LAI HING WAN v. KOWLOON-CANTON RAILWAY CORPORATION

1984, No. 4338

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H E A D N O T E

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Personal injury - train accident - plaintiff travelling on the platform of a crowded KCR carriage, despise warning of danger, and being pushed off by fellow passenger. Failure of KCR Corporation to move passengers to less crowded parts of train or to close iron safety gates - KCR primarily liable - 20% contributory negligence.

Damages - loss of one leg and one arm - "gross disability" category for purposes of calculating damages for pain suffering and loss of amenities - Lee Ting Lam v. Leung Kam-ming damages level to be increased by 10% per annum - value of services of wife put at $2,500 per month.

1984, No. 4338

IN THE HIGH COURT OF JUSTICE

HONG KONG

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BETWEEN

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J U D G M E N T

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Background

1. On the 18th January 1983, the plaintiff, LAI Hing Wan, who was at the time employed as an Assistant Cook in the New China Restaurant, Fuk Wing, Street, Kowloon, travelled on the defendant corporation's train which had left Hunghom Station destined for Lowu. He boarded the train at Mongkok. He was at the time married but his wife was in China and he was travelling there to see her. On arrival at Lowu, he would have had to go through the normal Customs and Immigration channels before boarding a train for the second part of his journey. He boarded the train at 6.15 a.m., it being the second train of the day. He had a third-class ticket and boarded the first of the third-class carriages. Ahead of that carriage were two first-class carriages and a goods van. While apparently it was not later possible to find the actual carriage that the plaintiff boarded so as to take photographs, some photographs were produced which are P68, 69, 70 and D5. These photographs show the type of carriage and, in particular, the platform which is at each end, the folding gate which can be closed across the platform and also a warning sign which, it is not disputed, is on the side of the platform at the end of each of these carriages.

2. Shortly before the train stopped at Lowu Station, the plaintiff fell from the train while it was still moving. He was trapped between the carriage and the rail and suffered very severe injuries which involved the amputation of his left arm and leg. He was in hospital for a period of some 14 months and has now been fitted with an artificial leg which he uses but prevents him walking any great distance and also an artificial arm which, it appears, because the amputation of his arm was very high, is of very little practical value. The plaintiff's wife has subsequently joined him in Hong Kong and they now have two children. Since the day of the accident, he managed to find employment as a metal polisher at Kwai Chung. This was some considerable distance from where he was living in Yaumatei and he was employed therefrom October 1984 to June 1985. He left that job then because he said he found considerable difficulty with it and in particular had one frightening incident. He has not been employed since that time. He now lives in the Oi Man Estate where has been given a flat on compassionate grounds which has access to a lift.

3. During the time he was at hospital, the plaintiff received daily visits from members of his family and in particular, from his mother. She brought him soup made of various ingredients including some expensive Chinese herbs which both she and the plaintiff considered would aid in him in his recovery.

Liability

4. The plaintiff who was born on the 12th October 1960 and was therefore aged 23 at the time of the accident and 27 now, said that he boarded the 6:15 K.C.R. train at Mongkok entering the third carriage which was the first of the third-class section. He was carrying two bags, one in each hand. One was a travelling bag about 2' x l' and the other was a satchel in which he had some milk powder and biscuits which he was taking to his wife in China. He said that the platform was at about the same level as the train and that he walked onto the platform of the carriage and then into the compartment. There were no seats available and the compartment was full. There were other passengers standing on the platform.

5. At University Station, some of the passengers in the compartment wanted to get off and, in order to enable them to do so, the plaintiff said he had to walk out of the compartment onto the platform outside. He said that his part of the train was still very crowded and that while some passengers wanted to board the train at University, they were not able to do so in his section of it. He said that he then remained on the platform after the train departed from University as he could not squeeze back into the compartment due to the crowding. At the intervening stations more intending passengers tried to get onto the train but were unable to do so. He said that he was about two to three feet away from the top of the steps and that there were people between him and the edge of the platiform. Gradually, however, he was forced by the pressure behind him to a position near to the metal gate which is shown in photograph P70. He said that the gate was at no time ever closed and it appeared to be rusty and blocked with debris. At no time did he see any K.C.R. staff on the platforms regulating passengers and there was no effort made by any K.C.R. officers to close the metal gate.

6. At Sheung Shui, which is the last station before Lowu, nobody got off the part of the train where he was and he remained on the platform near to the metal gate. The plaintiff said that as they approached Lowu, there were other passengers on the platform with him. There was a man and a woman on his right and another passenger whom he described as a "fat woman" to his left. There were others behind him. The fat woman was carrying two bags and was using the familiar bamboo pole. As they approached Lowu the passengers in the compartment started to force their way out and as they did so, he held onto the top of the collapsible metal gate with one hand. He said he had one of his bags over his shoulder and the other one in his hand. He said that pressure from passengers wishing to leave the compartment became more severe and that eventually, just before they reached Lowu, the fat woman bent down to lift her bags, as a result he received a blow on his back and despite the fact that he was holding onto the metal gate, he fell from the train. He said that the blow he received from the fat woman when she picked up her bags was so great that his grip on the gate slipped and he could not prevent himself falling. He fell onto the ground beneath the carriage and then lost consciousness.

7. The plaintiff said that he did not see any sign inside the carriage warning that passengers should remain inside the compartment while the train was in motion and he had not noticed any such sign on previous occasions. He agreed that he was quite a frequent traveller on the K.C.R. trains at this time when going to China to visit his wife and relations. He said he would do this about four times a year. He had been married in China on the 16th October 1982, although the actual ceremony had not taken place until December of that year. He knew from previous experience that at Lowu there would be a rush to pet off the train, but he did not himself have to rush because he realised that he still had to go through Immigration and Customs and that his next train did not leave until 9:55.

8. The plaintiff agreed that he knew that there were fewer passengers on the carriages at the middle and end of the train and that when he could not find a seat in the compartment which he boarded, he did not go through to the other compartments to see if there was a seat available. He said there was a lot of luggage in the isles and that movement through the carriages was difficult. He also did not get off the carriage at another station and reboard further back in the train because he said he was worried about getting back onto the train again. He said that at all stations passengers were surging to get onto the train. At Mongkok, he did not hear any announcement that passengers should get onto the rear of the train. He said it was very noisy.

9. The plaintiff was shown a statement which had been prepared for him by a Mr Liu Chi-tong, a fellow employee in the restaurant. This is a letter addressed to the defendant corporation which sets out what had happened on the day in question and is a plea for help. This statement substantially sets out the evidence which the plaintiff has given and the only major discrepancies is that in it he makes no reference to holding onto the iron gate. However, he said he did in fact tell Mr Liu about that. He said that at Lowu he did not hear any announcement to the effect that passengers should not get off the train while it was in motion but he agreed that he had heard such announcement on previous occasions.

10. The only other witness as to the facts which occurred on the 18th January 1983 was Mr Mok Kam-lok who was then, and is now, employed by the defendant corporation as a train-master. It seems however, that this is another name for a train guard. He says he has in the past been in charge of the Mongkok Station but his normal job was to travel on the trains where his duties were to attend to any mechanical faults, to sort out passenger complaints and to help the driver if there were signals or lights ahead. He was the guard on the train on which the plaintiff was travelling but he did not see the plaintiff's accident. He was travelling in the rear carriage of the train and did not leave it at any stage. He said that at Hunghom Station, there were 300-400 passengers and that the train could take about 1,000 seated passengers. By the time the train had got to Lowu, there were about 600-700 passengers, but they were concentrated in the front carriages. There were considerably fewer passengers in the rear of the train. Mr Mok said that this was a normal Tuesday morning and the number of passengers was not unusual. He did not think the Chinese New Year rush had started on the 18th January 1983. He said that the photographs P68, 69 and 70 show the type of carriage that the plaintiff was travelling in and the platform at the end of it together with the metal gate and steps. Photograph D5 also showed a sign which is at the entrance of one side of the platform on each carriage. He said they all had it and he had never seen a carriage without such a notice.

11. According to Mr Mok, announcements are made before a train gets into each station, including Mongkok, to the effect that passengers should not step beyond the yellow line painted on the platform and that passengers should not alight from the train before it had come to a stop. Boarding passengers were also asked to board towards the end of the train where there would be more seats. This is an announcement done at each station but not on the train itself. It is relayed in Chinese and then in English over loudspeakers. He said that even if the trains were crowded with noisy passengers, the announcements were still audible to passengers on the train as it arrived at the station. Mr Mok said that on the 18th January 1983, passengers who walked along the platform to the rear of the train could have found seats and the platform was not so crowded as to prevent them doing so. He said that there were iron gates on all the train platforms and these were usually open because the carriages were long and if there was an emergency, passengers would be able to get off the train quicker if the gate was not closed.

12. Mr Mok said that from where he was on the train, he was not able to see how crowded the front carriages were, particularly so at the University Station where the train stops on a bend.

13. He said that at each station he remained on the train and awaited for the station master to give a signal to move off. If any particular carriage was overcrowded, it was not his responsibility to do anything about it, nor was it his responsibility to close any of the gates. No particular corporation employee was assigned to close these gates and it would be very rare for an employee to do so even if he saw passengers standing on the steps. He would tell them to move further inside and would perhaps close the gates. He said that if he were himself on a train going home to Taipo, and was on the platform, he would close the gate. He said be had never come across a gate which was rusted up and could not be closed but on an old carriage such as the one the plaintiff was travelling on, that would be quite possible. Mr Mok agreed that he himself had often travelled on the platform of the train and had ignored the announcements about moving to the rear. Mr Mok said that if passengers were seen to be on the platform of some carriages and there were spare seats towards the rear, no attempt would be made to move the passengers. Only the announcements were made. That announcement was standing instructions and was made irrespective of how many people were in fact on or waiting for any particular train. He said that he himself had travelled on the platform in order to get off the train quickly and that was a very common reason why it was done.

14. On the basis of the plaintiff's evidence and of that given by Mr Mok, counsel for the plaintiff suggested that clearly the defendant corporation had been negligent in allowing the front carriages of the train to become so crowded that the plaintiff could not get inside the compartment but was forced onto the platform and that he had taken all reasonable steps to safeguard himself. In particular, it was negligent of the corporation to fail to close the iron gates which would have ensured that the plaintiff could not have fallen off the train in the manner which he did. For the defendant corporation on the other hand, it was argued that the plaintiff was entirely the author of his own misfortune. He was himself aware of the risks involved in travelling on the platform, and there was signs hanged there giving that specific warning. Passengers were told at each station to board towards the rear of the train where there was adequate accommodation. If a passenger, nevertheless, chose to board a train towards the front and was not able to find a seat, or to stand in the compartment, that was again his own option and at any time the plaintiff could have got off from the front carriage and moved to one towards the rear where he would have been perfectly safe. Furthermore, although the iron gate was not shut, it was there to be held onto in order to prevent a passenger standing on the platform being pushed off the train in a manner the plaintiff claims he was. In his letter to the corporation shortly after the accident, he said nothing about holding onto that gate and in view of the fact that he was carrying a bag in one hand and had, according to his own evidence, another bag over his shoulder, it was unlikely that he was in fact holding onto the gate as he says he was. Even if he was holding on, he clearly was not holding on firmly enough to prevent him from being pushed off.

15. There are a considerable number of cases in negligence relating to accidents suffered by passengers on trains. These are conveniently set out in Charlesworth and Percy on Negligence, 7th Edn., Chapter 10, paras. 67 - 82. The plaintiff relies in particular on Brookes v. L.P.T.B.⁽¹⁾. There, the plaintiff boarded the defendant's train and the carriage door was left open when the train departed from the station. The plaintiff and his friend stood inside the carriage near the door and held the rails provided for the purpose. However, at one stage, the train swayed with the result that the plaintiff lost his balance and fell backwards out of the train through the open door, suffering injuries. In an admirably brief and succinct judgment, Henn-Collins, J. said:-

"It is alleged by the plaintiff that it was negligence on the part of the defendant board to start the train without the doors being shut. To that the answer by the board is that they must, in these days, have regard to the exigence of the traffic. To satisfy the public requirements, the trains have to follow one another at intervals of two minutes of even less in the rush hours. They cannot be allowed to stand at stations for more than 35 seconds or less and in those circumstances, it is not reasonable to suppose that the board's servants can shut the doors. Prima facie, there is no doubt in my mind that it is a negligent thing, on the part of the board, to let a train go out of a station with the doors open."

He went on to say:-

"The whole basis on which we have hitherto proceeded may be altered, but, nonetheless, I see no good reason why the board should start the trains when they can see that a door is open. They have to delay the start of the train by so much time as it will take to remedy that defact and subject to the inconvenience that that would put on the public, I think it is their duty to do it.

It is then said that the plaintiff was the architect of his own wrong in that he was negligent in not holding on tight and not shutting the door behind him. It may be that some day there will come along a passenger who is an habitual traveller on these trains and knows all about open doors and the danger of having one's back to them and not holding on, but I believe the plaintiff when he says he had no experience of underground trains that had not got automatic doors. Accepting that evidence as I do, he had no reason to suppose the door had not shut behind him. I do not see how a passenger can be expected to guard against the danger of which he is not aware and for that reason, I do not think he was guilty of contributory negligence. I find the railway company responsible for the accident that happened."

16. Here, the plaintiff clearly cannot bring himself squarely within the facts of that case, because there the door which was left open was from the carriage whereas here the gate was from the platform. Also the plaintiff in this matter was a regular traveller on the plaintiff's corporation trains. He himself says he was aware of the danger of travelling on the platform and endeavoured to go back inside the compartment but was unable to do so. Nevertheless, the authority clearly is strongly in favour of the plaintiff.

17. The question of overcrowding of trains was considered in Jackson v. The Metropolitan Railway Company⁽²⁾. At p. 209 Lord O'Hagan said :-

"I think that the Plaintiff was entitled to be carrided in a carriage with reasonable accommodation, and that there is evidence that at Gower Street, either from there being too few officials, or from these officials neglecting their duty, too many passengers were put in the same carriage with him, and for any damage resulting therefrom he had a case to go to the jury."

He goes on at p. 210 :-

" The company, I think, ought to take reasonable steps to prevent people getting into carriages already full, and this the Defendants' porter did but it would be going much farther than I think is reasonable to say that the duty of the railway company was to prevent any one from opening the door in order to look into the carriage to see if there was room."

Here, it seems to me there is no dispute that, apart from the announcement, no attempt was made to prevent passengers getting into the front carriages which were full. Nor was there any effort made when it was seen, as it must have been, that passengers were standing on the platforms to close the metal gate before the train departed.

18. In the unreported decision of Rhind, J. in YAN Wing Hong Arthur v. The Attorney General⁽³⁾, the young boy was also riding on one of the defendant corporation's trains, in July 1979. There the plaintiff was one of a group who because it was very hot inside the carriages, either stood on the platforms or, as in the case of the plaintiff, sat on the steps. Unfortunately, the train went past a girder which was projecting out and was knocked off the train steps by the girder. Rhind, J. held that the plaintiff's conduct in sitting actually on the steps of the train was so grossly negligent that there was no liability on the defendant corporation. He did however, say this :-

"If K.C.R. actually knew that a passenger was riding on the steps, it would then have to take reasonable measures to try to save him from his own folly, but, short of such actual knowledge, I do not think K.C.R. is to be faulted for leaving it up to passengers themselves not to run outrageously stupid risks on moving trains like sitting on the steps, or sticking their heads out of the windows or jumping on or off them.

.............

There is a point beyond which people must take responsibility for their own actions, and those who do anything as extravagantly foolish as to ride on the steps of a moving train are well past that point, in my opinion."

19. The question of the notice concerning standing on the platform of the carriage was also considered. There was apparently a conflict of evidence as to whether these signs had been defaced. Rhind, J. came to the conclusion that whether or not the notice was there, the reality of the matter was that a group of teenage boys were not likely to be influenced in any way by the presence of such a notice. While at the time of the accident the plaintiff here was aged 23, I think that while young boys are less likely to be influenced by the notice, the same remarks can, I think, be made about the travelling public generally.

20. There was also evidence in Yan Wing Hong to the presence of the folding gates. Rhind, J. said :-

"Reference was made in the course of the trial to the small folding gates fitted at all the exits of the train. These gates, which were demonstrated to be about two feet high, were all closed according to the guard before the train pulled out from Lowu at the start of the journey. However, it does not seem to have been anyone's responsibility to man them during the course of the journey, and it appears that generally those gates were left open by passengers as the journey progressed. It was not part of K.C.R.'s routine to insist on the gates being closed before a train was allowed to leave any station beyond Lowu. I regard this state of affairs in relation to the gates as a neutral circumstance in so far as the present claim is concerned. It could be relevant to a different type of accident, but not one where a passenger chooses to sit on the steps."

Clearly, in this case, we do have "a different type of accident".

21. These dicta are obiter but I find them of assistance.

Findings Of Fact

22. I find the plaintiff to be an impressive witness and I am satisfied that he was substantially telling the Court the truth, so far as he could remember, of what had happened to him on the 18th January 1983. I am satisfied that when he boarded the train at Mongkok Station there was an announcement made advising passengers to board the train towards the rear. I am, however, also satisfied that this was very much a routine announcement and that the platform was at the time very noisy and that the plaintiff was not aware of the announcement. He entered the compartment of the carriage but at University Station he was obliged to leave it because passengers wished to alight. He was then standing on the platform and he was unable to regain access to the carriage. I am also satisfied that while the whole train was not crowded beyond its normal capacity, nevertheless there were other passengers wishing to board the train at all other intermediate stops and that the plaintiff, justifiably, was reluctant to leave the train and to reboard towards the rear. I am satisfied that there was no attempt made by either the defendant corporation's employees on the train or on any of the stations to advise passengers who were standing on the carriage platforms to move to the rear and to give them an opportunity to do so or to delay the departure of the train until that had been done. I am also satisfied that it must have been perfectly obvious to any such employee that there were passengers travelling on the platform. There was no attempt made by any employee of the defendant corporation to close the metal folding gates on any of the carriages prior to departure of the train from any station. I am also satisfied that the evidence given by the plaintiff was correct in that the folding metal gate on his carriage platform was rusty and appeared to be difficult to close but that he made no attempt to do so. Prior to the arrival of the train at Lowu Station, there was a move of passengers from the compartment of the train which exerted pressure on the passengers travelling on the platform and that at that time the plaintiff was aware that he was in a potentially dangerous situation and that he held onto the metal gate in order to stop him being pushed off the train. That he was unsuccessful in doing so was because he did not anticipated being humped in the manner that he was by the lady with the bags on the bamboo pole. At this time, however, the plaintiff was carrying one of his own bags in one hand and a satchel over the shoulder of the other arm. The plaintiff was bumped off the train and fell beneath the wheels suffering the injuries which are not in dispute.

23. Having regard to the relevant authorities and in particular, the ones to which I have referred, I am satisfied, that from these facts, the defendant corporation owed a duty of care to the plaintiff as one of its passengers and that it failed in that duty. I am satisfied it was negligence in the following respects :-

a) Failing to take reasonable measures to move passengers from the front end of the train where they were overcrowded to the rear where there was accommodation available.

b) Allowing the train to leave University Station and the other intervening stations between there and Lowu while passengers were on the platform of the plaintiff's carriage.

c) Failing to close the folding metal gate on the plaintiff's platform prior to departure from University Station and from the intervening stations when it could clearly be seen that passengers were standing on the platform, that the carriage was overcrowded and there was a danger of passengers falling from the platform.

Contributory Negligence

24. The somewhat more difficult question then arises as to whether the plaintiff has been guilty of contributory negligence and, if so, to what extent. There is undoubtedly a duty on a passenger to take reasonable precautions to protect his own safety. It was not negligence on the part of the plaintiff to board a carriage towards the front of the train where initially there was adequate accommodation while later on he found that he was pushed out of the compartment onto the platform and realised there was some danger. I do not consider he was negligent in failing to move to a rear carriage as he did not realise that accommodation was available there and he did have reasonable grounds to doubt if he would be able to re-board the train if he left it. The sole question which concerns me is whether the plaintiff could, if he had made reasonable efforts, have returned to the compartment after the passengers had got off at University Station. He said that no passengers got on the train at University Station although some wished to do so. I am satisfied from Mr Hok's evidence that there was accommodation available at the rear of the train and that these passengers simply could not get onto the plaintiff's carriage but they could, and no doubt did, get onto the train. I am satisfied that as passengers had got off the carriage, there must have been room inside if the plaintiff and the others on the platform had made reasonable efforts to return there. I am, therefore, of the view that the plaintiff was negligent in not returning to the carriage although I also accept that it may well not have been easy to do so. I am, therefore, of the opinion that the plaintiff is liable for contributory negligence to the extent of 20% of the damage suffered.

Damages

25. The medical evidence as to the injuries suffered by the plaintiff and the consequences thereof are not substantially in dispute. Dr. Peter Horsfall gave evidence for the plaintiff and also for the plaintiff; medical reports by Dr. Wedderburn were submitted by agreement. For the defence, Dr. York Chow gave evidence.

26. Dr. Wedderburn submitted two reports, one dated the 12th October 1984 and another on the 7th August 1985. As usual they are comprehensive and helpful. He says that the plaintiff suffered an amputation of the left arm and leg and a degloving injury of the right heel. He has had a number of skin graft procedures for the right heel including a Fascia Lata graft. He had four such skin graft procedures. He was given an artificial arm and underwent a year's training but he gets cramp in the shoulder and he thinks the arm is useless. The arm was removed 7 inches below the shoulder joint and to the end of the stump there is only some five inches of muscle. The artifical arm has movement of the thumb and forefinger only and this is achieved by force transmitted down wires from a shoulder girdle. He said only about 10% of persons supplied with such an arm use it and the majority only for cosmetic reasons. He suffers a marked "phantom limb" symptom, that is, he has pain in the absent limbs. These symptoms usually disappear after two to three years but they can form an intractible problem. He was married before the accident and has no problem with sex and has now two children. As a result of the pain due to the skin graft operations, he was given a pain killing drug, Doloxene, which is, however, mildly addictive and he would have to be careful in the use of this drug.

27. The stump of the left leg is 10½ inches to the end and 8½ to the margin of the stump and there is poor soft tissue over the end. A 7 inch stump is regarded as adequate and his is therefore somewhat longer.

28. On the right heel, there is a 2 x 6 inch grafted area and the movement of his right ankle is restricted.

29. These total injuries were such as, in Dr. Wedderburn's opinion, to add up to a 76% impairment of the wholeman. He also considered that, so far as employment was concerned, he was 100% permanently disabled.

30. In his final report of the 2nd April 1986, Dr. Wedderburn said that he was not surprised that at that stage the plaintiff did not in fact used his artificial arm. He said that the amputation of the left leg at mid-thigh then had a poor stump and there was no heading of muscle. When he examined him, there was a shallow ulcer 2" x 1" on the scar on the outer side of the stump. He said that the plaintiff only wears the artificial leg when he goes out because the skin tends to break down if he walks long distances and at home he used a wheelchair. The difficulty with a wheelchair was, however, exaggerated because he had only one arm. On his right heel where a full thickness graft was applied, the heel is bulbous with puffy underlying tissue and there was a scar and a open abrasion ulcer ¾" x ½".

31. Dr. Wedderburn did not think it practical for the plaintiff to perform any work except sedentary work in the immediate vicinity of his residence and ideally he should be able to reach the place of work by himself with a wheelchair. His mobility and range of travel would be increased if he were to have an electric wheelchair. The radius from the house where he was then living in Oi Man Estate with an electric wheelchair is 3-4 miles but in crowded housing estates the problem of storage of the chair, which is quite bulky and the re-charring of the battery forms a problem. The chair cannot be folded like an ordinary wheelchair but the guiding system is simple and all the controls can be managed with one hand. In this latest report, Dr. Wedderburn revises his estimate of total disablement to 74% of the Wholeman. He said that despite his difficulty, the plaintiff seemed well adjusted to his life and showed no signs of depression but a man with his disability must necessarily have periods of depression. That was in fact noticeable in Court.

32. Dr. York Chow was called by the defendant. He is an Orthopaedic Specialist at Queen Elizabeth Hospital and has very extensive experience in the treatment and rehabilitation of amputees. He produced three medical reports dated 18th November 1985, 14th November 1986 and finally 17th January 1988. In his report of 14th November 1986, Dr. Chow says that he basically agrees with Dr. Wedderburn's estimate of a 76% impairment of the wholeman. He said that although he believed his residual disability is there, he should be able to perform some assembly type sedentary work with some adaptation but it seems he had no chance of being employed under the present labour conditions in Hong Kong. He therefore, also agreed that he suffered from a total loss of earning capacity. In addition to the loss of his left arm and most of his left leg, there was also the limited ankle movement of his right leg and he required a special shoe for that foot. The skin of his right heel and left thigh stump tends to break down with prolonged walking. This is related to the skin graft covering these areas. Dr. Chow was of the opinion that a manual "one-arm drive" wheelchair was the most useful one that the plaintiff could have. He said that there was probably no need for an electric wheelchair as Mr Lai's arm is fairly strong.

33. Dr. Chow said the Government hospital should continue to look after the regular follow-ups which the plaintiff would require because it was only in Government hospitals that the prosthetic and orthotic skills were available. They also had their occupational therapy departments.

34. Dr. Chow considered that an electric wheelchair would be of little value to the plaintiff because it has a much bigger turning circle than a manual one and is eight to ten kilogrammes heavier. It cannot be folded in the same way that a manual chair can be and therefore cannot be put onto public transport such as a taxi. He said he only recommended the use of an electric wheelchair if the patient had lost the use of both upper limbs. The plaintiff was strong and could manage a "one-arm" wheelchair quite well. He said he considered that generally electric wheelchairs were not suitable for the crowded pavements of Hong Kong. A suitable manual wheelchair would cost about $5,550. If such a wheelchair was used a lot, it would last some four to five years, but if only used for outdoor activities, it would last for about 10 years. However, it would, in either case, require regular maintenance.

35. He considered that the plaintiff could play some sport although obviously not as much as an able-body person. Special programmes had been set up by the Rehabilitation Society and a wide range of sporting activities were available, such as basketball, tennis, fencing, archery, air rifle shooting, swimming. So far as transport was concerned, there were the Rehab. Buses and the Disabled Sport Association provided some transport.

36. He said that the plaintiff should be able to wash himself and also could manage to operate a clothes washing machine.

37. The plaintiff had been employed for a while in a factory which was quite a distance from his house and the public transport involved plus walking made the income he received not cost effective. He could work if a job could be found nearer to his home and he agreed with Dr. Horsfall that with determination, the plaintiff probably would be able to get some sort of a job.

38. So far as the claim for special food was concerned, he said that the plaintiff did not need a special diet and had no medical condition that required such special food. He said that he agreed with Dr. Wedderburn that while a full time servant would be useful, it was not essential and his requirements in old age were very hard to predict. There could well be some degeneration in his mid-50s which would mean he would need more help. He agreed with Dr. Horsfall that the plaintiff would probably have to spend about two weeks every year in hospital.

39. Finally, Dr. Horsfall, who is a physician but has been doing extensive work in the examination of injured persons for the Legal Aid Department, also prepared three reports. These are dated the 4th July 1986, the 30th December 1986 and the 29th June 1987. He said that the equipment which Mr Lai needed were as follows :-

1) Artificial leg costing about $4,500 which required annual repairs round about $250 per year and would need to be renewed every two to three years.

2) A special walking stick to assist him when he was walking with his artificial leg. This should last for several years.

3) A special boot for his right foot which would require repairs and renewal once every two to three years depending on usage.

4) A mechanical wheelchair which would also require maintenance in the same way as a bicycle does which he estimated at $3,000 - $4,000.

5) The artificial upper arm, as this was worn largely only for cosmetic reasons, it would not require periodical replacement.

40. In his evidence, Dr. Horsfall agreed that the plaintiff had a 100% loss of earning capacity. He said, however, that if he was determine to do something, he could probably get some form of employment but it would be difficult for him to get to and from work. He said that he also agree with Dr. Chow that the plaintiff could look after himself with great effort but would be much easier with some domestic help. He could go shopping but it would be difficult, there were steps and slopes in the Oi Man Estate. If the plaintiff did not have the services of his wife or mother, he would require a part-time domestic help for about two hours a day. He also agreed with Dr. Chow that the plaintiff should seek future medical advice and treatment in a government hospital in respect of his present injuries. He also agreed that the plaintiff required a mechanical wheelchair but the electric ones were dear, costly to run, not much good on steps and had a very big turning circle. They were also difficult to get onto public transport.

41. He said that in regard to tonic food that the Chinese people do have a strong belief in the value of these foods and that some expenditure was reasonable. He thought that a period of two to three months would be reasonable for a human body to return to normal metabolism after such a traumatic accident as the plaintiff had suffered.

42. Further evidence as to damages was given by the plaintiff himself, his former employer the New China Restaurant, his wife Madam Lai Cheung Wai-chun and his mother, Madam Poon Sze-mui. I found them all to be honest and creditable witnesses and so far as his wife and mother were concerned deserving of great credit for the way that they have stood by the plaintiff and given him all the help and encouragement they could.

43. The plaintiff said that following his discharge from hospital where he was some 14 months he got a job, through the Labour Department, at the A.M. Tool and Die Company at Kwai Chung , as a metal polisher. He worked there from October 1984 to June 1985. He received $40 per day but had to be accompanied to and from work which required two bus trips each way. This meant that there was not much of his pay left after travelling expenses were paid. He said he found difficulty with the job and was not as good as the other workers. Finally there was an incident when a grind-stone broke and he became very frightened and left the job. He has not applied for another one but would like to work if suitable employment can be found.

44. The plaintiff's wife, Madam Lai Cheung Wai-chug said that she helps him each day in dressing and washing. If he goes out he has to be accompanied and she, together with his sister used to go with him when he was working at Kwai Chung. He left early and did not get home until after 8 p.m. as they had to avoid the rush hours on the buses.

Pain, Suffering and Loss of Amenities

45. The starting point for an assessment of damages under this heading must be Lee Ting Lam v. Leung Kam-ming⁽⁴⁾. There the Court of Appeal laid down that there were four broad categories of injury ranging from the serious to the totally disasterous. The injuries here are either within the second category, that of substantial injury or the third one of gross disability. I am satisfied that the plaintiff's injuries do fall within that third category for which damages ranging from $100,000 to $150,000 were considered appropriate in 1980. In Lee Ting Lam's case, an award of $150,000 was reduced to $120,000. That case concerned a young man who had lost his right leg. As a result of that he had to use crutches. There was very severe scarring and that was likely to produce grave physical and psychological problems in later life. It was considered that these injuries brought him from out of the second category and into the third. Although there are apparently not the psychological problems that the plaintiff in Lee Ting Lam was faced with, here the plaintiff has lost virtually his entire left arm and most of his left leg. He also has a limited use of his right foot, and these are all permanent disabilities. I also accept his evidence that during the course of his 14 months in hospital, he did have very severe pain indeed. Before his accident, the plaintiff was an active sportsman and could look forward to a very full life with his new bride. His social and sporting activities are now obviously very restricted, although no doubt he can take part in some such activities if he so chooses. I consider that on the basis of $120,000 being the appropriate award in the case of Lee Tin g Lam, that here an award of $140,000 would be appropriate based on the level of damages in 1980. This should be increased at a compound rate of 10% per annum. (Ng Yat Ying v. Law Ming Kwan Civil Appeal No. 130 of 1987). This means that the $140,000 should have added to it 10% compound interest for a period of eight years. This comes to a rounded sum of $300,000 which I award for pain, suffering and loss of amenities.

46. In deference to Counsel who have been very helpful I should mention that I have been referred to several other cases as to quantum for pain suffering and loss of amenities. I have not listed them but have considered them and found them helpful.

Pre-trial Loss of Earnings

47. At the time of the accident, the plaintiff was employed as an assistant cook at the New China Restaurant and his salary was then $3,000 per month basic and, with fringe benefits, $3,600. His prospects of promotion according to a Mr Chan Fook-san, the restaurant's manager, were good and he would have expected him to have received promotion to full cook by about July 1985. The Restaurant had three grades of cook, that is assistant cook, cook and senior cook. He would have been promoted to cook automatically when he became competent enough but promotion to senior cook would have depended upon vacancies. There are two senior cooks in the Restaurant, both of whom were employed prior to the plaintiff. Mr Chan, however, agreed that there was a great deal of mobility with staff within the restaurant trade in Hong Kong and it may well be that if the plaintiff's prospect of promotion within Mr Chan's restaurant were limited, he may have gone somewhere else. There were also some statistics from the officers of the Commissioner for Census and Statistics which indicated that in June 1987, the average monthly salary of a cook was $4,400. From this evidence I propose to take the figure of $4,000 as representing the loss of earnings of the plaintiff between the time of the accident and the trial. This is a period of sixty months and that figure is therefore $240,000. From this must be deducted the amount that the plaintiff earned when working in the metal polishing factory of $16,000, giving a net sum of $224,000.

Post-Trial Loss of Earnings

48. It is difficult to come to an accurate figure as to what the plaintiff's post-trial level of income would have been had he not been disabled. I accept the unanimous medical evidence that while the plaintiff might, with a great deal of determination, be able to find some employment, it will always be difficult and he must be regarded as 100% disabled. The Census & Statistics Department give the level for a cook in June 1987 at $4,403 per month on average. Mr Chan Fook-sun said that today a senior cook in his restaurant is paid $6,000 per month. He was not specifically examined as to the plaintiff's prospects but he did say that he considered that he would, in normal course, have been promoted to senior cook, but it would have depended on vacancies. I therefore, find as a fact that the plaintiff did have good prospects and would have by today been employed as a full senior cook in a restaurant in Hong Kong and earning a salary of $6,000 per month. I am also satisfied that bearing in mind the age of the plaintiff at the time of the accident, 23, and his age today, 28, a multiplier of 15 is the proper one for the calculation of post-trial loss of earnings. This gives a figure of $1,080,000.

Loss of Earnings of Plaintiff's Mother

49. The plaintiff's mother, Poon Sze Mui, said that at the time of the plaintiff's accident she was working as a cleaner at a restaurant in Nathan Road. Her salary, together with allowances, was $2,600 per month. After the accident, in order to devote herself to looking after her son, she left her job but employed a substituted worker so as to retain the position when she could once more resume employment. She said she paid this substitute worker $90 per day and did this on an average for about 27 days a month. She was away from work for three months. I accept Madam Poon's evidence on this and make an award for her loss of earnings of $2,400 per month for three months giving a total of $7,200.

Value of Services of Wife

50. Based on the decisions in Donnelly v. Joyce⁽⁵⁾, the plaintiff claims for the services of his wife in looking after him. See also LI Ting-chun v. LI Ting Fai, deceased⁽⁶⁾. Following the decision of Rhind, J. in that case I consider that a sum of $2,500 per month is reasonable for the value of the supervision and care and attention which the plaintiff's wife has rendered and will be required to render for the rest of the plaintiff's life. While I have set a figure of 15 as the multiplier for the plaintiff's loss of earnings, I consider that a different figure should be used for this calculation because for the reasons given by Rhind, J.; the loss of future earnings is related to his estimated future working life whereas his need for supervision is related to the longer period of the whole of his expected natural lifespan. I therefore use a figure of 18 for the multiplier in this case. This gives a figure under this head of $540,000.

Special Tonic Food

51. There was a substantial claim made for this item. The medical evidence was that there was no specific medical requirement for special food as the plaintiff's digestive system was in no way affected by the accident. However, undoubtedly, there is a strong psychological benefit to a patient who had suffered the type of severe accident which befell the plaintiff in this case and I have no doubt that the support of his family in bringing him what both he and they regarded as food which would assist in his recovery has a beneficial effect. I consider that a sum of $500 per month would be reasonable and in view of the very severe injuries received by the plaintiff in this case, I will allow that for a period of six months, giving a total of $3,000 for special food.

Future medical care

52. I have no doubt, whatever, that the plaintiff should seek medical care in a government hospital and this I consider, should be fixed at $450 per annum with a multiplier of 18; this gives a figure of $8,100.

Artificial Limbs

53. It is agreed that the plaintiff was fitted with an artificial left leg which costed $4,500 and that this requires annual repairs at $250 per year and needs to be renewed every two to three years. I therefore allow under this head:

54. The plaintiff was also fitted with an artificial left arm at a cost of $2,500 and he is entitled to that sum. It would seem, however, that he has used it very little and I think there is little chance that he will use it more in future and it would not, therefore, require maintenance or replacement.

Wheelchair

55. It is agreed that the plaintiff requires a special manual wheelchair at a cost of $6,550. There is also the question of annual maintenance of this wheelchair and its periodical replacement. The replacement, of course, will depend very much on the amount of use to which it is put. I consider that it would require to be replaced approximately every six years and therefore I set a figure of $650 per year for maintenance to be multiplied by 18 which gives a total of $11,700 and for three renewals at $6,500 each, a total of $19,500.

56. The plaintiff has claimed for an electric wheelchair which would cost approximately $38,000. On the evidence, while I can see that he might have some use for such a wheelchair, I do not consider that it is necessary and I agree with the evidence that it would be more of a disadvantage in that it is much heavier, it has a much bigger turning circle and cannot be put onto public transport. I therefore disallow the claim for this item.

57. It is agreed that the plaintiff requires two pairs of special shoes at a cost of $300 per pair and they required annual renewal. I therefore fix a figure of $600 under this item x 18 giving a total of $10,800.

58. The plaintiff requires an orthopaedic walking stick with a cuff. It is agreed that this costs $520 and needs to be renewed every four to five years. I therefore fix a figure for this again of $520 x 3 which gives a figure of $1,560.

Present Wheelchair

59. It was agreed that the wheelchair which the plaintiff now has cost $675 and he is entitled to payment for that amount.

Travelling Expenses

60. A claim was made for travelling expenses for the plaintiff's family to visit him while he was in hospital. I consider that it was not unreasonable for the plaintiff's family to use taxi to visit him at the hospital and this was done from the 18th January 1983 to the 16th March 1984. There was little evidence as to the cost of a taxi at that time but I fix a figure of $12 per day for taxi fares which comes to $5,040.

Summary of Damages

General damages :

Special damages :

61. Each item however must be reduced by 20% i.e. $448,615 due to the plaintiff's contributory negligence giving a balance of total damages of $1,794,460.

62. There will be interest on the award of general damages at 2% per annum from the date of service of the writ and on the special damages, apart from the post-trial loss of earnings and value of wife's services, at 3½% from the date of the accident.

63. There will be an order nisi that the defendant pay the plaintiff's costs, to be taxed in accordance with the Legal Aid Regulations, such order to become absolute unless application is made within 14 days. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

64. There will be general liberty to apply.

65. Finally I would like to express my gratitude to all Counsel for their diligence and help to me in this matter both as to liability and quantum both of which were not without difficulty.

(1) [1947] 1 A.E.R. 506

(2) [1877] 3 A.C. 193

(3) H.C.A. No. 210 of 1982

(4) [1980] H.K.L.R. 657

(5) [1973] 3 W.L.R. 514

(6) H.C.A. No. 1257 of 1980