CHU HON CHONG v. WONG KWAN KIT AND ANOTHER

HCPI 541/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 541 OF 2008

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D E C I S I O N

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I.  BACKGROUND

1.  On 16 September 2006, the Plaintiff was riding a motorcycle (“Motorcycle”) and slowing down for a red light.  Before he came to a complete stop, the 1^st Defendant’s car hit the Motorcycle from the rear, and he fell down and sustained injuries (“Accident”).  The Plaintiff claimed the Accident was caused by the 1^st Defendant’s negligent driving, and on 30 July 2008 commenced legal action against the 1^st Defendant for damages for personal injuries and other loss and damages.  According to the Statement of Damages (“SOD”), the Plaintiff pitched his claim for damages at HK$2,866,634.85 with interest.

2.  On 20 November 2008, interlocutory judgment on liability was entered in favour of the Plaintiff against the 1^st Defendant.  On 10 September 2008, the 2^nd Defendant joined as party to the present proceedings.  The Plaintiff’s witness statement was dated 30 December 2008 (“Statement”).  On 31 August 2009, the Plaintiff filed his Answer to Interrogatories (“Answer”) raised by the 2^nd Defendant.

3.  Pursuant to the order of Master Roy Yu dated 3 September 2009, the joint orthopaedic expert report by Dr Johnson Lam (“Dr Lam”) for the Plaintiff and Dr David Cheng (“Dr Cheng”) for the 2^nd Defendant dated 2 April 2009 (“Ortho Report”) and the joint psychiatric expert report by Dr Peter Ho (“Dr Ho”) for the Plaintiff and Dr Benjamin Lai (“Dr Lai”) for the 2^nd Defendant dated 5 August 2009 (“Psy Report”) were to be adduced at trial without oral evidence.

4.  On 30 September 2009, the Plaintiff filed his Revised Statement of Damages (“RSOD”) claiming for damages in the sum of HK$2,944,056.00 with interest. For easy reference, I summarise below the various heads of claim under the SOD and the RSOD:

	HK$		HK$
Pain, suffering and loss of amenities	350,000.00		550,000.00
Pre-trial loss of earnings	816,684.85		996,753.00
Post-trial loss of earnings	1,663,200.00		1,293,600.00
Future medical expenses	5,000.00		45,000.00
Loss of earning capacity	--		24,000.00
Medical expenses	3,500.00		6,240.00
Travelling expenses	2,500.00		1,988.00
Tonic food expenses	5,000.00		5,000.00
Other special damages	20,750.00		21,475.00
	2,866,634.85		2,944,056.00

5.  On 11 November 2009, the Plaintiff received an advice on quantum and evidence from counsel advising that the eventual award of damages should be about HK$1,455,955.00.  On 14 November 2009, the present proceedings were concluded with the Plaintiff filing and serving Notice of Acceptance of Sanctioned Payment for the total sum of HK$650,000.00.  The Plaintiff was entitled to costs of the action, but there was dispute as to whether he had any reasonable prospect of putting forward a claim in excess of HK$1,000,000.00.  The 2^nd Defendant proposed that the Plaintiff’s costs of the action be taxed on District Court scale.

6.  On 10 December 2009, the Plaintiff issued an inter partes summons (“Summons”) for an order that costs of the action and of the application be paid by the 1^st and 2^nd Defendants on High Court scale.  In his supporting affirmation, the Plaintiff claimed that with (a) his physical/ psychiatric injuries and disabilities and (b) his continued need to attend follow up treatments, there was reasonable prospect for him to recover damages in excess of HK$1,000,000.00.  He claimed to have accepted the sanctioned payments in order to eliminate further strain on him and his family as a result of prolonged litigation.

II.  LEGAL PRINCIPLES

7.  The Plaintiff in issuing the Summons clearly followed the procedure prescribed by Seagroatt J in Lai Ki v B+B Construction Company Limited & others [2003] 3 HKLRD 192, 200.  In that case, the learned judge confirmed and adopted the test as stated by Glyn-Jones J in Hopkins v Rees & Kirby Ltd [1959] 1 WLR 740, 742 as follows:

“Putting myself as far as I can, in the position of the plaintiff at the time when he issued that writ, am I satisfied that it was then obvious that this was a county court action, or was it an action which, when tried by one judge rather than another, might have resulted in an award exceeding [the jurisdiction limit] excluding any reduction for contributory negligence?”

Seagroatt J further observed at p.197 that “[the] acid test therefore has been, ignoring all questions of contributory negligence, has the plaintiff a reasonable prospect of recovering a sum of money in excess of the [District] Court jurisdiction?”  (see also Wong Wai Man v Yi Wo Yuen Aged Sanatorium Centre Limited HCPI 77/2007, Suffiad J (unreported, 9 September 2008) at para.14).

8.  In Wong Chi Ho Jacky v Poon Yuk Shan HCPI 910/2002 (unreported, 7 May 2004), Deputy High Court Judge Jat SC held that the test was an objective one, ie whether it would be obvious to a reasonable plaintiff or his legal adviser that the case was a District Court rather than High Court case.  The subjective intent of the plaintiff and his legal adviser would not normally be relevant.  The learned judge recognised that one must not just look at what was claimed in the statement of damages, and one should not look at the eventual settlement amount.  After all, the relevant time for consideration was the time when the writ was issued, and there might be all kinds of reasons why a plaintiff might wish to accept a sum lower than what his claim might be considered worth in order to settle the claim (see also Wong Choi Fung v Fung Kai Public School operating as Fung Kai Care and Attention Home for the Elderly HCPI 534/2004, Suffiad J (unreported, 14 February 2006) paras.15 and 40-42).

III.  INJURIES AND TREATMENT

9.  In the Statement, the Plaintiff claimed that at the time of the Accident he was thrown by the impact of the collision and briefly lost consciousness.  Mr Kwong, solicitor for the 2^nd Defendant, submitted there was no evidence to support any head injury, which allegation he described as “unfounded”.

10.  Drs Lai and Ho recognised there were different versions in the medical reports/records as to whether the Plaintiff suffered head injury and/or loss of consciousness.  Dr Ho believed that the Plaintiff might not have reported a comparatively minor head injury in the acute stages when he was suffering from pain and trauma of multiple injuries. But subsequently the treating neurosurgeons and psychiatrists were satisfied with the diagnosis of post-concussional syndrome (“PCS”) which rested on the presence of head injury.  In light of the above, it could not be said that the Plaintiff’s allegations of head injury and loss of consciousness were obviously untenable as at 30 July 2008 when the Writ of Summons (“Writ”) was issued.

11.  The Plaintiff was taken to Tsueng Kwan O Hospital (“TKOH”) and was admitted to the orthopaedic ward.  He sustained multiple injuries: (a) fracture of fibular head, left knee, (b) fracture base of the first metacarpal of the left thumb, (c) fracture navicular, a tarsal bone of the left foot, and (d) multiple abrasions.  The fracture left thumb was treated by open reduction and K-wire fixation followed by a splint.  The left knee and foot fractures were treated conservatively with short leg plaster applied to the left foot.  Follow up x-rays showed healing.

12.  Upon discharge the Plaintiff was followed up by TKOH’s orthopaedic clinic (“Ortho Clinic”) until August 2007.  K-wire was removed on 13 November 2006.  The Plaintiff walked with a stick for more than a year. According to the Statement, he received physiotherapy at United Christian Hospital (“UCH”) from November 2006 until February 2007, weekly occupational therapy at UCH from January to May 2007, and weekly neurosurgical rehabilitation treatment at UCH from January 2007 to about July 2008.  But the medical records showed he received outpatient occupational therapy at UCH since May 2007 until 10 June 2008.

13.  At the work evaluation on 7 June 2007, the Plaintiff complained of significant decrease in left ankle range of motion and strength, difficulty in weight bearing on left ankle, limited sitting, standing and walking tolerance, and left ankle pain that affected stepping on pedals.  “His work capacity did not match job demands but has potential to return to previous job as taxi-driver with further training.”

14.  On 27 August 2007, the Plaintiff was referred for cognitive training. He started to default training on 29 January 2008.  Between 30 May 2007 and 10 June 2008 he defaulted scheduled appointments 5 times and took leave 4 times.  Altogether the Plaintiff attended 17 sessions from 30 May 2007 to 10 June 2008 when he refused further cognitive training.

15.  In January 2008, the Plaintiff attended driving assessment. According to the Driver Assessment Report dated 11 February 2008 (“DA Report”), the Plaintiff demonstrated competence and consistence in his driving performance.  There appeared to be no visual, perceptual and cognitive deficits that would interfere with driving performance.  The range of movement, muscle strength, tone and coordination of his upper limbs and right lower limb were normal, but the Plaintiff had stiffness in his left ankle with mild muscle weakness in his left knee and left ankle muscles.

16.  When tested for driving a private car with automatic transmission, the Plaintiff was able to perform shoulder check prior to lane change and to turn his head to observe the traffic at intersections effectively.  He reported neck stiffness upon turning around to observe the traffic and reversing the car with right turning stiffer than left turning.  He did not complain of increased neck discomfort/stiffness after the assessment.  When tested for driving a light goods vehicle with manual transmission, he was able to operate the clutch pedal effectively despite complaint of pain at the fracture site of the left lower limb.  It was concluded that the Plaintiff should be able to drive private car, light goods vehicle and taxi with automatic or manual transmission.  The DA Report was submitted to the Transport Department, and after further driving evaluation the department terminated the Plaintiff’s licence for driving motorcycle, bus and minibus, but granted him licence for driving private car and taxi.

17.  In the course of recovery, the Plaintiff developed symptoms of headache and lack of concentration, and was referred to the neurosurgical clinic (“Neuro Clinic”) of Queen Elizabeth Hospital (“QEH”).  He was seen at such clinic on 7 November 2006 and 21 February 2007. Examination was unremarkable and CT scan was normal.  According to the Statement, the Plaintiff attended follow up at the Neuro Clinic once every half a year.

18.  The Plaintiff was later referred to UCH’s psychiatric unit for symptoms of insomnia and bad temper, and was seen at UCH’s Yung Fung Shee Psychiatric Centre (“Psy Centre”) since 14 June 2007.  He developed on-and-off headache, dizziness, poor concentration, forgetfulness, insomnia, and depressive/irritable mood after the Accident, and his on-and-off irritability affected the quality of relationship with his daughter.  He was clinically diagnosed to have PCS.  Antidepressants were prescribed and supportive psychotherapy was offered.

19.  The Plaintiff had exacerbation in mood symptoms in April 2009 (ie after issue of the Writ) due to concurrent psychosocial stressors, including marital and financial issues, and his medications were adjusted accordingly.  According to the Psy Centre’s report dated 11 June 2009, the Plaintiff continued to receive antidepressants and support psychotherapy, and he needed to continue regular follow up at the Psy Centre.  So far he attended 13 sessions at the Psy Centre.

20.  The Plaintiff’s follow up at the Ortho Clinic had ceased, but he was still followed up at the Psy Centre and Neuro Clinic, and he received antidepressants and supportive psychotherapy.  He was granted sick leave from 16 September 2006 to 27 September 2007 (ie 12.4 months) by the Ortho Clinic but none by the Psy Centre.  The Neuro Clinic granted sick leave on 4 February 2008 for headache and on 4 August 2008 for PCS.

IV.  SURVEILLANCE RECORDING

21.  According to the surveillance report dated 31 July 2009, recordings were made of the Plaintiff’s activities on 27-29 July 2009 (“Recording”), ie after issue of the Writ.  But such Recording could not be completely ignored as it might well lend weight to or expose the Plaintiff’s allegations as to his residual symptoms and disabilities.

22.  The Recording showed that at about 1pm on 27 July 2009 the Plaintiff left home to take a bus to Metro City where he bought several bags of groceries from the market.  He took a minibus to return to Hong Sing Garden.  After alighting from the minibus, he walked up some stairs to return home.  The investigator noted the Plaintiff could move his left thumb normally, and could use the fingers/thumb of the left hand to carry bags of groceries and to grip his wallet.  He was also observed to have no difficulty in boarding minibus or negotiating stairs.

23.  The Recording showed that in the morning of 28 July 2009 the Plaintiff left home to go to a hardware shop and another shop in the shopping arcade before returning home.  He was then observed to adjust/fix the window of his home by using both hands and fingers.  In the morning of 29 July 2009, the Plaintiff left home and was seen running towards Tsui Lam Estate.  He walked up the uphill ramp road and started to run in a normal manner along Tsui Lam Road before running back to Hong Sing Garden. No abnormality of the left leg/knee was observed.

V.  EXPERT MEDICAL EVDIENCE

24.  Again, the Neuro and Psy Reports were prepared after issue of the Writ.  I caution myself that the fullness of the medical opinion expressed in these reports was not available when the Writ was issued, but nonetheless I do not think the Neuro and Psy Reports should be ignored altogether.  These reports canvassed the Plaintiff’s medical history, his treatment medical reports/records, and his physical and psychiatric conditions before/at the time of issue of the Writ.  Indeed, some of the medical opinion in such reports was premised on such facts and matters.

(a)  Ortho Report

25.  The Plaintiff claimed he suffered residual pain and discomfort of the left knee/foot especially after prolonged walking, weakness and reduced agility of the left thumb/hand, discomfort and dull aches over the left hand at times, and stretching discomfort over his chest.  But the fractures had healed up satisfactorily.  The effect of the orthopaedic injuries was mild to moderate and prognosis was good.  There was no need for any further orthopaedic treatment.

26.  Drs Lam and Cheng agreed that orthopaedic-wise the Plaintiff was fully recovered with little abnormality or residual pathology.  Dr Cheng opined there was little permanent physical impairment, but Dr Lam noted the Plaintiff still complained there was pain on prolonged walking and some tenderness of the foot fracture, and the left thumb basal joint (ie 1^st CMC joint) was stiffish.  Dr Lam opined that some decrease in dexterity of the left thumb/hand was expected since (a) the thumb was usually considered to account for 40-50% of hand function and (b) the CMC joint of the thumb was the most mobile joint of the hand.

27.  Drs Lam and Cheng agreed that sick leave of about a year as granted by the treating orthopaedists was reasonable, and the Plaintiff “should be fully capable to resume the [pre-Accident] job, which [he] has actually done so.  His social and other activities should not be affected in a significant way”.

(b)  Psy Report

28.  The psychiatric symptoms reported by the Plaintiff included insomnia, headache, poor temper, hearing the voice of his deceased mother, nightmares, being forgetful, unhappy mood, dizziness, crying, suicidal idea, fear of driving, heavy breathing, palpitation, and thought of the Accident when passing by the site of the Accident and when facing a traffic light.

29.  Drs Lai and Ho agreed that such symptoms satisfied the criteria for the diagnostic labels of PCS (if the Plaintiff had a head injury) and adjustment disorder with mixed anxiety and depressed mood.  Dr Lai opined that in making a diagnosis of PCS and not adjustment disorder the treating psychiatrists might be indicating that the degree of severity of anxiety and depressed mood was not such that they had to make a separate and additional diagnosis of adjustment disorder.

30.  I disagree with Mr Kwong’s suggestion that the Plaintiff’s claim for psychiatric injury was “unfounded”.  First, the Plaintiff’s allegation of loss of consciousness and hence head injury was not obviously untenable at the time of issue of the Writ (see paragraph 10 above).  Secondly, the existence or otherwise of any head injury only went to the issue of presence or absence of PCS and not that of adjustment disorder.  Dr Lai opined that the adjustment disorder was a reaction to various stressors, including physical disabilities after the Accident, inability to return to work, financial issue, relationship problem with daughter/wife as well as compensation issue.  So assuming there was no relationship problem with the family members prior to the Accident (and none was suggested), Drs Lai and Ho agreed it was compatible that the adjustment disorder was the result of the Accident and its aftermath.

31.  As regards the Plaintiff’s psychiatric condition, Dr Lai noted that clinically the Plaintiff was mildly depressed, but he had normal cognitive functioning with appropriate degree of concentration and memory and absence of irritable mood.  Dr Lai pointed out that when the Plaintiff first attended the Psy Centre in July 2007 only mild degree of symptoms was recorded until he complained of exacerbation of symptoms at the follow up on 22 April 2009 (including poorer sleep, lots of worries about finance, lots of headache, hearing voice of his deceased mother for the last few months, fleeting suicidal idea, subjective irritability, poor memory, anxiety, constant need to watch the rear mirror, and generally low mood because of marital problems), which the treating psychiatrists said was due to concurrent psychosocial stressors, including marital and financial issues.

32.  Dr Lai took the view that the above developments appeared to be inconsistent with the normal course of PCS and adjustment disorder, which was gradual improvement over time although further substantial improvement was not expected after 2 years.  Dr Lai said although it could be argued that the Plaintiff’s depressed mood accounted for or contributed to the increased headache and dizziness, he should not have been affected by the stressor of inability to return to work (since orthopaedic follow up had ceased and Drs Lam and Cheng agreed he should be fully capable of resuming work as a taxi-driver), and if he returned to work as a taxi-driver it was likely his financial stress would be decreased.  Dr Lai further noted that even though it appeared that the Plaintiff’s relationship with his wife was partially related to his increased irritability after the Accident, his marital relationship appeared not to be related to his irritability at the time of the interview for the Psy Report.

33.  On the other hand, Dr Ho noted that the Plaintiff suffered multiple injuries, and the treating neurosurgeons and psychiatrists were satisfied he had PCS of which headache and poor concentration were typical features.  Dr Ho opined there might be a difference between being assessed as capable of returning to a job and being able to perform a job satisfactorily and maintaining the previous income in real life situations.  Even mild pain or mild impairment of concentration could affect driving performance especially when one had to drive continuously for long distances.  There was also a safety concern.  Dr Ho was of the view that the Plaintiff’s residual symptoms would have some effect on his occupational functioning and income as a taxi-driver, and it could be a significant stressor for those who had to support their family and who were not well off financially.

34.  Drs Lai and Ho agreed that points of inconsistencies might raise a note of caution in assessing the nature and degree of the Plaintiff’s psychiatric condition, but Dr Ho pointed out it was not uncommon to detect some degree of apparent “inconsistencies” in most patients’ accounts over different time frames, and in the Plaintiff’s case the inconsistencies were not that gross/unreasonable and overall the symptoms he complained of could be considered as reasonably consistent.  In this respect, Dr Ho believed that financial stress and marital disharmony could be contributory factors affecting the course of the Plaintiff’s psychiatric condition.  Apart from his irritability, his financial and sexual problem might also be factors that could affect his relationship with his wife.  Further, the Plaintiff suffered serious physical injuries but had not reported serious residual symptoms. Rather he reported significant improvement of his orthopaedic symptoms, and did not show strong tendency to impress the psychiatric experts with severe symptoms or give inexplicably absurd answers during the cognitive tests to impress that he had markedly impaired cognitive functions.  Overall, Dr Ho thought the chance that the Plaintiff exaggerated his mental symptoms was low.

35.  Drs Lai and Ho agreed that the symptoms of PCS could be regarded as permanent, but as his headaches and dizziness might be related to his depressed mood, such complaints would be better when his mood was better.  Since the prognosis of adjustment disorder generally depended on development of the stressors, if the Plaintiff could return to work, had less financial problem and had better relationship with his wife, he would be expected to be better in his mood.  Based on his normal previous personality, the absence of vulnerability factor to development of psychiatric illness, the absence of persisting physical disabilities impeding him from returning to work, Drs Lai and Ho thought it likely that the Plaintiff would only suffer from residual symptoms or residual effects of his adjustment disorder after completion of further psychiatric treatment.

36.  Drs Lai and Ho opined that from a psychiatric perspective the permanent disabilities would be in the mild range and the Plaintiff’s levels of impairment were likely to be compatible with most useful functioning.  He had no problem in self care, had motivation to return to work, could travel around and had trips away from Hong Kong, but he might be affected by his residual psychiatric symptoms.

37.  Assuming the Plaintiff suffered from head injury (and I have found that such contention was not obviously untenable at the time of issue of the Writ), Dr Lai opined that appropriate sick leave for PCS and adjustment disorder was about 1 year after the Accident, but Dr Ho considered about 1½ years would be appropriate from a psychiatric perspective.

V.  PAIN, SUFFERING AND LOSS AMENITIES (“PSLA”)

38.  The Plaintiff was 45 years old at the time of the Accident.  He claimed that before the Accident he enjoyed playing badminton and swimming, but had to give up such sports as a result of the injuries and disabilities after the Accident.  In my view, there is some doubt as to whether he had to give up swimming.  In fact, on 8 and 22 April 2008 the occupational therapists encouraged the Plaintiff to increase his exercise regime by swimming. But I need not come to any firm view since this issue had insignificant impact on the award for PSLA.

39.  Ms Fung, solicitor for the Plaintiff, submitted that the Plaintiff’s injuries and disabilities fell within the “serious” category, and damages for PSLA in the sum of HK$350,000.00 as pleaded in the SOD were probably an underestimate with the likely award to be in the region of HK$400,000.00.  Mr Kwong conceded that an award of damages for PSLA would be in the region of HK$300,000.00 to HK$350,000.00.  Having considered the authorities cited by Ms Fung [1] and Mr Kwong [2], there was reasonable prospect for the Plaintiff to make out a claim for HK$350,000.00 for PSLA at the time of issue of the Writ.

VII.  PRE-ACCIDENT WORK

40.  The Plaintiff claimed he previously worked as a salesman.  In November 2005 (ie about 10 months before the Accident), he was laid off by his employer, so he purchased a taxi and started full-time taxi-driving.  But he was not new to taxi-driving:

(a) according to the Initial Work Assessment Form of UCH’s occupational therapy department dated 30 May 2007, it was stated that the Plaintiff’s premorbid occupation was “Taxi driver x 1.5 years”;

(b) according to the DA Report dated 11 February 2008, it was recorded that “[the Plaintiff] reported that he had driven for over 20 years as a taxi driver”;

(c) according to the Psy Report, the Plaintiff had been a part-time taxi-driver for 8-10 years before he was laid off, and he purchased a taxi around 2001 or 2002 and sold it in 2003;

(d) according to the Answer, the Plaintiff confirmed he had been working as a taxi-driver since about 1990 on a part-time basis, ie between 1990 and 1995 he usually worked on weekends (ie about 8 days per month) and between 1996 and November 2005 he worked about 10 days a year.

41.  It was obvious from the different versions of the Plaintiff’s pre-November 2005 experience as a taxi-driver (all of which emanated from him and none of which he retracted) that he was not new to driving/leasing taxis and that he had much more recent experience in leasing taxis than what Ms Fung tried to portray.  Ms Fung suggested that the Plaintiff had limited recent experience in leasing taxis because he only drove a taxi for 10 days a year for the 9 years prior to November 2005.  But such submission ignored the fact that the Plaintiff was owner of a taxi from 2001-2002 until 2003.  If, as he claimed, he were a part-time taxi-driver for only 10 days a year, the common sense conclusion must be that he leased out his taxi to others and thereby earned rental income over a period of 2 to 3 years.  It is inherently illogical to contemplate that he would buy a taxi and pay for its upkeep but let it stand idle for over 350 days a year.  In my view, even at the time of issue of the Writ there was no reasonable prospect for the Plaintiff in establishing that he only had minimal useful experience/contact to draw upon for leasing out his taxi in the post-Accident period.

42.  According to SOD, the Plaintiff worked 26 days a month (ie 1 rest day each week) and earned daily and monthly gross income of about HK$1,600.00 and HK$41,600.00 (ie HK$1,600.00 x 26 days) respectively.  In the 5.53 months he worked as a full-time taxi-driver during the 2006/2007 tax year (ie from 1 April to 16 September 2006), the annual and monthly expenses were HK$208,664.83 and HK$17,388.74 (ie HK$208,664.83 ÷ 12 months) respectively.  Fuel expenses were HK$150.00-HK$180.00 per day or HK$2,800.00-HK$3,000.00 per month. So the total monthly expenses for operating the Plaintiff’s taxi were about HK$20,200.00, and his pre-Accident monthly net income was HK$21,400.00 (ie HK$41,600.00 – HK$20,200.000). 

43.  On the 2^nd day of the hearing, Mr Kwong conceded it was appropriate to adopt the above calculations as the Plaintiff’s pre-Accident monthly net income. On such common ground, there was no room for any suggestion that in the 5.53 months prior to the Accident (see the above paragraph) the Plaintiff leased out his taxi to others on his rest days to earn rental income.  Had it been otherwise, his pre-Accident monthly gross and net income would have exceeded HK$41,600.00 and HK$21,400.00 respectively, which would have contradicted the parties’ common ground and hence would have been unfair to the 2^nd Defendant.

VIII.  PLAINTIFF’S WORK-RELATED COMPLAINTS

44.  Even in December 2009, according to the Statement and the Answer, the Plaintiff still claimed that his left knee/ankle would become painful after walking for more than 15 minutes, and his left thumb/fingers were weak and less agile.  I am not persuaded he would have been able to establish such assertions since half a year earlier in July 2009 the Recording already showed dexterity and weight-bearing by his left hand/thumb and ability to run normally for half an hour.  The Plaintiff tried to explain this away in the Answer by saying that he jogged “near my residence about ½ hour once a week to twice a month” because he was medically advised to do more exercise.  In my view, this still did not explain his ability to run (which necessarily put greater pressure on the knee/ankle than walking) for ½ hour when he claimed to be painful after walking for 15 minutes.

45.  I remind myself that I should not view the matter with hindsight. But at the same time, I should not accept the Plaintiff’s claim in the SOD at face value.  Broadly speaking, the above analysis served to highlight that the Plaintiff must have been overly uninhibited in his claims as to his residual physical symptoms and disabilities as his recovery progressed.  In the circumstances, although I accept it was recorded in the outpatient progress sheets of UCH’s occupational therapy department (“Progress Sheets”) that in mid-2007 (see paragraph 13 above) the Plaintiff still complained of pain and difficulty in weight-bearing on left foot that effected standing, walking and stepping on pedals, by January 2008 the residual effect was mild enough for him to get through the driving assessment (see paragraphs 15-16 above) and there was record of steady progress in physical tolerance in the Progress Sheets in the first half of 2008.  In any event, the Plaintiff told Drs Lai and Ho he was able to drive his taxi because it used automatic gear and he did not need to use his left foot.  The above was in line with the opinion of Drs Lam and Cheng that orthopaedic-wise the Plaintiff could resume his pre-Accident job.  I am of the view that there was reasonable prospect in establishing that although his physical injuries and disabilities might have prevented him from returning to full-time taxi-driving during his sick leave period and perhaps shortly thereafter, they would not have caused him any work-related difficulty by the time of issue of the Writ.

46.  But the picture was different from the psychiatric perspective. The Plaintiff told Drs Lai and Ho that he drove slowly (which caused his customers to complain) and had fear of driving and of being unable to react or stop the car quickly.  He had thoughts of the Accident when passing the site of the Accident (accompanied by heavy breathing and palpitation) and when facing a traffic light.According to the Statement and the records in the Progress Sheets, the Plaintiff still had headaches and dizziness despite taking medications prescribed by the neurosurgeons and psychiatrists.  He had insomnia and difficulty in falling asleep so the treatment psychiatrists reminded him to take medications before going to sleep at night.  But he would not take medications with warning labels that stated “此藥可使人有睡意 ……” and/or “如受藥物影響，勿駕駛或操控機械” if he had to drive his taxi. With his insomnia and the psychiatric medications, the Plaintiff felt he could not concentrate during the day.  The Psy Report noted the Plaintiff claimed he had difficulty in thinking about the route, and might forget to turn a corner.  He also complained he could not stop his taxi if he wanted to have a rest.

47.  Dr Lai was of the view that the Plaintiff could be considered mentally capable of returning to work as a taxi-driver, but he might be mildly affected in his work tolerance/efficiency as a result of the residual effect and residual symptoms of his psychiatric condition.  Assuming that the Plaintiff had head injury (and I have found that such contention was not obviously untenable) but not severe head injury at the time of the Accident, Dr Lai opined that the Plaintiff suffered from mild degree of PCS with impaired concentration and/or memory, but it should not affect his ability in taxi-driving to any significant degree.

48.  Dr Lai opined that any anxiety in driving should more likely be associated with driving a motorbike rather than a taxi.  The exacerbation of symptoms in April 2009 (ie 2½ years after the Accident) would be regarded as related to stressors including marital issue, financial issue and current litigation, and should respond favourably to treatment particularly when such stressors were reduced or resolved.  The Plaintiff was not expected to have persisting suicidal idea, hearing voices, anxiety during driving and depressed mood, and was likely to have improvement and further progress of his stressors.  Dr Lai opined that long term psychiatric treatment/medication would not be required.

49.  On the other hand, Dr Ho said that from a psychiatric perspective the Plaintiff might still be considered as capable of returning to work as a taxi-driver, but his work tolerance, efficiency and adaptive ability might be significantly affected by his psychiatric symptoms.  His symptoms of occasional anxiety and fleeting suicidal ideas were causes for concern if he drove on the road, and the markedly impaired concentration ability he displayed on simple testing was also a factor that had to be taken into consideration since high concentration ability would be needed for driving on the road over a long period and for recalling different routes without error.

50.  Dr Ho opined it was not unreasonable that people who had had a serious road accident would have some fear of having another road accident, and such anxiety would not necessarily be limited to situations that were exact replica of the circumstances at the time of the accident.  He said it was well known for patients who encountered significant stressor to get distressed when exposed to circumstances resembling the stressor.

51.  In my view, taking in account the medical history of the Plaintiff and his psychiatric condition(as evident from the medical reports from the Psy Centre and the Progress Sheets), and the fact that he was still on neurosurgical and psychiatric follow up and still taking psychiatric medications at the time of issue of the Writ, he had reasonable prospect in establishing that he could return to taxi-driving on a part-time but not full-time basis due to his headaches, dizziness, anxiety/fear, PCS and psychiatric medications.  I caution myself that the expert opinion expressed in the Psy Report was only available after the issue of the Writ, but in coming to the above conclusion on the pre-Writ materials I draw comfort from Dr Lai’s acknowledgment that the Plaintiff’s psychiatric condition would affect his work tolerance and efficiency, Dr Ho’s view that the Plaintiff’s work tolerance, efficiency and adaptive ability in respect of taxi-driving might be significantly affected by his psychiatric symptoms, and their belief that the symptoms of PCS were permanent and that the Plaintiff would still suffer from residual symptoms or residual effect of his adjustment disorder even after completion of further psychiatric treatment (see paragraph 35 above).

IX.  PRE-TRIAL LOSS OF EARNINGS

52.  Under the SOD, the claim for pre-trial loss of earnings covered a period from 16 September 2006 to 18 March 2009 (ie the notional date of trial).  Hence, by the time of issue of the Writ on 30 July 2008, most of the pre-trial loss of earnings had been incurred, and the Plaintiff would have known of the factual basis for such claim.  So in determining whether he had reasonable prospect of establishing his claim for pre-trial loss of earnings, I should consider the available documents and the Plaintiff’s averments in the Statement and the RSOD and not just limit myself to the pleaded assertions in the SOD.

53.  For the purpose of framing the claim for pre-trial loss of earnings in the SOD, the Plaintiff adopted various distinct time periods which did not exactly match the time periods adopted in the RSOD and the Statement.  I adopt the time periods set out below as they best lend themselves to analysis.

(a)  16 September 2006 to 31 March 2007

54.  I am satisfied the Plaintiff had reasonable prospect of establishing he could not work at all during his sick leave period from 16 September 2006 to 27 September 2007.

55.  But I note the Plaintiff gave several versions of his claim for loss of earnings for the period from 16 September 2006 to 31 March 2007:

(a) In the SOD, the Plaintiff claimed he leased out his taxi to friends for about HK$4,450.00 per month, so taking into account the monthly maintenance expenses for the taxi (“Expenses”) in the sum of HK$15,510.00, his monthly and total loss of earnings for the relevant period were respectively HK$32,470.00 (ie HK$21,400.00 – HK$4,450.00 + HK$15,520.00) and HK$211,055.00 (ie HK$32,470.00 x 6.5 months).

(b) In the RSOD, the Plaintiff claimed he leased out his taxi to friends for HK$4,938.00 per month, so taking into account the monthly Expenses in the sum of HK$12,600.00, his monthly and total loss of earnings for the relevant period were respectively HK$29,062.00 (ie HK$21,400.00 – HK$4,938.00 + HK$12,600.00) and HK$188,903.00 (ie HK$29,062.00 x 6.5 months).

(c) In the Statement, the Plaintiff claimed he leased out his taxi to earn rental income in the sum of HK$32,100.00 for the whole of the 2006/2007 tax year or HK$2,675.00 per month (ie HK$32,100.00 ÷ 12 months). Thus, the Plaintiff’s total rental income for the relevant period was HK$17,387.50 (ie HK$2,675.00 x 6.5 months).

56.  The Plaintiff did not explain why he put forward 3 different sums of HK$4,450.00, HK$4,938.00 and HK$2,675.00 as his monthly rental income from leasing out his taxi for the relevant period, so one inevitably views his claim with a degree of skepticism.

57.  I now turn to the documents. The starting point was the Plaintiff’s profit and loss account (“Account”) for the 2006/2007 tax year submitted tothe Inland Revenue Department (“IRD”).  It appeared that the IRD in adopting the net profit of HK$53,895.17 shown in the Account as the Plaintiff’s taxable profit income actually accepted such Account.  Such Account gave the Plaintiff’s total income from driving and leasing out his taxi for the whole tax year in the sum of HK$300,900.00 without any breakdown between the 2 sources of income.  But a schedule that was alleged to be subsequently submitted by the Plaintiff to the IRD (“Schedule”) in relation to his income for the 2006/2007 tax year gave a breakdown of HK$268,800.00 (said to be derived from HK$1,600.00 x 165 days) being income from his own taxi-driving and HK$31,200.00 (ie HK$300.00 x 107 “days”) being income from leasing out his taxi.  Nevertheless, other than such Schedule, there were no primary documents which showed that (a) the Plaintiff drove his taxi for 165 days, (b) he leased out his taxi for 107 “days”, and (c) the rental income per “day” during that period was HK$300.00. There was also no suggestion that the IRD approved the relevant Schedule.

58.  I pause to make 2 observations. First, although the Schedule stated that the taxi rental income of HK$31,200.00 was calculated on the basis of 107 “days”, it was plain that the Plaintiff in referring to HK$300.00 and not HK$600.00 or HK$550.00 was in fact referring to 107 day or night shifts and not 107 full days that comprised 2 shifts a day (see paragraphs 83and 87(a) below).  Secondly, the calculations in the relevant Schedule in respect of the Plaintiff’s income from his own taxi-driving contained an arithmetical error.  On the basis of average daily earnings of HK$1,600.00, the total sum of HK$268,800.00 amounted to 168 and not 165 days of taxi-driving by the Plaintiff (ie HK$268,800.00 ÷ HK$1,600.00).

59.  But even on the Plaintiff’s own case, his bare assertions as to the breakdown in the relevant Schedule could not be accepted.  As shown in paragraphs 42-43 and 54 above, in the first 5.53 months of the 2006/2007 tax year the Plaintiff was engaged in full-time taxi-driving without leasing out his taxi, and in the latter 6.47 months of such tax year he only leased out his taxi without engaging in any taxi-driving himself.  Against such background and on the basis of the breakdown in the relevant Schedule, the Plaintiff would have engaged in taxi-driving for an average of 30.4 days (ie 168 days ÷ 5.53 months) each month, which contradicted his own case that on average he only engaged in his own taxi-driving for 26 days per month with 1 rest day a week (see paragraph 42 above).  Had the Plaintiff driven his taxi every day without any rest day (as suggested by the allegation of taxi-driving for 30.4 days each month), his pre-Accident gross and net monthly income would have exceeded HK$41,600.00 and HK$21,400.00 respectively, and that would have been outside the parties’ common ground as to the Plaintiff’s pre-Accident earnings.

60.  Thus, even on the Plaintiff’s own case, he would not have been able to show that in the first 5.53 months of the 2006/2007 tax year his earnings from his own taxi-driving would be as high as HK$268,800.00.  Even on his own case, the Plaintiff’s total gross income from his own taxi-driving could only have been HK$230,048.00 (ie HK$1,600.00 x 26 days x 5.53 months) and his total gross income from leasing out the taxi should have been HK$70,852.00 (ie HK$300,900.00 – HK$230,048.00).  In such circumstances, the monthly income from leasing out the taxi during the 2006/2007 tax year should be HK$10,950.85 (ie HK$70,852.00 ÷ 6.47 months).  Since the Plaintiff’s sole source of income during the period from 16 September 2006 to 31 March 2007 was from leasing out his taxi, his total loss of earnings for the relevant period should have been HK$149,128.00 (ie (HK$21,400.00 – HK$10,950.85 + HK$12,600.00) x 6.47 months). Since the Plaintiff conceded in the RSOD that the monthly Expenses only cost HK$12,600.00 for the relevant period, I see no reason to adopt the higher figure of HK$15,520.00 as pleaded in the SOD.

61.  In my view, the Plaintiff had no reasonable prospect of establishing loss of earnings for the period from 16 September 2006 to 31 March 2007 in excess of HK$149,128.00.  But it is significant to note that since the Plaintiff’s average monthly income from leasing out his taxi during such period was HK$10,950.85 (see the above paragraph), at HK$300.00 per shift (see paragraph 58 above) he must have leased out the taxi for 36.5 shifts (ie HK$10,950.85 ÷ HK$300.00) per month.

(b)  1 April 2007 to 31 March 2008

62.  For the sick leave period from 1 April 2006 to 27 September 2007, I am satisfied that the Plaintiff had reasonable prospect of establishing that he could not work at all during such period.  For the period from 28 September 2007 to 31 March 2008, the Plaintiff claimed he was unable to resume full-time taxi-driving due to his injuries and the effect of his psychiatric mediations and could only return to part-time taxi-driving, but he also leased out the taxi to earn rental income.  As explained in paragraph 51 above, I am satisfied the Plaintiff had reasonable prospect of establishing his proposition.  After all, the records in the Progress Sheets showed that during the relevant period the Plaintiff returned to part-time taxi-driving on trial basis (see paragraph 67 below).  In my view, it was the calculation of loss of earnings for the relevant period that gave rise to concern.

63.  Again, the Plaintiff gave several versions of his claim for loss of earnings for the 2007/2008 tax year:

(a) In the SOD, the Plaintiff claimed that the monthly loss of earnings from 1 April to 27 September 2007 were HK$32,470.00 (see similar calculations in paragraph 55(a) above) and from 28 September 2007 to 31 March 2008 were HK$32,745.00 (ie HK$21,400.00 – HK$5,175.00 (average monthly income) + HK$16,520.00 (average monthly Expenses)).

(b) In the RSOD and the Statement, the Plaintiff claimed he earned HK$46,500.00 during the 2007/2008 tax year which made up of HK$30,000.00 from his own part-time taxi-driving after expiry of the sick leave period and HK$16,500.00 (ie HK$300.00 x 55 days) for leasing out the taxi to friends.  Thus, his average gross monthly income was HK$3,875.00 (ie HK$46,500.00 ÷ 12 months).  After taking into account the monthly Expenses of HK$12,600.00, his monthly and total loss of earnings for the relevant period were respectively HK$30,125.00 (ie HK$21,400.00 – HK$3,875.00 + HK$12,600.00) and HK$361,500.00 (ie HK$30,125.00 x 12 months).

64.  I find it strange that (a) for the sick leave period from 1 April to 27 September 2007 the Plaintiff claimed he earned average monthly rental income for leasing out his taxi variously at HK$4,450.00 in the SOD (see paragraph 55(a) above) and  HK$1,375.00 (ie HK$16,500.00 ÷ 12 months) in the RSOD, and (b) for the post-sick leave period from 28 September 2007 to 31 March 2008 the Plaintiff claimed he earned average gross monthly income variously at HK$5,175.00 in the SOD and HK$3,875.00 in the RSOD.  All of the above assertions emanated from the Plaintiff who gave no explanation for the discrepancies.  In my view, this suggested that the Plaintiff’s case on loss of earnings must be approached with caution.

65.  The Plaintiff’s Account for the 2007/2008 tax year stated that his gross total income from his own taxi-driving and from leasing out the taxi was HK$46,500.00 and the total Expenses were HK$178,429.22 thereby resulting in a loss of HK$129,929.22.  However, on the basis of total Expenses of HK$178,429.22 as stated in the relevant Account (with itemised breakdown), the loss should have been HK$131,929.22 (ie HK$178,429.22 – HK$46,500.00) and not HK$129,929.22 given in the Account.  With the detailed breakdown for the Expenses in the relevant Account, this gave rise to concern that the Plaintiff might have earned more than HK$46,500.00 in order to arrive at a loss of HK$129,929.22.  

66.  Nevertheless, the Schedule in relation to the Plaintiff’s income for the 2007/2008 tax year gave a breakdown of HK$30,000.00 being income from his own taxi-driving and HK$16,500.00 (ie HK$300.00 x 55 days) being income from leasing out his taxi. But such breakdown did not state the number of shifts/days in which the Plaintiff drove the taxi during the tax year.  Further, there were no primary documents that showed the number of days/shifts the Plaintiff drove the taxi to allegedly earn a sum of HK$30,000.00, the number of shifts for which he leased out his taxi, and the rental income per shift during the relevant period. There was also no suggestion that the IRD approved the relevant Schedule.

67.  I now turn to the documents in relation to the Plaintiff’s part-time taxi-driving.  The entries for 5 February, 18 February and 4 March 2008 in the Progress Sheets stated inter alia as follows:

68.  The above showed that after expiry of the sick leave period up to early 2008 the Plaintiff was gradually resuming part-time taxi-driving on the basis of a few hours per week and he was enjoying the process despite feelings of anxiety and difficulties in concentration and memory.  In my view, this sat well with the Plaintiff’s claim that he earned HK$30,000.00 from his own part-time taxi-driving during the 2007/2008 tax year.  The total income of HK$30,000.00 for the Plaintiff’s own part-time taxi-driving for the post-sick leave period from 28 September 2007 to 31 March 2008 (ie 6.1 months) meant that his weekly income on average would be HK$1,229.51 (ie HK$30,000.00 ÷ 6.1 months ÷ 4 weeks).  Compared with his pre-Accident average income of HK$1,600.00 for each full day of taxi-driving, his post-Accident daily earnings of HK$1,229.51 corresponded to a few hours of taxi-driving per week.  On the above analysis, I find that at the time of issue of the Writ the Plaintiff had reasonable prospect in establishing he could only earn HK$30,000.00 from his own part-time taxi-driving from 28 September 2007 to 31 March 2008.

69.  Mr Kwong argued there was no evidence from the treating hospitals that the Plaintiff could not resume full-time taxi-driving after expiry of his sick leave, which he submitted was supported by the medical opinion of Drs Lam, Cheng and Lai and the DA Report.  He submitted that at best the Plaintiff could return to full-time taxi-driving after 1½ years as suggested by Dr Ho or at worst upon discharge from occupational therapy on 10 June 2008 (ie 18 or 20.8 months from the date of the Accident).  On the basis of such submissions, the Plaintiff was merely capable of part-time taxi-driving up to mid-March or mid-June 2007, which was in line with the analysis in the above paragraph.

70.  The more vexing question is whether at the time of issue of the Writ the Plaintiff had any reasonable prospect in establishing his claim for loss of earnings on the basis that he leased out his taxi for only 55 days during the whole 2007/2008 tax year, ie allowing the taxi to incur Expenses but to stand idle for more than 360 days in the year.  In my view, it is obvious that the Plaintiff had no such reasonable prospect, and the only reasonable view was that the Plaintiff could and/or should have leased out the taxi for more shifts than averred in the SOD or the RSOD.

71.  First, the Plaintiff claimed in the Statement that he only leased out the taxi for brief periods because he was not prepared to lease out to any driver “因為我怕遇上租覇或喜歡喝酒的司機駕駛時發生意外，令至我亦有責任”.  But as shown in paragraph 41 above such contention had been exploded – the Plaintiff must have had more experience and contacts for leasing out taxi than he would let the court believe.

72.  Secondly, even on the Plaintiff’s own case, the Plaintiff was able to lease out his taxi for 107 shifts during the 6.47 months from 16 September 2006 to 31 March 2007 which was almost double the 55 shifts leased out during the 12 months from 1 April 2007 to 31 March 2008.  There was no reasonable explanation for the sharp drop in leasing out the taxi.  If the Plaintiff’s explanation in the Statement (see the above paragraph) were correct, then there was no reason for the Plaintiff to be able to lease out the taxi for 107 shifts in the more acute stages of his rehabilitation.  Even worse, as shown in paragraph 61 above, the Plaintiff should have leased out the taxi for an average of 36.5 shifts per month for the period from 16 September 2006 to 31 March 2007.  This reflected an even sharper drop in leasing out the taxi in the 2007/2008 tax year which was wholly unexplained.

73.  Thirdly, according to the SOD, the Plaintiff’s gross income for the period from 1 April 2007 to 31 March 2008 was HK$57,822.50 (ie (HK$4,450.00 x 5.9 months) + (HK$5,175.00 x 6.1 months)), which was more than the total gross income in the sum of HK$46,500.00 shown in the RSOD and the Statement.  On the basis that the Plaintiff earned HK$30,000.00 from his own part-time taxi-driving during the 2007/2008 tax year, there was real likelihood that even on the Plaintiff’s own case he actually leased out his taxi for more than 55 shifts and thereby earned more than HK$16,500.00 in taxi rental income during the relevant period.

74.  Even if the Plaintiff did not, there is still a strong case for contending that such failure could not be blamed on the 2^nd Defendant.  After all, damages were meant to compensate the Plaintiff for loss caused by and not being too remote a consequence of the 1^st Defendant’s negligence.  The Plaintiff was therefore under a duty to mitigate his loss, and failure to discharge such duty would entail a reduction in the damages that might be awarded.

75.  The classic statement on mitigation of loss could be found in McGregor on Damages 18^th ed para.7-004 at p.236: “…… the claimant must take all reasonable steps to mitigate the loss to him consequent upon the defendant’s wrong and cannot recover damages for any such loss which he could thus have avoided but has failed, through unreasonable action or inaction, to avoid. Put shortly, the claimant cannot recover for avoidable loss”.

76.  In Chua Ming Yuen v Hentron Investments Limited & anor CACV50/2005 (unreported, 30 November 2005), a case not cited by the parties, Yeung JA in giving the judgment of the court said as follows:

“71.  The duty to mitigate loss imposes upon the plaintiff a duty to act reasonably to reduce the extent of the damages as “…the plaintiff…cannot recover for a loss avoidable by reasonable action on his own part, because, if he could reasonably have avoided it, it would not be regarded as caused by the wrongdoer” (per Robert Goff J in Koch Marine Inc v D’Amica Societa di Navigatione, The Elena d’Amico [1980] 1 Lloyd’s Rep. 75).

72.          “The criterion for reasonableness, stated concisely in the words of James L.J. in Dunkirk Colliery Co v Lever (1878) 9 Ch D 20, which were cited with approval by Viscount Haldane in British Westinghouse Co v Underground Ry [1912] AC 673, is that the claimant is not ‘under any obligation to do anything other than in the ordinary course of business’. This terminology, with its reference to business, is geared more to contract than to tort, and, although most of the cases are contract cases, it is better, in order to include tort, to speak simply of the ordinary course or of the ordinary course of events.” (McGregor on Damages para. 7-067)”

77.  In my view, obviously it could not be said to be reasonable in the ordinary course of events for the Plaintiff (a) to lease out his taxi for only 55 shifts to earn HK$16,500.00 as suggested in the Schedule or (b) to engage in his own part-time taxi-driving and to lease out the taxi merely to earn HK$57,822.50 (see paragraph 73 above) as suggested in the SOD for the whole 2007/2008 tax year, and to leave the taxi to stand idle but to incur Expenses for the rest of the tax year. Any loss of earnings arising from unreasonable conduct by the Plaintiff would plainly be avoidable loss.  The Plaintiff’s subjective concerns (which had been exploded by the analysis in paragraph 41 above) were irrelevant and could not satisfy the criterion of reasonableness in respect of the duty to mitigate loss.

78.  The next question concerned the number of shifts/days the Plaintiff would have leased out his taxi for proper mitigation of loss.  Mr Kwong submitted that on a best case scenario the Plaintiff would have been able to lease out the taxi for 2 shifts per day at HK$320.00 per shift for 30 days each month immediately after expiry of the Plaintiff’s sick leave period.  I find such contention overly optimistic.  Any driver who leased the Plaintiff’s taxi would sensibly have required some rest and/or leave days, and the Plaintiff might not necessarily have been able to drive on those days.  I also bear in mind that the Plaintiff drove the taxi himself for a day or so each week for a few hours at a time on a trial basis and the occupational therapists recommended gradual increase of taxi-driving hours as part of his rehabilitation.  This might have impact on the number of shifts that the Plaintiff could lease out for his taxi.

79.  However, to err on the side of caution in favour of the 2^nd Defendant, I assess loss of earnings for the 2007/2008 tax year on the basis that the Plaintiff could have earned HK$30,000.00 from his own part-time taxi-driving and that he would have leased out the taxi for 26 days (ie 52 shifts) per month at HK$600.00 per day (ie HK$320.00 + HK$280.00 as shown in paragraph 87(a) above).  There was no evidence before me that the day and night shifts would both attract rental income of HK$320.00 (see paragraph 83 below).  This is even more favourable to the 2^nd Defendant than the average 36.5 shifts per month for the period from 16 September to 31 March 2007 (see paragraph 61above).  Such assessment envisaged that drivers who leased the Plaintiff’s taxi would have rest/leave days of, say, 1 day per week, and the Plaintiff could take up part-time taxi-driving on those days.  I am prepared to assume there was reasonable prospect for the Plaintiff in establishing that he would have earned HK$190,800.00 (ie [HK$21,400.00 – (HK$30,000.00 ÷ 12) – (HK$600.00 x 26 days) + HK$12,600.00] x 12 months) for the 2007/2008 tax year.  Since the Plaintiff conceded in the RSOD that the monthly Expenses for the taxi cost HK$12,600.00 for the relevant period, I see no reason to adopt the higher figure of HK$15,520.00 or HK$16,520.00 as pleaded in the SOD.

(c)  1 April 2008 to 31 May 2008

80.  During the period from 1 April 2008 to May 2008, the Plaintiff claimed he continued to drive his taxi on a part-time basis and he also leased it out to earn rental income.  For the reasons given in paragraphs 51 and 62 above, I am satisfied that the Plaintiff had reasonable prospect in establishing such contention at the time of issue of the Writ.

81.  But the Plaintiff again gave different versions as to his income during such period:

(a) In the SOD, the Plaintiff claimed his gross monthly income during this period was HK$5,175.00 and the monthly Expenses were HK$16,520.00, thus the monthly loss of earnings were HK$32,745.00 (ie HK$21,400.00 – HK$5,175.00 + HK$16,520.00).

(b) In the RSOD, the Plaintiff claimed his gross monthly income was HK$3,875.00 and the monthly Expenses were HK$12,600.00, thus the monthly loss of earnings was HK$30,125.00 (ie HK$21,400.00 – HK$3,875.00 + HK$12,600.00).

82.  The IRD adopted the net profit of HK$2,400.13 shown in Plaintiff’s 2008/2009 Account as his taxable profit (ie HK$2,400.00) in the tax assessment for the 2008/2009 tax year.  According to such Account, the Plaintiff’s annual and monthly gross income derived from his own taxi-driving and from leasing out the taxi were respectively HK$124,400.00 and HK$10,366.67 (ie HK$124,400.00 ÷ 12 months), and his annual and monthly Expenses were respectively HK$121,999.87 and HK$10,166.66 (ie HK$121,999.87 ÷ 12 months).  It was obvious from the relevant Account that the Plaintiff earned substantially more (HK$10,366.66) per month than the amounts pleaded in the SOD (HK$5,175.00) or even the RSOD (HK$3,875.00).

83.  However, the Schedule in relation to the Plaintiff’s income for the 2008/2009 tax year gave a breakdown of HK$21,600.00 being income from his own taxi-driving and HK$102,800.00 (ie HK$320.00 x 120 shifts and HK$230.00 x 280 shifts) being income from leasing out his taxi.  The breakdown in the Schedule suggested that the Plaintiff on average earned HK$1,800.00 (ie HK$21,600.00 ÷ 12 months) from his own taxi-driving and HK$8,566.67 (ie HK$102,800.00 ÷ 12 months) from leasing out his taxi per month, thus making total average monthly earnings of HK$10,366.67 (ie HK$1,800.00 + HK$8,566.67).  The Schedule also showed that on average the taxi was leased out for 33.3 shifts per month (ie (120 shifts ÷ 12 months) + (280 shifts ÷ 12 months)) or 16.65 days at 2 shifts per day (ie 33.3 shifts ÷ 2 shifts).  So even according to the Schedule, the Plaintiff earned much more per month (ie HK$10,366.67) than the monthly income of HK$5,175.00 or HK$3,875.00 shown in the SOD or the RSOD.

84.  But the Schedule did not give any breakdown as to how much time (shifts/days) the Plaintiff spent in his own taxi-driving each month for the relevant period. Further, there were no primary documents which showed the number of shifts/days the Plaintiff spent in driving his own taxi, the number of shifts for which he leased out the taxi, and the rental income per shift during that period.  There was also no suggestion that the IRD approved the relevant Schedule.

85.  In light of the above analysis, it is obvious that the Plaintiff’s contention in the SOD that he only earned HK$5,175.00 per month from 1 April to 31 May 2008 would be untenable even at the time of issue of the Writ.  I see no reason why he would not have been able to make the same average notional monthly earnings as for the 2007/2008 tax year in section (b) above. In the circumstances and erring on the side of caution in favour of the 2^nd Defendant, at the time of issue of the Writ the Plaintiff would have reasonable prospect in establishing average loss of earnings for the period from 1 April to 31 May 2008 in the sum of HK$31,800.00 (ie [HK$21,400.00 – (HK$30,000.00 ÷ 12) – (HK$600.00 x 26 days) + HK$12,600.00] x 2 months).  Since the Plaintiff conceded in the RSOD that the monthly Expenses for the taxi cost HK$12,600.00 for the relevant period, I see no reason to adopt the higher figure of HK$16,520.00 as pleaded in the SOD.

(d)  1 June 2008 to 7 September 2008

86.  During the period from 1 June to 7 September 2008, the Plaintiff claimed he continued to drive his taxi on part-time basis and to lease it out to earn rental income.  For the reasons given in paragraphs 51 and 62 above, I am satisfied that the Plaintiff had reasonable prospect in establishing such contention at the time of issue of the Writ.

87.  Again, the Plaintiff gave different versions as to his earnings over the relevant period:

(a) In the SOD, the Plaintiff claimed he decided to shift his job nature and to take up other sedentary job earning HK$6,000.00 per month starting from 1 June 2008, so his notional loss of earnings for the relevant period would be HK$49,280.00 (ie (HK$21,400.00 – HK$6,000.00) x 3.2 months).  Although the Plaintiff did not expressly say so in the SOD, such calculation assumed that the taxi would be sold (ie there would be no gross income or Expenses in respect of the taxi).  But this must be wrong because according to 2 taxi rental agreements dated 2 and 4 June 2008 the Plaintiff leased out his taxi to 2 drivers respectively for day and night shifts for HK$320.00 and HK$280.00 per shift.

(b) In the RSOD, the Plaintiff claimed that from 1 June to 7 September 2008 he leased out the taxi for day and night shifts respectively at HK$320.00 and HK$280.00 per shift and earned rental income in the sum of HK$10,367.67 per month (see also paragraph 83 above).  He only drove his taxi on days when the other drivers were on leave, so he earned about HK$1,385.00 per month.  Taking into account the monthly Expenses of HK$12,600.00, the Plaintiff’s monthly loss of earnings were HK$22,247.33 (ie HK$21,400.00 – HK$10,367.67 – HK$1,385.00 + HK$12,600.00) and his loss of earnings over the relevant period was HK$71,191.46 (ie HK$22,247.33 x 3.2 months).

88.  The RSOD and the Statement revealed that between 11 and 29 August 2008 the Plaintiff took “泥水裝修助理訓練課程” organised by the Hong Kong Federation of Trade Unions Occupational Retraining Centre, that he was registered with the Labour Department to look for work, and that he attended interviews for various jobs including restaurant kitchen assistant for HK$4,000.00 to HK$6,000.00 per month to no avail.  But I need not be concerned with these efforts which took place after the issue of the Writ.  As indicated in the SOD and RSOD, the relevant consideration was whether the Plaintiff reasonably hoped to secure other work at a monthly income of HK$6,000.00. 

89.  Viewing the matter as at the time of issue of the Writ, I have no reason to doubt the Plaintiff’s belief that he would have been able to secure alternative employment earning HK$6,000.00 per month.  But the question remained whether he could have increased his taxi-driving hours/shifts per month to earn even better income.  As at the time of issue of the Writ, the Plaintiff would not have been aware of the exacerbation of his symptoms in April 2009 and might not have fully comprehended his physical capabilities as shown in the Recording in mid-2009.  But he would have been aware of (a) steady progress of his physical condition with encouragement by the occupational therapists to resume increased part-time taxi-driving and (b) lingering effects of his psychiatric condition/medication that, according to Dr Ho, still significantly affected his taxi-driving.  Dr Ho’s comments summarised in paragraphs 33-34 above were pertinent. It was possibly unlikely for the Plaintiff to resume half of his pre-Accident taxi-driving, but I shall assume in favour of the 2^nd Defendant that the Plaintiff was capable of doing so and thereby notionally could have earned HK$20,800.00 (ie 13 full days per month at HK$1,600.00).  Further, since the Plaintiff actually entered into the taxi rental agreements in early June 2008, there was no reason to ignore rental income from such agreements.  Assuming that the Plaintiff could have leased out the taxi for the rest of the month (ie 17 days), the notional monthly loss of earnings would have been HK$3,000.00 (ie HK$21,400.00 – HK$20,800.00 – (HK$600.00 x 17 days) + HK$12,600.00) and the loss of earnings for the relevant period would be HK$9,600.00 (ie HK$3,000.00 x 3.2 months).

(e)  8 September 2008 to 18 March 2009

90.  In the RSOD and the Answer, the Plaintiff averred that he found work as a renovation assistant earning HK$4,000.00 per month with working hours from 9 am to 6 pm.  His duties included delivery of bricks and rendering and plastering work, but he could not manage due to dizziness, weakness of his left hand and diminished standing tolerance of his left leg such that he left the company on 14 November 2008.  In the meantime, he continued to drive his taxi a day each week or 4 days per month when the drivers who leased the taxi were on leave (but he would not drive if he did not feel well) and earned about HK$1,000.00 (ie HK$250.00 x 4 days) per month.  The Plaintiff also leased out his taxi and earned about HK$10,367.67 per month (see paragraphs 83 and 87(b) above) at HK$600.00 (ie HK$320.00 + HK$280.00) per day.  So the Plaintiff’s monthly loss of earnings during this period was HK$18,632.33 (ie HK$21,400.00 – HK$4,000.00 – HK$1,000.00 – HK$10,367.67 + HK$12,600.00).

91.  In the RSOD, the Plaintiff claimed that from 14 November 2008 to 31 August 2009 he attempted to look for other work to no avail. To maintain his living, he drove his taxi when those who leased the same were on leave.  During this period, he earned about HK$15,200.00 per month, namely, HK$13,200.00 (ie HK$600.00 x 22 days) per month from leasing out the taxi, and HK$2,000.00 (ie HK$250.00 x 8 days) per month from driving it himself.  After taking into account the monthly Expenses of HK$12,600.00, his monthly loss of earnings for the relevant period was HK$18,800.00 (ie (HK$21,400.00 – HK$15,200.00 + HK$12,600.00).

92.  It could be seen from the above that even on the Plaintiff’s own case there was a gradual improvement in resumption of taxi-driving by the Plaintiff (ie from 4 days to 8 days per week at HK$250.00 per day) and in leasing out the taxi (ie from 16.65 days at HK$550.00 per day to 22 days at HK$600.00 per day).

93.  Other than the fact that such improving trend accorded with the information available at the time of issue of the Writ, I do not take into account post-30 July 2008 matters.  Likewise I do not take into account the exacerbation of the Plaintiff’s symptoms in April 2009 and his improved physical abilities as shown in the Recording in July 2009 except as a general reflection on his improved physical condition at the time of issue of the Writ.  In my view, the Plaintiff had reasonable prospect in establishing that at the time of issue of the Writ that he was still suffering from psychiatric condition and the effects of psychiatric medication, and he was still making trial efforts to resume increased taxi-driving.  I see no reason for disturbing the estimated monthly loss of earnings adopted for sections (c) and (d) above.  Thus, the Plaintiff’s notional monthly loss of earnings would be in the sum of HK$3,000.00 (see paragraphs 85 and 89 above) and his notional loss of earnings from 8 September 2008 to 18 March 2009 would have been HK$19,050.00 (ie HK$3,000.00 x 6.35 months).

94.  Thus, the pre-trial loss of earnings on the basis of the above calculations would be about HK$400,378.00 (ie HK$149,128.00 + HK$190,800.00 + HK$31,800.00 + HK$9,600.00 + HK$19,050.00).

X.  FUTURE LOSS OF EARNINGS

95.  In the SOD, the Plaintiff claimed that due to his injuries and disabilities he would only be able to take up a job that did not require heavy physical demand.  He expected to be able to find a job earning a monthly income of HK$6,000.00.  He claimed that his future loss of earnings would be (HK$21,400.00 – HK$6,000.00) x 12 months x 9 = HK$1,663,200.00.

96.  Ms Fung pointed out that the averments in the SOD were reasonable because the Plaintiff had no other qualification apart from cookery and he could not work as a cook due to the weakness of his left hand.  On the other hand, Mr Kwong submitted that the Plaintiff was well capable of returning to full-time taxi-driving as shown in the DA Report, the Ortho Report and the Recording.  He argued that the Plaintiff would not be entitled to any future loss of earnings.  But Mr Kwong’s arguments ignored the Plaintiff’s continued need for psychiatric follow up and medication, and Dr Ho’s opinion that the Plaintiff’s psychiatric condition would still have effect on his work efficiency, tolerance and adaptive ability as discussed above.

97.  In the RSOD, the Plaintiff claimed that as from 1 September 2009 he attempted to drive his taxi more regularly by resuming 1 shift per day and 3 days per week usually on Tuesdays from 8 am to 1 pm, Thursdays from 5pm to 11pm and Saturdays from 5 pm to 11 pm. He earned about HK$500.00 per day or HK$6,000.00 per month. Further, he leased out his taxi for about 18 days at HK$600.00 per day earning rental income of HK$10,800.00 per month (ie HK$600.00 x 18 days) and 12 days per month at HK$300.00 per day earning rental income of HK$3,600.00 per month (ie HK$300.00 x 12 days).  Thus the Plaintiff claimed he earned total monthly rental income of HK$14,400.00 (ie HK$10,800.00 + HK$3,600.00).  The RSOD went on to aver that assuming the Plaintiff could drive the taxi for 12 days per month and lease it out for the days he did not drive the taxi, his average monthly earnings would be HK$20,400.00 (ie HK$6,000.00 + HK$14,400.00).  After taking into account the average monthly Expenses of HK$12,600.00, the Plaintiff claimed that his monthly net loss of earnings would be HK$13,600.00 (ie HK$21,400.00 – HK$20,400.00 + HK$12,600.00).

98.  As explained above, there was no need for me to consider the averments in the RSOD and the Statement as to the Plaintiff’s actual income during the period after 18 March 2009 since I was tasked to consider what the Plaintiff could have reasonably established at the time of issue of the Writ. Mr Kwong did not dispute the multiplier of 9 as proposed in the SOD.  Since I have been even more robust in favour of the 2^nd Defendant in assessing the notional loss of earnings than as suggested by the Plaintiff in the RSOD, I adopt the monthly notional loss of HK$3,000.00 (see paragraphs 85, 89 and 93 above).  Thus, the future loss of earnings which the Plaintiff had reasonable prospect of establishing at the time of issue of the Writ would be HK$324,000.00 (ie HK$3,000.00 x 12 months x 9).

XI.  LOSS OF EARNING CAPACITY

99.  Although loss of earning capacity was a head of claim in the RSOD, it was not featured in the SOD.  I need not consider the same as it was not a head of recoverable loss contemplated by the Plaintiff at the time of issue of the Writ.

XII.  MEDICAL EXPENSES

100.  In the RSOD, the Plaintiff claimed the sum of HK$6,240.00 for medical expenses for the treatment he received at TKOH, QEH, UCH and the Psy Centre.  However, at the time of issue of the Writ, he only claimed the sum of HK$3,500.00 and Mr Kwong did not dispute the same.

XIII.  FUTURE MEDICAL EXPENSES

101.  In the RSOD, the Plaintiff claimed a lump sum of HK$45,000.00 (ie HK$2,500.00 x 12 months x 1½ years) for future medical expenses on the basis that Dr Ho and Dr Lai both opined that the Plaintiff would require further psychiatric treatment and the suggested duration of such treatment varied from about 1 year to at least 2 years at the cost of HK$2,000.00 to HK$3,000.00 per month in a private setting.

102.  However, at the time of issue of the Writ, the Plaintiff only claimed a lump sum of HK$5,000.00 for future medical expenses.  Mr Kwong argued there was no evidence to support any need for future medical treatment.  But at the time of issue of the Writ, although the Plaintiff refused further cognitive training by 10 June 2008, he was still attending follow up at the Neuro Clinic and Psy Centre, and he was still taking psychiatric and other medications.  Plainly, the Plaintiff had a reasonable prospect of establishing a need for future medical expenses, and I am not persuaded that a sum of HK$5,000.00 was out of line.

XIV.  TRAVELLING EXPENSES

103.  In the SOD the Plaintiff claimed a sum of HK$2,000.00 for incurred travelling expenses as he had to take taxi during the rehabilitation period shortly after the Accident due to leg injury, and he also claimed HK$500.00 for future travelling expenses.  Mr Kwong proposed a total sum of HK$2,000.00.  Whilst the Plaintiff reduced the claim to HK$1,988.00 in the RSOD, I cannot say that the Plaintiff had no reasonable prospect of establishing a claim for HK$2,500.00 for travelling expenses at the time of issue of the Writ.

XV.  TONIC FOOD

104.  The Plaintiff claimed HK$5,000.00 for general Chinese nourishing and tonic food. Mr Kwong was prepared to concede a sum of HK$3,000.00.  In the Statement, the Plaintiff claimed that his wife prepared nourishing soups that were helpful for tendon recovery, and in the Answer, he stated he consumed gingseng and chicken soup as well as radix notoginseng and meat soup about twice a week for about 6 months at HK$100.00 each time.  Again I cannot say that the Plaintiff had no reasonable prospect of establishing a claim for HK$5,000.00 for tonic food expenses at the time of issue of the Writ.

XVI.  MISCELLANEOUS SPECIAL LOSS

105.  The Plaintiff claimed HK$21,475.00 for other special loss and damages as follows :

Description	HK$
Second hand motorcycle	15,000.00
Watch	4,700.00
Vehicle repairing survey fee (Cheuk Hwa Hong Surveyors & Adjusters Co)	650.00
Vehicle repairing survey fee (Chun Kee Motorcycle Co Ltd)	600.00
Vehicle towing fee	300.00
Stick	60.00
Rotary Rehabaid Centre for Children (photocopying charges for obtaining driver assessment report)	165.00

(a) Motorcycle

106.  According to the Statement, the Plaintiff purchased the second-hand Motorcycle in 2004 for HK$18,000.00.  He claimed that as second hand motorcycles did not require annual inspection their price was better guaranteed.  He said some internet websites showed that motorbikes of similar model to the Motorcycle were worth HK$12,000.00, so he estimated the value of the Motorcycle at the time of the Accident to be worth HK$15,000.00.

107.  The only webpages disclosed by the Plaintiff were printed in May 2008 and they referred to asking price (not sold or market value) of similar motobikes of HK$14,500.00 and HK$18,800.00 whichdid not support the Plaintiff’s allegations in the Statement.  However, according to the motor survey report dated 23 December 2006 by Cheuk Hwa Hong Surveyors & Adjusters Co, the motor surveyor recommended writing off the Motorcycle on total loss basis as it was damaged beyond economical repair.  The report went on to say that the market value of the Motorcycle was HK$11,000.00 and the scrap value was HK$500.00.  In the circumstances, at the time of issue of the Writ, it would have been obvious to the Plaintiff that he could not ask for more than HK$11,000.00 for loss of the Motorcycle.  Further, he had to give credit for the scrap value of the Motorcycle in the sum of HK$500.00 received from the towing company, thus resulting in a loss of HK$10,500.00.

(b)  Watch

108.  According to the SOD and the Statement, the watch the Plaintiff was wearing at the time of the Accident was damaged.  In the circumstances, I am unable to accept Mr Kwong’s submissions that the Plaintiff failed to describe whether the watch was damaged or destroyed as a result of the Accident.

109.  The heart of the dispute was whether the Plaintiff was entitled to claim a sum of HK$4,700.00 for the damaged watch.  According to the Answer, the Plaintiff purchased the watch (“Fortis 610.22.15M”) about 2 years prior to the Accident for about HK$4,000.00 to HK$5,000.00.  He read from the webpage of Kowloon Watch Co on 9 November 2006 (which was disclosed) that the price of a watch of the same model and brand was HK$4,700.00.

110.  In my view, given the Plaintiff’s clear assertion of damage to his watch, I am unable to say that at the time of issue of Writ the Plaintiff had no reasonable prospect of establishing that he needed to replace the damaged watch for HK$4,700.00.  It is also at least arguable that no deduction should be made from the Plaintiff’s damages to offset any necessary betterment as a result of such replacement (see Harbutt’s Plasticine v Wayne Tank & Pump Co [1970] 1 All ER 225 and Lagden v O’Connor [2004] 1 AC 1067). 

(c)  Motor survey fees

111.  As regards motor survey fees, there was no justifiable reason why the 2^nd Defendant should bear the costs of 2 motor survey reports.  The 2^nd Defendant quite sensibly did not dispute liability for the cost of one such report at HK$650.00.

(d)  Undisputed items

112.  The Plaintiff claimed and the 2^nd Defendant did not dispute the fees for vehicle towing, stick and photocopying at Rehabaid Centre in the sums of HK$300.00, HK$60.00 and HK$165.00 respectively.

XVII.  CONCLUSION

113.  In the above analysis, it has been shown that the Plaintiff in his pleadings and witness statement had not been forthright as to his earnings and work capability in the post-Accident period.  I have taken this into account in my overall consideration. But there can be no denying the fact that as at the time of issue of the Writ, the Plaintiff was still suffering the effects of his psychiatric condition/medication and such effects had adverse impact on his work efficiency and tolerance.  Looking at this case as a whole as at the time of issue of the Writ, I cannot say that it would have been obvious to a reasonable man in the Plaintiff’s position that properly advised his claim would have been within the District Court jurisdiction limit.

114.  I am persuaded that at the time of issue of the Writ the Plaintiff had reasonable prospect in establishing that the present case was within High Court jurisdiction:

	HK$
PSLA	350,000.00
Pre-trial loss of earnings	400,378.00
Post-trial loss of earnings	324,000.00
Future medical expenses	5,000.00
Loss of earning capacity	--
Medical expenses	3,500.00
Travelling expenses	2,500.00
Tonic food expenses	5,000.00
Other special damages	16,375.00
	1,106,753.00

115.  I therefore order that the Plaintiff’s costs of the action be paid by the 1^st and 2^nd Defendants on High Court scale.  There is no reason why costs should not follow event.  I therefore make a costs order nisi that costs of the Summons be paid by the 1^st and 2^nd Defendants to the Plaintiff also on High Court scale. Since the 1^st Defendant was absent and did not put up positive resistance to the application, I assess costs on a nisi basis in favour of the Plaintiff against the 1^st Defendant in the sum of HK$800.00.  As regards the 2^nd Defendant, I see no reason why the costs should not be summarily assessed.  I therefore also make the following consequential directions :

(a) unless an application is made to vary the above costs order nisi within 14 days from the date hereof, the Plaintiff do within 21 days from the date hereof lodge and serve statement of costs pursuant to Practice Direction 14.3, and the Plaintiff’s solicitors do fix a date with the Listing Clerk after 14 days and within 28 days from today for a hearing before me in chambers (open to the public) for summary assessment of costs with ½ hour reserved;

(b) if application is made to vary the costs order nisi within 14 days from the date hereof, both parties do lodge and serve their respective statement of costs pursuant to Practice Direction 14.3 no later than 7 days before the hearing of the application to vary the costs order nisi.

116.  Last but not least, I thank both solicitors for their submissions.