LEE KIM FUNG v. LOK LUN KEUNG AND ANOTHER

HCPI 1063/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1063 OF 2000

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J U D G M E N T

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THE PLAINTIFF'S CLAIM

1. The plaintiff's claim is for damages for injuries sustained by him as he was driving a motorcycle which was involved in a collision with a taxi, driven by the 1st defendant and owned by the 2nd defendant, on 16 May 1999 at Sheung Shing Street, Kowloon.

2. The plaintiff's case is that the 1st defendant suddenly and without warning, turned right from Sheung Shing Street into Sheung Lok Street in the path of the oncoming motorcycle and, because of his negligence in so turning, caused the collision.

THE PLAINTIFF'S EVIDENCE

3. The plaintiff's evidence was that after he negotiated a left bend, the stretch of road ahead of him was a straight road and there were no cars in front of him. He was travelling at a speed of 40 km/hr and he was familiar with this stretch of road. As he proceeded along this straight stretch of road, he approached a zebra-crossing whereupon he reduced his speed to 35 km/hr. When he saw the taxi turn right onto his path, he applied his brakes which left a skid mark of 5.5 metres.

4. In court, the plaintiff said that he was still on the zebra-crossing when he first saw the taxi, but in the magistrates' court when he gave evidence against the 1st defendant in the prosecution against the 1st defendant for careless driving, he had said that when he first noticed the taxi he had well passed the zebra-crossing. In another answer that he gave in the magistrates' court, he suggested that he had seen the taxi on the opposite lane before it turned. When he was asked about this in the present trial, he said that he saw the taxi at the junction of the two roads and immediately afterwards the taxi turned right.

5. It was agreed by both parties that the damage to the bodywork of the taxi was minimal and was not as great as would have been caused had there been a direct impact between the motorcycle and the taxi.

THE 1ST DEFENDANT'S EVIDENCE

6. The 1st defendant's evidence was that the motorcycle was approaching the junction at a high speed. When the taxi turned about one-third onto the path of the motorcycle, the 1st defendant saw the motorcycle approach at high speed so he applied his brakes and brought his taxi to a complete halt. The motorcycle braked so heavily that it toppled over and the motorcycle then slid along the road towards the taxi, and eventually collided with the taxi as the motorcycle was sliding along the road, which accounted for the minimal damage to the bodywork of the taxi.

FINDING OF FACT

7. Having considered the evidence of the two witnesses and on a balance of probabilities, I find that the plaintiff was approaching the junction at a speed higher than the speed that he had testified he was travelling at. I am unable to determine what speed he was travelling at, but my finding is that his speed was certainly higher than the 35 km/hr that he said he was driving at. I find that he braked heavily which caused his motorcycle to topple over, and because it then slid along the road, it eventually collided with the taxi.

8. I do not accept the 1st defendant's evidence that the taxi was completely stopped when the motorcycle collided into it. I find that the 1st defendant was negligent in not seeing, for whatever reason, the approach of the motorcycle, but I find that by the plaintiff's speed he had contributed to the collision, and I find that he should be held to be contributing to the accident to the extent of 20%.

THE PLAINTIFF'S INJURIES AND TREATMENT

9. Soon after the accident, the plaintiff was admitted to the Queen Elizabeth Hospital ("QEH"). The plaintiff was hospitalized for two and a half months from 16 May 1999 to 31 July 1999 after the accident. Physical examination showed a deformed left arm, a tender left chest with air in soft tissue, tender abdomen, tender swollen right thigh and abrasions over both legs. An x-ray examination showed fractured left 9th and 10th ribs, fractured right acetabulum bone and fractured left humerus. The left humerus was treated with close reduction and external fixation on 18 May 1999. The abrasions were treated with debridement on 18 May 1999. The fractured right acetabulum was treated with open reduction and internal fixation on 25 May 1999. Later the external fixator of the left humerus was removed and humeral brace was applied to the plaintiff's left arm. The plaintiff was discharged on 31 July 1999.

10. In addition, the plaintiff's fractured ribs, humerus and pelvis was complicated by bulbomembranous urethral stricture. The plaintiff was again hospitalized in the QEH from 7 September 1999 to 4 October 1999 for about one month. Anastomotic urethroplasty was performed on 8 September 1999. Post-operatively, the plaintiff could pass urine with good stream. However, the plaintiff later developed bulbous urethral stricture three months after the surgery. Balloon dilatation of the urethral stricture was performed on 12 November 1999. The plaintiff could again pass urine with good stream thereafter. The plaintiff occasionally leaked a few drops of urine during postural change. Erectile dysfunction was most likely psychogenic in origin.

11. Further, the plaintiff had regular follow-ups in the QEH's specialty clinic. For the right hip, repeated x-ray revealed loosening of a screw and suspected screw protusion leading to femoral head resorption, which was then confirmed by CT scan. The plaintiff was again hospitalized in the QEH for about one week from 12 January 2000 to 21 January 2000. On 13 January 2000 another operation for removal of right hip implants was performed. The plaintiff was referred to a physiotherapist for rehabilitation and there was gradual improvement. The plaintiff was last seen on 12 July 2000. The right hip pain decreased, mainly there was right knee pain. The plaintiff needed a stick to walk on level ground, and there was difficulty in climbing up or down stairs. Physiotherapy was continued with emphasis on quadriceps strengthening for the plaintiff's knee pain. For the plaintiff's left arm, there was some pain upon full extension. Concerning the prognosis, residual pain and stiffness is expected for the plaintiff's left elbow and right hip, and because there is articular involvement of the plaintiff's right hip, progressive osteoarthritis is expected and there will be increase in pain and stiffness in the future requiring operation for total hip replacement.

12. The plaintiff was on sick leave from the date of the accident on 16 May 1999 to 28 April 2000, that is, almost a year.

13. On 31 October 2001, the plaintiff was again hospitalized in the QEH for about two weeks until he was discharged on 16 November 2001. An operation of the total replacement of the hip joint was performed.

14. After the operation of the total replacement of the hip joint, the plaintiff was again on sick leave from 31 October 2001 to 30 September 2002, that is, about 11 months.

15. The two major areas of the plaintiff's injuries are orthopaedic and urological.

(a) Orthopaedic injuries

16. Dr Au Ka Kau's diagnosis is that the plaintiff suffers from :

(1) fracture left 9th and 10th ribs;

(2) fracture right acetabulum;

(3) fracture left humerus; and

(4) urethral stricture.

17. Dr Au opined that the plaintiff has various body impairments :

(1) pain and stiffness of the right hip;

(2) left shoulder stiffness as a result of the left humeral fracture;

(3) uretheral stricture;

(4) right knee pain; and

(5) impaired sensation over the lateral aspect of right thigh.

18. Dr Au also expressed the view that he expected the right hip condition to deteriorate, and that the plaintiff would require a total hip replacement operation. Dr Au estimated the impairment of the left upper limb was 4% of the whole person and impairment of the lower limb was 17% of the whole person. The total body impairment is 20%. The loss of earning capacity is estimated to be 40%.

19. Dr Tsoi Chi Wah Danny agreed that there was a need for total hip replacement. On the issue of impairment, Dr Tsoi estimated the right arm injury to cause 3% impairment of the whole person. The right hip fracture was estimated to cause 20% impairment of the whole person. The total impairment of the body is estimated at 22% (or 18% if there is a successful hip replacement). The loss of earning capacity is 44% (or 34% if there is a successful hip replacement).

(b) Urological injuries

20. As to the plaintiff's urological disability, Dr Richard K. Lo, a specialist in Urology and a Clinical Associate Professor of Surgery at the Hong Kong University, made the following diagnosis :

(1) pelvic trauma;

(2) pelvic fracture causing urethral laceration and subsequent stricture requiring anastomotic surgery and multiple dilations thereafter;

(3) voiding adequately with a slow stream; and

(4) sexual dysfunction.

Dr Lo found the plaintiff's urological condition to be stable. As regards the impairment caused to the person, he found as follows :

(1) Bladder : 10% impairment of the whole person.

(2) Urethra : 4% impairment of the whole person.

(3) Sexual functioning : 9% impairment of the whole person.

Thus, Dr Lo found that the total combined impairment is 22%.

21. In summary, the plaintiff was hospitalized altogether four times in the QEH :

(1) 16 May 1999 to 31 July 1999 (two and a half months);

(2) 7 September 1999 to 4 October 1999 (about one month);

(3) 12 January 2000 to 21 January 2000 (about 10 days); and

(4) 31 October 2001 to 16 November 2001 (about two weeks)

22. During hospitalization, a total of seven operations were performed. All these operations involved anesthesia of the whole body :

(1) 1st operation (after admission) - as the plaintiff's fractured 9th and 10th ribs pierced into his lung membrane, an operation involving putting a tube in his lung for transferring blood from it was performed.

(2) 2nd operation (18 May 1999) - as his left arm was broken into two parts (fractured left humerus), an operation involving close reduction and application of external fixation of the left humerus was performed. Skeletal traction was applied to his right leg, and the abrasions in both of his legs were treated with debridement.

(3) 3rd operation - as he suffered fractured right acetabulum, steel plates and screws were inserted to fix the fractured right acetabulum (open reduction and external fixation).

(4) 4th operation - removal of external fixator of the left arm, humeral brace was applied.

All the above four operations were done during the plaintiff's 1st hospitalization.

(5) 5th operation - since the plaintiff's urethra was broken, the plaintiff was again hospitalized in the QEH from 7 September 1999 to 4 October 1999. During this period of hospitalization, anastomotic repair of the urethral stricture was performed. As the plaintiff later developed bulbous urethral stricture three months after the surgery, on 12 November 1999, balloon dilatation of the urethral stricture was performed.

(6) 6th operation - for the right hip, since repeated x-ray revealed loosening of a screw and suspected screw protrusion leading to femoral head resorption, the plaintiff was again hospitalized in the QEH from 12 January 2000 to 21 January 2000. On 13 January 2000 an operation involving the removal of the right hip implants was done.

(7) 7th operation - Dr Benjamin Fong opined that for the plaintiff's right hip there would be increase in pain and stiffness in the future requiring an operation for total hip replacement. Dr Au Ka Kau and Dr Danny Tsoi expressed the same view. From 31 October 2001 to 16 November 2001 the plaintiff was again hospitalized in the QEH and an operation for replacement of total hip joint was done.

23. The plaintiff needed two long periods of sick leave for rehabilitation : 1st period from 16 May 1999 to 28 April 2000 (that is, about one year) and 2nd period from 31 October 2001 to 30 September 2002 (that is, about 11 months). Almost two years of sick leave was granted to the plaintiff.

24. The plaintiff had to attend numerous physiotherapy treatments at the Physiotherapy Department, Yung Fung Shee Memorial Centre, United Christian Hospital. The plaintiff said that the physiotherapy treatments included electrotherapy, water therapy and the use of machinery. Up to 19 November 2002, the plaintiff altogether attended physiotherapy treatments 254 times. On average it was twice to three times a week.

25. The plaintiff had to attend medical follow-ups regularly at the Orthopaedics & Traumatology Department (29 times), Surgery Department (19 times) and Male Surgery Department (19 times) of the QEH.

26. As the plaintiff could not accept what had happened to him, he also needed to go to the Psychological Clinic of the Hong Kong Police Force in Yau Ma Tei, Kowloon for treatment. He went there for about 22 times.

27. The plaintiff now suffers from the following :

(a) Left arm

There is pain when the left arm was extended and there is no strength. The left arm cannot be raised above shoulder level. The plaintiff cannot carry heavy objects.

(b) Right leg

There is frequent pain at right pelvis and right knee particularly on walking. The plaintiff cannot raise the right hip joint to more that 90o, or it will be dislocated. There is wastage of muscle at the inner side of the right thigh which cannot regenerate. There is also frequent pain particularly on walking. One nerve was cut at the outer thigh of the right leg and the plaintiff had numbness. There is also pain on the plaintiff's hip. There is also left knee pain due to pressure on left foot.

(c) Urological disability

The plaintiff lacks strength in urination. There is frequent passing of urine with leakage and wetting of underpants. There is also some pain on urethra.

(d) Sex

The plaintiff suffers from impotence and needs to use Viagra, but due to pain at urethra and right leg, the desire to have sex is lost or even resented, his relationship with his girl friend is greatly affected.

28. The plaintiff's impotence is supported by medical evidence. Dr Lo Kwong Yin, Richard, a specialist on urology, said :

"He was therefore placed on Viagra and appears to be successful with Viagra. Efforts at intercourse without Viagra were unsuccessful."

Dr Ho Yu Cheung, a defence expert, said :

"Concerning the consequences on sexual function, he admitted that he had to rely on Viagra 50 mg before each sex in order to achieve a satisfactory turgidity on initiation and the maintenance last on average 10 to 20 minutes, which he claimed to be less than pre-accident era and so not up to his satisfaction. Without Viagra he claimed there might be some less than turgid penile engorgement on initiation but could not maintain long enough for vaginal penetration. Nocturnal penile tumescence was seldom and also not turgid enough."

and :

"For sexual disturbance it is an expected event for injury involving the bulbomembranous urethra and pelvic fracture since the arteries into the penis for erection are in the nearest vicinity of the injured area. ... I do believe the detailed description by patient himself on direct questioning on the erectile dysfunction was genuine. I agree that psychological element plays a role but I do believe that this is secondary rather than primary leading to the erectile dysfunction."

(e) Others

Loss of sleep due to pain at leg; weak body, frequent dizziness and fatigue; loss of confidence and feeling sad, depressed and worried about future living and health.

29. As to daily life :

(a) The plaintiff used to enjoy jogging and ball games very frequently. However, after the accident he cannot enjoy these sports anymore.

(b) Generally the plaintiff needs a walking stick for walking but cannot go up and down a steep staircase.

(c) The plaintiff needs to be seated when taking transportation and hence takes taxis frequently.

(d) The plaintiff cannot squat.

(e) The plaintiff cannot tie his shoelace.

(f) The plaintiff cannot wear his socks but uses an instrument to do so.

(g) The plaintiff cannot cut his toenail.

(h) The plaintiff now only sits on chairs leaning backward or lying on bed for rest.

30. As to the percentage impairment resulting from urological injuries suffered by the plaintiff, I prefer the estimate of Dr Richard Kwong Yin Lo (22%) to that of the defence expert Dr Ho Yu Cheung (5%). Dr Lo is a specialist in urology and a clinical associate professor of surgery at the Hong Kong University.

31. As regards the orthopaedic injuries, Dr Au Ka Kau estimated the total body impairment at 20%. Dr Danny Chi Wah Tsoi estimated the total impairment of the body at 22%. Taking 21% as the average of those two estimates for impairment due to orthopaedic injuries and adding 22% impairment due to urological injuries, I find that the plaintiff's total impairment of the whole person is 43%.

PSLA

32. The plaintiff was born on 11 December 1966 and so is now aged 36. Having regard to the injuries suffered by the plaintiff and having regard to the consequences of those injuries which he now still suffers from, I find that his injuries come within the upper end of the substantial injury category. Taking into account the inflation rate since the decision of Chan Pui Ki v. Leung On [1996] 2 HKLR 401 but accepting that no allowance should be made for inflation since 1998, I award $792,000 for PSLA (following Ng Chi Chung v. Lau Kam Ping [2000] 2 HKC 759).

PRE-TRIAL LOSS OF EARNINGS

33. At the time of the accident, the plaintiff earned $23,505 per month. He was given full payment of his salary for the first six months of sick leave from 16 May 1999 to 31 October 1999. He was given half of his salary for the second six months of sick leave from 1 November 1999 to 30 April 2000. His loss of earnings for these six months is $11,752.50 x 6 = $70,515. He was on sick leave from the date of the accident on 16 May 1999 to 28 April 2000. For his total hip replacement operation, he was granted further sick leave from 31 October 2001 to 30 September 2002. Since June 2001, his monthly salary has been adjusted to $25,460. His loss of earnings during this period is $25,460 x 11 = $280,060. Therefore his total pre-trial loss of earnings is $350,575.

LOSS OF FUTURE EARNINGS

34. The plaintiff joined the Police Force on 12 August 1985 as a Police Constable. He was promoted to the rank of Sergeant on 1 November 1997. He was commended by his superior officers over 100 times both prior to and subsequent to his promotion to the rank of Sergeant. All the reports on the plaintiff were very good.

35. Under this head, the plaintiff claims loss of future earnings due to the loss of a chance to be promoted to the next rank of Station Sergeant. In Attorney General v. Chun Yat Nam [1995] 1 HKC 218 where the Court of Appeal was considering the case of a Police Constable who contended that he had the chance of promotion to station sergeant, at page 236 Penlington JA said :

"However as regards promotion to station sergeant, while the evidence was that this was not a probability it seems to me that it was a possibility and should have been taken into account."

The plaintiff's evidence was that if a sergeant's performance was good, on average after about five years, he would be eligible for promotion to Station Sergeant.

36. At page 240 of the same case above, the Court of Appeal said :

"It is agreed between the parties that if this court should uphold the master's decision, the proper yardstick for the measure of damages is the loss of future earnings as a police officer, using the multiplier of 15."

The court concluded that the plaintiff had a real prospect of promotion to Station Sergeant but discounted the capitalized present value of the loss representing the difference between Sergeant and Station Sergeant by 80%. It is true that in that case, the court was concerned with a two-tier promotion prospect from Constable to Station Sergeant whereas in the instant case, it is only a one-tier promotion.

37. I cannot agree with the defendants' Counsel that because there should not be any policy in the Police of discriminating against health impaired officers, the plaintiff's chances of promotion are in any way affected by his injuries. It is an incontrovertible fact that the plaintiff can only perform light duties; he cannot wear a uniform; he cannot perform outdoor or patrol work; he cannot handle suspects; he cannot carry firearms; he cannot even work in a Report Room. It would be unrealistic in the circumstances to assert that his promotion prospects have not been disadvantaged and he still has the same chances as his otherwise unaffected colleagues to be promoted.

38. I intend to adopt the conventional multiplier/multiplicand approach. The multiplicand of the plaintiff's future loss of earnings should be the difference between the median salary of a Station Sergeant and that of a Sergeant. For Station Sergeants the pay ranges from $27,145 to $36,040 and for Sergeants it ranges from $22,370 to $27,850. The median is therefore $31,592.50 - $25,110 = $6,482.50. The plaintiff's evidence was that he was qualified for promotion by 1 November 2000. I therefore adopt a multiplier of 14. The plaintiff's loss of future earnings is therefore $6,482.50 x 14 x 12 = $1,089,060. As mentioned above, the plaintiff's total impairment of the whole person is 43% which means a loss of earning capacity to that extent. If the plaintiff were to ask, as he would be entitled to do, for a Medical Board to be convened to decide if he should be allowed to retire early and if the Board were to come to the conclusion that he should retire, the plaintiff might be entitled to loss of future earnings to the extent of 43%. In the circumstances, I do not intend to discount the loss of future earnings of $1,089,060.

LOSS OF PENSION

39. The plaintiff also suffers loss of pension due to loss of the chance to be promoted to Station Sergeant. The calculation is set out in the Guide to the Calculation of Pensions, Annual Allowances and Gratuities :

For Station Sergeant

Unreduced annual pension :

$36,040.00 x 12 (highest annual pensionable emoluments) x 400 (months) x 1/600 (factor) = $288,320.00

The plaintiff may commute 25% of this pension into a lump sum as follows :

Commuted pension	= $288,320.00 x 25% x 14
	= $1,009,120.00
Plus

Reduced annual pension	= $288,320.00 x (1-25%)
	= $216,240.00 p.a. or $18,020.00 per month

For Sergeant

Unreduced annual pension :

$27,850.00x 12 (highest annual pensionable emoluments) x 400 (months) x 1/600 (factor) = $222,800.00

The plaintiff may commute 25% of this pension into a lump sum as follows :

Commuted pension	= $222,800.00 x 25% x 14
	= $779,800.00

Plus

Reduced annual pension	= $222,800.00 x (1-25%)
	= $167,100.00 or $13,925.00 per month

40. Therefore, the plaintiff's loss of pension is :

(a) a lump sum of

$(1,009,120.00 - 779,800.00) = $229,320.00

(b) a monthly sum of

$(18,020.00 - 13,925.00) = $4,095.00

Adopting a multiplier of six, the total should be $4,095.00 x 6 x 12 = $294,840.00. Total loss of pension is $524,160.00.

SPECIAL DAMAGES

Travelling Expenses

To and from the QEH (55 trips), HK$160 per round trip for 55 trips	$8,800.00
To and from Psychological Clinic of the Police in Yau Ma Tei, Kowloon (22 trips), HK$160 per round trip for 22 trips	$3,520.00
United Christian Hospital (Yung Fung Shee Memorial Centre) (254 trips), HK$40 per round trip for 254 trips	$10,160.00
The plaintiff went to public swimming pool at Kowloon Park twice per week for therapy according to the advice of the physiotherapist HK$160 per round trip for 300 trips	$48,000.00
Plaintiff's mother : To and from the QEH, HK$160 per round trip for 114 trips	$18,240.00	$88,720.00

Tonic food		$8,000.00
Medicine
Viagra pills at $75 each, Dressing and stocking aid		$5,000.00
Hospitalization fee at the QEH		$1,748.00
Loss of the value of the plaintiff's
Motorcycle		$20,000.00
(the adjusters Toplis and Harding (HK) Ltd was of the opinion that the repair cost would exceed the motorcycle's pre-accident market value which they estimated to be in the region of $20,000.00)
Fee for Motor Survey report		$900.00
		$124,368.00
		==========

I award the plaintiff Special Damages totalling $124,368.00.

FUTURE MEDICAL EXPENSES

41. The plaintiff claims $450,000 for three revision surgeries at the cost of $150,000 each. The plaintiff's Orthopaedic Surgeon Dr Au Ka Kau was of the view that the total right hip replacement operation the plaintiff had on 1 November 2001 was such that the artificial joint would last for about 10 years and by then the artificial joint would fail due to wear and tear and the plaintiff might need a revision surgery which would cost about $150,000. The defence specialist in orthopaedics and traumatology Dr Danny Chi Wah Tsoi agreed that the total hip replacement surgery was necessary and added that the best model of prosthesis seldom lasted for more than 15 years and aseptic loosening was an inevitable complication. He said that a revisional replacement might then be required which would be an ultramajor procedure not without risk. He estimated that the cost of hip replacement operation would be about $100,000 if performed in a private hospital and rehabilitation of about six months which would cost another $20,000 would be required.

42. The defence contends that if further operations were required in the future, these should be done in the QEH which has been taking care of the plaintiff since the accident. They contend that operations in public hospitals would be free of charge. However, the plaintiff in his evidence said that after the total hip replacement operation, he was told by the doctor in the QEH that after the operation, the pain in his hip joint and knee would be greatly reduced. After the operation, however, the plaintiff still complained of pain over his right hip and right thigh on walking. He also complained of right knee and right shin pain. He was clearly not satisfied with the operation done at the QEH.

43. Based on the opinions of the two specialists mentioned above, I award the plaintiff under this head the sum of $240,000 for two replacement surgeries at $120,000 each. In my judgment, the plaintiff, not being satisfied with the operation done at the QEH, is entitled to choose to go to a private hospital for the revision surgery and to have the surgeon of his own choice. The award of $240,000 also takes into account the accelerated receipt.

44. The plaintiff also needs to take Viagra pills. He said that the cost was about $300 to $400 per month. Taking the average of $350 per month and adopting a multiplier of 14, I award the plaintiff under this head the sum of $350 x 12 x 14 = $58,800.

FURTHER LOSS OF EARNINGS DURING PERIODS OF REVISION SURGERY

45. After the total hip joint replacement operation on 1 November 2001, the plaintiff needed 11 months sick leave before he resumed work on 1 October 2002. Both sides accept that the revision surgery would be a major operation. Bearing in mind that rank and file Police officers have to retire at the age of 55, I award the plaintiff two lots of six months of half pay on the basis that for the second period of six months' sick leave, he would only be entitled to half pay from the Government. The figure would be $27,850 divided by two times six times two which equals $167,100.

LOSS OF HOME ALLOWANCE

46. Both Police Sergeants and Station Sergeants are entitled to a home allowance for 10 years but at different rates. The maximum rates are $4,340 and $3,440 per month for Station Sergeant and Sergeant respectively. I award the plaintiff the loss of home allowance incurred by him as a result of the loss of the chance to be promoted to the rank of Station Sergeant. The figure is $4,340 minus $3,440 x 12 x 10 = $108,000.

FUTURE TRANSPORTATION COSTS

47. The plaintiff's claim for $914,200 for the purchase of a private car is academic because the plaintiff has not even obtained a driving licence to drive a private car for the disabled. The alternative claim is the claim for the cost of taking a taxi to and from work every day on the basis that because of the plaintiff's injuries, he cannot stand on a bus and his present residential address and his present place of work are situated at such locations as not to allow him to take the bus at terminal points and from where he boards the bus, there are usually no seats left and he has to stand. I take the view that this claim has the immediate difficulty that his present abode and his present place of work have not been irrevocably fixed at certain locations which cannot be changed between now and when the plaintiff has to retire at the age of 55. Even if this were so, as the defence contends, there was no evidence at the trial on the availability of public light buses. Taking these matters into account, I am only prepared to award the plaintiff $40 per day for taking a taxi to the bus terminus to ensure that he has a seat on the bus. For each week, I will allow the plaintiff the sum of $40 per day for three days. Therefore the award will be $40 x 3 days x 52 weeks = $6,240 x 14 = $87,360.

INTEREST

48. Interest will be awarded at 2% per annum for general damages for PSLA from the date of writ until date of judgment. Interest on pre-trial loss of earnings ($350,575) and for special damages ($124,368) will be awarded at half judgment rate from the date of accident to date of judgment.

SUMMARY

49. The total sum to be award to the plaintiff is $3,541,423, the breakdown of which is as follows :

		HK$
(1)	PSLA	792,000.00
(2)	Pre-trial loss of earnings	350,575.00
(3)	Loss of future earnings	1,089,060.00
(4)	Loss of pension	524,160.00
(5)	Total special damages	124,368.00
(6)	Future medical expenses	298,800.00
(7)	Future loss of earnings for sick leave taken after revision surgery to the hip joint	167,100.00
(8)	Loss of home allowance	108,000.00
(9)	Future transportation expense	87,360.00
	Total	3,541,423.00
	Less 20%	- 708,284.60
	Total award	2,833,138.40
		============

50. There will accordingly be judgment for the plaintiff against the 1st defendant in the sum of $2,833,138.40. There will also be an order that the 1st defendant pays the plaintiff the costs of this action, to be taxed if not agreed and the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. The order nisi is to be made absolute at the expiration of 14 days from the date of the handing down of judgment. There will also be an order that the costs of four hours of the hearing on 22 November 2002 are to be paid by the plaintiff to the defendants.

THE CLAIM AGAINST THE 2ND DEFENDANT

51. No evidence was adduced to show that the 2nd defendant as the owner of the taxi was vicariously liable because the 1st defendant was the servant and/or agent of the 2nd defendant. I therefore dismiss the claim against the 2nd defendant with no order for costs. Both defendants were represented by the same solicitors and counsel. The insurance company concerned is that which insured the 2nd defendant's vehicle.