CHAN LONG KIN v. LAM KAM CHEONG

HCPI 1186/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1186 OF 2014

(TRANSFERRED FROM DCPI 963 OF 2014)

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J U D G M E N T

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Introduction

1.  The plaintiff was a motorcyclist.  He was injured in a road traffic accident on 12 September 2012, when he was knocked off his motorcycle by a private car driven by the defendant.  He has not ridden a motorcycle since.  Prior to the accident, the plaintiff had been employed as a clerk or administrative assistant for a jewellery business, with both indoor and outdoor duties.  He had also for several months taken a part-time job as a motorcycle pizza deliveryman.  At the date of the accident he was 29 years old, so is now 33.

2.  Liability for the claim was defended until shortly before the trial dates.  However, ultimately, liability was conceded, and on the first morning of the trial I made an order by consent that there be interlocutory judgment for damages to be assessed, with costs to be paid by the defendant to be taxed if not agreed.

3.  Therefore, the only matter to be dealt with at trial was the assessment of damages.  The issue between the parties with the major potential financial impact was whether the plaintiff had suffered, and/or would continue to suffer, any loss of earnings caused by the accident.  There was also an issue as to any loss of earning capacity, together with some other issues with less potential financial impact.

4.  I note that the amount of loss and damage claimed by the plaintiff in the Revised Statement of Damages (“RSOD”) was $1,891,541 plus interest, but in closing submissions had increased to $2,508,113.  The amount suggested by the Answer to the RSOD was not clear, but in closing submissions the defendant argued that the correct figure was a total of between $555,809 and $605,809.

Injuries and treatment

5.  Following the accident, the plaintiff was taken to the A&E Department of the United Christian Hospital.  X-ray examination revealed fractures of the right superior pubic ramus, L5 lumbar vertebrae transverse process, and left distal fibula (left ankle).  He also suffered a soft tissue left shoulder injury.

6.  The plaintiff was admitted to the Orthopaedics & Traumatology Department, and on 17 September 2012 underwent open reduction internal fixation surgery on the ankle with syndesmotic screw.  Post-operatively, he was prescribed non weight bearing and physiotherapy, and was discharged after 16 days on 28 September 2012.

7.  There were 20 sessions of physiotherapy between 30 October 2012 and 3 June 2013, and there were regular follow-up orthopaedic examinations.  On 16 November 2012, surgery was performed on the plaintiff to remove the syndesmotic screw from his left ankle.  A subsequent x-ray showed the fracture had healed by the end of that month.

8.  On 30 November 2012, the plaintiff's was referred to the Department of Psychiatry for suspected post-traumatic stress disorder ("PTSD") symptoms.  He was first seen on 9 January 2013, and was diagnosed with Adjustment Disorder, with some-clinical symptoms of PTSD and Obsessive Compulsive Disorder.  The symptoms included some occasions of uncontrollable recurrent intrusive imagery of the accident, fear of riding in private cars or taxis (though such travel was not wholly avoided), and occasional moments injuring himself harming his girlfriend (never acted upon).

9.  The plaintiff opted for drug-free observation, and agreed to be referred to a Clinical Psychologist for psychological intervention.  He was first seen by the psychologist on 27 May 2013, and made significant progress in reduction of symptoms such as anxiety, though he remained somewhat easily agitated in mood.  At the last session on 10 July 2013, the plaintiff agreed to terminate the clinical psychological service in view of the improvement.

10.  In the meantime, in February 2013, the plaintiff was referred to the Occupational Therapy Department for work assessment and rehabilitation.  His first out-patient session was on 9 April 2013, and the last assessment was on 10 May 2013.  The relevant notes record that the plaintiff then defaulted further treatment since 3 June 2013.

11.  Shortly after the expiry of his sick leave on 18 June 2013 (the sick leave being a period of approximately 9 months), the plaintiff returned to work for his previous employer.  However, by letter dated 1 July 2013, the employer notified the plaintiff that with immediate effect he would be redeployed to the position of office assistant, and his monthly salary would be adjusted downwards.  The plaintiff says this happened because he could no longer continue to perform all of the pre-accident duties of his previous position, which included occasional lifting and carrying, sometimes of weights in excess of 10 kg.

12.  Later, in July 2013, the plaintiff reported to the Department of Psychiatry that he was able to cope well with work, to travel independently on public transport and taxis, and to control symptoms of anxiety using breathing exercises.  He also reported a reduction in the frequency of nightmares, and the cessation of any intrusive thoughts of hurting his girlfriend, with whom he by then enjoyed a good relationship.  The relationship with the plaintiff's colleagues was satisfactory, though he had reported feeling very tired after work without much time to think about other issues.

13.  On 5 August 2014, the remaining implants in the plaintiff's left ankle were surgically removed.  He was discharged from orthopaedic care on 20 August 2014, and granted sick leave until 5 September 2014.

14.  On 27 October 2014, the plaintiff reported increased anxiety precipitated by the death of his maternal grandmother and the disclosure that two of his colleagues had cancer.  He agreed to start medication on a low dose of antidepressant, being Sertraline. With the benefit of that medication, he reported improvement in symptoms for a period.  However, the plaintiff has also been affected on and off by other stressors, and has remained on Sertraline, and has continued to have follow-up sessions for psychiatric care.  The notes broadly record a lack of any problem coping at work.  His last appointment was in October 2016, and the next one is fixed for February 2017.

Medical Evidence

15.  There is an Occupational Therapy Report dated 10 April 2015, prepared by the therapist who saw and assessed the plaintiff in 2013.  The Report is necessarily based upon the assessment notes made contemporaneously, which were also in the trial bundle.  But, in summary, the Report contains a description of the plaintiff's pre-accident employment duties, his medical complaints, what was observed , and the conclusion that by May 2013, the plaintiff demonstrated work capacity, which matched his work demand.

16.  The underlying notes provide more detail.  The Initial Work Assessment Form of 9 April 2013 contains what the plaintiff told the therapist about his personal and work history, as well as the physical demands of his pre-accident employment.  The major job duties were described as clerical duty (indoors) and carrying jewellery to customers (outdoors).  The job entailed frequent sitting, standing and walking, with occasional climbing, bending and squatting (where “occasional” meant up to ⅓ of the time and “frequent” meant ⅓ to ⅔ of the time).  It also entailed lifting and carrying weights, frequently less than 10 kg and occasionally at or above that weight.

17.  As at that date, the therapist recorded the plaintiff having a self-perceived problem in returning to his previous job in that he was doubtful of the ability to carry goods for long periods.

18.  There was a detailed assessment on 10 May 2013.  The notes record the plaintiff's essential job tasks as including occasional lifting and carrying jewellery product at 10 to 20 kg.  There is also the record of the examination of the then current physical condition, where the major subjective complaint related to residual shoulder and ankle pain, the back and hip pain having subsided.  As to any self-perceived barriers in return to work, the notes record the plaintiff as having “nil”.  They also record the subjective review on return to work readiness as “ready” and the preliminary future work plan as “return to previous job post”.

19.  On the detailed matching of work demand and current capacity, each essential job task demands (including the lifting and carrying of jewellery product at 10 to 20 kg) was described as matched by current capacity.  The overall matching was “match without significant limitation”, and the summary on return to work recommendation was “ready to resume previous job without major work adjustment”.  Although shoulder pain and slightly decreased range of movement were noted, it was stated that that did not cause any limitation in return to work.

20.  The plaintiff has been jointly examined by psychiatric and orthopaedic experts appointed by each of the plaintiff and defendant.  To a large extent, the experts in each specialty are of the same expert opinion.

21.  The orthopaedic experts were Dr Fu Wai Kee and Dr Kou Sio Kei, and their report is dated 1 August 2015.  Amongst the other relevant history, they recorded that the plaintiff's work involved 50% sedentary work and 50% delivery of goods up to 10 kg. Following physical and x-ray examination, Dr Fu and Dr Kou concluded that the ankle, shoulder, pelvis and vertebrae injuries were the result of the accident.  They also agreed that the treatment of plaintiff received was standard, adequate and appropriate and that he had reached maximal medical improvement.

22.  Dr Fu opined that plaintiff should expect some residual pain and stiffness, and may have on and off attacks of pain that will require treatment on a needs basis.  There will be some difficulty in heavy lifting and fast walking.  Dr Kou opined that the plaintiff had recovered well from his injuries with minimal loss of movement, and the prognosis in a young adult were excellent.

23.  As to working capacity, Dr Fu considered that the plaintiff could return to original work as a clerk, but that he is working efficiency will be decreased as a result of the impairments.  In particular, there is difficulty in heavy manual lifting, which should be avoided.  Dr Kou considered that as the plaintiff had resumed his full-time original duty, and that only occasional and light lifting was required, there was minimal impedance in the discharge of the full original duty.  Both Dr Fu and Dr Kou considered that the plaintiff was functionally physically capable of driving a motorcycle and so resuming work as a pizza deliveryman.

24.  Dr Ku assessed the impairment to the whole person and the loss of earning capacity both at 5% for the left ankle with another 3% for the left shoulder, totalling 8%.  Dr Kou assessed the figures as 2% and 1% respectively, totalling 3%.

25.  The joint psychiatric report was prepared by Dr Cheung Hung Kin and Dr Law Wun Tong, and is dated 25 January 2016.  They recorded the plaintiff's then present physical complaints of pain and cramp in his left ankle and foot when the weather changes, and his stated inability to manage Thai boxing, cycling or gym workout or to carry heavy objects.  Mentally, he was noted to be fearful and nervous in a fast vehicle, though, have reduced fear on seeing a motorcycle, although he had not driven one since the accident.  His mood is neutral, and his sleep and appetite our normal.

26.  It was noted that the plaintiff has returned to work, but with less income, and faces financial strain and is indebted. Apparently, he told the experts that he plans to find another job but cannot think of what he can do.

27.  Dr Cheung and Dr Law agree with the attending psychiatrist that the plaintiff suffered from an adjustment disorder with mixed anxiety and depressed mood.  There are features of PTSD and OCD, but not qualified for individual diagnosis.  The plaintiff is vulnerable to stress, with a tendency to develop obsessive and hypochondriacal thoughts, showing fluctuation of mental state whenever faced with stressors.  Dr Cheung and Dr Law listed stressors caused or related to the accident, being the physical injuries, the trauma of it, residual physical symptoms, financial strain, relationship problem and ongoing compensation issue.  They also mentioned other stressors not related to the accident causing fluctuation of his mental state.

28.  The current residual symptoms of the adjustment disorder of mild in severity, but the disorder was wholly caused by the accident and is consistent with the injury.  The plaintiff has reached maximal medical improvement and prolonged treatment is not necessary.  The prognosis is good and his mood will further improve when the litigation is over.  The impairment level is under class 2, mild impairment, according to the AMA Guides.  The plaintiff's job capacity is only mildly compromised by his mood problem.  Assessment of the adjustment disorder is estimated at 2% for both impairment of the whole person and loss of earning capacity.

Pain and Suffering and Loss of Amenity

29.  In the RSOD, the plaintiff claimed $500,000 under this head of damage.  In the Answer to the RSOD, the defendant suggested the award for PSLA should be no more than $300,000.

30.  In argument, it was common ground that the plaintiff's circumstances placed him below the “serious injury” category, but Mr John Wright for the plaintiff and Ms Susanna Leong for the defendant provided various previous decisions by way of comparison, in putting forward their respective figures.

31.  At the end of the day, I think I can deal with this head of damage quite shortly.   First, I accept that the lower end of the “serious injury” category is now to be regarded as perhaps $510,000: see Wong Man Kin v Golden Wheel (C&HK) Transportation Co Ltd (unreported, HCPI 913/2011, 17 July 2015, Bharwaney J) at §48 and fn3 to that paragraph.

32.  Secondly, Ms Leong asserted that the facts of the present case are closest to the facts of the case of Ching Yuk Yee v Furniss Jacqueline Elizabeth and Another (unreported, HCPI 127/2012, 24 October 2014, DHCJ Wilson Chan), in which the judge awarded damages for PSLA in the sum of $250,000.  In that case, the plaintiff had suffered a left ankle fracture and underwent surgery for open reduction and internal fixation, with later surgery for removal of part of the implant.  The plaintiff in that case had also developed anxiety, and sleeping difficulties, and was diagnosed with PTSD and depression, which remained mild as at the date of a joint psychiatric expert's examination.  The medical evidence showed that the physical and mental conditions were caused by the accident, and that there had been no material pre-accident problems.  The plaintiff in that case could resume her pre-accident occupation, albeit with some degree of impairment of work efficiency and capacity.

33.  However, Ms Leong had inadvertently overlooked that that case had gone on appeal (unreported, CACV 236/2014, 25 June 2015), and the Court of Appeal increased the award to $400,000. When this was drawn to her attention by Mr Wright, Ms Leong immediately and fairly accepted that her argument should be that the relevant sum to be awarded in this case should be in the bracket $400,000 to $450,000.

34.  I accept that of all the various comparison cases cited to me, the Ching Yuk Yee case is perhaps closest to the facts of the current case.  However, it seems to me that the facts of the current case are more serious, in for example the additional surgery (which necessitated a full-month of further sick leave) and the additional fractures and soft tissue injury.  I also take into account the plaintiff’s young age and that he will likely suffer the existing symptoms for a longer period than an older person. 

35.  In all the circumstances, therefore, I award the sum of $475,000 under this head.

Pre-Trial Loss of Earnings

36.  The plaintiff was educated up to Form 4. After various other jobs, the plaintiff commenced employment with his pre-accident employer in March 2010.  His job title was “administration executive”, but he himself described it as being a clerk, a description matched in the employer’s return of remuneration.  His post-probation period monthly salary was $9,000, but by the date of the accident it had increased to $10,000 plus MPF.  As a result, net monthly pay of $9,500 was paid into his account (that is, net of his own employee’s MPF contribution).

37.  Though the point was not identified in the RSOD, Mr Wright said in opening submissions and the plaintiff said in his evidence that he also received 13^th month “double pay” each December and a bonus at Chinese New Year.  The bonus was in varying amounts of up to one month’s salary.

38.  Ms Leong objected to any claim including or being calculated by reference to these items.  She reminded me of the purpose and importance of pleadings, as for example reiterated by Ma CJ in Kwok Chin Wing v 21 Holdings Ltd and Another (2013) 16 HKCFAR 663 at §§21 and 23.  It is the pleaded issues that define the scope of the evidence, and not the other way round, so that it is not usually acceptable for unpleaded issues to be raised out of the evidence which is to be, or has been, adduced. Ms Leong also pointed to the commentary in the Hong Kong Civil Procedure 2017 at §18/12/52, which states that Statements of Damages take on the character of pleadings, not to be departed from at trial unless prior leave to amend is obtained.  This is because such a statement constitutes the further and better particulars of the allegation that the plaintiff has suffered loss and damage.

39.  In the circumstances, Ms Leong submitted that to allow the claim to be inflated, by relying on unpleaded figures, will be grossly unfair to the defendant.  The unfairness is compounded, she says, by the fact that the evidence has still not made clear what the discretionary bonus amounts were.

40.  In respect of the bonus amounts, I agree. Though there are some entries on the plaintiff's bank statements which might represent the payment of the discretionary bonus, I accept that the evidence remains not sufficiently clear.  For the purposes of including any discretionary bonus and in the calculation of lost past, or future, earnings.

41.  However, the bank statements which were produced on ordinary discovery some considerable time ago clearly evidence the 13^th month “double pay”, and such a payment is entirely usual (even if not universal) in Hong Kong.  Whilst I accept that this amount should have been particularised as part of the claim in the RSOD, I consider that the prejudice which might be suffered by the plaintiff by excluding from any relevant calculation is greater than that which might be suffered by the defendant by including it.  Indeed, had formal application be made for leave to amend the RSOD, it is difficult to see why leave would not have been granted where the only prejudice which the defendant might suffer can be compensated in the appropriate costs order (including, should there have been for example any sanctioned payment, the appropriate cost consequences in those circumstances).

42.  On that basis, I accept that the plaintiff's pre-accident, is to be calculated by reference to 13 times the monthly salary of $10,000, divided over 12 months, namely $10,833.  Adding on the MPF employer's contribution, that provides a figure of $11,375.

43.  The plaintiff’s job pre-accident job duties entailed both indoor and outdoor activity.  In evidence, he described that he spent the mornings during administrative and clerking work in the office, and the afternoons making deliveries of jewellery or invoices to customers.  The outdoor work, in particular required lifting and carrying packages of varying weights, frequently relatively light, but occasionally heavier between 10 and 20 kg.  Even the indoor work sometimes required moving and lifting.  At the time he was employed, his employer had recruited for clerks, but he was the only one who had to perform duties outside the office.

44.  After the accident, and the expiry of his sick leave period, the plaintiff returned to his pre-accident employer.  However, within a few days of resuming his work, he was redeployed and his monthly salary was adjusted downwards to $8,500.  With MPF, that was $8,925.  That was subsequently increased to $8,800 beginning January 2015.  With MPF that is $9,240.

45.  In his witness statement, which he adopted in oral evidence, the plaintiff said that during his sick leave his job had been assigned to other people, hence the redeployment.  He also said that he was no longer physically able to do the heavy lifting and carrying tasks previously demanded of him.

46.  Nevertheless, Ms Leong submitted that after expiry of the first period of sick leave on 18 June 2013, no damages for loss of earnings should be allowed (except for the loss suffered during the sick leave in August/September 2014, when the implants were removed). This submission was upon the basis that the medical evidence did not show that the plaintiff could not return to his previous job as a clerk.  Particular reliance was placed upon the Occupational Therapy Report of the last assessment on 10 May 2013 (see above), and the fact that the plaintiff defaulted further occupational therapy from the following month.

47.  However, whilst Dr Kou was of the opinion that there was minimal impedance in discharging the full original job duties, I accept the opinion of Dr Fu that the plaintiff would have difficulty in heavy manual lifting.  This also matches the plaintiff's own evidence, which I accept.  The fact that the requirement for heavy lifting (as opposed to light lifting) might be occasional and not frequent does not seem to me to matter; if that is part of the job requirement, it can be performed however frequently or not it is required. 

48.  Nor does it seem to me to matter that the plaintiff might subjectively considered in 2013 that he would not benefit from further occupational therapy.  Nor do the references in the psychiatric and clinical psychologist notes that the plaintiff could cope well with his work assist the defendant's argument.  By the time of those notes, he was performing his reduced duties.  There is no question that the plaintiff can cope with the reduced duties reflected in the reduced earnings.

49.  Therefore, I accept that the plaintiff has suffered a loss of earnings pre-trial.

50.  Mr Wright suggested that I should take a blended or average loss over the pre-trial period to reflect the fact that, as he submitted, the plaintiff's earnings would have increased over the period from the date of the accident to the date of trial.  He relied upon the plaintiff's oral evidence that another employee had been employed to perform his pre-accident duties at a salary of $13,000.  However, this was new evidence not trailed in the witness statement and though it might readily have been supported by other evidence, it was not.  Anyway, what another employee might earn is not necessarily the same thing as identifying what pay rises might have been given to the plaintiff, and it seems unlikely that he would have received an overall increase of 30% over three or four years (not least when his salary in his current role has had only a 3½% rise over the same period).

51.  Nevertheless, I accept some pay increase over period is apt, and I take the figure of 4%.  That would give a current assumed rate of pay as $10,920 including MPF for 13 months, averaging $11,830 each month over 12 months.  I think it logical to assume that the increase would have occurred in January 2015 (when the plaintiff received his actual pay increase).

52.  The accident occurred on 12 September 2012, and I assume this judgment will be handed down almost exactly 50 months later.  I calculate the loss until December 2014 as $11,375 less $8,925 = $2,450.  The loss from January 2015 is $11,830 less $9,240 = $2,590 per month.  For ease of calculation, I shall assume 27 months pre-pay rise and 23 months thereafter up to judgment.

53.  Therefore the pre-trial/judgment loss from the main employment is: ($2,450 x 27) + ($2,590 x 23) = $66,150 + $59,570 = $125,720.

54.  Though the point was (again) not identified in the RSOD, the evidence showed that the plaintiff had received various sick leave pay from his employer.  In fact, he received more than was the strict obligation upon the employer, basically being paid 4/5 of his salary. Obviously, as Mr Wright accepted, credit for the sums actually received must be given against any claim for lost earnings.  That sum is $34,780.  (As an aside, it is common ground that though the plaintiff also received some TAVA payments, they are not deductible from common law damages.)

55.  The plaintiff also continued to receive MPF benefits in certain months from September to June 2013, totalling $2,236, and I accept Ms Leong’s submission that credit should also be given for that sum against the claim for lost earnings.  So the net loss is $88,704.

56.  That is not the entirety of the loss. Beginning in April 2012, the plaintiff had also worked part-time as a motorcycle deliveryman for a pizza company, earning an hourly pay of $32.  From the payslips produced in evidence, it can be seen that part-time job paid the plaintiff a monthly average of $1,471 and MPF, totalling $1,545.

57.  In Mr Wright’s opening, and in the plaintiff’s oral evidence, the plaintiff suggested for the first time that he also received tips from the delivery job of $400 to $500 each month.  Again, Ms Leong took objection to this new and unpleaded figure.  In this instance, I accept the evidence of tips is not sufficient for me to be confident of adding any substantial figure of the order claimed.  Whilst I accept that at least some customers may allow the deliveryman to “keep the change” of a few dollars from time to time and that this sort of amount might have been accrued by the plaintiff, there is no real clarity or sufficient explanation of how such any particular figure of tips is built up, and there are no tax records which show any such amount.  I therefore make the relevant calculation with reference to something for small tips by rounding up the average monthly pay to $1,600.

58.  I do not think, and there is no evidence, that the figure is liable to any notional increase in pay rates over the pre-trial period.  But, on the other hand, I do not think there is anything in Ms Leong’s point about the terms of the plaintiff’s main employment mandating that he should not engage in any other work without written permission.  Where the same contract set his working hours, I doubt the employer would be concerned if he worked part-time elsewhere outside those hours, and I think it likely that if permission had been sought it would not have been withheld.  So the pre-trial loss from the part-time work is $1,600 x 50 = $80,000.

59.  The total pre-trial/judgment loss from both full-time and part-time employment is $168,704.

Future Loss of Earnings

60.  Part of Ms Leong’s argument as to why the plaintiff should not be awarded any future loss of earnings turned on her submission that he was able to have obtained alternative employment as a clerk which would have provided him with earnings equivalent to what he earned, or would have earned, knew his actual pre-accident employment.  She relied on the duty of the plaintiff to mitigate his loss.

61.  Even assuming such a duty, I do not think this plaintiff is to be penalised for the circumstances in which he finds himself.  As he explained in evidence, which I accept, he did look on the Internet and by asking friends for potential alternative employment, but he could not find anything which he thought he could likely apply for successfully given his limited formal education.  I have already noted (see above) that the plaintiff apparently told the joint psychiatric experts that he had considered alternative employment, but did not know what else he could do.

62.  Of course, by reference to the government produced statistics, the average wages for a male general office clerk are higher than the plaintiff currently earns.  As at December 2014, the “overall” figure was $11,218.  As at June 2016, the relevant average figure for male clerks is said to be $14,602.  I note that the latter figure is somewhat higher than the figure of $13,000 which the plaintiff said his replacement employee now earns.  If that is correct, it might suggest that the employer pays less than the average, and it is trite that there must be some employees paid less than the average.

63.  I also accept the force in Mr Wright's submission that the plaintiff's employer has demonstrated that it is a decent and responsible employer, in taking back the plaintiff as its employee and in paying him more than was strictly or legally required by way of sick leave payments.  In the overall circumstances, I do not think it can fairly be said that the plaintiff has failed to mitigate his loss, or that I should assume that he has “chosen” not to obtain appropriate remuneration for the kind of employment to which he is suited.

64.  I assume that the plaintiff might obtain a pay increase of 4% in January 2017 (which is added to on a de minimis basis if for ease of calculation I backdate to December 2016).  That would give a difference in the monthly notional earnings from his main employment as ($11,830 x 1.04) – ($9,240 x 1.04) = $12,303 - $9,610 = $2,693.  Taking a multiplier of 22 for a man of the plaintiff’s age, that gives a loss of $2,693, x 12 x 22 = $710,952.

65.  As to the part-time earnings from delivering pizzas, I am not prepared to award any sum.  In his submissions, Mr Wright acknowledged that they could be no claim for the last part-time earnings for the remainder of the laundry career, and he limited his claim to one of 10 years from the date of the accident, being 50 months before and 70 months after the trial.  But no specific evidence was led from the plaintiff as to how long he might have actually continue with this part-time job; it was not dealt with in the witness statement and was not traversed in oral evidence (whether in chief or cross-examination).

66.  Of course, it must be right that a claim to this type of lost earnings must be limited.  Bearing in mind the overall circumstances, I would think that this part-time job was the sort of job which might have been performed by the plaintiff as a way of raising some extra money in advance of marrying his girlfriend, and it would not likely have continued, if at all, long after the marriage.  In his opening submission, Mr Wright identified that the plaintiff had married his girlfriend earlier this year.  But even if that were not so, I doubt the plaintiff would have continued for any lengthy period.  To put it another way, I do not think the plaintiff has proved any continuing future loss from this part-time employment.

Loss of Earning Capacity

67.  It is settled law that an award for loss of earning capacity is to cover the risk that, at some future date during the plaintiff's working life, he would lose his employment and suffer financial loss because of his disadvantage in the labour market.  This head of damage should be considered in two stages: first, is there a “substantial” or “real” risk that the plaintiff would lose his present job at some time before the estimated end of his working life; secondly, if so, the court must assess and quantify the present value of the risk of the financial damage which he would suffer, having regard to the degree of the risk, the time when it might materialise, and the factors which might affect his chances of getting a job at all, or an equally well-paid job: see Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, as applied in, for example, Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306.

68.  For a man of the plaintiff's H, I accept that there is a substantial all real risk that he would lose his present job at some time before the estimated the end of his working life at least 30 years from now.  I accept that the present degree of risk might be relatively low (because the plaintiff has a decent employer), but the degree of risk is likely to increase as time passes.  Indeed, over the lengthy period to normal retirement age, it is not unlikely that he will lose his employment more than once. 

69.  Should he lose his present job, in my view his chances of getting replaced job at an equally well-paid position will be affected by his physical and mental condition.  In short, if two persons apply for the same job, most employers would take the one with no health concerns and with greater flexibility in the ability to perform varied job duties.

70.  As the authorities identify, clearly no mathematical calculation is possible, but some regard must be had to the amount of earnings, which are plaintiff may lose in the future, and to the period during which he may lose them.  I take into account that general clerical work is relatively plentiful, so any period out of work is unlikely to be for long before employment can be obtained at a similar level of earnings.  I also take into account the usual discounts for the immediate receipt of a lump sum and for the general chances of life.  Mr Wright has specifically invited me to bear in mind the comments made by DHCJ Seagroatt in Thapa Surendra v E W Cox Hong Kong Ltd and Another (unreported, HCPI 451/2009, 11 July 2011) at §§48 and 49, where he referred to the always being an element of Crystal gazing, but that there must be a rational factual matrix, against which the assessment is to be made, and that courts should be careful not to be “ungenerous”. I take those comments into account, in doing the best I can to adopt a figure which seems to me to be neither generous nor ungenerous.

71.  Ultimately, I think an appropriate award for loss of earning capacity can be reached by taking the current monthly earning of the plaintiff, and multiplying it by six months and rounding to the nearest ten thousand.  So I award $60,000.

Other Special Damages

72.  Most of the claimed special damages were not issue, or were agreed at particular figures.  They relate to medical expenses of $5,000, travel expenses of $5,000, tonic food of $1,000, loss of the motorcycle at $59,200, the cost of the motor survey report of $650.  Together these total $70,850.

73.  At issue was the claim to parking fees in the sum of $5,460.  This sum was for the parking spot used by the plaintiff for his motorcycle, calculated at the rate of $420 per month until he sold it (for scrap) around 13 months after the accident.  As Ms Leong noted, the rent for some of the period was in any event $390, but her main submission was that there is no causation between the claim for this item and the accident; with or without the accident, the plaintiff would have had to incur expenses on parking his motorcycle. Therefore, no damages should be allowed for this item.

74.  In response, Mr Wright submitted that the cost arose notwithstanding that the consequences of the accident have included that the plaintiff has not ridden any motorcycle since, and where he had real difficulties in arranging for anyone to remove the motorcycle even by selling it for scrap.  This is what the plaintiff said in evidence, which I accept.

75.  But the answer to the contest seems to me to be as follows.  The plaintiff has claimed, and I have allowed, lost earnings for a period, including up to October 2013, lost from being unable to continue his pre-accident part-time insert delivery job.  Had he in fact continued that job, the costs relating to the use of his motorcycle would necessarily have been incurred by the plaintiff, and those costs would in effect have been part of the costs of achieving those earnings.  Therefore, if I allow him the parking place costs in addition to the lost earnings, the plaintiff would be over-compensated.

Conclusion on Quantum

76.  The summary of findings and awards for the individual heads of damage is as follows:

(a) PSLA	$475,000
(b) Loss of Earnings Pre trial	$168,704
(c) Future Loss of Earnings	$710,952
(d) Loss of Earning Capacity	$60,000
(e) Special Damages	$70,850
Total	$1,485,506

77.  I also award interest (1) at the rate of 2% per annum on the damages for PSLA from the date of the writ to the date of judgment, and (2) at half the judgment rate, that is at 4% per annum, on special damages from the date of the accident to the date of judgment.  Post-judgment interest will accrue at the judgment debt rate (currently 8% per annum) until payment.

78.  I make a costs order nisi that the plaintiff’s costs be paid by the defendant, to be taxed if not agreed.  Should either party wish that nisi order to be varied, any application should be made within 14 days and it will be dealt with on paper.