LO WAI KEUNG v. KINGS LIGHT INDUSTRIAL LTD. AND ANOTHER

1991, No A2498

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. In the very early morning on 15th June 1990, the plaintiff had his right hand caught in a vacumm forming plastic injection moulding machine at the factory of the lst defendant company. The accident was allegedly caused by the negligence of his co-employee, the 2nd defendant and through him that of the 1st defendant company. Liability is admitted to the extent of 95% for which judgment has been granted against both defendants. The parties to this action then proceeded to assessment of damages.

2. The plaintiff was born in June 1960. At the time of the accident he was 30; he is now 31. The accident brought about horrifying injury to his right preferred hand. His right thumb was crushed in the region of its distal phalanx. The broken bone was fixed by wire. His right index finger was poorly damaged, and revision amputation was done at the base of proximal phalanx. The middle finger suffered from the same fate, but at a slightly higher level than the base of proximal phalanx. The right ring finger was amputated at the distal interphalangeal joint. The condition of his right hand is as shown in a photograph, Exh "P8" After the accident, the plaintiff was left with a good little finger, a bad and useless thumb, no index finger, almost no middle finger and about 2/3rds of his right ring finger. Revision amputation, meaning amputation with new coverage of skin, was performed on all the three injured fingers. Such amputation for the middle and ring fingers was found by Dr Yeung as unacceptable. The bone edges were not even trimmed and the padding was almost absent. The thin skin covering for the thumb was also inadequate. It is not a healthy stump. The thumb is deformed outwards from the body. There is a chronic deformity in the thumb nail. The near upper part of the thumb is stiff. The plaintiff cannot do a full hand grip. He has no pinch grip; hence he cannot pick up objects. His right hand cannot now discharge any of the three principal functions of grasping, pinching and hooking. The plaintiff has no strong grip but could still use his injured right hand, or what is left of it, for anchorage. No prothesis is beneficial, and there is no room for improvement by corrective surgery. Because of the thin covering or padding to the stump, the middle and the ring fingers have to be further amputated to remove pain. The end portion of the right thumb is painful, and the stiffness which has set in in its middle bone gives added discomfort. The distal phalanx of the right thumb will have to be excised for removing the pain. The thumb, according to Dr Yeung, provides about 50% in the use of the hand. With the pain in his right thumb and stiffness in its middle joint, it cannot be put to use. Dr Yeung would give the thumb and the fingers two years up to mid 1992 to stabilize. He now advises amputation of the distal phalanx of the thumb to relieve pain. The stump of the thumb would be much shorter and less useful. The right little finger would still provide anchorage functions and serve some probing purposes. The plaintiff is assessed as suffering from a 70% permanent disability and an 80% permanent loss of earning capacity. The plaintiff has also been assessed as having a 20% comestic disability.

3. The plaintiff is a sensitive young man and the trauma of witnessing the withdrawal from the moulding machine of his mangled crushed right hand was beyond his endurance. At one time, he had "wanted to die". He has been in constant agony. The pain-killing pills prescribed to him are taken in vast quantity. He has consumed over 200 in the last three months. His pain becomes more acute in weather changes. Even today, the plaintiff is greatly distressed. Occasionally, he wept in describing his experience in the course of his evidence.

4. Immediately after the accident, a colleague took the plaintiff to the Casualty and thereafter he was confined in the Princess Margaret Hospital for 7/8 days. After discharge, his right hand, when lowered unconsciously in his sleep, often bled profusely. He suffered from infection and had to be re-admitted into hospital two weeks later. He was hospitalized for three days and thereafter he attended the Yan Oi Tong Clinic in Tuen Mun for after-care. He underwent physiotheraphy until he was re-admitted for observation a year later. He visited the Yan Oi at least 17 times and he attended the South Kwai Chung Polyclinic for occupational theraphy on at least 40 occasions in between mid 1990 to June 1991. It is for these over 40 visits that he claims taxi fare. He was advised that physiotheraphy and occupational theraphy would not improve his conditions. He was granted sick leave by Princess Margaret Hopsital from mid June 1990 to mid January 1992. Not infrequently, he was advised by government doctors to accept yet a further operation for the removal of portion of the painful and stiff right thumb and for re-pudding of the middle and the ring fingers. He was examined by Dr Yeung on 6th July 1991 and also shortly before the trial. The cost of the further operation, as agreed, is $35,000. The defendants suggest, however, that the plaintiff would not likely take the operation.

5. The plaintiff is a sensitive person. He displayed considerable reluctance in and was greatly embarrassed by having to reveal his injured right hand in the course of this trial. Throughout the hearing, he kept it in his trousers pocket. He was then on painkillers and appeared to be highly emotional in Court. Part of his evidence may be interpreted as his negative attitude towards the medical advice for yet a further operation. If cannot be denied there was some display of reluctance in accepting further surgery. After all, that is only a natural reaction. But his pain is unbearable and the time for observation is about to expire. Discomfort is an unwelcome reminder of bad memories. There is hardly any real likelihood that the plaintiff would decline, despite more psychological and physical hurt, undergoing the further operation as advised.

6. At the age of 10, the plaintiff left primary school during the second term in his Primary 5. He spent three years with "Sam Kee" in Tuen Mun to become a master of mechanics for fishing boat engines. He worked for two years thereafter as "sze fu". Then he understudied a hair-stylist in Yuen Long and practised for three years before he went to Japan for further training. He gained qualification in Japan and went through more training with a Chicago institution operating in Hong Kong. From the calling of a master mechanic at 15 and a hair-stylist for some 11 years thereafter, the plaintiff returned to a plastic factory "Willie" as a mechanic. He worked in the production department. He has indeed proved his dexterous skill in more fields than one.

7. In less than a year with "Willie", he was tempted with better terms by the managing director of the 1st defendant, Mr Kuen. The offer comprised a presumably higher basic pay at $6,000 with the use of a factory car, a monthly petrol allowance of $3,000 and an annual European tour for himself and his girl friend as a bonus. The plaintiff finally left "Willie" for the first defendant company: His basic monthly salary in the following year was raised by Mr Kuen to $8,000 and in the third year, it reached $12,000 with the same benefits. The first time he visited Europe was for about a fortnight, together with his girl friend, Miss Mak, sharing the same living accommodation. The return air fare was $9,800 each. The second annual tour lasted 10/11 days, and the third was, after the accident, for a similar period.

8. He was an enterprising and progressive young man. His performance with the 1st defendant must have been highly satisfactory. He enjoyed driving go-carts, playing snooker, skiing. He was a tennis, squash, basket-ball and badminton player. He had a good relationship with Miss Mak, but their engagement has, since the accident, been terminated.

9. Dr Yeung took the view that the plaintiff cannot resume his previous work as a mechanic or hair-stylist. Dr Yeung's opinion is that all manual or skilful jobs would be beyond his reach and that the plaintiff could only perform light work, such as lift operator, watchman, office attendant and the like. Resumption of any of his pastimes would be out of the question. I accept Dr Yeung's conclusions.

10. Prior to the plaintiff's accident, a plan was in the offing for him to join Miss Mak after she had emigrated to Canada with her family. Miss Mak's father is a property-owner of substance, who ran a plastic factory in Hong Kong and looked forward to opening one in Canada after his family landing in Canada as immigrants. Mr Mak offered more favourable terms to the plaintiff for managing his plastic factory in Canada. The plaintiff was to be provided with housing and the use of a car. These offered terms were expected to bring him an overall better return. The plaintiff had himself a parallel plan of running his own hair-dresser shop in Vancouver. No specific reasons or causes were disclosed in these proceedings for the couple's parting, but after the accident the engagement to Miss Mak was put an end to and all his future plans have now to be re-aligned.

11. I am not prepared to take into account what, if any, possible good fortune the plaintiff's then future might have held for him. Having or working for a well-to-do father-in-law may not necessarily be a good asset. Quite often it could be an inhibition for a young man on the rise. This must be a matter highly speculative. However, the plaintiff's then future plans confirm him as a man of ability and steadfastness. Besides, it would have been open to the plaintiff to return to Hong Kong for a comparable good opening. The plaintiff has proved himself to be in the bracket of over $25,000/month ($20,000 plus fringe benefits). The evidence demonstrates that he would, but for his injuries, be able to maintain his earning capacity anywhere at the pre-accident level.

12. There is always an incentive and temptation in a case of this nature for exaggeration, but the plaintiff's various claims made in this case could have been checked with Mr Kuen, the managing director of the 1st defendant. There was also no evidence that these claims, if inaccurate or untrue, were impossible to be challenged or further challenged by oral or documentary evidence from the 1st defendant accounts section. Moreover; at the time when evidence was being adduced from the plaintiff, he could not have been aware that no evidence would be called to rebut his figures. He came forward and committed himself on the sanction of an affirmation. Further, in his conditions, the plaintiff could be forgiven for not being perfect in the witness stand. There was all the more reason to give his testimony a global evaluation. His evidence in this case will have to be received with a fair amount of tolerance. Nevertheless, it stood unrebutted. Against this scenario, this court was invited to assess damages.

Pain, suffering and loss of amenities:

13. No one suggested in this case that awards in other jurisdictions are proper material for comparison. The quantum guidelines proposed for use in Hong Kong would serve to preserve some degree of consistency. But in every case, there is a need to examine its own facts and an endeavour should be made to compare the facts before the court with the facts in other reported case involving injuries of like kind. The rate of inflation, since the giving of these guidelines, should also be taken into account. See Chan Wai Tong & Another v Li Ping Sum [1985] 1 AC 446. Prudence would require a tentative conclusion so arrived at to be tested ultimately against the general range as provided by the guidelines to see if any significant departure is realistic and can be justified. It is also good common sense that the seriousness of injuries cannot be put into water-tight compartments. As it was said by a court of five in Lau Che Ping v Hong Kong Ironwares Godown Co Limited [1988] HKLR 650 that the categories of Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 were not intended and should not be taken as "mutually exclusive".

14. Life has indeed been unbearable for this very sensitive young man. I have taken into consideration the following cases:

(a)    Wong Pui Kwan v Artking Industries Limited

HCA A11212/83, HKLJ (1985) 109;

Accident : September 1980;

Decision : 31st December 1984;

Injuries: Crushed right hand in a plastic moulding machine, thumb and all fingers amputated except for remnants of the thumb and the little finger, failure to provide dexterity by grafting a tendon from his big toe to the thumb remnant;

Pain, suffering and loss of amenities $125,000:

Category : Top "serious injury" (in fact just over the top then standing at $120,000).

(b)     Lau Yee Kin v Top-Crown Electroplating Factory Limited

HCA A628/86;

Injury : September 1983;

Decision : 16th October 1987;

Injuries : Crushed left hand in a power press, loss of pulp and the top-third of the index finger, amputation of 2/3rds of the remaining fingers, but the thumb was left intact;

Pain, suffering and loss of amenities:

$130,000;

Category : Coupled with the other personal circumstances, the quantum suggests a category above "serious injury".

(c)     Leung Chor Hung v Wong Cheung Yuen & Another HCA A2350/87;

Injury : August 1984;

Decision : 20th April 1988;

Injuries : Crushed right hand in a power press, amputation of a third of the index and little fingers, amputation of 2/3rds of the middle and ring fingers, but the thumb was left uninjured; Pain, suffering and loss of amenities $100,000;

Category : The quantum suggests a case above "serious injury" in Lee Ting Lam.

(d)    Mak Chun To v Ocean Plastic Factory

HCA A1183/86;

Accident: October 1983

Decision: 11th October 1988;

Injury: crushed right hand in a moulding machine, amputation of all fingers to the wrist, failure of an attempted grafting of the left second toe, a successful but less than useful grafting of half of the right big toe and part of the bones of the right second toe, but the right thumb was left intact. However,

the victim's walking and running ability was restricted.

Pain, suffering and loss of amenities $220,000 inclusive of cosmetic disability and diminution in marriage prospects; Category : mid "substantial injury".

(e)       Wong See Mo v Lam Nam Fui and others [1991] HKLR 361;

Accident : August 1986;

Decision : 20th November 1990;

Injury : Left hand caught by a saw, loss of 1/3rd of the index finger, loss of 2/3rds of the middle finger, loss of 1/3rd of the ring finger, but the plaintiff was left with his left thumb and left little finger;

Pain, suffering and loss of amenities:

$150,000;

Category : Bottom of "serious injury".

15. I have compared also the age, remedial medical treatment and personal endurances in each of the individual cases. The plaintiff's case falls, in my view, more in line with the case of Mak Chun To which was incidently put in the middle of the substantial injury category. No graftings with possible resultant deformities are contemplated in this case. The plaintiff retains the little finger and longer finger stumps, but he has lost the or the use of his right thumb. In addition, diminution in his marriage prospects seems somewhat more real even though the plaintiff was not asked to elaborate on his parting from Miss Mak. This case seems to be more serious than Mak Chun To. I assess damages for pain, suffering and loss of amenities at between $300,000 to $350,000, having taken into consideration the agreed rate of inflation for some 3 years since 1988 and inclusive of cosmetic disability and loss in marriage, prospects. He will not be able to resume his recreational activities. I propose to award $330,000.

16. Lee Ting Lam v Leung Kam Ming, supra provided useful guidelines. The range in the Lee Ting Lam guidelines was up-graded for inflation in Lau Che Ping v Hong Kong Ironwares Godown Company Limited, supra. There was a further increment given for the same reason in Wong See Mo v Lam Nam Fui & Others, supra. Over the years, the range given for substantial injury is: $80,000 to $100,000 in Lee Ting Lam (1980), $180,000 to $225,000 in Lau Che Ping (1988) and would have been set at $200,000 to $250,000 in Wong See Mo (1990). Take $220,000 as at the end of 1990 plus an additional $30,000 for cosmetic disability, totalling $250,000, at the agreed rate of inflation of 10.5% per annum, it would yield an award in the region of $305,250 for 1992. My overall assessments on the facts, in comparison with the facts in the other cases, at $330,000 cannot be said to be irreconcilable with these guidelines. I regard an award of $330,000 as being appropriate.

17. Turning next to the plaintiff's pre-trial loss of earnings, for the basic pay for the plaintiff, I wholly accept the evidence of the plaintiff. He must have been highly satisfactory in his performance. Mr Kuen had confidence in putting him on the new machine with extra shift. His basic pay of $6,000 was 1/3rd up at $8,000 and then doubled at $12,000 in just 3 years. The plaintiff was promised $8,000 extra upon the arrival of an additional machine of similar type and construction. In fact, the plaintiff had sight of this machine in Italy during his year-end holiday in 1989. Deposit for the machine was soon paid by the plaintiff and it arrived in November 1990. In re-examination, the plaintiff made reference to a sum of "$20,000-$22,000". His claim in this action is on the basis of $20,000. The plaintiff was not invited to elaborate on this answer. In his conditions, one should be less critical of the details offered by the plaintiff in his evidence. But in his overall performance the plaintiff cut an impressive figure in the witness stand.

18. The existing machine is four times the length of the bench in this court, excluding accessories or parts. The plaintiff suffered from his accident well past mid-night and he was to be entrusted with additional shift upon the arrival of the new machine of the same size, dimensions but better out-put. It would make little difference for a staff as reliable as the plaintiff even if the Instructions Manual in English had to be interpreted for his benefit. I accept that his basic pay would have been increased from the $12,000 at the time of his accident to $20,000 as from 1991, given a short interval for installation and test-runs.

19. The plaintiff was virtually head-hunted by Mr Kuen, much to the distress of his former employer. I accept his evidence that attractive terms had been offered to him in addition to his initial $6,000 monthly basic which could not be, in any sense, regarded as excessive. I also accept that the plaintiff was promised a petrol allowance, inclusive of consumption for company purposes, up to $3,000 a month, and the use of a factory car. Again, I am prepared to accept that he was promised an annual continental trip for two as a bonus. The amount of $3,000 must have been just casually mentioned. It could have little real meaning as a yardstick. The plaintiff was unaware that business needs alone might not have been in excess of $3,000. The plaintiff, I find, was in effect assured the use of a company car with a reasonably modest supply of free gasoline for himself. Therefore, it remains for me to quantify the value of his fringe benefit in petrol allowance. This Court has also to assess the expenditure attributtable to the plaintiff's bonus continental trip.

20. The plaintiff soon purchased his own car of 1,000 cc capacity in the name of Miss Mak. It is just common knowledge, $3,000 worth of petrol could take a small car of 1,000 cc over 3,500 km ie $1 for over 1 km. I could not imagine the plaintiff as using more than $25 in petrol for himself every day. After all, as a maintenance and repair man, the plaintiff must have been well-tied down to his factory. Miss Mak did not drive. Even with the possibility of running a car of a slightly larger capacity, I would not be prepared to allow more than $1,000 a month by way of his petrol allowance for personal use.

21. I come then to his annual bonus trip. In 1988, the air fare for a return-flight to Europe was $9,800. At about $10,000 air fair for each, that would be $20,000 for the plaintiff and his then girl friend in 1988. They shared one hotel room. The 1988 annual trip was for about two weeks; in 1989 it was 10/11 days and the same time for 1991. $20,000 for hotel accommodation in group and provisions would be enough for 1988 for both. So for the plaintiff and his girl friend, the total should not be more than $40,000 for the annual bonus trip in 1988 at $20,000 per head. I would not be prepared to allow more than $50,000 for two to-day i.e. a 25% increase from the 1988 level. The tourist industry has not really been in full swing in recent years. The plaintiff himself was unaware how much was paid by the company for his provisions. All he was able to say was : "Each time after we had entertainment, I would ask (Mr Kuen) how much he had spent. Well, Mr Kuen then said to me in reply at least it was $55,000 to $60,000" $50,000 for two in his bonus year-end vacation would be, in my view, a fair 1992 valuation.

22. The plaintiff gave evidence that he was unable to obtain any alternative employment. His search for alternative accommodation was depressing. Although he had not approached the Labour Department, his conditions were evidently far from being stable. He had been given sick leave up to January 1992. He is still unwell, and it would be unfair to expect him to put in a good day's work with all, that pain. No employer would take on a worker with a terribly sore hand. I accept that he has tried his best. After this action, the further operation and a reasonable period of convalescence, say from November 1992, there should be no good reason for him not to be able to earn at least $3,000 per month. I accept that there is no concrete evidence of the plaintiff's employment prospects and that all this is bordering surmise. But in our tight labour market, with no sign of easing, it is difficult to accept that the plaintiff could not land himself a job of at least $3,000 a month from November 1992. I would, therefore, find that his earning capacity from November 1992 be at $3,000 per month.

23. The plaintiff spent a substantial amount on nourishing food: ginseng, bird's nests and isinglass. The plaintiff himself was adamant that he felt better. The plaintiff was then engaged to Miss Mak, Her father caused to be acquired these nourishing food for his consumption. Miss Mak had left her job and attended on the plaintiff full time. Mr Raymond Ho comes from a family dealing in Chinese herbs. He has a BSc in pharmacy. He is also a pharmacist registered in Hong Kong and elsewhere. He was firm that these substances would serve the plaintiff well as nourishing food. He prescribed these substances for the plaintiff on the information supplied to him by Miss Mak's father, although he himself had visited the plaintiff in hospital only once. The plaintiff's injury and conditions have never been said to be of an unusual nature. Mr Ho recommended the substances fit for the plaintiff, which would not give rise to contra-indications when taken together with western medicine. He himself is married to Miss Mak's sister. The expense of $28,060 is no trivial sum, but it is difficult to visualize that a father-in-law to be and a brother-in-law to be, even assuming Mr Ho not be an expert, would have put the plaintiff to great expense, had these substances been of no or dubious value. I accept Mr Ho as an expert and I find that the substances were proper nourishing food to be prescribed for the plaintiff's consumption.

24. Throughout the years, claims for nourishing food, especially the snake-head fish soup for open-wound injuries, have constantly been made. It is patent to those involved with cases of this nature that a large proportion of the Chinese community in Hong Kong are totally committed to the therapeutic or-otherwise fortification value of traditional nourishing food. In many if not all of these cases, a western qualified doctor would be called to testify to the ingestion of such traditional nourishing food as being an exercise in futility. One has yet to hear these doctors, well qualified in, western medicine, lay claim-to an understanding of Chinese herbs and traditional nourishing food. Their evidence in this respect is broadly focused on the effects of oriental herbs and traditional nourishing food as judged by the fundamentals of western medicine. It is highly debatable that a western doctor would have any expertise on those effects if Chinese herbs and traditional nourishing food are to be acknowledged as having formed no integral part of the training in their formative years. In many decisions, it seemed to have been assumed that western medicine is the sole source of medical science. This unfortunate misconception is compounded by Chinese herbalists' aversion to trial attendance. It may well be time for the courts to review their approach to traditional nourishing food. In this case, the evidence was one way, and I find the claim of the plaintiff to $28,060 proved.

25. I have found $20,000 per month being the basic pay of the plaintiff which would have accrued to him from the beginning of 1991. Taking the same quantum to 1992 with a built-in inflation rate of 10.5% per annum, it would come to $22,100 (ie $20,000 + $2,100 being the 10.5%. That is the rate at which the plaintiff's future loss of earnings should be assessed.

26. To calculate the plaintiff's notional earning for the agreed 16 years' purchase (192 months), 7 months should be deducted because when the plaintiff undergoes his recommended operation in June 1992, he would be given four months' sick leave until end of October 1992. From date of judgment to the end of October 1992, there should be about 7 months in which the plaintiff would not be able to, take on any employment. 192 months less 7 months would be 185 months. I have assessed the residual earning capacity of the plaintiff at $3,000 per month, and that would make notional earnings for the balance of the agreed 16 years' purchase $555,000, (ie 185 months x $3,000).

27. I would award, in the circumstances, a year's pay for the plaintiff's loss of earning capacity at $36,000 ($3,000 x 12).

28. Care and attention given to the plaintiff by Miss Mak at the expense of her $3,000 per month job should be, in my judgment, accounted for. The plaintiff was then in need of care even for personal hygiene. If a male domestic help had been engaged, I would have allowed his expenses. There is no justification for rejecting the modest claim at $3,000 a month for a period of 9 months for the plaintiff's care and attention provided by Miss Mak.

29. The plaintiff would need three to five years, after the revision amputation, for converting his left hand into a dominant one. Initially, the plaintiff would likely require some personal attention and assistance. But he should not be given more than another six months after his four months' post-operation convalescence up to the end of October 1992, for future care and attention. Miss Mak attended on the plaintiff up to April 1991. Therefore, from May 1991 to six months beyond the end of October 1992 ie April 1993, it is 24 months in all. $1,500 a month is a resonable sum to be allowed for a part-time domestic help. 24 months x $1,500 would give $36,000.

30. The remainder is agreed except for taxation.

31. The plaintiff must, I agree with Mr Sakhrani, prove his real or net loss after taxation. The plaintiff's income was reported by the 1st defendant company without his allowance and bonus. No evidence was led to suggest that the 1st defendant company had been other than proper in filing tax returns This is sufficient for me to infer and I do so infer that the fringe benefits of the plaintiff were free of tax. In computing his taxable income, the plaintiff would himself get a $46,000 personal allowance as now proposed by the Financial Secretary. There are still prospects, though diminished, for the plaintiff to marry. I have not been assisted on what a wife's individual taxation, if any, would affect the plaintiff's additional allowance as a married man. The answer may well lie in the legislation, but I was not taken to the relevant revenue law. A married person's allowance would be, as proposed by the Financial secretary, $92,000 as from this taxation year, ie exactly double the basic allowance for a single person. Our more vocal legislators and a section of the public demand more. With all these ambiguities and uncertainties, I would be prepared to allow only a modest 20% as probable additional allowance. Therefore, the allowable concessions for the plaintiff in his salary tax would be his personal allowance of $46,000 plus another 20% of $9,200, making a total of $55,200.

32. The tax for the pre-trial loss is being claimed by the Inland Revenue. Therefore, the defendants are taking no point on tax deduction from such pre-trial loss. As for post-trial loss, the monthly pay will be $22,100 (i.e. $20,000 basic pay plus 10.5% inflation). with a bonus month's pay, the plaintiff's annual income would be $287,300 (i.e. $22,100 x 13m). $55,200, being the given allowance here for salary tax concessions, should be deducted, and the taxable income should be $232,100 (i.e. $287,300 - $55,200). Therefore, taxation would be $471,627.20 (i.e. $232,100 x 16 years' purchase x 12.7%, being the rate of taxation from Exh. P5(1)). But the plaintiff was earning, in my estimate, $3,000 a month from November 1992, i.e. 4 months after his mid 1992 revision amputation operation and therefore for 16 years less 7 months (say 15½ years), the plaintiff would be expected to pay tax at 12.7% on his $3,000 per month income. Therefore, for (say) 15½ years, the plaintiff would be expected to pay salary tax in the sum of $70,866 (i.e. 15.5yr x $36,000 x 12.7%. Consequently, the total tax reduction should be $471,627.20 less (say) $70,866 which gives the net tax deduction for the benefit of the defendants in the sum of $400,761.20. I have taken 15½ years for computation. In effect, I have included one more month for easier calculation. One month's tax on his notional earning should be $381 (i.e. $3,000 x 12.7% on the basis of a monthly salary of $22,100). To be precise, tax deduction should be $400,761.20 - $381 = $400,380.20. The meagre notional earnings would attract no tax on their own, but as I should deduct these notional earnings from the plaintiff's post-trial loss, in this way taxation on his notional earnings should be accounted for.

33. The plaintiff claims travelling expenses for about 40 times to the South Kwai Chung Polyclinic at about $70 to $80 one way or $140 to $160 return. In his conditions, even with the aid of Miss Mak, travelling by taxi for the follow-up treatment with a painful bandaged hand should not, in my view, be disallowed. I assess the return fair to be $150 and 40 times would be $6,000.

34. In conclusion, the damages I find proved and award in this action are as follows :

35. 95% of $5,903,266 is $5,608,102.70. Payments totalling $156,000.00 have been made in the interim. The outstanding balance is, therefore, $5,452,102.70 (ie $5,608,102.70 - $156,000.00). It is in this sum of $5,452,102.70 that I would grant judgment in favour of the plaintiff against both defendants with interest at say 3%, ie half of 6%, being the mean of the current low interest rate and the higher past interest rate for special damages from the date of accident to the date of judgment and 2% on general damages for pain, suffering and loss of amenities from the date of writ to the date of judgment. Judgment is accordingly entered against both defendants.

36. The defendants are to, subject to what counsel have to say, pay costs.