LEUNG SHIU MAN formerly t/a HONG LIK CLEANING SERVICING CO v. CHU WAI MING t/a MING SHUN CLEANING SERVICE CO AND ANOTHER

HCPI 879/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 879 OF 2005

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J U D G M E N T

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Introduction

1.  This case comes about as a result of a road traffic accident which occurred on 20 May 2004.  The Plaintiff, Mr Leung, was driving a 24-ton refuse collection lorry HM247 on Fo Tan Road, Shatin at its junction with Shan Mei Street when its brakes failed causing it to collide with two stationary vehicles in front of it that were waiting at the traffic light.  As a result of the collision, the Plaintiff sustained head injuries for which he claims damages. 

2.  In order to decide the outcome of the action, I need to determine who had the duty to keep this lorry in good repair.  The Plaintiff says it was Mr Chu, the 1^st Defendant, who was hiring it to him at $400 a day.  For his part the 1^st Defendant says that this was the Plaintiff’s obligation to whom he was selling it on hire purchase.  The Plaintiff is also making a concurrent claim against the 2^nd Defendant which was the lorry’s registered owner who he submits also had a duty to keep the lorry in good repair, the 2^nd Defendant having let the 1^st Defendant into possession under a written hire purchase agreement with it.

3.  The police who investigated the accident interviewed the Plaintiff and he told them that it was he who was required to keep the vehicle in good repair.  Having regard to that admission, they charged him with an offence of driving a defective vehicle, to which he pleaded guilty in the Magistrates Court and was fined.  His explanation for that admission is that he was protecting the 1^st Defendant because he wanted to preserve his good business relationship with him so that he might continue to do refuse collection work on his behalf.

The Link Between the Three Parties

4.  This case has required me to look into the way that the refuse collection business is conducted, much of it done by individual sub-contractors like the Plaintiff who do particular jobs on behalf of larger operators such as the 1^st Defendant who, in turn, are contracted to even larger refuse collection companies such as the 2^nd Defendant.

5.  It is helpful to begin with the 2^nd Defendant first and work down the chain, as it were, to the Plaintiff.  The 2^nd Defendant is in a substantial way of business and operates a number of lorries which it uses in performing the various contracts which it has for the collection of refuse.  It would appear that companies such as the 2^nd Defendant who take on a lot of such work are not in a position to do all of it themselves by using their own staff and lorries.  In such circumstances, they sub-let work to smaller contractors such as the 1^st Defendant who may operate three or four lorries to carry out work on their behalf.  No doubt contractors such as the 2^nd Defendant will make a profit by paying their sub-contractors less than they receive from the organizations to whom they are contracted to collect refuse for.

6.  In their turn smaller operators like the 1^st Defendant may not be able to do all the refuse collecting that they are contracted to carry out.  When that occurs they will look to individual sub-contractors like the Plaintiff to do the spare refuse collection for them for payments that are less than they are being paid by their customers above them in the chain.

7.  This is precisely the arrangement that took place here.  The Plaintiff had previously been employed by a company called Foks to drive refuse collection lorries.  This was in 2002.  He had previously been employed by Foks, left them to do other work and then returned in 2002 as a driver.  Foks subsequently went into liquidation and as a result of that the Plaintiff was able to obtain possession of a 10-ton lorry of their’s as well as some of their refuse collection contracts.  Thereafter, sometime in 2003, that vehicle was scrapped.  Subsequently, with the assistance of a Mr Lo, his brother-in-law, he obtained another 10-ton lorry on hire-purchase in order to continue with his business.  The hire-purchase agreement needed to be in Mr Lo’s name because the Plaintiff was on a credit black list.  He could not obtain hire-purchase facilities in his own name.  The hire-purchase payments for this vehicle were $4,000 a month but he has explained that he would pay his brother-in-law $6,000 a month as reward for taking on the hire-purchase commitment on his behalf.  That situation continued until March 2004 which represents the starting point for the dispute that I am required to resolve.

The Nature of the Contractual Arrangements Between the Plaintiff and the 1^st Defendant

8.  As at March 2004 the Plaintiff, as I have just described, was operating his own business using a 10-ton lorry obtained on hire-purchase through his brother-in-law.  Since 26 May, 2003, he had registered his business as the Hong Lik Cleaning Servicing Company. [see page 68-1 Bundle 1].

9.  His contracts were with a number of contractors including the 1^st Defendant who operated his business under the name of Ming Shun Cleaning Services Company.  The Plaintiff says that by that time he was grossing $50,000 a month which provided net earnings of $20,000 after deducting the cost of running the lorry and wages to casual helpers that he would employ as and when required.  He worked long hours from as early as 6 a.m. to 10 p.m. and on occasions even later than that.

10.  The Plaintiff’s case is that the 1^st Defendant approached him and suggested that he might do better by using a larger, a 24-ton, lorry.  This increased capacity would mean that he could carry out more jobs and even finish the work earlier.  The Plaintiff says that he agreed with the 1^st Defendant to hire from the 1^st Defendant, a 24-tonner at the rate of $400 a day, which translated to $12,000 a month based on a 30-day month.  He would need to pay the 1^st Defendant two months’ charges in advance, that is to say $24,000.  The Plaintiff would be responsible for the fuel and oil charges.  The 1^st Defendant would bear the cost of the maintenance and repair of the lorry for which the Plaintiff would deliver the vehicle to the 1^st Defendant, or to his order, for those repairs to be carried out.  An exception would be made for small running repairs including tyre replacements which the Plaintiff would carry out and be reimbursed by the 1^st Defendant.  On the basis of these basic conditions, the Plaintiff says that it was agreed that the 1^st Defendant would give the Plaintiff a higher priority as between himself and the 1^st Defendant’s other sub-contractors for work to be done on the 1^st Defendant’s behalf.

11.  The 1^st Defendant’s case differs materially on a number of important issues.  Firstly, and most importantly, under the transaction in respect of the lorry, which turned out to be HM247, the 1^st Defendant agreed to obtain it on the Plaintiff’s behalf on hire-purchase and in this regard he would act as the Plaintiff’s agent.  What happened was that the 1^st Defendant entered into a written hire-purchase agreement for the lorry with the 2^nd Defendant, this being a vehicle which the 2^nd Defendant already had on hire-purchase from a finance company and which at the time was surplus to its requirements.  The arrangement was done in this way because, as I have already observed, nobody would enter into a hire-purchase agreement with the Plaintiff because of previous default and in any event he was not known to the 2^nd Defendant.  The hire-purchase agreement between the 1^st and 2^nd Defendants is one dated 15 March 2004 starting at page 114-1 of bundle 1.  The material parts of the agreement appear to be the following:  The purchase price was expressed to be $200,000 to be paid by 16 equal monthly instalments of $12,500.  The 1^st Defendant was to be responsible to comprehensively insure the lorry and pay for all its running expenses including repairs and maintenance.  The 1^st Defendant would bear all criminal and civil liability arising from any traffic accidents.  As between these two contracting parties, there was agreement [clauses 4 and 5] that the 2^nd Defendant would be able to deduct the instalments from what it owed to the 1^st Defendant in respect of sub-contract work done for it by the 1^st Defendant and that the 2^nd Defendant would not be required to transfer ownership of the vehicle until the 1^st Defendant had cleared all outstanding debts that he owed the 2^nd Defendant and its principal Madam Wong Lai Fong. 

12.  It can therefore be seen from a reading of this hire-purchase agreement that this was very much a home-made document reflecting the on-going business relationship of the two signatories.  There is no mention of the Plaintiff.  Madam Wong’s evidence is that upon the taking of possession of the lorry by the 1^st Defendant, it would be up to him who drove it and under what arrangement that driving was done.  All that concerned her and the 2^nd Defendant was that they were paid the hire-purchase instalments in timely fashion.

13.  The 1^st Defendant’s case is that the Plaintiff would pay the $12,500 instalments (not $12,000) to the 2^nd Defendant through the 1^st Defendant.  Unhappily, in this matter neither witness has given consistent evidence and neither witness has kept written records which can be relied on now to support their respective versions or to fill the court with any confidence that such documents could be relied on in arriving at any necessary finding of fact.

14.  Unfortunately, the way the Plaintiff and the 1^st Defendant do business is slack in the extreme.  It is difficult to see how either of them could have made any reliable tax returns to the Inland Revenue Department.  Their records are either suspicious on their face or incomplete and usually both descriptions can be said to be simultaneously applicable.  Whilst I have no doubt that both of these men are very hard workers, doing hard and unpleasant work over long hours each day, their paperwork is very poor indeed.  Many payments pass between them in cash, although I have seen some cheques.  There are no ledgers and as they keep precious little by way of vouchers and receipts or bank statements they would have no realistic prospect of surviving an audit by the Revenue if they were subjected to one.  The 1^st Defendant has attempted to produce some justification for his account with the Plaintiff which could have been written on the back of an envelope, in fact it was on a loose piece of paper.  One might well be forgiven for asking why accounting records should be important in this case where all I need to decide is which of the two of them bore the responsibility to keep HM247 in good repair.  Nevertheless, where there is such a fundamental disagreement between the two of them as to the basis upon which the Plaintiff was allowed to use the lorry, simple hire or hire-purchase, the accounting records and from that the business sense of whether the 1^st Defendant would provide the vehicle for a monthly hire charge of $500 less than his hire purchase liability to the 2^nd Defendant [$12,000 as against $12,500] this has required me to consider the financial implications of all of this and any accounting records that are available.

15.  This apart both men have been inconsistent in their version of the facts.  In approaching their evidence, I need therefore to be extremely careful in deciding what I can and cannot accept from either of them.

The Evidence

16.  The Plaintiff was not a good witness and perhaps the best point that can be made on his behalf is that neither was the 1^st Defendant.

17.  Having taken possession of the lorry on 16 March 2004, he drove it without mishap until 18 May 2004 when he noticed that there was an oil leak from the brakes.  What then happened is the subject of an important dispute on the evidence which goes to the decisive issue of who had the duty to keep the lorry in good repair.

18.  The plaintiff says that when he told the 1^st Defendant of the problem, the 1^st Defendant asked him to take the lorry to the Kwong Fuk Market the following morning where he would be met by ‘Ah Sum’ an employee of the 1^st Defendant.  ‘Ah Sum’ would drive a replacement lorry for the Plaintiff to use whilst HM247 was being repaired and take HM247 to a garage for it to be repaired.  That is the account that the Plaintiff gave in his witness statement.

19.  His evidence before me differed because whilst he accepted that ‘Ah Sum’ had come along to collect HM247 and to deliver a replacement lorry for him, he now said that ‘Ah Sum’ had come along with a driver.  Mr Tim Kwok, who appears for both Defendants, says that the Plaintiff, whose account in this respect is untrue, has had to change his version of this because of the contents of the 1^st Defendant’s supplemental witness statement dated 27 February 2007, the day before the trial started.  In that statement [para. 10] the 1^st Defendant indicated that ‘Ah Sum’, who was a mainlander, had no Hong Kong driving licence and could not have driven the replacement to the Plaintiff and HM247 to the garage for repair.  As a result, submits Mr Kwok, the Plaintiff has had to change his evidence and say that ‘Ah Sum’ had accompanied a driver and that he had not been driving.  In his oral evidence he has tried to explain the matter by saying that the expression used by him in his witness statement was ‘delivered’ [para. 11 page 58 Bundle 1] and not ‘driven’ and that his witness statement is not inconsistent with his oral evidence which was fuller to the extent that it has explained that a driver had come along with him.  This cannot be right says Mr Kwok because the Statement of Claim is unambiguous — [para. 6] — which deals with this issue asserts that: 

“… the Plaintiff returned the vehicle to the 1^st Defendant via a driver called ‘Ah Sum’ who was an agent and/or employee of the 1^st Defendant, for the purpose of enabling the 1^st Defendant to arrange for the maintenance and repair of the vehicle.  At the same time ‘Ah Sum’ delivered to the Plaintiff a substitute and/or replacement vehicle for use that day” 

Therefore, it is submitted that the Plaintiff has been caught out in a lie in order to put together an account that the 1^st Defendant had arranged to collect the lorry and have it repaired in order to support his case that the 1^st Defendant had the responsibility for the repair and maintenance of the lorry.

20.  As to this incident, the 1^st Defendant’s evidence is that the Plaintiff, having informed him that HM247 needed repairing, asked for a replacement lorry whilst it was being repaired.  The Plaintiff himself took HM247 to the Lam Kee garage the night before the repairs were to be carried out that is to say on 18 May and he collected the key for the replacement lorry, which had been left there for him, from ‘Ah Sum’ who was based at the garage and had sleeping accommodation there.  Nevertheless, this account is not free from difficulty either because in his original witness statement of 20 March 2006, the way that this was put at paragraph 6 [page 108-4 Bundle 1] if not completely at odds with the 1^st Defendant’s evidence at the trial, is expressed somewhat differently.  He says there:

“On the 18 March 2004, [the Plaintiff]called me and requested me to lend him one garbage truck for him to use.  Because that truck HM247 needed to repair, so I appointed one of my staff to drive a substitute truck and give it to [the Plaintiff] at the location designated by the [the Plaintiff].  But [the Plaintiff] did not tell me what happened to that truck HM247 and needed to repair.”

21.  He then ‘corrected’ this version by para.10 of his later statement of 27 February 2007 [page 122 Bundle 1] by providing the account that I have set out at the start of the previous paragraph which he says is the correct way of stating the facts on this issue.  Whilst the two versions are not completely incongruous the differences are rather obvious, nevertheless both are consistent in saying that it was the Plaintiff who took the lorry so that it might be repaired and it was not the 1^st Defendant who collected it and took it to be repaired.

22.  The 1^st Defendant’s version is then amply corroborated by what the Plaintiff told the police, that it was his responsibility to keep the lorry in good repair.  It is this which represents the high watermark of the 1^st Defendant’s case.  I will come to the Plaintiff’s explanation for this submission presently.  The admission is at page 108-14 [Bundle 1].  He was asked by the police officer interviewing him:  “Who is responsible for the repair and maintenance of the truck HM247?”  His answer was:  “Its me, if the mechanical parts of the truck have problems I will take it to repair.”  This interview took place on 3 July 2004.  The police also interviewed the 1^st Defendant about this on the same day and he also told the police that the Plaintiff was responsible for the repairs to the lorry [Bundle 2 page 264-2].  That admission by the Plaintiff was then followed up by his guilty plea in the Magistrates Court on 3 November 2004 [Bundle 1 page 85-1 et seq.].

23.  This matter does not stop there because although the Plaintiff has told me that the only reason why he made that admission was to protect the 1^st Defendant and in that way to preserve their hitherto good business relationship — which carries the necessary implication that the admission was deliberate, albeit false — it has to be noted that he then tried to retract that admission on the basis that it had been made inadvertently.  The timing of this is also material.  On 1August 2005, the Plaintiff by then having gone to solicitors, attended the police station in order to retract his admission that it was he who responsible for keeping the lorry in good repair.  The police refused to take a further statement from him, they being of the view that so far as they were concerned the matter was now closed.  On 8 August (this being about 13 months after the original admission) his solicitors wrote to the police [Bundle 2 page 285].  The material parts of the letter are as follows:

“1.     We are instructed that on 1^st August 2005 at about 7:00 p.m. our client visited your Police Station with an intention to give to you for record a supplemental/further statement as to fact concerning the above accident, particularly his intended denial of the responsibility and/or liability for the maintenance of the vehicle involved in the accident, namely a medium goods vehicle bearing registration no.HM247 notwithstanding that our client had inadvertently admitted such responsibility and/or liability in his statement given to your Police Constable Officer No.PC47112 on 3^rd July 2004 at your Police Station (a copy of which is enclosed for your ease of reference).

2.      Our client’s above intention was expressly said to your Police Constable Officer No.PC58632 at your Police Station during his visit aforesaid.

3.      Despite our client’ request made to your Police Constable Officer No.PC58632 during his visit aforesaid, our client was told that the Police file records concerning the above accident were closed and no supplement/further statement would be taken from our client.

4.      On the advice and assistance of your Police Constable Officer No.PC58632, our client was able, at about 11:30 p.m. on 1^st August 2005, to have a telephone conversation with your Police Sergeant No.20193, Mr Yeung, who kindly told our client the normal procedure of your Police Station in taking/keeping statements of witnesses in traffic accidents and that as the Police file records concerning the above accident were closed, no supplement/further statement would be taken from our client by your Police Station.”

The important part of the letter is the reference to:

“… our client had inadvertently admitted such responsibility and/or liability.  This implies that he had made the admission mistakenly whereas at the trial his evidence was that he had done so deliberately and advisedly in order to protect the 1^st Defendant and his business relationship with him.  But even so, the Plaintiff’s evidence in this regard has been far from consistent.  The reason for the inadvertence on his part appears in the Plaintiff’s witness statement”  [Bundle 1 page 59 para. 15] 

He said:

“… It might be due to the influence of medication, I inadvertently gave to the Hong Kong police on or about 3 July 2004 a statement … admitting responsibility to take care of the repair and maintenance of the vehicle.”

At para. 17 [page 60] he said:

“As time goes by, I became aware of my inadvertence in wrongfully admitting the liability to take care of the repair and maintenance of the vehicle.  In late July and early August 2005 both my solicitors and I made various attempts to given the Hong Kong Police Force supplemental/further statement as to fact concerning the accident with my intended denial of responsibility and/or liability for the maintenance and repair of the vehicle but it was all to no avail.”

24.  At the start of the trial therefore this was the line that the Plaintiff was taking on the admission.  The reason that the admission had been made in order to protect the 1^st Defendant first appeared in the course of his examination in chief.  This came only after the court had been informed by Mr Kwok that a subpoena was to be applied for to get the officer to whom the Plaintiff had made the admission to come to court in order to contradict any suggestion that when he made the admission the Plaintiff appeared to be suffering from the effects of medication.  It is therefore suggested by Mr Kwok that the Plaintiff decided to abandon medically induced inadvertence and adopt the protection of the 1^st Defendant as the reason for the admission.  But in cross-examination he appears to have not entirely abandoned medication and inadvertence so that by the close of the case he was standing by all three elements — protection of the 1^st Defendant, inadvertence and his medical condition.

25.  Given this shift in his evidence, Mr Kwok has submitted that this merely serves to reinforce the fact that the admission that he was responsible for the repairs to the lorry was a true admission and that once he saw solicitors about a year after he made the admission he realized how inconvenient such an admission was to his case so he then tried to withdraw it by going to the police to make a further statement and then, when faced with the prospect of having the police officer come to court to deny any influence of medication, he shifted his ground by adopting a completely inconsistent ground by trying to explain the admission as being deliberate but false, which was that he was trying to protect the 1^st Defendant.

26.  It must follow from that analysis that the Plaintiff must be in very real difficulties on this absolutely central issue in the case as to who was responsible for the repairs.  An admission followed by an attempted retraction which is then replaced at trial by an inconsistent account of a deliberate but false admission to protect the 1^st Defendant would ordinarily be fatal to a party in the Plaintiff’s position.  Nevertheless, the 1^st Defendant has thrown something of a life-line to the Plaintiff by being less than impressive himself on the question of the precise terms of their business relationship to which I must now turn before evaluating all of the evidence and arriving at a decision on the issue that will be dispositive of the action.

27.  I have already referred to the 1^st Defendant’s evidence to the effect that he had arranged the hire-purchase of HM247 with the 2^nd Defendant as the Plaintiff’s agent and that he was to pay the monthly instalments of $12,500 to the 2^nd Defendant on the Plaintiff’s behalf.  Madam Wong has given evidence that so far as the 2^nd Defendant was concerned it had no knowledge of the Plaintiff and its agreement was with the 1^st Defendant personally.  Whilst this need not present any difficulty, what does is the fact that the 1^st Defendant has also said that part of his arrangement with the Plaintiff was that he also took over from the Plaintiff the 10-ton lorry that the Plaintiff had been driving on hire-purchase through the agency of Mr Lo, his brother-in-law, where the monthly payments were $4,000 a month, although he was paying his brother-in-law $6,000 a month as a reward for him having obtained the lorry for him on hire-purchase.  According to the 1^st Defendant, this was an integral part of his agreement with the Plaintiff.  This he has called the “swap agreement” by which he took the 10-tonner off the Plaintiff and would be responsible for the $4,000 hire-purchase payments for it.  The result of this ‘swap’ arrangement was that the Plaintiff’s net liability to him was $9,125 being $13,125 in respect of HM247 which was for the hire-purchase instalment as well as insurance for the vehicle less the $4,000 for the Plaintiff’s 10-ton lorry.  Unfortunately for the 1^st Defendant there is absolutely no mention of this agreement in the defence and counterclaim nor in his original witness statement nor in his supplemental witness statement dated the day before the start of the trial.  He has produced as Exhibit D1, in the course of his evidence on a single piece of paper, an account which he says, provides evidence of this swap in calculations that he made after the accident in order to determine a final account between himself and the Plaintiff as a result of which the Plaintiff owed him $1,638.  This account shows a monthly deduction of $4,000 due to the Plaintiff as a credit in respect of the 10-ton lorry.  This document, coming late as it did and requiring the 1^st Defendant to amend his pleadings on my direction [para.5A of the Defence] has provided Mr Erik Shum, for the Plaintiff, with potent ammunition to question the 1^st Defendant’s credibility.  Was this account [Exhibit D1] an ex post facto document falsely manufactured and produced late in the trial to support an untruthful account of a swap agreement based on two hire-purchase agreements?  The Plaintiff’s evidence about his 10-ton lorry was that he had abandoned it close to the Lam Kee garage from which it had been re-possessed by the hire-purchase company.  The 1^st Defendant says that contrary to this, he had used it himself in his business for a few weeks — he was after all paying the Plaintiff $4,000 for its hire-purchase instalments.

28.  He was then further challenged by Mr Shum on his records, and overnight he suggested that he might be able to find more vouchers or at least a written record to independently support what he had recorded in Exhibit D1.  All he could produce was Exhibit D2 which is an extract from a diary, and to the extent that he tried to provide some explanations he singularly failed to do so.

29.  What is very plain is that he did not keep reliable books.  This evidence has undoubtedly harmed his case.  The question is whether this by itself serves to undermine his credibility as to the basis of his having let the Plaintiff into possession of HM247 — as to whether this broadly mirrored his own hire-purchase agreement with the 2^nd Defendant — or whether this was just a $400 a day hiring of the lorry to the Plaintiff.

Conclusions on the Evidence

30.  I have already said that both of these witnesses are not impressive and one is therefore very much looking at the objective features of the evidence and the inherent probabilities to see where the truth lies, remembering always that the burden is on the Plaintiff to show that his case is more likely than not the correct one.

31.  In analysing the evidence, Mr Kwok has also invited me to have regard to other features of the Plaintiff’s evidence which he says show that the Plaintiff is not trustworthy, such as his tax return whilst he was an employee of Foks which claimed tax relief of over $400,000 on his mortgage when this was plainly false and for which he blamed the staff at Foks for making a glaring error although of course he was prepared to sign the return.  He also points to the Plaintiff trying to sue the 1^st Defendant for employee’s compensation when plainly they were not in the relationship of master and servant — he being an independent contractor of the 1^st Defendant.

32.  Perhaps more relevantly, Mr Kwok has concentrated on the inherent unlikelihood of the 1^st Defendant hiring this lorry at less than his liability on the hire-purchase agreement with the 2^nd Defendant as well as taking on the burden of keeping the lorry in good repair.  Mr Kwok says that this simply does not make sense.

33.  As to this Mr Shum has sought, in a detailed way, to explain why this would made sense given that this lorry would have be considered a long term investment by the 1^st Defendant which he could then sell on to defray any losses that he would have made on the hire-purchase instalments.

34.  Mr Shum has also drawn attention to the fact that after the accident it was the 1^st Defendant who re-possessed the lorry and had it repaired for $73,000 and who settled up with the 2^nd Defendant on his hire-purchase agreement with it.  All of this, says Mr Shum, points to the 1^st Defendant having retained the duty to keep the lorry in good repair_he was treating the lorry as his own.  

35.  Whilst these are, in my judgment, proper points to take, when I stand back and look at the evidence as a whole it seems to me that the Plaintiff’s case must be completely undermined by his admission to the police that he had responsibility for the repair of the lorry.  That admission has been reinforced by his attempted retraction of it based on purported inadvertence due to medication and then contradicted by his evidence at the trial that the admission was made because he wished to protect the 1^st Defendant.  This inconsistency in his approach to the admission leads me to the certain conclusion that the admission was a true one — made because it was true and that he has subsequently given false and inconsistent explanations for it in order to try and remove the highly damaging effects of such an admission on his case.  It being my view that this is a true admission, it must follow that the obligation to repair this lorry lay with the Plaintiff.

36.  In arriving at this conclusion, I have had regard to all of the evidence including the fact that on many aspects the 1^st Defendant has not been a good witness.  Nevertheless, I am persuaded by Mr Kwok that the arrangement over this lorry was as the 1^st Defendant has said — this was a hire-purchase agreement in the way that the 1^st Defendant has described including the swap agreement on the two lorries with the 1^st Defendant taking on the Plaintiff’s liability for the hire-purchase payments on the 10-ton lorry.  I am satisfied that a mere hiring of this 24-ton lorry for $400 a day would not have made any commercial sense for the 1^st Defendant.  Mr Kwok analysis of the figures is the correct one.

37.  I am also impressed by the fact that the Plaintiff had sought to make a claim against the 1^st Defendant for employee’s compensation and even considered a similar claim against the 2^nd Defendant when in each case there would have been no basis for such a claim.  This serves to demonstrate a mind-set by the Plaintiff which was to obtain compensation for this unfortunate accident and the injuries that were caused by it irrespective of the truth of the matter which also serves to undermine his credibility.  I have also taken into account his refusal to sign the two pieces of paper prepared by the 2^nd Defendant absolving them of responsibility but it seems to me that this carries little weight in my determination of the basic issue in the case.  This evidence by itself when weighed with all the other evidence in the case cannot affect the outcome.

38.  Ultimately, what has happened here is that the garage did not do a sufficiently good job in repairing the braking problem when the Plaintiff took it to them for repair.  His remedy must lie against them.  Both Defendants bear no responsibility for this defect, the Plaintiff having assumed the duty of keeping the lorry in good repair himself.  In such circumstances his claim must stand dismissed against both Defendants and they must have judgment entered in their favour.

39.  As to the counterclaim, this must also succeed.  I am satisfied that the 1^st Defendant has had to pay the cost of repairs following the accident.  These repairs were the Plaintiff’s responsibility incurred as a result of the accident having happened during the currency of the agreement between him and the 1^st Defendant.  The Plaintiff in turn would have the right to be indemnified for this amount by the garage provided he could prove that the defects which caused the accident were the result of sub-standard repairs by the garage.  The fact that the 1^st Defendant has said that he had been prepared to waive that claim that is until the Plaintiff decided to bring this action against him does not affect his right to bring the counterclaim now.  Accordingly there will be judgment on the counterclaim in the sum of $73,000 in the 1^st Defendant’s favour.  There will also be interest on this amount from the date of the counterclaim until judgment.  I do not propose to go back further because the 1^st Defendant has admitted that he was not proposing to ask for repayment.  What caused him to change his mind was the fact that the Plaintiff had decided to bring this action and so time will run from the date of the counterclaim and not from the time of payment of the repair bill.  The rate of interest will be at 1% above base rate.  Thereafter interest will be at the judgment rate from the date of judgment until payment.

Costs

40.  These will follow the event on the claim and the counterclaim to be taxed on a party and party basis if not agreed.  The order for costs will be an order nisi.

Quantum

41.  In the event of an appeal, I propose briefly to indicate my view on damages.

Pain, Suffering and Loss of Amenity

42.  This was an unpleasant injury for which the Plaintiff has now made a good recovery although the fact that a fragment of glass remains lodged in front of his right ear is a very real cause of concern for him.  He has had a number of operations and has been left with residual disabilities which are likely to be permanent.  I would have awarded him $300,000 under this head.

Pre-trial Loss of Earnings

43.  Mr Shum bases his claim of $416,634.70 on pre-accident earnings of $20,000 a month which is correct on the evidence.  The 119 days sick leave is also appropriate followed by a period of time off whilst the Plaintiff re-adapted and found other employment.  He found his present job in March 2005 earning $10,721.91.  Mr Kwok’s primary submission is that he should have returned to work by July 2004.  It seems to me that this is asking too much of the Plaintiff given the nature of his disability.  Under this head, I prefer Mr Shum’s assessment.  He has broken this down into two periods, one of total loss of earnings from 20 May 2004 to 28 February 2005 at $20,000 which is $187,333.33 and thereafter for partial loss earnings from 1 March 2005 to 18 May 2007 (being the date of judgment) at the rate of $20,000 – $10,721.91 being $9,278.09 which comes to ($9,278.09 multiplied by 26.5 months) $245,869.39.

Loss of Future Earnings

44.  Mr Kwok says that there are none.  I disagree.  Mr Shum says it should be $9,278.09 multiplied by 12 months multiplied by 10 years which is $1,113,370.80.  For my part, I do not accept that I should in effect give the Plaintiff a full purchase under this head.  It seems to me that over a period of time the Plaintiff will have adapted to his condition and will be able to return to his full earning capacity.  Accordingly, I propose to reflect this by applying a multiplier of four years and not of ten years which Mr Shum has suggested which, doing my best, would reflect the proper amount for future loss of earnings.  The award would have been $445,348.32.

Loss of Earning Capacity

45.  Given the award for future loss, I would have awarded nothing under this head.

Special Damages

46.  There are no receipts and I would have allowed $4,000 and not $14,000 for tonic food and other miscellaneous expenses.

Total
Pain suffering and loss of amenity	$300,000.00
Pre-trial loss of earnings	$245,869.39
Future loss of earnings	$445,348.32
Special damages	$4,000.00
Total	$995,217.71 ==========

To these amounts’ interest would have had to be added at the appropriate rates and for the appropriate period of time.