LEUNG CHI YAN v. CHAN TAI MAN AND ANOTHER

DCPI 1603/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1603 OF 2010

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BETWEEN

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JUDGMENT

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Background

1.  The Plaintiff claims damages for personal injuries sustained by him arising out of a traffic accident occurred at 0240 hours on 11 December 2007 (“the Accident”).

2.  At the time of the Accident, the Plaintiff was the front seat passenger of a private car bearing registration number JN8235 (“the Private Car”) driven by his friend Mr. Wu Suen Pong (“Wu”).

3.  It is pleaded under the Statement of Claim that, at the material time, the Private Car was travelling along the 3^rd left lane of Tsuen Wan Road (“the Road”) heading New Territories direction at a speed of 60-70 km per hour. At the same time, a medium goods vehicle bearing registration number FS9482 (“the MGV”) driven by the 1^st Defendant (“D1”) and owned by the 2^nd Defendant (“D2”) was travelling along the 2^nd lane of the Road towards the same direction.

4.  It is said that on reaching near Chainage 13.8 of the Road, D1 inadvertently steered the MVG rightward to cut into the Private Car’s carriageway, and as a result, the front of the Private Car collided with the rear body of the MGV (“the Collision”), and the Private Car spun after the Collision.

5.  The Plaintiff suffered head and right leg injury as a result of the Collision.

6.  The Plaintiff claimed damages against the Defendants alleging that his injury was caused by D1’s negligent driving to which D2 was vicariously liable.

7.  D1 and D2 filed a joint defence. It is admitted that D1 was driving the MGV as the servant and/or agent of D2 at the time of the Accident. Negligence on the part of D1 and vicarious liability on the part of D2 are denied.

8.  It is contended by the Defendants that at the time of the Accident, the MGV was travelling along the left 2^nd lane of the Road. Upon reaching Chainage 13.8, the rear part of the MGV was suddenly hit by the Private Car from behind causing it to lose control and crash into the concrete divider on the right side of the Road.

9.  D1 and D2 alleged that the Collision was wholly caused or contributed to by the negligence on the part of Wu.

10.  Wu was not made a party to the present proceedings and there was no prosecution to either Wu or D1 by the Police as a result of the Accident.

Liability

11.  Miss To for the Plaintiff and Mr. Lam for the Defendants agreed that the issue is how the Accident occurred. They have no quarrel on the relevant principles of law applicable to drivers.

12.  The issue of liability depends on finding of facts.

The Undisputed Facts

13.  It is common ground that at the time of Accident, the weather was fine and the visibility was clear. The traffic was light and smooth and both the Private Car and the MGV were in good working condition.

14.  The speed limit of the Road was 70 km per hour.

15.  It is also not disputed that the Police attended the scene after the Accident. The Police had taken 24 photographs at scene which are produced as S1 to S15 in the Bundle of Documents.

16.  After the Collision, the Private Car spun and the MGV swerved towards the right and came into contact with the concrete divider.

17.  The damage to the rear offside corner of the MGV can be seen on S1. The corresponding damage to the concrete divider can be seen on S7 and S12. The damaged part of the divider was more or less above a sewage cover.

18.  The Private Car’s damage is listed under the MVE Report at p.199 of the Agreed Bundle:

(1)   front bonnet, front cross member, front bumper, both side front wing and inner structure buckled;

(2)   both side front airbags deployed;

(3)   front windscreen smashed;

(4)   offside front lamp, headlamp, direction indicator smashed; nearside front lamp, headlamp, direction indicator detached;

(5)   engine housing, air intake filter unit broken, engine radiator buckled, cooling fan broken.

19.  My attention was drawn to S11, S13 and S14 where skid marks could be seen. The photographs on S11 and S13 show skid marks on the 3^rd lane while the photograph on S14 shows skid marks leading from the 2^nd lane all the way to the 3^rd lane, ending near the sewage cover.

20.  A sketch was drawn by PC 51078 showing the position of the Private Car after the Collision, which was produced at p.198 of the Agreed Bundle (“the Sketch”). The MGV’s position was not recorded in the Sketch.

21.  A line labeled “10 m skid mark” was recorded on the Sketch leading from the 2^nd lane into the 3^rd lane all the way to the concrete divider where the sewage cover was. However, it does not spell out which vehicle left the skid mark.

22.  On the Sketch there are 2 lines labeled “13.5” and “10.7” leading from the sewage cover to the position of the Private Car.

23.  No explanatory notes can be found on the Sketch explaining what these 2 lines represent.

How did the Accident occur?

The Plaintiff’s Case and Evidence

24.  The Plaintiff called two witnesses at trial: himself and Wu.

25.  They both adopted their respective witness statements and their statements given to the Police as evidence in chief.

The Plaintiff’s Evidence

26.  According to the Plaintiff’s witness statement and his statement to the Police, the MGV cut from the 2^nd lane to the 3^rd lane when it was very close to the Private Car. The Plaintiff said that the distance was 2 m in the Police statement.

27.  At trial during cross-examination, he said that it must have been a mistake and that he meant 2 feet. Subsequently at re-examination, the Plaintiff said the distance between the 2 vehicles should be less than 1.5m (4 feet 3 inches).

28.  He has drawn a sketch to the Police showing the point of Collision (p.112, Agreed Bundle). It shows that the MGV cut from the 2^nd lane and entered the 3^rd lane completely when the Private Car bumped directly in the middle rear of the MGV.

29.  At trial the Plaintiff was asked by Miss To to clarify his sketch to the Police. He said that the MGV cut an angle from that 3^rd lane but did not completely enter the3^rd lane when the Collision occurred. He has drawn 3 sketches (P1-P3) in Court to support his contention.

30.  From P1-P3, the MGV was seen slanting towards the 3^rd lane and it was on the dividing line between the 2^nd and the 3^rd lane when the Collision occurred.

31.  He also said that the MGV was travelling at a lower speed than the Private Car when it was cutting from the 2^nd lane to the 3^rd lane.

32.  Regarding the damage to the Private Car, the Plaintiff said under cross-examination that the Private Car bumped into the concrete divider after the Collision. However, during re-examination, he said that he was not sure whether the Private Car hit something else after colliding with the MGV.

33.  In any event, the Plaintiff’s case as put forward by Miss To was that the Private Car bumped into the MGV and it was the MGV which crashed into the concrete divider.

34.  In respect of the skid marks as seen on S11 and S12, when cross-examined by Mr. Lam, the Plaintiff agreed that they all lead to the Private Car. He also agreed that, together with the skid marks shown on S14, they are all consistent with the Sketch, that all the skid marks were caused by the Private Car.

35.  He also agreed that the middle front of the Private Car bumped into middle rear of the MGV directly.

36.  During re-examination, the Plaintiff explained that the front of the Private Car hit the rear of the MGV while the MGV was still at an angle, that it was not a direct hit from behind. He also said that he had no idea whether the skid marks on S11, S12 and S14 are consistent with what was depicted in the Sketch.

Wu’s Evidence

37.  Wu’s evidence as contained in the witness statement and Police statement is that when the Private Car was travelling at 60-70km per hour on the 3^rd lane, the MGV suddenly cut from the 2^nd lane without turning on its indicator, the distance between the rear of the MGV and the front of the Private Car was less than the length of 1 private vehicle.

38.  There is no direct evidence as to the length of 1 private vehicle. Common sense tells us that it would be around 4 m.

39.  Miss To submits that Wu’s evidence in this respect is by large consistent with the Plaintiff’s (1.5 m distance) as the MGV was coming from the left.

40.  Wu went on to say that his immediate reaction was to brake and swerve to the left but the front of the Private Car hit the rear of the MGV. He said that the speed of the MGV was slower than the Private Car and he estimated to be 50 km per hour.

41.  He has drawn a sketch to the Police (p.100, Agreed Bundle) showing the collision point on the MGV was the middle rear. The Private Car was depicted as tilting very slightly to the left. Both vehicles were completely on the 3^rd lane.

42.  Wu was asked by Miss To to clarify his sketch. He said that the MGV has not entered the 3^rd lane completely when the Collision occurred. He then drew a sketch in Court showing the position of the 2 vehicles at the material time (P4).

43.  In P4, the MGV was slanting to right and the Private Car was slanting to the left. Both vehicles were on the dividing line between the 2^nd and the 3^rd lane.

44.  In his examination in chief, Wu was questioned by Miss To on the following:-

“Q: Did you need to cut to the 1^st lane in order to go to Tsing Yi [your destination]?

A: Yes.

Q: Why were you on the 3^rd lane?

A: Since I travelled from Kowloon, there are 2 lanes leading directly to the New Territories, if I went straight, I could take Texco Road to go to Tsing Yi.

Q: You were on the 3^rd lane because you cut from the 4^th or the 5^th lane and you would later cut to the 1^st or 2^nd lane?

A: Yes.”

45.  Under cross-examination, Wu said that the MGV’s cut from the 2^nd lane to the 3^rd lane was not a very sudden cut. The speed of the MGV when it was cutting lane was no different from before (i.e. 50 km per hour).

46.  Wu was also asked as to the point of impact on the MGV, to which he answered “the trough underneath” (which is what was referred to as the rear bumper throughout trial). He agreed that point of impact was not the right rear corner of the MGV but close to the middle rear.

The Defendants’ Evidence

47.  The Defendants called two witnesses at trial: D1 himself and SPC 21063 (“DW2”), the police officer who attended the scene after the Accident.

D1’s Evidence

48.  D1 adopts his Police statement as his evidence in chief.

49.  According to D1, he was all along travelling on the 2^nd lane of the Road when he was rear-ended by the Private Car. He lost control of the MGV and finally managed to regain control after the rear offside corner of the MGV hit the concrete divider on the right side of the Road.

50.  He said that he looked at his rear mirror and saw a private car spin. He then pulled over at some distance away and walked back to the scene.

51.  In Court, he confirmed that the damage caused by the Private Car to the MGV was shown on S4. The damaged rear offside corner caused by hitting the concrete divider was shown on S1. He also confirmed that there was no damage to the body of the MGV.

52.  His speed was 70 km per hour and he did not change lanes at all.

53.  After the Collision, D1 said he felt the MGV being pushed forward and then he lost control of the MGV.

54.  Under cross-examination, D1 was asked whether he had applied brake once the MGV was hit from behind.

55.  D1 answered that he only applied brake when he regained control of the MGV. He said that he had no time to react once the MGV was being hit from behind, his first reaction was to grab hold of the steering wheel when the MGV lost control. D1 explained during re-examination that if he applied the brake immediately after the Collision, the MGV might lose even more control.

56.  He was also questioned extensively by Miss To as to why he needed to travel for 400 m before he stopped the MGV after the Collision. D1 replied that he could only stop the MGV at a safe place, and the closest safe place was some 400 m away from the Collision spot.

57.  D1 testified that the trunk of the MGV was 1/3 filled with garments at the time of the Accident.

58.  He was asked by Miss To whether he needed to change to the 3^rd lane in order to reach his destination (Shatin). D1 answered that it was not necessary since he could drive through the Shing Mun Tunnel which he could do if staying on the 2^nd lane. Mr. Lam clarified with D1 that he might want to cut to the 1^st lane but it would not be necessary for him to cut to the 3^rd lane.

59.  D1 denied that the skid marks on S14 were left by the MGV.

DW2’ Evidence

60.  DW2 was the officer responded to the scene.

61.  He also said that he recorded his conversation with D1 and Wu one hour later.

62.  His evidenc is that D1 told him at the scene that he was travelling on the 2^nd lane and the MGV was bumped from behind.

63.  DW2 also testified that Wu told him at the scene that he was travelling on the 2^nd lane of the Road and that the MGV cut from his left.

64.  He was shown the Sketch at p.198. However, he had no idea why the skid marks were drawn there as he was not the officer responsible.

65.  DW2’s evidence is not very helpful as he was not an eye witness to the Accident nor was he the drawer of the Sketch. His presence at trial was to show the reaction of D1 and Wu after the Accident.

Discussion

66.  Miss To for the Plaintiff relies on the Sketch and suggests that 10m skid mark was left by the MGV, and that D1 must have applied brake (which he denied). The skid mark was consistent with the MGV’s route from the 2^nd lane to the concrete divider. Miss To submits that D1 must have swerved left resulting in the rear offside corner of the MGV damaged as shown on S1 and S7.

67.  Miss To also submits that the difference in weight of the two vehicles is a significant factor. It is said that the MGV (with 1/3 of the trunk filled with goods) could not possibly have swerved right (towards the concrete divider) by a small private car’s bump from behind without having a rightward steering itself.

68.  Miss To interprets S4 to mean that rear bumper of the MGV was damaged/bent at an angle, which is consistent with force coming from the 3^rd lane rather than a straight from behind.

69.  As to the damage to the Private Car as stated in the MVE report, Miss To submits that the force impact on the offside front (smashed) was greater than that on the nearside front (detached). Miss To says this is consistent with force coming from 3^rd lane rather than from straight behind (i.e. 2^nd lane).

70.  Mr. Lam for the Defendants has a different interpretation. Mr. Lam submits that all the sketches drawn by the Plaintiff and Wu are inconsistent with one another.

71.  Regarding the damages to the vehicles, Mr. Lam submits that the MGV suffered damage in the middle of the rear bumper and the offside rear corner. The Private Car suffered damage at offside, middle and nearside of the front. The front windscreen is smashed.

72.  Mr. Lam suggests that if the MGV did cut from the 2^nd lane into the 3^rd lane, the point of contact of the 2 vehicles would have been (i) the offside body of the MGV and the nearside corner of the Private Car; or (ii) the offside rear corner of the MGV and the nearside corner of the Private Car; or (iii) the offside rear corner of the MGV and the front middle of the Private Car.

73.  Mr. Lam says that the photos and the MVE Report clearly do not support the above (since the whole front part of the Private Car was damaged). They are more consistent with a direct bump from behind as described by D1.

74.  Mr. Lam further submits that the smashed windscreen was damaged by something with height, e.g. the tailboard of the MGV.

75.  Regarding Miss To’s submission on the difference in weight of the two vehicles, Mr. Lam replies that Miss To has ignored the speed of the vehicles. It is said that if the MGV was stationary, it would be unlikely for the Collision to cause it to lose control if it was bumped from behind. However, when the 2 vehicles were travelling at speed (in the Plaintiff’s case, 70 km per hour for the Private Car and 50 km per hour for the MGV), it is normal that any collision could have caused a loss of control or a change of course for the vehicle in the front.

76.  Mr. Lam concludes that the fact the MGV swerved right is consistent with it being bumped at a high speed from behind.

77.  Mr. Lam submits that the skid marks were left by the Private Car rather than by the MGV.

78.  Mr. Lam said even if the Court was unable to find which vehicle left the skid marks, at the very least, the skid marks tell us that the Collision occurred on the 2^nd lane, which is consistent with the Defendants’ case rather than the Plaintiff’s.

79.  Mr. Lam also points out Wu and the Plaintiff were going to Tsing Yi at the material time. As agreed by Wu, the 3^rd lane could not have led to Tsing Yi, they would need to switch lane to the 2^nd or even the 1^st lane.

80.  On the otherhand, for D1, the 2^nd lane could lead to Shatin, he might (but not necessarily) switch to the 1^st lane (to the left) but he would not need to switch to the right (3^rd lane).

Finding of facts

81.  I have carefully studied the photos on S1-S15 and the MVE Report.

82.  The following can be deduced:-

(i)   the photos on S4 showing a dented bumper of the MGV is more consistent with a force coming straight from behind rather than a force coming from the left (3^rd lane) as suggested by Miss To;

(ii)   the photos on S1 showing the damaged rear offside corner of the MGV is consistent with the corresponding damage to the concrete divider as shown on S7; as the damage to the concrete divider is more likely to have been caused by a vehicle of certain height like the MGV and not the Private Car;

(iii)   the damage to the Private Car as described under the MVE Report is consistent with a direct crash into the rear of the MGV, it is more probable than not that the smashed windscreen was caused by something with height, e.g. tailboard of the MGV as suggested by Mr. Lam.

83.  From the Plaintiff’s and Wu’s respective sketch to the Police (p.100 and p.112), both vehicles were on the same lane when the Collision occurred. They only tried to revise their sketch (P1-P4) to support the Plaintiff’s case that the Collision occurred when the MGV cut from the 2^nd lane to the 3^rd lane.

84.  On the other hand, D1’s evidence has been consistent all along. His evidence was unswayed under cross-examination.

85.  In the light of what I deduced above, I reject the evidence of the Plaintiff and Wu that the Collision occurred when the MGV was cutting lane.

86.  I accept D1’s evidence that the Collision occurred when the MGV was bumped straight from behind by the Private Car when the vehciles were both on the same lane.

87.  Regarding the Sketch, there is no direct evidence to show which vehicle left the 10 m skid mark and what the other 2 lines mean. The drawer of the Sketch was not called by either party.

88.  Counsels’ interpretation and witnesses’ interpretation cannot subsitute direct evidence.

89.  Having carefully considered the photos on S11, S13 and S14, I find it more probable than not that all the 3 lines on the Sketch are references to skid marks.

90.  As said by V. Bokhary J in Chiu Kong Frozen Meat Co. Ltd. v. Ng Kwei Ying [2004] 2 HKC 188 (a case relied on by the Plaintiff), skid marks are indicative of high speed.

91.  D1 said that he was travelling at 70 km per hour at the time, the maximum speed limit.

92.  The Plaintiff’s case is that the MGV was travelling at 50 km per hour, which was slower than the Private Car which was travelling at 70 km per hour.

93.  Considering that it was 0240 hour in the morning of fine weather, and the undisputed fact that the traffic was light and smooth, I find it more probable than not that the MGV was travelling at 70 km per hour and the Private Car at over 70 km per hour.

94.  The fact that the Private Car did not come to a stop after the colliding with a vehicle of considerable weight but spun is indicative of high speed.

95.  I should also add that I agree with Mr. Lam’s analysis that when the Private Car bumped into the the MGV (which were both moving at considerable speed), it was possible for the MGV to be pushed forward or even change course.

96.  It is more probable than not that the 10m skid mark was left the Private Car.

97.  Even if D1 did apply his brake at the time of the Collision and thereby leaving the 10 m skid mark on the 2^nd lane, it is still consistent with his case that the MGV was on the 2^nd lane when the Collision occurred.

98.  Further, I find that it is more probable than not that the 2 other skid marks on the Sketch (depicted as “13.5” and “10.7”) are caused by the Private Car. These 2 lines led to the final position of the Private Car. It is not disputed that Wu had applied his brake at the time of the Collision.

99.  In the light of the above, I find that the MGV did not cut into the Private Car’s carriageway at the time of the Accident. The MGV was travelling along the 2^nd lane at the material time.

100.  I find that the Collision occurred on the 2^nd lane and the MGV was hit directly from behind by the Private Car.

Was D1 negligent in causing the Accident?

101.  I accept D1’s evidence that he did not need to cut into the 3^rd lane in order to get to his destination.

102.  I also accept that the MGV was all along travelling on the 2^nd lane.

103.  In the light of what I have found that the Accident occurred on the 2^nd lane with no lane-cutting action by D1, I do not see that D1 was in any way negligent in causing the Accident.

104.  I should also add that I add no weight to DW2’s evidence in reaching my finding.

Was Wu negligent in causing the Accident?

105.  I have found that it is more probable than not that the Private Car was travelling at high speed at the material time.

106.  I should also point out that Wu has admitted he would need to change to the 2^nd or even the 1^st lane in order to reach his destination. He might have been travelling on the 3^rd lane at some point, but I have found that the Collision occurred on the 2^nd lane where both the Private Car and the MGV were travelling.

107.  In the premises, I find that Wu was driving too fast at the material time and has failed to keep a safe braking distance. He has failed to keep proper lookout of the traffic ahead of him and could not stop in time to avoid colliding with the MGV which was travelling ahead on the same lane.

108.  I am satisfied that the above findings of negligence falls within the particulars pleaded by the Defendants under the Defence.

109.  I find that it was Wu’s negligent driving that wholly caused the Accident and the Plaintiff’s injuries. D1 was not liable for the Plaintiff’s injuries.

110.  The Plaintiff has therefore failed to establish his claims against the Defendants.

Quantum

111.  In case I was wrong on the question of liability, I proceed to deal with quantum.

Injuries and Treatments

112.  The Plaintiff was admitted to the Department of Accident and Emergency (“A&E”) of Princess Margaret Hospital (“PMH”) for immediate medical examination after the Accident.

113.  Upon initial examination, it was revealed that there was abrasion over his head and his right thigh was swollen and tender on palpation.  X-ray showed fracture shaft of right femur.

114.  Closed reduction and fixation with intra-medullary nail was performed to the Plaintiff on the same day. Post-operative X-ray showed mal-position of the distal locking bolt, thus, revision of the fixation with intra-medullary nail has to perform on 13 December 2007 to re-fix the position.

115.  After the two operations, the Plaintiff was managed to walk with a frame when he discharged on 24 December 2007.

116.  After discharge from PMH, the Plaintiff attended follow up consultations at PMH and he was also referred to the Physiotherapy Department of PMH.  He had 2 physiotherapy treatment sessions and the treatments given included Hot Pad Therapy, ambulatory training, lower limbs mobilizing and strengthening exercised.

117.  The Plaintiff developed depressed mood, poor sleep, fearfulness, pessimistic thinking and he feels that he had a great loss after the accident, therefore, he was referred to attend treatment at West Kowloon Psychiatric Centre. The Plaintiff was diagnosed of mixed anxiety and depressive disorder.  His last followed up session was at 4 June 2010.

118.  A joint medical examination was held on 25 March 2011 i.e. about 3 years after the Accident.

119.  The Plaintiff was examined by his orthopaedic expert, Dr. Fu Wai Kee and the Defendant’s orthopaedic expert, Dr. Lam Kwong Chin.

120.  The experts agreed that as a result of the Accident, the Plaintiff suffered a fractured distal shaft of the right femur.

121.  Treatment given was considered appropriate and the Plaintiff has reached maximal medical improvement and further treatment is not required.

122.  Dr. Lam (the Defendants’ expert) opined that the Plaintiff should be able to return to his pre-injury work as a funeral parlour assistant.  He might have some residual lower limb symptoms upon prolonged weight bearing, but the overall adverse effect should be mild.  He should have no substantial physical problem with jobs such as factory quality controller or stage prop worker.

123.  Dr. Fu (the Plaintiff’s expert) opines that the 1.5 cm shortening of femur is not severe but due to the shortening some extra impairments are expected. He will have some difficulty in long period of walking and manual exertion.  He will have on and off pain that requires medical treatment on a need to basis. Dr. Fu is of the view that he will have difficulty in returning to his original work. The Plaintiff’s current job as stage prop worker that does not need heavy manual exertion should be appropriate.

124.  The experts agree that the injury would have minimal permanent adverse effect on his activities of daily living.  He could continue with most types of recreational sports activities suitable for a man of his age and average physical health.  There is no additional risk of re-fracture.

125.  Both experts endorsed the sick leave granted from the date of the Accident till 8 July 2008 (total of 230 days).

126.  Dr. Lam assessed 3% impairment of whole person and 3% loss in earning capacity. Dr. Fu assessed 5% for whole person impairment and loss of earning capacity.

PSLA

127.  Miss To submits that the normal range for fractured femur is $250,000.00 to $350,000.00.

128.  However, Miss To says that this is no ordinary fractured femur since the Plaintiff has undergone 2 operations, with shortening of femur (1.5cm) and also suffered from mixed anxiety and depressive disorder.

129.  Miss To asks me to make an award of  $350,000.00 for PSLA. Miss To relies on Chong Siu Lung v. Au Yong Shong Samuel, HCPI 489/2008; Yi Shengmao v Wong Kam Piu, HCPI 742/2005 and Lai Kwan Ming v Lee Yiu Hing t/a King Yip Co., HCPI 765/2000, and also Lau Tsz Wah v Caltex Oil HK Ltd., DCPI 140/2001.

130.  Mr. Lam, on the other hand, submits that the appropriate award should be $250,000.00. He refers to Ho Man Wah v. Wong Shui Fun trading as Yau Lee Co., DCPI 730/2009; Lai Kwan Ming, and Lau Tsz Wan.

131.  Mr. Lam highlights that the Plaintiff defaulted his psychiatric follow-up after January 2011 and his first psychiatric prognosis is fairly favourable and no permanent metal disability is expected, and that he only attended 2 physiotherpay sessions.

132.  Considering all the authorities before me, I find the Plaintiff’s injuries are less serious than those in Yi Shengmaoand Chong Siu Lung. His injuries are similar to those in Lau Tsz Wanand Ho Man Wah.

133.  I am of the view that the appropriate award in this case is $250,000.00.

Loss of Earnings

134.  The Plaintiff claims loss of earnings for 230 days sick leave (11 Dec 2007 to 15 Mar 2009). No future loss of earnings was claimed as the Plaintiff was able to earn more after the Accident when he took up alternative employment. He is currently working as a stage prop worker.

135.  The dispute is over how much the Plaintiff was earning at the time of the Accident.

136.  The Plaintiff’s case is that his daily wage was $500 and he worked 7 to 8 days a month. On top of that, he would be paid $300 as tips per day from the host family, agent and boss.

137.  His monthly earnings was ($500+$300) x 8= $6,400.

138.  The Plaintiff’s claim is for $49,066.66 [$6,400÷30 x 230 days].

139.  The Plaintiff produced a verification of employment issued by a Mr. Lau, director of Perpetual Funeral Parlour (p.234 of the Agreed Bundle).

140.  It is said that the Plaintiff was employed as a mourning hall attendant on a monthly paid basis prior to 28 February 2007. On 28 February 2007, the Plaintiff was dismissed from employment since Mr. Lau’s business license was not renewed by the Food and Environmental Department.

141.  Mr. Lau then switched to self-employed and operated funeral business for former clients. He hired temporary workers to help out the mourning arrangement and other tasks. He paid each temporary worker [including the Plaintiff]  $500 each time and the Plaintiff worked 7 to 8 times per month until 11 December 2007.

142.  Miss To submits that a useful reference would be the Plaintiff’s tax return for the period from 1 April 2005 to 31 March 2006 and from 1 April 2006 to 31 August 2006 when he was working for Perpetual Funeral Parlour on a full time basis. His average monthly income was said to be $19,462.

143.  Assuming his working days per month was 24 days, Miss To worked out his daily wage would have been $810 per day.

144.  Miss To said I should accept $800 as the Plaintiff’s daily wage even if there is no documentary proof of the tips he earned.

145.  Miss To’s suggestion is very tempting but the Plaintiff was employed as a temporary worker at the material time. I am not convinced that his earnings could be calculated on the same basis as a full time mourning hall attendant, particularly when his boss Mr. Lau was self-employed.

146.  Mr. Lam submits that the Plaintiff’s daily wage should be $480, which is what the Plaintiff declared to the Social Welfare Department under the TAVAS Application Form (p.221 Agreed Bundle).

147.  His monthly earnings was therefore  $3,840 ($480 x 8).

148.  The Plaintiff agreed in cross-examination that his daily wage was $480 and his tips was unstable and negligible. But when he was re-examined on this issue, he said he had no idea.

149.  The Plaintiff then said his boss would give him $500 and he did not have to give him back the $20 change. That was the tips from his boss.

150.  In the light of all the evidence, I am not convinced that the Plaintiff could make a daily earnings of $800 as claimed.

151.  I find it more probable than not that he was paid $500 by his boss (which includes tips given by the boss).

152.  His monthly earnings at the time of the Accident was therefore $500 x 8 = $4,000.

153.  His pre-trial loss for the sick leave period was thus: $4,000 ÷30 x 230 days = 30,666.67.

Loss of Earning Capacity

154.  The Plaintiff claims a sum of  $50,000 which represents 4 months of his current salary as a stage prop worker.

155.  The Defendants said it should be no more than $11,520 ($3,840 x 3 months).

156.  I find that loss of earning capacity should be based upon his pre-injury salary rather than his current salary, i.e. $4,000.00.

157.  I note that the Plaintiff in fact got alternative employment for the period from 9 July 2008 to May 2009.

158.  In the light of the medical evidence, I find that 3 months is more than enough to compensate for his loss.

159.  Loss of earning capacity is awarded at $4,000 x 3 = $12,000.

Special Damages

160.  Special damages is agreed at $5,876.

Summary on Quantum

161.  Total award should be

PSLA	$250,000
Pre Trial Loss of Earnings	$30,666.67
Loss of Earning Capacity	$12,000
Special Damages	$5,876
	$298,542.67 ===========

162.  Interest on general damages would be awarded at 2% per annum from date of writ to date of judgment and thereafter at judgment rate. Interest on pre-trial loss of earnings, loss of earning capacity and special damages would be awarded at half judgment rate from date of Accident to date of judgment and thereafter at judgment rate.

Conclusion

163.  I find that the Plaintiff has not proved his case to the necessary standard. I dismiss his claim.

Order

164.  The Plaintiff’s claims against the Defendants are dismissed.

165.  I order costs nisi that the Plaintiff pays the Defendants’ costs of the action, with certifcate for Counsel, to be taxed if not agreed. The costs order nisi shall become absolute after 14days from the date of handing down the judgment.

166.  The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

167.  I thank you Counsels for their assistance.