LEUNG YIU WING v. WONG LAN FUN AND OTHERS

HCPI 806/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 806 OF 2004

----------------------

----------------------

----------------------------------------

J U D G M E N T

--------------------------------------

Background

1.  On 31 August 2005, judgment on liability was entered against the 1^st and 2^nd Defendants with costs and damages to be assessed, the Plaintiff having elected to discontinue the suit against the 3^rd Defendant.

The Plaintiff’s Injuries, Treatment and Prognosis

2.  The Plaintiff, the registered owner and driver of a taxi bearing registration number JV 8020 was rear-ended twice by another taxi driven by the 1^st Defendant and owned by the 2^nd Defendant when the 1^st Defendant failed to decelerate and stop in time on 5 September 2002.  The Plaintiff’s taxi sustained relatively minor damage as is evident from the photographs (D191-193) and he suffered injuries.

3.  The Plaintiff attended the A & E Department of Queen Elizabeth Hospital (“QEH”) on the date of the accident, was treated and discharged.  At the time he complained of neck and back pain.  Dr. Chan Kin-ling (“Dr. Chan”) who treated the Plaintiff at QEH noted that his general condition was good with no tenderness on palpation of the cervical spine and back.  There were no fractures.  The clinical diagnosis was neck sprain.  Following treatment, the Plaintiff was discharged with just 2 days’ leave for what must have been in the opinion of the treating physician a very minor complaint at the time.

4.  There was no recorded complaint of blurred vision in Dr. Chan’s report of 6 December 2002 or in the Hong Kong Eye Hospital’s findings dated 4 December 2002.  The Plaintiff had attended the eye hospital on 17 October 2002 for “sticky eyes”.  The first recorded instance of redness and blurred vision was 4 December 2002 when the Plaintiff visited a private eye doctor, Dr. Wong Wing Fai who diagnosed keratitis from preceding conjunctivitis, cataract and post traumatic neurosis (post concussion).  The underlying causes of the redness and impaired vision are totally unconnected with the accident in my view.  The diagnosis of post concussion, totally unsubstantiated by subsequent medical examinations, may be wholly discounted for the present exercise.

5.  It was the Plaintiff’s evidence that despite having complained of blurred vision and requesting for ambulance transfer to the attending police officer at the scene of the collision, he was prevailed upon as a favour to drive himself in the taxi to the hospital.  This he duly did.  I find the assertion wholly improbable and implausible.  Had the Plaintiff genuinely suffered visual impairment which he also said had lasted for “a few months” thereafter, he would not have been permitted to be in control of his vehicle.  The absence of any complaint of impaired vision in the immediate aftermath as noted earlier is particularly telling, being suggestive of exaggeration on his part.

6.  On 9 September 2002, he returned complaining of neck and back pain and was attended by Dr. Barry Chan.  The examination revealed no bony tenderness on the spine.  This time the Plaintiff on discharge was referred for physiotherapy with recommended sick leave from 9 to 11 September 2002 inclusive.  Still complaining of back pain, he was seen again on 20 September 2002 by Dr. Gary Chu.  Mild tenderness over the lumbar region of the back was noted.  X- ray revealed that the lumbar-sacral spine had normal bony alignment and disc space with no fracture.  Treated and discharged, he was advised to have follow-up on 27 September 2002.  Sick leave from 20 to 26 September 2002 inclusive was given.  Dr. Lau Hoi Kuen, DW1 (“Dr. Lau”) opined in cross-examination that mild tenderness and normal bone alignment indicated to him that the Plaintiff could not have been in severe pain when seen on 20 September 2002.

7.  As advised, the Plaintiff kept follow-up appointments between 27 September 2002 and 14 December 2002 on 8 different occasions.  Sick leave was extended to 11 January 2003.  A radiological examination was requested by a Dr. Ho Hsiao-chuen on 25 March 2003.  The Plaintiff had repeated his complaint of persistent neck and lumbar pain but the doctor noted that the physical examination was equivocal.

8.  A Work Rehabilitation Progress Report was prepared by an occupational therapist, Mr. Steven Siu of QEH.  Dated 16 July 2003, it noted that the Plaintiff’s overall physical capacity had improved after 7 weeks of strengthening program but pain over the left shoulder, lower limb and low back remained similar.  It also recorded his complaint of occasional dizziness of about 8 times a day.  A further month of work hardening program followed by vocational resettlement was recommended.  This was endorsed by the medical officer who recommended no more than 2 further months of sick leave and referral to the pain clinic for management.

The Orthopaedic Evidence

9.  Dr. Au Ka Kau, the Plaintiff’s orthopaedic expert (“Dr. Au”) produced two reports dated respectively 20 May 2004 and 29 April 2005, the latter after having perused Dr. Lau’s reports and having reviewed the surveillance evidence.    Dr. Au examined the Plaintiff on 8 May 2004 nearly two years after the accident.  The Plaintiff’s then complaints were noted as neck pain lasting twenty-four hours a day, increasing on rising in the morning and easing with sleep and radiating to the left arm; neck stiffness; lower back pain of twenty-four hour duration radiating to his left leg and left scrotum on prolonged sitting; dizziness and headaches; sitting tolerance of 7 to 8 minutes.

10.  On examination, Dr. Au observed that the Plaintiff “walked in a mild limping gait with his left hand supporting his back”.  There was no neck deformity but there tenderness over the upper and lower cervical spine and left paraspinal muscles.   There was no muscle spasm over the paraspinal region but limitation of neck movement was noted.

11.  Examination of the lumbar spine elicited the following information.  The spine showed no deformity.  There was tenderness over the whole of the lumbar spine and sacrum, being more severe on the left paraspinal muscle than on the right.  Muscle guarding over both sets of paraspinal muscles was present.  There was limitation of the lumbar spinal movement.  Downward pressure over the skull (vertex compression) did not increase the back pain.  Passive rotation of shoulder and pelvis increased the back pain.  X-ray examinations of the spine established no abnormality.

12.  Dr. Au opined that the Plaintiff had sustained soft tissue injury to the neck and back in the accident and that he had persistent pain in those areas despite conservative treatment.  He then went on to state:

“Mr. Leung had received appropriate treatment and has reached maximum medical improvement.  He will have on and off exacerbation of his pain symptom; rest and painkillers will help to ease his symptom during pain exacerbation.  In the long run, it is advisable for Mr. Leung to avoid strenuous exertion of his back and pay due attention to proper sitting posture; regular neck exercises will be helpful to decrease frequency of neck pain exacerbation.”

13.  Dr. Au estimated that the Plaintiff had suffered 7% total body impairment, with 2% and 5% attributable to the neck and back respectively.

14.  The doctor concluded that the Plaintiff had returned to work as a taxi driver with reduced efficiency.

15.  In his later report, Dr. Au adhered to his earlier opinion.  Having viewed the surveillance videos, he commented that the Plaintiff’s ambulation ability was compatible with what he observed during his evaluation.  That is somewhat surprising given that the Plaintiff was seen limping at the 8 May 2004 examination and walking about quite normally when videotaped between July and November 2003.

16.  Responding to the comments of Dr. Lau, Dr. Au explained that the major difference between their findings lay in Dr. Lau’s detection of numerous non-organic signs that could not be readily explained by the injury sustained by the Plaintiff.  Dr. Au interpreted these non-organic signs as being not uncommon with patients with chronic back pain.  He attributed them to body language the Plaintiff was conveying to the examiner that his back was still significantly symptomatic.  He said some doctors would put them down as symptom exaggeration and proceed to discount the body impairment.  On his evaluation of the Plaintiff, he found “there was little evidence of symptom exaggeration” rather than that there was none.

17.  By the time of Dr. Lau’s assessment on 20 January 2005, the Plaintiff’s condition had apparently deteriorated despite adequate conservative treatment for his neck and back injury since the accident.  This fact did not escape Dr. Lau’s attention.

18.  The Plaintiff’s complaints consisted of persistent neck and back pain mainly on the left side and fluctuating in intensity causing sleep disturbance.  There was persistent pain and numbness on the lateral aspect of the left calf extending down to the left foot with the 3^rd and 4^th toes being most affected.  There was also persistent pain in the left groin radiating down to the scrotum and penis.  The touch sensation of his left upper and lower limbs, recorded as normal by Dr. Au, was noted to have decreased as a whole.  The Plaintiff had reported a change in sensation to Dr. Lau.  Lastly, he said he had become impotent.

19.  Dr. Lau observed that the Plaintiff walked with a mild limp and had to use his left hand to support his back when standing or walking.  He was unstable walking on tiptoes, unable to walk on his heels and could only squat half way down.  No swelling, deformity or muscle spasm was detected.  There was however severe tenderness over the whole length of the cervical and thoracic spine, worst over C5, C6 and C7 levels and over all the muscles on the left side of the neck and the entire length of the left thoracic paraspinal muscles.  Dr. Lau explained that the finding of severe tenderness was entirely subjective and depended on the patient’s reaction to pressure.

20.  The Plaintiff’s back indicated no swelling or deformity.  No muscle spasm was felt although there was severe tenderness over the entire lumbar and sacral spine down to the coccyx and left paraspinal muscles.  The straight leg raising test yielded inconsistent results.  Dr. Lau expected the results to be similar.  The difference especially in the left leg indicated to him that the Plaintiff was exaggerating during the test.

21.  The lordotic curvatures of the cervical spine and the lumbosacral spine were well preserved with no evidence of fracture, dislocation or degeneration.

22.  According to Dr. Lau, the absence of muscle spasm in the low back indicated that the condition had improved.  The vertex compression test i.e. the application of downward pressure to the skull to determine if the neck and back pain would be exacerbated, negative during Dr. Au’s evaluation in May 2004, was positive in Dr. Lau’s examination.  In Dr. Lau’s opinion, the positive Waddell’s inorganic signs (increased pain in the neck and low back with vertex and shoulder compression and pelvic rotation) led him to conclude that it was “most likely that he has been exaggerating his symptoms and signs, probably for the sake of compensation.”

23.  Dr. Lau couched his finding in these terms:

“With the x-rays of Mr. Leung’s cervical and lumbosacral spine taken after the accident failed to reveal any evidence of bony injury, he could have suffered injury to the soft tissues over his neck and back in the traffic accident.  It is likely that when his stationary taxi was hit from behind, there was whiplash injury to his neck.”

24.  The reference to whiplash injury aside, both orthopaedic specialists seem to be in agreement on the nature of the injury sustained.

25.  Dr. Lau went further to assess a total of 4% of the whole person impairment for the neck and back injuries.  3 months of sick leave was deemed appropriate for such injuries.  Even with the residual pain complained of, Dr. Lau considered that the Plaintiff should still have been able to continue working as a taxi driver albeit with a slight decrease in efficiency requiring intermittent rest of about 5 minutes every 2 to 3 hours.

26.  In his supplementary report dated 4 March 2005, Dr. Lau having reviewed the video evidence had this to say:

“Mr. Leung was observed to be able to walk in a normal manner and without the expression of pain.  He was able to climb up and down stairs in a normal manner.  He was shown to be able to stand in an upright position for a long period of time while waiting for his food at the food stall and also at the cashier counter of the department store.”

27.  Under cross-examination, Dr. Lau very fairly agreed that his description of “a long period of time” was incorrect after it was demonstrated to him that the surveillance in question lasted no more than about five minutes.  It is as well that I should state at this juncture that the video evidence to which I shall shortly refer speaks for itself and that any finding of facts based on such evidence remains wholly within my province.

28.  For completeness, Dr. Lau further commented in the report that the Plaintiff should have recovered well from his injuries “as early as July to Nov. of 2003.  This is good proof that he is exaggerating his symptoms and signs, for the sake of compensation.”

29.  In evidence, Dr. Lau was asked:

“Q.  Based on the video and examination more than one year later, why is he worse in 2005 than 2003?

A.  The Plaintiff shown in much better physical condition in surveillance.  The subjective and objective findings in my examination suggest also in better condition regarding neck and back.  I have to conclude he is exaggerating his symptoms and signs.” (examination by counsel for the 1^st Defendant)

30.  The evidence of Dr. Lau was well reasoned and fairly rendered.  He did not seek to understate or attempt in any way to suggest that the Plaintiff’s undoubted neck and back injury was inconsequential.  He recognized that a genuine injury had been suffered by the Plaintiff but very properly questioned the professed seriousness and extent of that injury.  His medical opinion supported by his objective findings and the video evidence finds favour with me.  I have no hesitation in accepting his evidence, preferring it to that from Dr. Au where they materially differed.

The video surveillance

31.  Video surveillance was conducted on the Plaintiff between 11 July 2003 and early November 2003.  There were instances when he did not appear at all.  The surveillance resulted in a couple of videotapes, exhibits D1 and D2.  Their image contents, heavily relied upon by the defence, being primary and independent evidence, paint a most telling picture of the Plaintiff’s condition when he was totally and blissfully unaware of being tailed and filmed.  The evidence effectively and most persuasively demonstrates that he had grossly exaggerated the impact of his injury.  It is not surprising therefore that Dr. Lau had come to a similar conclusion.

32.  In this regard, I should also add that I have placed no reliance upon the surveillance summaries in the written reports that have been admitted as exhibits D3 and D4.

33.  The videos presented the Plaintiff going about his daily business.  He walked normally with no trace of a limp, mounting and descending stairs with no obvious difficulty.  Despite his assertion that the left side of his body from the neck down to his foot had been badly affected by the accident, there was no discernible shifting of his body weight to the right side as he went about.  He was seen holding a box and at another time a plastic bag in his left hand and a small bag slung over his left shoulder.  There was no pained expression on his face.  As Dr. Lau quite pertinently and correctly commented as well, he was able to squat and bend down in a satisfactory fashion and move his neck with considerably more ease in the video than in January 2005.  His neck and head movements appeared normal.  His various movements were nothing but fluid and natural.  His gait and demeanour were unexceptional. He had no trouble bending when getting into his taxi before pulling out of the car park and later picking up the private detectives as passengers.  During the journey, he chatted away in an animated fashion about the former Chief Executive and boasted about his earning ability.  He drove the taxi with no discernible problem.  The videos did not show him engaged in any vigorous activities or carrying heavy articles.  On the 11 July recording, I accept that he was seen to massage his back for a short period.  However, when the video presentation is taken as a whole, one is driven inevitably to conclude that his subsequent presentations to Dr. Au and latterly to Dr. Lau were highly suspect.

34.  The Plaintiff was closely observed as he walked to and departed from the witness box.  He appeared decidedly weary, walking very slowly.  His motion seemed very conscious and deliberate.  He would have the court accept that his condition had markedly deteriorated over time.  In this he has dismally failed.

35.  On the evidence, I find that the Plaintiff has sustained a comparatively minor soft tissue damage to his neck and lower back and probably whiplash injury as well.  The effect of that injury is nowhere near the extent that has been urged.  His complaints of problems with prolonged sitting, blurred vision, dizziness, headaches and impotence, viewed in this context, I have the greatest difficulty accepting.  The medical evidence patently does not begin to support his assertions of chronic and persistent debilitating pain of such an order as to have drastically affected his life and his ability to fully exploit his earning potential as he would have the orthopaedic experts and the court believe.  I find that he has deliberately over-stated his injuries, enhancing them with embellishment over time.

Pain, suffering and loss of amenities

36.  A considerable number of precedents, all of which I have perused, were cited in the course of submissions.  They included the following:

Chan So Kwan v Mak Siu Kwan Victor & anr. HCPI 1487 of 2000

PSLA of $300,000 awarded for whiplash injuries to neck and back, tenderness and decreased range of movement of neck with persistent neck pain, muscle spasm and generalized anxiety disorder. 

Ng Koon Ki v Hilti (HK) Ltd & anr.  [2004] 2 HKLRD 634

PSLA of $350,000 for considerably more injuries of sprained back caused by prolapsed invertebral disc with nerve root compression, associated pain in back radiating to buttock and heel, numbness over back of calf and sole of foot.  Further surgical intervention indicated with 85% chance of alleviating symptoms.

Lai Kam Wah v Wing & Kwong Co. Ltd  HCPI 1131 of 2002

PSLA of $350,000 for back injury, small annular tear in L5/S1 disc, extensive physiotherapy ensured, depression, anxiety, insomnia with suicidal thoughts requiring psychological and psychiatric treatment.

San To Po Yuk v Wing Kwong Painting Co Ltd [2004] 2 HKLRD

PSLA of $350,000 for back injury caused by significant disc extension at L4/5 causing severe spinal canal narrowing; hypertrophic  changes of apophyseal joints and ligamentum flava, mild postero-central disc buldge at L5/S1.

Tsang Tai Fat v Kingland Concrete Drilling Co. Ltd  HCPI 566 of 2001

PSLA of $450,000 deemed apt but reduced to $225,000 owing to pre-existing degenerative condition.  Suffered back sprain requiring anterior spinal fusion on L5/S1.

Tsz Kin v Climax Paper Converters Ltd  HCPI 504 of 2003

PSLA of $50,000 for sprained right thumb with residual pain, exploratory operation reveal mild scarring around the nerve of the thumb.  The court found that the claimant had greatly exaggerated his thumb condition.

37.  Chan Siu Youn v Ng Kam Man & ors,  HCPI 533 of 1999, Tam Yuen Hoi v Chan Muk Sing & ors, HCPI 983 of 2001, Limbu Saram Kumar v Cheng Man Chung, HCPI 382 of 2000, Limbu Ramesh v Chu Fung Man, HCPI 192 of 2005, Li Mei Yung v Eastern Pacific Circuits (HK) Ltd, DCPI 1683 of 2005 and Wong Kin Hung v Chan Wai Ming, DCPI 1233 of 2006, were also submitted in argument for an award of between $50,000 to $100,000 for PSLA in this case.

38.  In my considered judgment, the Plaintiff’s injuries warrant no more than an award of $100,000 under this head of claim.  I so order.

The Plaintiff’s employment

39.  The Plaintiff established his own engineering business in 1992.  His two companies, Liga Engineering Co. Ltd and Kook-Je Development Ltd were compulsorily wound up when customers defaulted in payment of a large sum of $16 m.  I accept that the companies were successful until 2000 when the default occurred.

40.  In December 2000, the Plaintiff purchased a taxi, fully intending to change his career until such time when he could return to the engineering field and start all over again.  He worked the night shift himself and rented the taxi to other drivers.  The vehicle and taxi licence represented a significant capital asset providing regular income for his family commitments.

41.  He said he was able to receive taxi rental for the day shift of $360 and $340 for the night shift.  The marginal difference in rental is probably accounted for by less pedestrian traffic during the night and early hours of the morning.  The taxi was rented out during the day with the Plaintiff doing the night shift himself.

42.  It is his evidence that he was able to gross $1,200 per night by working for between 10 and 11 hours.  Less expenses of $139.38, a nightly income of $1,060.62 is claimed.  From that sum would have to be deducted the nightly rental of $340 which he would have had to pay had he not owned the vehicle.  His net earnings per shift as claimed therefore came to $722.62 ($1,062.62 - $340).

43.  To pay off the “taxi mortgage” and other necessary outgoings, he said he diligently worked 27 days a month.  The taxi was under repair for 5 days.  Between 5 September 2002 and 1 October 2002, loss of income from driving the taxi is claimed in the sum of $22,956.74 as follows:

Loss of income from driving the taxi
$1,060 x 27 days	$28,636.74
Loss of day shift rental during repair	$1,800
Less Night shift rental received
$340 x 22 days	$7,480

44.  As from 2 October 2002 to 1 September 2005, the period of the alleged contractual employment as project coordinator with Joint-Tec Ltd (“Joint-Tec”), loss of earnings of $48,000 a month with double pay and loss of MPF benefits have been pursued.  I shall revert to the claim of employment with Joint-Tec in due course.

45.  Thereafter, despite the expiry of the contract of employment, the claim for past loss of earnings to the date of assessment as well as prospective income loss “on the basis that the Plaintiff would have continued to work under the Joint-Tec contract” has been advanced.  I profess to having some difficulty following counsel’s argument for the Plaintiff in this regard.  As the contract of employment would have expired, why was reference still made to the monthly salary for computation of damages?

46.  Reverting to the claim for loss of driving income, it is to be noted that the Plaintiff did not appear to have maintained daily records of his nightly takings.  He maintained that he had records, none of which has been forthcoming.

47.  He produced three profit and loss accounts seemingly reconstructed from memory and was closely cross-examined upon them by the defence.  As counsel for the 1^st Defendant remarked, additional documents discovered from the Inland Revenue during a break in the hearing were substantially different from those produced by the Plaintiff himself.  Counsel presented a thorough comparison of the two sets of documents by means of a table in her written submissions, highlighting the significant differences between them.  The disparity cannot be simply explained away by the Plaintiff that the figures in the accounts had simply been moved around.  I have no hesitation in wholly accepting the submissions and attacks made by both defence counsel in this regard.  I find the documentation in support of the claim for past loss of driving income wanting and unreliable as is the evidence of the Plaintiff.

48.  The Plaintiff claimed that he was able to earn a considerably higher income from driving than the statistical net average of  between $260 and $400 per shift at the time of the accident.  Given his proven propensity to exaggerate and his veracity severely dented as previously found, I do not accept that he was able to gross $1,200 per night 27days per month.  The statistics are far more reliable in my view.  I do however accept that he was working 27 nights each month, given his financial commitments.

Past Loss of earnings

49.  In calculating his genuine loss of earnings to the date of assessment, I have completely discounted any reference to the Joint-Tec contract which I consider to be bogus for reasons to be advanced shortly.

50.  Dr. Lau opined that 3 months of sick leave was appropriate for the injury sustained by the Plaintiff.  I agree.  Accordingly the Plaintiff should have been able to return to driving his taxi for a living in early December 2002.  If he chose not to do us, that would have been his loss as he was duty bound to mitigate his loss.

51.  The Plaintiff gave different versions to the orthopaedic experts as to when he had commenced driving on trial basis post accident.  He informed Dr. Au that he had returned to work as a part-time taxi driver about two month prior to the examination in May 2004.  To Dr. Lau, he said  he resumed working about 3 ½ months before the assessment in January 2005.  The incontrovertible fact remains that he was caught on camera driving his taxi to pick up fares on 6 November 2003.  I find the Plaintiff most unreliable.

52.  On the basis that the Plaintiff ought to have returned to driving full-time in December 2002, I assess his loss as follows:

The statistical net daily average of ($260 + $400)/2 x 27 days x 3 months or $26,730.

This is the quantum I shall award for past earning loss.

The Joint-Tec contract

53.  The Plaintiff would have the court accept that he had entered into a lucrative contract of employment as project coordinator with Joint-Tec to commence and run for 3 years from 2 October 2002.  If the engagement went ahead, it is claimed that he would be receiving a monthly salary of $48,000 with double pay and bonus calculated at 3% of the contract amounts handled by him achieving a gross profit margin of 18%.  He would additionally have been entitled to MPF benefits.

54.  Joint-Tec is owned by Mr. Chan Yung Tim (PW2) (“Mr. Chan”).  Mr. Chan’s acquaintance with the Plaintiff began in about 1994.  It was Mr. Chan’s evidence that he wanted to engage the Plaintiff to exploit his expertise, reputation and contacts in the engineering field and hopefully acquire contracts in the private sector that had hitherto eluded him.  According to him, it should prove to be a remunerative arrangement as the Plaintiff would be responsible for electrical and air conditioning work with fire fighting service and plumbing left to him, their respective areas of expertise.  Working together, he would be able to secure entire package contracts for non-government construction projects.  Mr. Chan also had high hopes that his business would turn around and improve.  He trusted the Plaintiff as they have previously shared work projects.

55.  Financial records of Joint-Tec were produced up to 1999.  Mr. Chan maintained there were others after that year but no further documentation was made available when that could easily have been done as the assessment lasted a number of days.

56.  Mr. Chan said his company’s turnover ranged between $10 to $13 m per annum.  However, as counsel for the 1^st Defendant pointed out, on the available accounts, there was not a single year when the turnover exceeded $10 m.

57.  For the periods of 1993-1996 and 199, Joint-Tec had suffered operational losses.  In the years where profit was made the amounts were quite modest.  $109,279 and $58,616 were earned respectively in 1997 and 1998.  It would seem that Joint-Tec did not maintain proper accounting records as observed by its own auditor at one point.  Joint-Tec was essentially a one-man business with minimal staff.

58.  The surveillance report, exh. D3, showed that Joint-Tec had vacated its office about a year prior to the investigator’s visit in July 2003.  Further enquiries revealed that its telephone had been disconnected.

59.  Mr. Chan said that Joint-Tec could only afford to try out the employment arrangement for 7-8 months as it would obviously be financially difficult to pay the Plaintiff’s salaries if no projects were forthcoming.  On the Plaintiff’s own evidence, it would take the better part of a year to build up his contacts again.  If that is so, it was rhetorically asked by counsel for the 2^nd Defendant why Mr. Chan would even consider undertaking the contractual obligations when his company was not exactly thriving.  That is a valid point.

60.  Then again, if the arrangement was of such considerable benefit to Joint-Tec, why was Mr. Chan not prepared to be indulgent towards the Plaintiff by allowing him to take up his duties as soon as he was sufficiently recovered?  As happened, the contract was simply ignored by the parties with neither doing anything about it.

61.  I do not, therefore, accept that there was a bona fide contract of employment as alleged.  It founded the basis for the Plaintiff’s astronomical pecuniary claim which I find to be incompetent.

62.  The claims for past and prospective losses of income premised on this contract must fall to be dismissed.  As I find that the Plaintiff should have returned to earn his living driving his taxi full-time by December 2002 with no diminution of earnings, no loss for past and future loss based on taxi driving can be maintained.

Conclusion

Summary of awards
PSLA	$100,000
Past loss of earnings	$26,730
Agreed specials	$19,660.40
Total award	$146,390.40

63.  There shall be interest on general damages at 2% p.a. from the date of the writ to the date of judgment and interest at half judgment rate from the date of the accident to the date of judgment.

64.  The Plaintiff shall have his costs of the assessment including the costs reserved in respect thereof against the 1^st and 2^nd Defendants, taxed if not agreed with certificate for counsel.

65.  There being no reasonable prospect of recovering damages in excess of the District Court jurisdiction in this case, I order that the costs shall be on District Court scale.  The order for costs shall be nisi with liberty to apply within 14 days hereof.