either side of space no. 5 had been occupied. The plaintiff was walking unsteadily and had tripped over on his way. When he reached the pavement, after passing space no. 5, he squatted down. Later on, he leant backwards and became lying on the pavement with his legs protruding onto space no. 5. He lost consciousness afterwards. Moments later, he felt great pain in his right foot as if it had been crushed over by heavy object. He cried out for pain. He then lost consciousness again. When he next came round, he was already in the hospital.

3. It is not in dispute that the defendant was at the material time the registered owner and driver of a goods vehicle. The vehicle had an enclosed goods compartment and the vehicle's dimensions were 2.4m x 9.4m. He had rented parking space no. 5 and had been parking his vehicle there for about 10 months before the night in question. The defendant has been a driver by profession. At the material time, he had finished delivering some goods from Shenzhen to Shatin. He drove his vehicle back to the carpark in Kai Shing Estate with a view to parking it at space no. 5. According to the defendant, he did not see any obstacle or object on space no. 5 before he reversed his vehicle into the space. He said he had switched on the rear spotlights that were installed at near the front wheels, and had also looked at the side mirrors as he reversed. When the rear wheels were about to reach the kerb of the pavement, he saw from his right side mirror the plaintiff lying on the pavement. When he later alighted to check, he found the plaintiff smelt of alcohol. He then called the police. Later on, he made another check and discovered that the plaintiff was bleeding in his right foot.

4. Police and ambulance later arrived and took the plaintiff to Princess Margaret Hospital. The plaintiff was found to have suffered degloved injury to his right heel and fractures of the metatarsal bones of the right foot. Subsequently, the defendant was prosecuted for careless driving and he was acquitted after trial.

5. It is plain from the evidence of the plaintiff that he did not know how he came to sustain the injuries to his right foot. Fortunate for him, part of the incident was witnessed by a madam Chan Kam Mui, who lived in Block 1 of Kwai Shing Estate. Madam Chan's unit was one storey above the carpark in question. The balcony of her unit was directly over looking space no. 5.

6. Madam Chan's evidence is that as she was looking out of her balcony that night, she saw the plaintiff alight from a private car and walk unsteadily towards space no. 5. As the plaintiff reached the pavement near space no. 5, he sat down on the pavement. Then he lay on the pavement with his legs protruding into space no. 5. She saw the plaintiff have struggled to get up but failed. Eventually the plaintiff was motionless. Madam Chan then left the balcony. About 1 to 2 minutes later, she heard cries of pain and returned to the balcony. She then saw a goods vehicle stop inside space no.5 with its rear part on the pavement.

7. For the plaintiff, there is also the statement or report of the government forensic scientist, Mr Kwok Ngai-chiu. From examinations he conducted on the pair of jeans worn by the plaintiff that night, he came to the opinion that the marks left on the jeans could have been made by a tyre rolling onto them. He was however unable to make comparision against the tyre print obtained from the right rear tyre of the defendant's vehicle due to the poor condition of the marks left on the plaintiff's jeans.

Liability of the Defendant

8. The starting point is whether the plaintiff's injuries were caused by the defendant's vehicle. There is no direct evidence to this effect. However, the findings of the government scientist show, on a balance of probablities, that the plaintiff's feet had been rolled over by the tyre of a vehicle. Further, based on the evidence of madam Chan, an inference can be drawn that it was the right rear wheel of the defendant's vehicle that rolled over the plaintiff's right foot. Counsel for the defendant does not dispute that such an inference can properly be drawn from the evidence.

9. The real issue is whether the defendant had in any way been negligent that resulted in the right rear wheel of his vehicle running over the plaintiff's foot. Counsel for the defendant argues that, on the evidence, there are missing gaps as to the manner in which the accident occurred, such that the plaintiff has failed to establish that the cause of the accident is the want of care on the defendant's part. The plaintiff had pleaded res ipsa loquitur, but the point had not been argued nor persued at the trial. Even if the plea had been persued, I have to say that I have reservations whether it will succeed.

10. In support of his submission, counsel for the defendant relies on the authority of Carter v. Sheath [1990] RTR 12. In that case, the plaintiff sustained severe brain damage as a result of the accident and was therefore unable to have any recollection of how the accident occurred. At the time of the accident, the plaintiff's friends were on the opposite side of the road and were not looking in his direction. They could only hear but not see the impact. Both the defendant and the front seat passenger stated that they did not see the plaintiff before the impact, although they had seen his friends on the other side of the road. The trial judge found the defendant negligent on the basis that he ought to have seen the plaintiff moving about and should have given him greater clearance. The finding was reserved on appeal. The Court of Appeal held that, on the evidence, the accident was inexplicable and that the trial judge's finding of negligence had no evidential basis.

11. Carter v. Sheath is a case decided on its own facts, which are very different from the facts in this case. The 2 cases are similar only to the extent that, in both of them, there was no eyewitness to the actual occurrence of the accidents. In Carter v. Sheath, the final position and the activities of the plaintiff immediately before the impact were unknown. It is on this basis that the English Court of Appeal considered that the finding of negligence was without proper evidential support. It is also on this basis that the Court of Appeal held that the accident was inexplicable such that the plaintiff failed in discharging the burden of proof: see pp. 14H-L and 16E-C.

12. In the present case, despite that nobody saw how the defendant's truck came into contact with the plaintiff's right foot, inferences can be drawn from the evidence as to the position and activities of the plaintiff at the time of the accident. The plaintiff was last seen by madam Chan to be lying motionless on his back on the pavement with the lower part of his body extending into space no. 5. Within 1or 2 minutes, his right foot was run over by the defendant's truck. Although the plaintiff had previously attempted to get up on his feet, he did not succeed. Given his state of intoxication, it is in my view improbable that the plaintiff would have, during that 1 to 2 minutes' time, got up or moved away from the position where he was last seen by madam Chan. The irresistable inference must be that he remained in that position and posture until being hit by the truck.

13. In the circunstances, the questions to be asked must be had the defendant seen the plaintiff, and if he did not, ought he to have seen him. It is evident from the defendant's evidence that he did not see the plaintiff at all before the accident occurred. But ought he to have seen the plaintiff?

14. On the defendant's evidence, he approached the carpark from the road outside the carpark in an upslope direction. When he was a short distance past the carpark entrance, he stopped the truck to check whether space no. 5 was clear. When he saw that it was, he drove further up the road and past the entrance, then started to reverse all the way into the carpark. When he was near space no. 5, he straightened the vehicle and then reversed into the space. Throughout the course of reversing, he had looked into the side mirrors to monitor the manoeuvre. These being side mirrors and as his truck had an enclosed goods compartment, he could only see the two sides of his truck but not the rear part of the truck. He had also switched on the rear spotlights that were mounted near the front wheels, presumably to provide better illumination. When he was some way into space no. 5, he found the space on his left side was insufficient, so he steered the truck forward to adjust the position, and then reversed again. According to his evidence in Court, he first saw the presence of the plaintiff when the rear wheels of his truck were about 1 foot or so from the kerb of the pavement. He then drove his truck forward because there was insufficient space on the right side for him to get off. He eventually alighted and went to check the plaintiff.

15. Counsel for the defendant submitted that the lighting condition of the carpark and space no. 5 was not good. He referred to the evidence of madam Chan and of the investigating police officer in the magistracy trial to the effect that the lighting was dim. He also pointed out that there was a tree near space no. 5 and that would have shielded off part of the light from the street lamp standing near space no. 5. Counsel submitted that as another goods vehicle with dimensions similar to those of the defendant's was parked on space no. 4, the plaintiff would be lying in the shadow of this truck and could not be seen by the defendant.

16. I do not accept that the lighting condition was such as to prevent the defendant or any prudent driver from seeing the plaintiff. The undisputed evidence shows that both the carpark entrance and space no. 5 were lit up by street lamps. In addition, part of space no. 5 was facing a pedestrian walkway that was lit up by lamps. The evidence of the defendant is that when he stopped on the road near the carpark entrance to check, he had a direct, good and clear view of space no. 5. He testified that the distance between the entrance to space no. 5 was about 25 m. If he could have a good view at that distance, the lighting could not have been that poor as to prevent him from discovering the presence of the plaintiff.

17. As to counsel's suggestion that the truck parked at space no. 4 had created a shadow and the plaintiff was lying in that shadow, there is simply no evidence to this effect. Neither can such inferences be drawn from the mere fact that there was a vehicle at space no. 4. Again, one must bear in mind that it is never the evidence of the defendant that his view of space no. 5 had at any stage been obstructed or rendered obscured as a result of any shadow or at all. There is no evidential basis for contending that the plaintiff was lying in a position or location that he could not be seen by the defendant or a reasonably prudent driver in his position.

18. The defendant said in his evidence that when he alighted to check, he saw the plaintiff was lying with most part of his body on the pavement at space no. 4. I have doubt as to the accuracy of this evidence. If the plaintiff was lying on the pavement at or very close to space no. 4, it is inexplicable that it was his right foot and his right foot alone that was being run over, bearing in mind that the plaintiff was lying on his back. I find that the plaintiff was, as madam Chan last saw him, lying on the pavement of space no. 5 and with the part of his body below his bottoms protruding onto the parking space when he was run over by the defendant's truck.

19. With the plaintiff in that position, the defendant ought to have seen him had he taken a careful look of space no. 5 as he stopped at the carpark entrance before he began to reverse. The fact that the defendant did not at any stage notice the presence of the plaintiff until allegedly the rear wheels of his truck were near to the kerb of the pavement is indicative of his not having taken a thorough and careful look of space no. 5 before he reversed his vehicle into the space. As a matter of fact, I have reservation on the veracity of the defendant's evidence that it was before the rear wheels of his truck had reached the kerb that he first saw the plaintiff from the side mirror. This is different from what he said in his witness statement and his statement to the police given under caution. In both statements, he stated at various places that he first saw the plaintiff when he looked into the right side mirror at the point when the rear wheels had reached the kerb. He also clarified in his statement to the police that at that stage, about 5 feet of the rear part of his truck was on the pavement. The defendant maintained that his version in Court is the correct one. I do not accept that there is room for mistake or, as the defendant explained, it is a matter of terminology, given that he had been asked question to clarify this part of his statement. As I see it, the shift in this part of his case is probably an attempt to improve on the evidence and to water down the effect of his earlier statement that it had been his practice, when reversing into space no. 5, to stop only at the point when the rear wheels touched the kerb. It is probable that on the night in question, when reversing into space no. 5, the defendant had followed the same practice instead of taking a good look through the side mirrors as he contended.

20. I am satisfied on the evidence that the plaintiff has made out a case of negligence against the defendant in failing to keep a proper lookout both before and while reversing into parking space no. 5 and thereby failing to notice the presence of the plaintiff.

Contributory Negligence

21. The defendant's plea of contributory negligence, as appeared from paragraph 3 of the Defence, is premised on 4 main grounds, namely, (1) drinking excessive alcohol before the accident; (2) failing to ask for assistance to return home when he was drunk; (3) lying on the ground of parking space no. 5 when it was unsafe and danagerous to do so; and (4) failing to heed or pay attention to the approach of the defendant.

22. Counsel for the defendant submits that the degree of contributory negligence should be up to 85% in that he was the author or a co-author of the accident. He argues that the plaintiff, by allowing himself to be drunk and lying on the pavement with his feet extending onto the parking space, had created a situation of danger that resulted in the accident.

23. In my view, the issue is whether the plaintiff had failed to take reasonable care for his own safety and that the want of care on his part had contributed to his injuries. The burden of proof is on the defendant. In this regard, the emphasis on the plaintiff being the author or a co-author of the accident is misplaced. What is essential is not whether the plaintiff's fault or failure is a cause of the accident, but whether it is a cause of the damage or injuries. Accordingly, whether the plaintiff had created a situation of danger by lying unconscious on the pavement with his feet protruding into the parking space is irrelevant. What the defendant has to show is that the plaintiff, by reason of his failure to take reasonable care, had failed to avoid or reduce the extent of his injuries.

24. Counsel for the plaintiff had referred me to the South African Court of Appeal case of Kilminster v. Rule (1983)32S.A.S.R 39. In this case, an intoxicated pedestrian was killed on the motorway after he collided with a vehicle coming along the road. The trial judge found the defendant driver guilty of negligence and that the pedestrian was contributorily negligent. He disregarded the pedestrian's intoxication as a factor in the apportionment and assessed the pedestrian to be 20% at fault. The defendant appealed against the apportionment and his appeal was allowed by a majority decision. The pedestrian's share of responsibility was increased to 35%.

25. King C.J. observed at p.45 that :

"I do not think that the law requires that a person, in the exercise of reasonable care for his own safety, remain sober at all times. ... Reasonable care for a person's own safety demands only, so far as liquor is concerned, that he be sufficiently sober to perform safely the tasks which he undertakes. ... A motorist who drives when his faculties are so impaired by alcohol as to render him unfit to manage the vehicle safely, is ipso facto wanting in care for his own safety. The same cannot be said of a pedestrian who merely walks along the footpath, unless perhaps he is so drunk that he cannot even walk with safety. If, however, the pedestrian's intoxication induces careless conduct on his part which causes damage to him it seems to me that the careless conduct represents a greater departure from the standard of care of the reasonable man than it would be if resulted from the momentary inattention of a sober man. Moreover, if the pedestrian undertakes a manoeuvre such as crossing a road carrying vehicular traffic when his capacity to do so with safety has been diminished by drink, he is lacking in reasonable care for his own safety, and the intoxication is a factor to be considered in assessing his share of responsibility for damage contributed to by careless conduct resulting from that intoxication."

Counsel for the defendant argues that this Court should pay little or no regard to this case, being an authority of the South African jurisdiction. While I accept that this authority is not binding on me, I consider that the obersvations of King C.J. set out above is highly relevant and persuasive, and I respectfully agree with them. Indeed, counsel had not been able to refer me to any other local or common law authority on the issue of the liability of an intoxicated pedestrian in contributory negligence.

26. In as much as intoxication per se is not negligence, it is also not in itself a want of care for personal safety for the purpose of contributory negligence. Similarly, a person who is drunk and who ventures on the road is not per se guilty of contributory negligent. There has to be negligence resulting from the intoxication that causes the damage or injury before the person can be found liable in contributory negligence. On the other hand, it is no excuse for failing to take reasonable care to say that the person was unable to take proper care because he is under the influence of alcohol, which he had consumed voluntarily: Charlesworth & Percy on Negligence (9th edn) para. 3-48.

27. On the facts of this case, there is no want of care for his safety on the part of the plaintiff in consuming excessive alcohol and/or walking home in an intoxicated state without seeking assistance. The plaintiff's negligent conduct lies in his lying on the pavement close to an unoccupied parking space and with his feet extending into that parking space, which is a direct consequence of his intoxication. He ought to know and appreciate that it was unsafe to lie in that location and position. In fact the evidence shows that he had attempted to get up. He was however prevented from moving away from that position by his state of intoxication. The plaintiff's careless conduct lies further in his failure to heed the approach of the defendant's truck and to move away to avoid being run over by it. Again, his failure to take remedial action to deal with the situation is occasioned by his intoxication. I am of the conclusion that the plaintiff is contributorily negligent.

28. Counsel for the defendant referred to the cases of Yuen Wai Yee v. Yeung Lam Fai & Anor [1987] HKLR 107 and Mok Yuk Kiu & Anor v. Ting Shing Auto Radio CTR Ltd [1981] 1HKLR 77 in support of the submissions that the plantiff's share of responsibility should be as high as 85%. Both these cases invlove pedestrians who failed to maintain a proper lookout before and while crossing the road. The degree of contributory negligence was held to be 75% and 70% respectively. The facts of these 2 cases are clearly very different from those in the present case. I do not consider them to be of assistance on the question of apportionment.

29. In approaching the question of apportionment of liability, regard has to have to the parties' respective shares in the responsibility for the damage. In this connection, the plaintiff's intoxication is a relevant factor for consideration. Having regard to the fact that there was some opportunity for the plaintiff to avoid or reduce the damage, but because of the effects of alcohol, the plaintiff had not been able to take steps to avoid it, I assess the plaintiff's share of blame to be 30%.

Injuries and Treatment

30. The plaintiff was admitted to Princess Margaret Hospital in a confused state. He suffered crushed injury to his right heel, with the tendo-archilles and calcaneal bone exposed. He also had fractures in the second, third and fifth metatarsal bones of the right foot. He remained in Princess Margaret Hospital until 8 December 1996 when he was transferred to Caritas Medical Centre. At the time of his discharge from the Caritas Medical Centre on 30 December 1996, the plaintiff had to walk with the aid of two crutches. At that time, his wounds and fractures had healed. By July 1997, he could walk with one elbow crutch. Since August 1998, he can walk unaided.

31. The plaintiff was hospitalized for a total period of 2-1/2 months. During the first month of hospitalization, he underwent 8 operations for external fixation of the right ankle, wound debridement and skin grafting. After his discharge from the Caritas Medical Centre, the plaintiff had to attend follow up outpatient treatment at South Kwai Chung Polyclinic. He is still required to attend outpatient follow up treatment, but at a much less frequent interval. Between January and February 1997, the plaintiff underwent physiotherapy treatment at the same Polyclinic for 3 times a week. He stopped attending the physiotherapy treatments since March 1997 as he had moved to live in Shenzhen.

32. Between March 1997 and June 1998 when the plaintiff lived in Shenzhen, he claimed to have attended herbalist or bonesetter treatment in Shenzhen at the intervals of initially 3 times and later twice a week.

Disabilities and Impairment

33. The plaintiff was 25 at the time of the accident and is 28 at the time of the trial. As a result of the accident, he now walks with a mild limp. There are stiffness of the right ankle joints and disfigurement of the right heel. He has difficulties in squatting, climbing up and down and walking on uneven roads. He cannot walk or stand for long hours.

34. Before the accident, the plaintiff was an active person who enjoyed outdoor and sports activities such as soccer, hiking and swimming. As a result of the injuries and residual problems, he is unable to take up the outdoor activities. He has also refrained from going swimming because of the scars on the right heel.

35. There are disagreements as to the current psychological and psychiatric condition of the plaintiff. Dr Timothy Law, who interviewed the plaintiff in June 1999, diagnosed him to be suffering from major disorder and post-traumatic stress disorder. In his opinion, without proper psychological intervention, the plaintiff's condition would deterioriate. He strongly recommended immediate and structured treatment programme and also psychotropics medication to deal with his depression.

36. Dr S.Y.Chung, the defendant's psychiatrist who interviewed the plaintiff in December 1999, considered that the plaintiff is suffering from dysthymic disorder characterised by chronic depression of mood. In his opinion, the disorder is the direct result of the trauma of the accident, the residual pain and sufferings and the associated psychological problems. Dr Chung agreed that the plaintiff needs psychiatric treatment to learn coping strategies, but he disagreed with Dr Law that the plaintiff needs intensive treatment and medication. Dr Chung did not consider the plaintiff's condition so severe as to require the treatments recommended by Dr Law.

37. Having the benefit of seeing and hearing the plaintiff giving evidence in Court and looking at the reports of the 2 psychiatrists, I consider that the views of Dr Chung on the plaintiff's condition is to be preferred. It is obvious that the plaintiff is dull, depressed and not articulated, but his speech is coherent and his thoughts are not confused. He does not strike me as one who suffers from major or severe psychiatric illness. As Dr Chung rightly pointed out, the plaintiff had successfully completed a 3 months vocational training course in 1998, an achievement which a person with major or serious psychiatric problem is unlikely to have attained. It is also to be borne in mind that the plaintiff has received neither psychological nor psychiatric counselling or treatment since the accident more than 3 years ago.

38. I accept, as both experts observed, that the injuries have caused the plaintiff to suffer certain degree of setback in his personality and inter-personal relationship. He, for instance, has an irritable and depressed mood and is disinterested and lacks confidence in socializing with others. I also accept that the plaintiff should receive treatment to prevent further deteroriation in his condition.

Quantum of Awards

(1) Award for pain, suffering and loss of amenities

39. Counsel for the plaintiff contends that the plaintiff falls within the lower end of the serious injury category, relying on the cases of Lee Kwan Tong v. Liu Yee Lim & Anor HCPI No. 1383 of 1996 and Chiu Tak Sang v. Kwan Hon Lam HCA No.A4462 of 1994. Counsel for the defendant disagrees and argues that the plaintiff's injuries and disabilities only place him slightly below the serious injury category.

40. I consider that the physical injuries and the functional and cosmetic disabilities suffered by the plaintiff are similar to those of the plaintiff in the case of Lee Kwan Tong. The residual problems have left him with a disability that in some way mars his general activities and enjoyment of life. The plaintiff should be placed within the lowest end of the serious injury category. In Chan Pui Ki v. Leung On & Anor [1996] 2HKLR 401, the award for serious injury category had been revised to between $400,000 to $540,000. The decision was made 3-1/2 years ago, allowance should be made for inflation since then but only up to 1998. The appropriate award would therefore be $440,000.

(2) Pre-trial loss of earnings

41. At the time of the accident, the plaintiff was a construction site plastering worker. Counsel are in agreement that his monthly salary should be fixed at $11,000. The statistics on the wages of worker engaged in government buildings and construction projects show that there was a 21% increase in the wages between 1996 and 1999. It will therefore be appropriate to project that, had the plaintiff remained with his employment, his monthly income will be $13,310 at the time of the trial, producing a median of $12,155. Counsel for the plaintiff has approached the plaintiff's income level on the basis of a 7% p.a. increase over a period of 3-2/3 years. I do not agree with that approach as I am of the view that most part, if not all, of the 21% increase between 1996 and 1999 should be attributed to the period between 1996 and 1998, as it is a known fact that there has been no or little increase in the wages of contruction site workers since 1998.

42. The plaintiff was granted sick leave until 29 May 1998. It is common ground that the plaintiff is no longer able to return to his former employment. Between September and November 1998, he attended a 3 months vocational training course on operating excavator and had earned subsidy of $4,800. Other than that, the plaintiff has received no income as he has not returned to employment. According to the plaintiff, shortly after completing the vocational training, he had been referred for employment as an excavator operator at construction site. However, he was dismissed on the first day of work as his disability had prevented him from handling the job on his own. The plaintiff also said that he had towards the end of 1999 registered with the Labour Department for job placement and had been referred for interviews. However, he had not been successful in securing an employment because of his disability. The plaintiff had also attempted to find employment through friends and reading recruitment notices and advertisements. Despite all these, the plaintiff said he has not been able to secure any employment.

43. The orthopaedic experts for the plaintiff and the defendant both consider the plaintiff suited for jobs of a sedentary nature. The plaintiff was educated only up to F.3 and has hitherto not been trained nor engaged in office work. I accept, therefore, the choice of sedentary work open to him would be limited. The defence has suggested that he is fit to work as a salesman. That is plainly unsustainable in view of the fact that the plaintiff cannot stand for more than a few hours. Counsel for the defendant suggests that he can take up the job of a building attendant or caretaker, to which counsel for the plaintiff has no disagreement.

44. I note from the evidence of the plaintiff that although he had attempted to find jobs as construction site or factory worker, he had not attempted to find jobs of a sedentary nature nor tried out such jobs. I also note that his registration with the Labour Department and the attempts to find work described by him were made more than a year after his sick leave expired. While I accept that unemployment rate has been high since 1998 due to the economic downturn, I do not accept on the evidence that the plaintiff had tried his best to find an employment and/or that his disability had prevented him from securing employment. I do not consider that the pre-trial loss of earnings should be allowed in full. On the basis of the medical evidence, there is a real prospect that the plaintiff is able to take up sedentary work. From the June 1999 government report on wage statistics adduced by the defendant, the average monthly salaries for building attendant and caretaker ranges between $7,852 and $8,481. I would therefore adopt the mean, being $8,167, for calculating the notional income that the plaintiff would have earned. I consider that it is reasonable, in view of his physical condition and his education level, to allow the plaintiff a period of 9 months from the expiration of the sick leave to find a new job. The plaintiff's pre-trial loss of eanings is therefore $398,650, made up as follows:

(1)	From 13 October 1996 to March 1999
	$12,155 x 29.5 months - $4,800 = $353,773
(2)	From April 1999 to trial
	($12,155 - $8,167) x 15 months = $59,820
(3)	Total loss
	$353,773 + $59,820 = $413,593

(3) Loss of future earnings

45. Considering the plaintiff is 28 at trial, I agree with counsel for the plaintiff that 15 is the appropriate multiplier. The loss of future earnings is therefore: ($12,155 - $8,167) x 12 x 15 = $717,840.

(4) Loss of earning capacity

46. From the closing submissions of the defence, it does not appear that it is disputed that the defendant suffers a loss in the earning capacity. Indeed, it cannot be seriously disputed that the plaintiff suffers a handicap in the labour market by reason of his foot injuries. Having to the fact that the choice of sedentary work that the plaintiff can take up is limited, I accept that there is a real risk that, if he were to lose his employment in future, the time he would need to find replacement employment would be longer than that for a normal and healthy person. An award representing approximately 12 months' salary, being $100,000, is appropriate.

(5) Special damages

47. The defendant does not dispute the hospital and out-patient clinic charges incurred in Hong Kong and that come up to $5,296. The travelling expenses for the outpatient treatment in the sum of $1,020 is also agreed. The costs for replacing the pair of shoes damages during the accident in the amount of $769.60 is also accepted. The items of special damages that are in dispute relate to the medical expenses and travelling expenses incurred by the plaintiff when he stayed in Shenzhen between March 1997 to June 1998, the travelling expenses incurred by the plaintiff's mother for visiting the plaintiff while he was hospitalized and also the costs of the tonic food.

48. It is the plaintiff's case that he went to live in Shenzhen in March 1997 so that his cousin could look after him since his mother, who was then 57 years old, was physically unfit to take care of him. While staying in Shenzhen, he attended a clinic three times a week which was later changed to twice a week. The plaintiff described the clinic as a kind of bonesetter clinic operated on a family basis and the treatment offered was kind of herbalist massage treatment. The plaintiff produced a receipt showing that the amount of fees charged per session was RMB110. The total amount claimed by the plaintiff is RMB18,480, equivalent to HK$16,632 at the conversion rate of RMB1=HK$0.9. On top of this, there was one further medical treatment for dressing an abrasion to his injured heel in the amount of RMB58, equivalent to HK$52.

49. The defendant challenged the genuineness and the authenticity of the receipt produced. For my part, I am prepared to accept the plaintiff's evidence that he had attended the treatments as contended and that the charge per visit was RMB110. He does not strike me as one who would make up a false claim. I also see no basis for the challenge to the authenticity of the receipt. I do not consider it unreasonable for the plaintiff to consult herbalist and massage treatment as it is his evidence that the treatment was helpful in relieving and reducing the pain and stiffness of the heel. I however consider that the number of visits he paid per week, hence the amount claimed, is excessive. I am only prepared to accept teatment on a weekly basis. The costs that I would allow is therefore HK$7,000, which represents approximately the costs of 70 visits within the 16 months' period he spent in Shenzhen. Together with the HK$52 for wound dressing, the total amount of medical expenses that the plaintiff can recover for the treatment he received in Shenzhen is HK$7,052.

50. As for the costs of travelling to the clinic, which is located in the outer city of Shenzhen, the plaintiff stated that as he was then using a crutch, it was not possible for him to take the bus, given the conditions of the bus service in the mainland. He said he therefore had to travel by taxi and the taxi fare came up to RMB200 per round trip. Counsel for the defendant submitted that the taxi fare was unreasonably high, but there is plainly no evidence to show what would be the reasonable fare and this is a matter that the Court cannot take judicial notice. Working on the basis of 70 visits, the travelling expenses that the plaintiff can recover is RMB14,000, which is equivalent to HK$12,600.

51. On the travelling expenses of the mother, I accept that it is reasonable for her to take a taxi to visit the plaintiff at the Princess Margaret Hospital. The travelling expenses come up to $6,780. As for the time when the plaintiff was staying in Caritas Medical Centre, it is the plaintiff's evidence that his mother would either take a bus or a taxi. There was a direct bus service between their home in Kwai Shing and the hospital and the bus fare was $3.70 per single trip. In the circumstances, I do not consider it reasonable for the plaintiff to claim the travelling expenses on the basis of taxi fare of $60 per single trip. The plaintiff's claim should be limited to the rate of the bus fare. On the basis of 45 visits, the mother's travelling expenses for attending the plaintiff in Caritas Medical Centre is therefore $333 (i.e. $3.70 x 2 x 45). The total travellinge expenses of the mother is $7,113 (i.e. $6,780 + $333).

52. The amount of tonic food claimed by the plaintiff is $8,568. These are supported by receipts. The amount, although on the high side, cannot be said to be unreasonable. It is allowed in full.

53. The total amount of special damages awarded is therefore: $5,296 + $1,020 + $769.60 + $7,052 + $12,600 + $7,113 + $8,568 = $42,418.60.

(6) Future psychiatric treatment

54. I accept that the plaintiff requires psychiatric treatment to prevent his condition from deterioriating. Based on the report and recommendations of Dr S.Y. Chung, an award of $30,000 is to be made for the treatment.

(7) Interest

55. The interest on the pain suffering and loss of amenities is 2% p.a. from the date of the writ (i.e. 28.4.1999) to the date of trial, giving a figure of $10,267. The interest on the pre-trial losses is 5.77% p.a. from the date of accident to trial, giving a figure of $97,573. The total amount is $107,840.

(8) Summary

56. The total sum to be awarded to the plaintiff is $1,296,184, the breakdown of which is as follows:

(a)	Pain suffering and loss of amenities	$ 440,000
(b)	Loss of pre-trial earnings	$ 413,593
(c)	Loss of future earnings	$ 717,840
(d)	Loss of earning capacity	$ 100,000
(e)	Special damages	$ 42,418.60
(f)	Future psychiatric treatment	$ 30,000
(g)	Interest	$ 107,840
		---------------
	Less 30%:	$1,851,691.60
		$555,507.50
	Total award :	$1,296,184.10
	57. Rounded up to	$1,296,184.00

Conclusion

58. There will accordingly be judgment for the plaintiff in the sum of $1,296,184 . There will also be an order nisi that the defendant pays the plaintiff costs of the action, to be taxed if not agreed; and that the plaintiff's own costs be taxed in accordance with the Legal Aid regulations. The order nisi to be made absolute after the expiration of 14 days from the date this judgment is handed down.