CHAN SIU LUN v. HUI CHO YEE AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 124
(Civil)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

Introductory

1. About 6 pm on the evening of 7 December 1988, while the appellant was jogging across Cloudview Road near its junction with Tin Hau Temple Road, he was struck and injured by a car driven by the 2nd defendant in the course of his employment by the 1st defendant. Ultimately his claim for damages came before Nguyen J in March 1998. The judge found both the plaintiff and the 2nd defendant guilty of negligence which he apportioned equally between them. He accordingly reduced the total amount of damages he assessed at $535,704 by one half and awarded $267,852 to the plaintiff. The plaintiff now appeals from that award.

The plaintiff's evidence

2. The plaintiff's evidence is that he was jogging along Tin Hau Temple Road. It was dark or getting dark. When he came to Cloudview Road at its junction with Tin Hau Temple Road, he turned a little way into Cloudview Road continuing along the pavement inside the tubular metal railings. He stopped at the gap in the metal railings which, being so provided, he regarded as the legitimate crossing point. The traffic heading downhill into Tin Tau Temple Road being stationary, he jogged slowly across the downhill lane between two stationary vehicles. When he got to the middle of Cloudview Road, he looked both ways to ensure no vehicles were approaching and started to jog across the uphill lane. When he reached the middle of the uphill lane, he saw a beam of strong light dashing towards him at high speed from the direction of Tin Hau Temple Road. Thinking that he would be killed by the fast running object, he attempted to escape but just had time to take one step forward before being hit by the defendants' vehicle on his left thigh. He heard a loud braking sound. After he was hit by the car bumper, he was thrown up and struck by the left side of the car bonnet. He landed on the opposite pavement on his left arm and the back of his head, resulting in a cervical spine fracture. He lost consciousness for a while. When he regained consciousness he sat up on the curb close to a lamp post alongside the uphill lane of Cloudview Road. He was in hospital for three months.

The defendant's evidence

3. The 2nd defendant's evidence at the trial was confused. In his statement to the police on 7 December 1988 he stated that he stopped in Tin Hau Temple Road in the "turning pocket" for going up Cloudview Road. He checked that all the traffic in the downhill lane of Cloudview Road had stopped and that the westbound carriage way of Tin Hau Temple Road, across which he would have to go, was clear of traffic. He then made a right turn into the uphill lane of Cloudview Road. He engaged first gear and drove at a speed of about 10 miles per hour while negotiating the right turn. When he had completed the right turn and was straightening his vehicle, he suddenly saw a male running out from a gap in the stationary vehicles going downhill on the right. The man was running very fast. His vehicle was very close to the man at the time. He could not brake in time and, as a result, the left side of his car knocked the man who then fell to the ground. He alighted from the vehicle and found that the man's head was bleeding.

The judge's findings on negligence

4. In making his "findings of facts" on liability the judge said this:

"Having considered the evidence of the Plaintiff and the 2nd Defendant, I make the following findings of facts :

1) The Plaintiff had dashed across the down-slope of Cloudview Road and then across the up-slope of Cloudview Road.

2) Before he crossed the up-slope of Cloudview Road, he did not stop to check the traffic before crossing that part of the road.

3) The 2nd Defendant did not come to a complete stop in the pocket of Tin Hau Temple Road before turning right into Cloudview Road.

4) The 2nd Defendant had slowed down at the junction of Tin Hau Temple Road and Cloudview Road and on seeing no lights of cars coming down Tin Hau Temple Road, had then immediately turned right into Cloudview Road at a speed of about 40 kph.

5) The 2nd Defendant's vehicle came to a stop after the collision at the spot about 21 metres from the road junction. According to the Road Users' Code, on a dry road, an alert driver travelling at 40 kph would need a stopping distance of 20 metres.

6) The collision took place soon after the 2nd Defendant had entered Cloudview Road and at a spot about 8 to 10 metres from the road junction.

7) The Plaintiff was wearing a black vest which would make it difficult for drivers to see him.

In making the above findings of facts, I have necessarily discounted and disbelieved the evidence of the 2nd Defendant that his headlights were not on on the day in question and that he had turned into Cloudview Road at a speed of 10 mph and whilst he was engaged in 1st gear. I accept the Plaintiff's evidence that as soon as he stepped onto the up-slope of Cloudview Road he saw this light-emitting object coming at him at a high speed. I find the 2nd Defendant liable in negligence for : -

(a) failing to come to a complete stop at the junction of Tin Hau Temple Road and Cloudview Road to check on the traffic;

(b) driving at a speed which was too fast in the circumstances;

(c) failing to keep any or any proper lookout for pedestrians who may emerge from between the stationery vehicles.

I find that the Plaintiff had failed to keep a proper lookout or to have sufficient regard for his own safety when crossing Cloudview Road and that by running out from between two vehicles, he did not give a reasonable opportunity to drivers to avoid the collision. On the basis of the above findings, I find that the 2nd Defendant is liable for the accident, but only to the extent of 50%, and the Plaintiff is 50% liable for contributory negligence."

Damages awarded

5. The judge then went on to consider the quantum of damages and made the following award:

"A)	PSLA	$250,000
B)	Past loss of earnings	$ 89,720
C)	Loss of future earnings/loss of earning capacity	$ 60,000
D)	Costs of future treatment	$ 25,000
E)	Special damages other than past loss of earning	$110,984
	Total :	$535,704
	Less 50% contributory negligence	$267,852
	Total :	$267,852

I give judgment for the Plaintiff in the sum of $267,852 and costs to be taxed if not agreed."

The judge also made an order for interest, the details of which we shall come to.

Plaintiff's submissions on liability

6. The plaintiff attacks both the judge's finding of liability, and the apportionment of liability between him and the defendants. He submits that he did not dash out between the vehicles but checked to see whether there was any traffic approaching. That was also his evidence and submission before the judge. Clearly the judge rejected his evidence. He was entitled to do so. Nothing the plaintiff has urged upon this Court leads us to think that he might have been wrong to do so. Furthermore, it was dark at the time, and the plaintiff admitted that he was wearing a black vest, as the judge noted. In the circumstances it seems to us that the judge's finding of negligence on the part of the plaintiff was clearly right. Moreover, the finding of negligence is very closely linked with the judge's primary findings of fact which an appeal court should only disturb upon the "rarest occasions", "if convinced by the plainest considerations"; see e.g. Hongkong and Shanghai Corp v Chan Yu Wah [1988]1 HKLR 457, 477, where the authorities on the very high threshold for interfering with a trial judge's findings of fact were reviewed by Fuad V-P.

7. Turning to the apportionment of liability, the plaintiff submits that it was the 2nd defendant who was entirely liable. The accident, he submitted, was caused entirely by the excessive speed of the 2nd defendant.

8. As mentioned, the 2nd defendant's evidence was confused. There were glaring inconsistencies in it. Nevertheless, he consistently maintained that the plaintiff dashed out between the cars giving him no time to stop.

9. The plaintiff made much of the unsatisfactory nature of the 2nd defendant's evidence. The undoubtedly unsatisfactory nature of that evidence weighs with respect to two points made in the plaintiff's submissions. First, the apparent acceptance of the 2nd defendant's evidence that the plaintiff dashed out from between the stationary vehicles in the downhill lane. As to that, to the extent that the judge did rely upon that particular piece of the 2nd defendant's evidence, he was, in our view, entitled to do so. Again, we can see no reason to indicate that he might have been wrong.

10. The other point the plaintiff made in reliance upon the 2nd defendant's unsatisfactory evidence, was that it was the 2nd defendant who appears to have drawn the attention of the investigating police officer at the scene to the point of impact, and to where the vehicle came to rest, leading to the marking of those positions on the police officer's sketch map. In finding that the 2nd defendant turned right into Cloudview Road at a speed of about 40 kph, the judge clearly rejected the 2nd defendant's evidence that he was driving at about 10 miles per hour. How the judge reached his conclusion that the 2nd defendant was travelling at about 40 kph is not revealed by his judgment. However, it appears to be common ground that the judge inferred that speed from the distance of roughly 21 metres between the junction of the two roads where the 2nd defendant would presumably have first sighted the plaintiff and the point at which the vehicle came to rest, using tables of reaction times and stopping distances. The plaintiff sought to contend for a far greater stopping distance upon the basis of his own observations when he recovered consciousness at the scene of the accident and of measurements he took at the site following his discharge from hospital three months later. However, his submissions could not have been regarded as having even got off the ground. His ability to accurately observe the scene, hear conversations and recollect what transpired immediately after recovering consciousness, moreover in his injured condition, must be suspect. Above all, from the stopping distance he contended for and a bump on the bonnet, he submitted that a proper inference could be drawn of a speed of 60 kph on the part of the 2nd defendant. The distance of the point of impact from the junction of the two roads, i.e. about 8 meters on the evidence, renders such a speed highly improbable, even absurd. Having carefully reviewed the evidence and considered the submissions, particularly all that the plaintiff has written and said, we have no difficulty in rejecting his submissions and concluding that there is no warrant for interfering with the judge's findings on liability, or his apportionment of liability between the plaintiff and the 2nd defendant. Even if we were able or minded to conclude that the defendant's negligence was of a somewhat higher order than that of the plaintiff (which we are not) this would not entitle us properly to intervene. That is plain from the following dictum of Lord Wright in British Fame v Macgregor [1943] AC 197; 200, 201:

"I do not say ... that under proper conditions ... the judge's apportionment might not be interfered by an appellate court, but I do repeat that it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the fact. It is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense. It is a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge's apportionment."

The plaintiff's appeal against liability and the apportionment of liability, in our view, must therefore fail.

11. We turn then to his appeal against quantum.

Appeal against quantum - background

A general account of the plaintiff's injuries and the facts relevant to the award for damages can be taken from the following passages in the judgment:

"In the statement, the Plaintiff said that after the accident, he spent much time and money to restore his health so that he could maximize his earning potential. He consulted a number of top medical specialists to treat his injuries. He attached a list of the medical consultations that he had after the accident and the list comes to a total of 222 consultations with different doctors and at different clinics, beginning with 7th December 1988 at the Queen Mary Hospital and finishing on 5th July 1996 at Dr Desmond Fung's clinic.

In his statement which he made on 27th June 1997, the Plaintiff said that he had still not fully recovered from the accident. He listed the injuries that he still suffered as follows :

─ fractured odontoid process

─ soft tissue injury at the left thigh and low back

─ irritation of the sciatic nerve at the sciatic notch

─ sensory disturbances of the left upper limb

─ pain at the achilles tendon, lateral border of the foot, the buttock and thigh of the left lower limb

─ left sciatic pain

─ myofasciitis around the left ischial tuberosity and achilles tendon due to chronic neuritis, irritation of left sciatic nerve and achilles tendinitis

─ residue symptoms of dysphoria

─ high chance of psychiatric or psychotic decompensation under stressful events

─ constant pain and paraesthesia in the left upper limb from shoulder to hand

─ neck pain which is intermittent and associated with dizziness

─ sufferings in physical, emotional, social and occupational aspects of life.

After taking four months' sick leave, the Plaintiff returned to work in the same company as a sales engineer selling industrial products. He said that he lost his promotion prospects to become a sales manager despite his good performance in the company before the accident. He said he was dismissed by the company in May 1994, after 11 years' service, because he became too much involved in the litigation of the present case. After his dismissal, he spent time preparing for the case and also studying for various business diplomas. He first started to work for the company, S & T Enterprises Limited, on 6th April 1983 and the date of his termination of service was 20th April 1994. His monthly income before the accident was about $22,430. In October 1995, he managed to find a job as a marketing manager in a company which sold electrical stationery and home appliances. He was dismissed from that company in December 1995 and his monthly salary in that company was $20,000. In February 1996, he got another job as a sales manager selling computer software with the company called Video Education Limited, earning $20,000 per month. This employment was terminated on 31st March 1996. In June 1996, he started a job as a sales manager with a company based in Guangdong and at this job he was earning $25,000 per month, but he left this job in the middle of July 1996 to prepare for the hearing of the Defendants' application to strike out the Plaintiff's claim for want of prosecution. Since July 1996, the Plaintiff has remained unemployed despite writing a number of letters to seek jobs.

In the Plaintiff's statement, he said that he was a regular marathon runner and had participated in a number of marathons where he was able to finish the respective races. He said that after the accident, he could only engage in mild exercises. He could not participate in any running races. He would feel great pain stretching from his left hip to his left foot whenever he attempted to run fast. Besides, he would also feel persistent pain on the left hip when he slept or sat down. In his statement, he gave a list of complaints in his daily life up to the middle of 1997."

It was a very long list, which we do not think needs to be set out here.

The medical evidence

12. Five doctors gave evidence, three for the plaintiff and two for the defendants. For the purposes of this appeal it is only necessary to make reference to very limited portions of their evidence.

13. Dr Yu was the first doctor called for the plaintiff. He estimated permanent impairment of the whole person ("PIWP") at 8%, and loss of earning capacity at 5% in 1993. He recommended a psychiatric assessment as he considered that the plaintiff had also suffered from psychological trauma as a result of the accident, which would also affect his earning capacity. Subsequently, in 1997, on further examination he increased his estimates to 11% (PIWP) and 10% (loss of earning capacity).

14. The second witness was Dr Desmond S.S. Fung, who had qualified in medicine and specialised in psychiatry. He had examined the plaintiff several times in 1996 as had Mr Wong Chee-wing, a clinical psychologist. They found that he exhibited emotional signs of over excitement, and also an over-zealous obsession in documenting details of the on-going court proceedings. They stated that with respect to the plaintiff's physical pains and sufferings, there was good evidence to show some forms of subjective exaggeration but added that this did not necessarily suggest that he was wilfully and deliberately feigning somatic disorders; his symptoms could be quite true although very much over-rated. Such extreme forms of somatic preoccupation could be part and parcel of his disabling depressive illness which afflicted him between 1992 and 1994.

15. Significantly, they added

"considering Mr Chan's allegedly well-adjustment prior to the material accident,

'while the accident had not impaired the Plaintiff's intellectual and cognitive functioning, it did have a far-reaching impact on his emotional and psychological status. The impact was not so much attributed to the nature and severity of the accident per se, but to the emotional disturbance and depression which occurred as a result of subsequent prosecution against the Plaintiff by the police and the chain of events which took place in connection with the High Court Proceedings.'"

16. They found that the plaintiff had largely recovered from his previous depressive illness which had disabled him between 1992 and 1994. However he still exhibited residual symptoms of dysphoria, and because of the psychological impact mentioned, his emotional state remained vulnerable after undergoing a roller coaster ride in recent years. They considered that the plaintiff would definitely need ongoing psychotherapy and counselling for his dysphoric mood. If his depression became more prominent he would need a course of anti-depressants for treatment. At that point in time his condition was fluid and far from stationary. He remained a very vulnerable person. The chances of a psychiatric or psychotic decompensation under stressful events remained high. However, as the he was so obsessed with future vindication for the perceived injustice perpetrated on him, they strongly believed that his mental status and physical complaints would certainly improve spontaneously if he were eventually vindicated in his legal battle in court.

17. Dr Fung prepared another report dated 21 January 1998 together with Dr Timothy Law, a clinical and neurological psychologist. They said it was most evident that the plaintiff continued to suffer from the impact of the accident and the complications of his legal pursuits which kept his memories of the accident alive and painful through the intervening years. They said the result was an obsession, a near paranoiac state of mind that continuously affected the plaintiff's recovery and adjustment through the years. They considered he needed cognitive behavioural psychotherapy, with focus on his present and future adjustment to pains.

18. In court Dr Fung said that before the accident, the plaintiff was well adjusted and his mental state quite well but after the accident, there was a different mental picture because the plaintiff suffered from depression which required further treatment. He added that the events which took place after accident could be a major factor in the development of the plaintiff's mental condition. In cross-examination he said that the prognosis was that if the plaintiff did not receive treatment, he remained vulnerable. However, if he were to win the Court case, it might be a strong anti-depressant and he would definitely require less treatment for his condition.

19. The plaintiff's third witness was Dr David Fang, an orthopaedic surgeon. He first saw the plaintiff in June, September and October 1994. In his report dated 27 January 1995, he said that despite prolonged treatment, the plaintiff still had persistent and mild sciatic pain. Permanent disability was not expected but it was difficult to anticipate how long the pain would last. Dr Fang examined the plaintiff again in April and May 1996 and made a second report in which he said that he believed the plaintiff might be suffering irritation to the left sciatic nerve due to some form of chronic neuritis. That was not a serious condition in his view as the function of the sciatic nerve was still intact. He made a third report dated 29 December 1997 following examinations on 16 December and 20 December 1997. He said that an x-ray taken of the cervical spine showed definite healing of the previous odontoid fracture with no obvious evidence of degenerative change. The plaintiff, he said, was obsessed with legalities relating to his injuries but was not a malingerer. His anxieties would be very much allayed when legal proceedings were concluded. He concluded that part of the symptoms might improve, but it was unlikely that everything would disappear.

20. The first medical witness for the defendants was Dr Karam Singer, a psychiatrist. He examined the plaintiff on 25 February 1998 for 3 3/4 hours at his clinic and on 28 February 1998, he conducted a telephone interview of the plaintiff for 15 minutes. In his report he noted that during the examination that the plaintiff went into profuse and unnecessary details besides often going off at a tangent so that it was difficult to get straight answers. He referred to that as pressure of speech, namely talking rapidly and tending not to stop in spite of interruptions. We pause here to mention that these characteristics were also evident during the plaintiff's submissions in this Court. Reverting to Dr Singer's report, such speech, according to him, was characteristic of an obsessive-compulsive personality, and because it was evidenced in an excessive form, he characterised it as obsessive-compulsive personality disorder. He said the disorder predated the accident.

21. The stresses of the plaintiff's involvement in litigation and the problems of such involvement - financial, occupational, recreational and social - were the main causes of the plaintiff's psychiatric symptoms. Dr Singer's opinion was that this disorder influenced the cause of the plaintiff's condition post-accident. Any physical disability that he suffered as a direct result of the accident would be doubly stressful and magnified because of his perfectionism. To someone who overvalues his body and health, any threat of injury to these was, in his view, particularly stressful. While not all marathon runners have obsessive-compulsive disorder, marathon-running has with its inflexibility, pre-occupation with mental control and the high amount of devotion required exploits obsessive-compulsive tendencies. People with this disorder are vulnerable to depression. However, he thought the plaintiff was not suffering from any such depressive disorder at the time of his report in March 1998. The symptoms which the plaintiff had were those of normal people anxious or unhappy when facing stress or loss such as litigation or difficulty with jobs and did not amount to a psychiatric disorder. In addition, the plaintiff's psychological state had aggravated his perception of pain in the neck, achilles tendon and left buttock. Dr Singer's prognosis was that the plaintiff's depressive mood and sleep impairment would dissipate rapidly with settlement of the litigation. The plaintiff did not, in his opinion, require treatment for these.

22. In Dr Singer's view in March 1998, the then current loss of earning capacity was 2% and PIWP 2%. Permanent loss of earning capacity, after litigation, would be 1% and PIWP 1%.

23. In court, Dr Singer said the accident was only a minor cause and that the main cause of the symptoms, i.e. the depressive mood and the impairment of sleep was the personality disorder. He said that what the plaintiff had was what normally people would have under the circumstances.

24. In cross-examination Dr Singer said that in his opinion the plaintiff in his then mental state would be capable of earning what he was earning prior to the accident.

25. The defendants' second medical witness was Dr Jake O'Donovan, a general and traumatic surgeon who examined the plaintiff on 28 August 1997. In his report he said he found the plaintiff tended to exaggerate his weakness and difficulties, but when told to perform properly, he was perfectly able to do so. In his opinion, the plaintiff's complaints were not borne out by his examination. As regards the plaintiff's neck, he had a good range of pain-free movement with radiation of slight pain to the left root of neck posteriorly. Clinically, his neck was well recovered from his fractured odontoid and the rest of his neck was really unremarkable. Dr O'Donovan assessed PIWP at 5% and loss of earning capacity at 10%, adding that the plaintiff would be able to take up his pre-accident job after his recovery.

26. Dr O'Donovan also said that the plaintiff had told him in August 1997 that he was still engaged in marathon running and regularly ran a few times a week. He had taken part in more than one marathon since the accident. Dr O'Donovan expressed the view that a person had to be 100% fit to do a marathon.

The submissions on injuries

27. Only two aspects of the plaintiff's diffuse submissions on his injuries need to be considered. The first was with regard to the depression he suffered for two years from 1992 to 1994. The judge did not overlook this. In his judgment he said:

"In addition to his physical injuries, the Plaintiff also suffered from depression between mid-1992 and early 1994 mainly, if not solely, as a result of the treatment he received from the Police and/or Government doctors and/or his former solicitors as well as the stress of the present proceedings. However, since this has little or no causal connection with any negligence on the part of the 2nd Defendant, I am not holding the Defendants liable for this."

28. Before us, the plaintiff complained of the severe depression he suffered from during the two years in question and the consequences. He contended this was all because of the litigation. Mr Poon, who appeared for the defendants below and before us, contended that the depression was too remote and on the evidence resulted from the plaintiff's obsessive-compulsive personality disorder, and also from the police initiating a prosecution for jay walking against him, which gave rise to an unrestrained desire on his part to vindicate himself. It seemed to us at first that the judge may have been wrong in not holding that the legal proceedings were a necessary consequence of the accident and the failure of the defendants to compensate him, thereby driving him to legal proceedings. However, on further consideration, it seems to us that the situation is not clear enough to fault the judge's conclusion. For one thing, the defendants may not have been unreasonable in the situation that confronted them in not compensating the plaintiff in advance of liability having been established. The other matter, which was not unrelated to the former, was the plaintiff's attack on Dr Singer's evidence. We have to say that in his attack upon numerous aspects of Dr Singer's evidence, he did make some plausible points. The comparatively short and virtually single interview that Dr Singer had with him, relative to the several examinations by the plaintiff's own medical witnesses, does at first sight appear to raise questions about whether he had had sufficient opportunity to reach the several strong and damaging conclusions that he did. However, the point was effectively disposed off by Mr Poon pointing out that Dr Fung and Mr Wong Chee-wing in their reports considered that the impact on the plaintiff's emotional and psychological status "was not so much attributed to the nature and severity of the accident per se, but to the emotional disturbance and depression which occurred as a result of the police decision to prosecute Mr Chan; and a chain of events which took place in connection with Mr Chan's High Court proceedings". In the result we do not think that the judge can be faulted in his acceptance of Dr Singer's evidence.

29. Quite apart from the plaintiff's foregoing submissions as to Dr Singer's evidence, he included in his written submissions elaborate and very detailed extracts from the reports and evidence of the medical witnesses and points in support of his claim for physical and psychological injuries. Having carefully gone through them, it is clear that there could be no justification for burdening this already over long judgment with them. They do not, in our view, lead to the conclusion he contends for nor can they stand against the conclusions that the judge did reach and was entitled to reach.

30. We mention also that the plaintiff sought to rely directly upon the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, Washington DC. None of the passages he sought to rely upon had been referred to by the medical witnesses. Such books are not evidence per se. A judge may not form an opinion upon a part of such books not referred to. Still less may counsel read out particular passages as part of his address (see Phipson on Evidence 14th Edition para 32-16). Moreover, Mr Poon did not agree to their inclusion in the bundle the plaintiff produced. In the result, they are to be disregarded.

Quantum

Pain, suffering and loss of amenities ("PSLA")

31. We turn then to the matter of quantum, beginning with the PSLA award. Having addressed the matters already mentioned, the judge then went on to make the following finding:

"I therefore find damages for pain, suffering and loss of amenities on the following basis :-

a) he has suffered fractured odontoid which has healed;

b) he has also suffered soft tissue injury at left side and low back;

c) he has mild pain or discomfort which may increase slightly as he gets older; and

d) his mild depressive mood will likely dissipate upon conclusion of these proceedings.

I therefore assess damages for pain, suffering and loss of amenities in the sum of $250,000. That would represent about 54% of the current minimum sum for serious injury as stipulated in Chan Pui Kee v. KMB [1996] HKLJ 395 where the minimum sum for serious injury was $400,000. Adding about 15% to that sum on account of inflation, the current minimum would be $460,000."

32. The plaintiff contended that this award was too low apparently upon the basis of the apportionment of liability. That aspect has been dealt with but it seems to us implicit that he must be taken also as contending that the award was too low upon the authorities. In this regard, Mr Poon helpfully took us to the following cases:

(a) Hong Kong Macao Hydrofoil Co Ltd v Ng Chan-wai and others 1984 Folio No. 209 (unreported);

(b) The Blue Taxicabs Ltd v Wong Sung-yam (1981) HKLJ 411

(c) Lau Tak v Wah Lok Co (1983) 423 (unreported)

(d) Chan Yuk-lee v Chan Chiu-ying (1988) HKLJ 514

(e) Bou Kwok-leung Timothy v Yeung Ming-sun (1989) HKLJ 388

33. These show clearly enough that the award of $250,000 was by no means ungenerous. Indeed, some of the awards in the foregoing cases were considerably smaller for injuries that were significantly more serious. Furthermore, there is nothing in this case that would suggest that the minimum sum for serious injury specified in Chan Pui-kee v KMB [1996] 2 HKLR 401 needs to be updated.

34. The appeal against the PSLA award of $250,000 must therefore fail.

Past loss of earnings

35. The plaintiff also appeals against the award of only four months' income, i.e. $22,430 x 4 which totalled $89,720. That period was adopted because he apparently told the court that he returned to work four months after the accident. He claimed about two years' income for the period he did not work when he suffered depression. This claim must be rejected, the judge, as we have already indicated, having been right in concluding that the depression was not attributable to the accident.

36. However, in the course of the hearing before us, we were referred to documents recording the period of sick leave immediately after his accident and it is clear that this was not four months but five months. It seems to us that since he has appealed against the amount of pre-trial loss of earnings, and since the documentary evidence of five months' sick leave was in fact before the judge, his appeal should be allowed to that extent. Although it is not entirely clear how he came to overlook the additional month, it seems most likely that he made a mistake or had forgotten. We would accordingly increase the award of $89,720 for past loss of earnings to $112,150.

Loss of future earnings/loss of earning capacity

37. The judge disposed entirely of these matters in the following short passage:

"Dr O'Donovan and Dr Singer were both of the opinion that the Plaintiff would be able to return to his pre-accident work. I therefore find that there should be no award for loss of future earnings. However, because of the remaining injuries, which may or may not disappear after the passage of time, I find that the accident has caused the Plaintiff to be disadvantaged in the labour market. I therefore award $60,000 for loss of earning capacity."

38. Both these individual heads of damage fall within the general head of future loss. Their nature and the difference between the two is perhaps best explained in the judgment of Browne LJ in Moeliker v Reyrolle & Co Ltd [1977]1 WLR 132 at 139H:

"... Smith's case is merely an example of an award of damages under a head which has long been recognised - a plaintiff's loss of earning capacity where as a result of his injury his chances in the future of getting in the labour market work (or work as well paid as before the accident) have been diminished by his injury. ... This head of damage generally only arises where a plaintiff is at the time of the trial in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job. It is a different head of damages from an actual loss of future earnings which can already be proved at the time of the trial. Lord Denning M.R. said in Fairley v. John Thompson ...

'It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.' "

Continuing at F and G of the same page, Browne LJ said:

"...If [the plaintiff] is then earning as much as he was earning before the accident and injury ... , or more, he has no claim for loss of future earnings. If he is earning less than he was earning before the accident, ... he has a claim for loss of future earnings which is assessed on the ordinary multiplier/multiplicand basis. But in either case he may also have a claim, or an additional claim, for loss of earning capacity if he should ever lose his present job. ... what has somehow to be quantified in assessing damages under this head is the present value of the risk that a plaintiff will at some future time suffer financial damage because of his disadvantage in the labour market. ...

Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk that he will at some time before the end of his working life lose that job and be thrown on the labour market? I think the question is whether this is a 'substantial' risk or is it a 'speculative' or 'fanciful' risk: ... Scarman L.J. in Smith's case referred to a 'real' risk, which I think is the same test. In deciding this question all sorts of factors will have to be taken into account, varying almost infinitely with the facts of particular cases. For example, the nature and prospects of the employers' business; the plaintiff's age and qualifications: his length of service: his remaining length of working life; the nature of his disabilities; and any undertaking or statement of intention by his employers as to his future employment. If the court comes to the conclusion that there is no 'substantial' or 'real' risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.

But if the court decides that there is a risk which is 'substantial' or 'real' the court has somehow to assess this risk and quantify it in damages. Difficult as this is, the courts sometimes have to assess the money value of a chance in other contexts: ... Clearly no mathematical calculation is possible. Edmund Davies L.J. and Scarman L.J. said in Smith v. Manchester Corporation, ... that the multiplier/multiplicand approach was impossible or 'inappropriate' but I do not think that they meant that the court should have no regard to the amount of earnings which a plaintiff may lose in the future, nor to the period during which he may lose them. What I think they meant was that the multiplier/multiplicand method cannot provide a complete answer to this problem because of the many uncertainties involved. The court must start somewhere, and I think the starting point should be the amount which a plaintiff is earning at the time of the trial and an estimate of the length of the rest of his working life. This stage of the assessment will not have been reached unless the court has already decided that there is a 'substantial' or 'real' risk that a plaintiff will lose his present job at some time before the end of his working life, but it will now be necessary to go on and consider - (a) how great this risk is; and (b) when it may materialise - remembering that he may lose a job and be thrown on the labour market more than once (for example, if he takes a job and then finds he cannot manage it because of his disabilities). The next stage is to consider how far he would be handicapped by his disability if he was thrown on the labour market - that is, what would be his chances of getting a job, and an equally well paid job. Again, all sorts of variable factors will, or may, be relevant in particular cases - for example, a plaintiff's age; his skills; the nature of his disability; whether he is only capable of one type of work, or whether he is, or could become, capable of others; whether he is tied to working in one particular area; the general employment situation in his trade or his area, or both. The court will have to make the usual discounts for the immediate receipt of a lump sum and for the general chances of life.

I do not think one can say more by way of principle than this. The consideration of this head of damages should be made in two stages. 1. Is there a 'substantial' or 'real' risk that a plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialise, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff's chances of getting a job at all, or an equally well paid job.

It is impossible to suggest any formula for solving the extremely difficult problems involved in stage 2 of the assessment. A judge must look at all the factors which are relevant in a particular case and do the best he can."

39. In the schedule of special and general damages appended to the plaintiff's Statement of Claim in accordance with the relevant Practice Direction by his solicitors (the plaintiff was represented at that time) the claim for loss of future earnings was put at a little over $5m on the basis that he was then 42 years of age, would have worked until the age of 65 and that he had suffered several periods of unemployment since the accident and in spite of continuous efforts had failed to secure employment since July 1996. One cannot but have some sympathy for the judge in having to deal with that claim. It does not appear to have been pursued in any credible way by the plaintiff, by then unrepresented, before him. However it is not only in circumstances where a plaintiff is in actual employment at the time of the assessment of his claim that he would be entitled to an award for loss of earnings. He might yet be able to prove that he would probably have remained in his employment for some period and would have received wages at a demonstrable level, all or some of which he has lost because of his injuries. Had the plaintiff been represented, the judge may have been enabled to address the claim for loss of future earnings. This Court is now confronted with the fact that he was not; the reasons are not entirely clear. The claim has not been specifically pursued before this Court. Nor are we able to see any realistic basis for that to be done upon the material before us. The plaintiff appears to be unfortunate in that respect as it is conceivable that some loss of earnings could be established, particularly if he had proceeded more expeditiously with his claim. But almost 10 years have elapsed since the accident, and almost all of the delay seems to us to be attributable to him, as opposed to the defendants. However all that may be, we have now to take this case as we find it. The plaintiff was given legal aid on two occasions and elected to proceed without the legal representation provided. That is the fact, notwithstanding his reasons which he mentioned. It could not be right for this Court to attempt to now reopen the claim for loss of future earnings.

40. We turn then to the award for loss of earning capacity. The judge found that the accident had caused the plaintiff to be disadvantaged in the labour market and awarded him $60,000. The plaintiff's general contention that the compensation award he has received is inadequate, requires us to address this specific award.

41. It is implicit in the judge's finding that the accident caused the plaintiff to be disadvantaged in the labour market, and likewise implicit in his award of damages that he found the risk that the plaintiff would be looking for a job sometime in the future to be real and substantial. We think there can be no doubt about that, since the applicant appeared already to have begun to suffer the effect of being disadvantaged and had actually been unable to obtain employment since 1996. Hopefully if the preponderance of medical opinion proves right, the finality of these legal proceedings will lead to the expected improvement in his condition which will enable him to secure employment. But the fact remains that the risk has been shown to be real and substantial; even if his non-employment cannot be totally attributed to the accident and its consequences, it seems to us that it must very substantially be so attributable.

42. As to other relevant circumstances, Dr Yu, his own medical witness specialising in neurology, assessed his loss of earning capacity at 10%, with which assessment Dr O'Donovan, the orthopaedic surgeon called by the defendant, agreed. True, Dr Singer opined that his loss of earning capacity would be only 1% after the litigation, but as a psychiatrist he was concerned primarily with his own discipline. Moreover, the plaintiff is a relatively young man and would be expected to have at least 23 years of working life before reaching 65, an age beyond which most Hong Kong people appear to continue to work. Besides his pre-accident and indeed, post-accident earnings appeared to have ranged between $20,000 - 25,000 a month. This is a sum considerably in excess of many of the claimants in the many cases we have reviewed. That said, it has to be acknowledged that it is not possible to deduce any general level of awards by reference to the circumstances. Browne LJ's judgment in Moeliker recognised that difficulty. It has been recognised in other cases too. In Tait v Pearson (reported in substance in paragraph 6-621 of Kemp v Kemp 6189; 6192) Butler-Sloss LJ addressing a similar task in relation to residual earning capacity said this:

"I do not think it would be helpful to go into a detailed process of quite how much one should be reducing this sum to represent a figure for residual earning capacity. It would, in my view, be preferable at this stage in the Court of Appeal to stand back and look broadly at the figure, and to do what judges over the years have done, which is to pluck a figure from the air as best to provide an appropriate recognition that he has a financial loss for the future ..."

Likewise doing the best we can and taking account of all the relevant considerations and circumstances we think that the award of $60,000 too low and that it should be increased by two-thirds to $100,000.

Costs of future treatment

43. There was a range of conflict and inconsistency in the opinions of the medical witnesses in this respect.

44. Dr Yu was of the view that the plaintiff would need medical consultations once every month at about $700 per visit exclusive of medication and physiotherapy, twice a week for one month, then weekly for two months and then monthly for about 12 months. The fee for each physiotherapy section would be about $400. Dr Fung said that the plaintiff would require a period of 6-9 months of therapy and that the cost for each session would be $1,200 on a weekly basis; the total would be $1,200 x 9 x 4 which equals $43,200. Dr Singer's view was that the plaintiff's depression and sleep impairment would disappear with settlement of the litigation and that he accordingly would not require treatment. Dr O'Donovan considered that the plaintiff had achieved recovery from his physical injuries but would need psychological help to get a job.

45. Dr Fang's final view was that the plaintiff should have an orthopaedic consultation annually for the following five years at a cost of $500-1,000 per consultation. Dr Fang also said that the plaintiff might need physiotherapy for his neck pain and pain in the upper left and lower limbs. He thought an annual course of physiotherapy would be sufficient and that this would cost $4,000 per year for five years.

46. The judge decided the matter in the following way:

"I accept the evidence of Dr David Fang that the Plaintiff would require some treatment for his present symptoms in the future. ... On the basis of Dr Fang's recommendation that this should be done for the next five years, I award the Plaintiff $20,000, making a total of $25,000 under this head."

47. The judge saw and heard all the medical witnesses. He was entitled to accept Dr Fang's evidence. We can see no reason why this should not have been the assessment preferred. It was certainly not ungenerous to the plaintiff in the context of all the medical evidence. We would dismiss his appeal against the award for his costs of future treatment.

Special damages other than past loss of earnings

48. The judge dealt with this in the following way:

"According to paragraph 32 of the Plaintiff's statement, the Plaintiff has incurred the following expenses :

Medical expenses	$110,784
Travelling expenses	$11,100
Tonic food	$15,000
Damaged watch and spectacles	$1,100

I allow these items of expenses except for the medical expenses, I will deduct the sums of $2,000 and $15,000 for the fees for Dr Fang's and Dr Fung's medical reports respectively. As for tonic food, because it is the Plaintiff's evidence that such food was not taken on medical advice, I would only allow the sum of $5,000 under this head. Therefore, the items I allow under this head are :

Medical expenses	$93,784
Travelling expenses	$11,100
Tonic food	$5,000
Damaged watch and spectacles	$1,100
Total :	$110,984" =========

49. It appears that the plaintiff is in general terms appealing against the special damages award, though on what specific grounds is not entirely clear. We would reject any appeal against the award of $5,000 for tonic food. The judge could have quite properly disallowed the claim for tonic food altogether.

50. However, as to the deduction of $2,000 and $15,000 in respective of Dr Fang's and Dr Fung's medical reports, both were extensively relied upon by the judge and appear to have been canvassed to some extent before him. Upon that basis, it was not clear why the judge made these deductions. Mr Poon suggested that this was because those items had been included in the general costs of the action. However, not only were there several medical reports from Dr Fang and Dr Fung, but there were numerous others from Drs Chan, Cheung, Cathagan, O'Donovan and Singer, which do not appear to have been disallowed. Those from Drs Chan, Cheung and Cathagan appear on their face to have been provided to the plaintiff. Accordingly, if the fees for the latter were not deducted, it is difficult to see why the two deductions in question were made. Moreover, it is far from clear that the deducted items were included in the costs. We are, therefore, unable to find any justification for the deduction of the two amounts; we think they should have been included. We would accordingly re-instate them and increase the amount awarded for medical expenses from $93,784 to $110,784.

Interest upon PSLA and special damages awards

51. The judge said this:

"The accident occurred on 7th December 1988 and the writ was issued on 4th October 1991. Thereafter the Plaintiff took no active steps to prosecute the claim until the Defendants applied to have it dismissed for want of prosecution, first, in 1994, then again in 1996. According to Lam Fong v. On Lee & Co. [1992] HKLJ 100, this constitutes a special reason for departing from the usual basis for awarding interests. I find that if the Plaintiff had proceeded with due diligence to prosecute this action, the action could have been heard about three years from the date of writ, so I am allowing interest only to run from the date of the accident until the end of 1994. Therefore, the damages for pain, suffering and loss of amenities will carry interest at 2% per annum from the date of service of writ until the end of 1994. In addition, the special damages will carry interest at 5.84% from the date of accident to 31st December 1994, and from date of judgment, interest will be at judgment rate."

52. The plaintiff submitted that as a layman he had great difficulty prosecuting his claim on his own. He originally instructed solicitors but had to withdraw instructions when he ran out of funds. Then it appears he had difficulty getting his papers back and ultimately had to seek the assistance of the Law Society. Much later, when he was allowed legal aid, it has to be said that he appears to have had good cause to feel aggrieved with his solicitors' conduct of his claim, and some justification for withdrawing instructions and proceeding on his own. If he thereafter lacked trust in the legal profession, as mentioned by two of the medical witnesses, (which in one instance was taken as evidence of his compulsive-obsessive personality) then that seems to us to be entirely understandable. However all that may be, it cannot justify the inordinate delay that has occurred in these proceedings. The matter came to trial after almost 10 years. Even if the plaintiff encountered difficulties with his advisers and in coping himself, this can in no way warrant the defendants being penalised by way of additional interest. We can see no ground for interfering with the judge's award of interest and his reasons. Accordingly, here, too, we would reject the plaintiff's appeal.

Conclusion

53. In the result we would allow the appeal to the following extent, that is to say, to increase

(a) the award for past loss of earnings from $89,720 to $112,150;

(b) the award of $60,000 for loss of earning capacity to $100,000; and

(c) the amount awarded as medical expenses from $93,784 to $110,784.

There will be orders to that effect.

54. Coming then to the matter of costs, the plaintiff has succeeded only in part, but he had to appeal to do so. Although not represented for the most part, he has incurred some costs. Having regard to these and other relevant considerations and circumstances, it seems to us that the proper order should be that there be no order as to costs. There will be an order nisi to that effect.