LAM MO BUN v. HONG KONG AEROSOL CO. LTD. AND OTHERS

HCPI 1313/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1313 OF 1999

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J U D G M E N T

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1. On 30 March 1998, the plaintiff bought a bottle of "Giant" insecticide spray, took it home and used it to kill insects, mainly cockroaches, in the small flat in To Kwa Wan where he lived with his wife, children and sister-in-law. He sprayed the insecticide in the flat, including the kitchen. There was an explosion in the kitchen which caused the plaintiff to suffer head injuries. He required surgery and intensive care, and was in hospital for four months. He complains of continuing disability.

2. The plaintiff now claims damages for his personal injuries from the defendants. The 1st defendant manufactured the "Giant" insecticide spray in Shenzhen for the 2nd defendant, who distributed it in Hong Kong. The 3rd defendant is a pharmacist and retailer of the insecticide spray. The plaintiff avers that he bought the spray from the 3rd defendant. The plaintiff's case against the 1st and 2nd defendants is based on negligence and breach of statutory duty. His case against the 3rd defendant, though originally also based on those grounds, is now based simply on breach of contractual duty under conditions implied into the contract of sale by the Sale of Goods Ordinance.

3. The plaintiff himself is unable now to remember the accident or indeed the events which led up to it. Factual evidence comes from his wife, Madam Yung Mei Wa and her sister Madam Yung Mei Ping.

4. Their evidence is that on 30 March 1998, the plaintiff, whose working hours began at 2.30 p.m., was at home in the morning with his sister in law and two of the children. His wife was at work. At about 11 a.m. the plaintiff telephoned his wife. He told her that he was going to buy toiletries for customers at the sauna where he worked, and a bottle of pesticide aerosol spray because there were a lot of cockroaches in the flat. They had previously had the flat fumigated by a pest control company, but this time the plaintiff decided to do the pest control himself.

5. The plaintiff went out to take his daughter to the school bus and buy the insecticide. He told his sister-in-law what he was going to do, and asked her to make an early lunch, so she cooked some noodles. She also switched on the washing machine in the kitchen. The plaintiff came home and at about 12.15 p.m. telephoned his wife again. He mentioned to her that he had bought a bottle of pesticide aerosol spray from the 3rd defendant's shop, where the family often bought toiletries.

6. Then the plaintiff, the sister-in-law and his youngest daughter, aged four and a half, ate their lunch. When he had finished, the plaintiff told the sister-in-law to take the little girl, who was still eating, into the master bedroom because he wanted to start spraying the insecticide in the living room. He said he was going to spray the area inside the main door because there was a rubbish collection point outside, and that was where the cockroaches came from; the children's bedroom against mosquitoes; and the rest of the flat as well, all except for the master bedroom.

7. The sister-in-law accordingly did as requested. She saw the plaintiff spraying in the living room before she went into the bedroom. Then when she took the little girl to the toilet, she found the window there open and a smell of insecticide in the room. The plaintiff then came into the bedroom and told her that he had finished spraying the whole flat. He told her not to go into the kitchen immediately because the instructions on the spray can advised not to go into a sprayed room for 10 minutes. He asked her to clean up later but to wait for a longer time to let the spray disperse. Also, she was not to mop the floor of the flat, especially the toilet. He then went off saying he would have a bath and change and get ready for work.

8. After about 15 minutes, the sister-in-law heard a loud bang. She came out and found the plaintiff trying to hold himself up in the hallway, near the kitchen door. He fell down. He was unable to answer her inquiry as to what had happened. He was bleeding from his head, ears and nose. In the kitchen, she found the window broken, a bag of rice noodles on fire and the control panel of the washing machine lifted up. It was still running. Other appliances were also switched on. She thought the washing machine had exploded so she switched it off. She also found a bottle of "Giant" spray in the kitchen. She telephoned the police and the plaintiff's wife.

9. When the plaintiff's wife arrived, she found the plaintiff injured, lying in the hallway outside the kitchen, and everything else as described by her sister-in-law. She said that the kitchen window was always kept shut. It appears also that the kitchen door was never shut because of lack of room; the edge of it could not get past the edge of the washing machine.

10. The plaintiff was taken to the Queen Elizabeth Hospital. He had two craniotomy operations. He was in intensive care for two weeks, on a ventilator and with tracheostomy. His conscious level did not improve for a month after the accident. He was transferred to Kowloon Hospital where he stayed until 15 July 1998. I will deal later with his medical condition and his wife's evidence of his current state.

11. The accident was investigated by the police and the Electrical and Mechanical Services Dept. The latter found that the top of the washing machine was lifted up by about 150 mm. It was suspected that the explosion had been caused by a large quantity of gas from the insecticide trapped in the washing machine and ignited by the sparks of the running machine.

12. The Legal Aid Department obtained a report from an independent forensic scientist, Dr Sheilah E. Hamilton. She referred to an article by an American academic, Dr J.D. DeHaan about accidents arising from the use of household aerosol sprays. The effect of this article is mainly that since restrictions were introduced on the use of chlorofluorocarbons (CFC) in such sprays, for environmental reasons, increasing use has been made in them of liquid petroleum gas (LPG) as propellant. LPG is highly inflammable and the sprays, if misused, can cause explosion. Such misuse can include spraying in the vicinity of an ignition source, use or accidental discharge in a confined area, use of excessive quantity, punctures or overheating.

13. The first plaintiff obtained a report from and called as a witness Dr Y.S. Fung of the University of Hong Kong. The first plaintiff obtained a report from Mr Thomas Wong of City University Professional Services Ltd and the 3rd defendant obtained a report from Dr W.W. Tso of the Chinese University of Hong Kong. It is clear from this evidence that the propellant used was liquid petroleum gas and the solvent used was kerosene. Indeed, this is not in dispute. According to Dr Fung, the presence of kerosene would make the mixture more flammable because it has a lower temperature of evaporation. There is some difference of opinion among the experts as to the amount of the gas which the plaintiff must have discharged in spraying the flat. I will deal with this later. There has been some expert comparison of different types of insecticide spray but I do not need to refer to that at this stage.

14. All the experts agree that the most likely cause of the explosion was the ignition by an electric spark of gas which had been discharged from the insecticide bottle and had gathered inside the washing machine. The spark could have come from the relay, which would operate as the machine went through its washing cycle, or from the brushes of the electric motor, if these are not sealed. The plaintiff has now produced a letter from the washing machine manufacturer to the effect that the motor and relay are not sealed.

15. There is no other possible cause for this accident, and I have no hesitation in finding as a fact that the explosion was indeed caused by the ignition of gas within the washing machine by an electric spark. The explosion must, as a matter of inference, caused the plaintiff's head to strike the kitchen wall or door, thereby causing his injuries.

16. The "Giant" spray bottle which the sister-in-law found in the kitchen is before the court as Exh. P1. The plaintiff's wife later bought another "Giant" spray bottle which is stamped with its date of manufacture, 23 July 1999; that is Exh. P2. There are significant differences in the labels stamped on the bottles in Chinese and English, which consist of Directions, a Caution and First Aid instructions. There are also the legends "Poison", "Flammable" and "Keep out of reach of children" required by statute. The labels each contain a list of active insecticidal ingredients but no details of the solvents or propellants used.

17. In the Directions, both bottles direct the user to spray for flying insects in a closed room for 5-10 seconds then open the door and windows after 15 minutes. Those on Exh. P1 direct the user to enter after 10 minutes; those on Exh. P2, to enter after 30 minutes. For crawling insects, both bottles direct the user to spray at the areas visited by insects or their hiding places until they are slightly wet, and leave the film formed by the insecticide on the affected areas.

18. In the Caution part, both labels contain information that the insecticide is flammable and in a pressurised bottle and instructions not to spray within a short distance of a flame or into a flame or high temperature area, not to puncture or incinerate the bottle or expose it to direct sunlight or heat. The newer bottle contains the following extra instruction (I give the certified translation):

"In a poor ventilated area or an electrical appliance was in operation or an area that a spark may occur, do not use this product".

It is admitted that this new instruction has been included because of Government requirements made since this accident.

19. The plaintiff's case against the 1st and 2nd defendants is based on their failure to give any adequate or effective warning or directions, sufficiently strong and distinctive to draw the plaintiff's intention to the grave dangers, including the foreseeable serious risks of explosion which were involved in handling, using or spraying the insecticide at the plaintiff's home and, more particularly, the grave danger of explosion when it was used in an in closed area in which an ordinary electrical home appliance, such as a washing machine, was in operation.

20. It is also said that that the 1st and 2nd defendants as manufacturers failed in the duties imposed on them by regulation 12 of the Pesticides Regulations, Cap. 133 sub. leg. in respect of the labelling of and instructions provided with the insecticide.

21. If a consumer sustains personal injury and/or loss and damage that is attributable to a defect in a manufactured product, an action lies in tort against its negligent manufacturer (Donoghue v. Stevenson [1932] AC 562). If there is a foreseeable danger in the use of a manufactured product, the manufacturer must warn any user of the product against it. The manufacturer must also be proper instructions for the safe use of the product. There are a long line of authorities to this effect and I do not need to set them out here.

22. The issue here is whether or not the danger of explosion was foreseeable. Obviously it now is, because of this accident. That is why the appropriate department requires the new caution and instructions to be included in the labelling; but the question is whether it was foreseeable when the product was manufactured.

23. There is no dispute that the 1st defendant manufactured the insecticide spray for the 2nd defendant. The written contract between them is before me. It provides for the supply by the 2nd defendant of various ingredients of the 1st defendant, including LPG and an ingredient listed as D70. They were both manufacturers.

24. Mr Sham, the director of the plaintiff, says that the solvent used for the insecticide was kerosene; Mr Ho, the 2nd defendant, says that it was D70; I take it that D70 is a form of kerosene. Both admit that they had discussed the labelling of the spray bottle at some stage. Mr Sham composed the label. He took the label contents generally from other brands though he could not copy them directly in case of copyright problems. Mr Ho accepted the label which Mr Sham composed. Both say that they relied on the Government requirements as to labelling.

25. Mr Sham in his evidence suggested that it was reasonable to conclude that the gas had been sprayed directly inside the washing machine. He also said that he had experimented with the spray and found that a 5-second spray would cover 2.5 sq. m. of surface. It was therefore clear that there had been overspraying. In any event, he said that the plaintiff should have obtained the services of a professional fumigator for pest control rather than doing it himself.

26. As to the labelling, Mr Sham said that his company had followed the guidelines set down by the Agriculture and Fisheries Department. Under cross-examination, he admitted that the products he made had hazards because of ignitable liquid and one of these was the possibility of explosive ignition. People in the industry had become familiar with the hazards.

27. There had been an increasing use of LPG and this had produced more explosions. By 1997, there had been a number of consumer accidents from explosion in the United States and he knew about these.

28. The flammability properties of the propellants and solvents in the insecticide were well known to him before the accident. He knew that there was a risk that if the gas got into a running appliance like a washing machine, an explosion could occur. The same would apply if it got into a small space like a kitchen. He agreed that it was necessary to warn the user to turn off an ordinary appliance before and after using aerosol to avoid explosion. He knew that in 1995 some other insecticide can labels warned the user to turn off the electrical appliances before and after use of the insecticide

29. Mr Sham agreed that the label on Exh. P1 did not warn the user that there is some danger of explosion of the product is used under certain conditions. However, it did say that the contents were flammable and that meant that it was in a way explosive. He agreed that the lay user would not know from buying or using the "Giant" bottle that it contained LPG and kerosene.

30. Mr Ho relied on his handwritten defence in which he said the that he had followed the Pesticides Ordinance with regard to labelling, and that the explosion had been caused by the improper use of the pesticide by the plaintiff. Under cross-examination, he agreed that he would have known that there was a possibility of explosion in a kitchen if a large quantity of the insecticide was used. However, he did not think that it would cause explosion if used in small quantities.

31. He admitted that he and others in the industry knew that LPG was flammable and could cause explosion, for instance, if it leaked out in a kitchen. This was general knowledge. He knew that the LPG mixed with the solvent (which he said was D70 and not kerosene) was a dangerous product, in that, explosion could occur under certain conditions.

32. It is clear from their evidence that both Mr Sham and Mr Ho knew at the time that Exhibit P1 was made, and its label composed, that its contents could cause an explosion under certain conditions. Mr Sham in particular knew of the possibility of explosion set off by an electrical appliance. So explosion was foreseeable to them, even if, in Mr Ho's case, he thought that it would not occur if only a small quantity was used.

33. I have no doubt that it was foreseeable to the manufacturers that the "Giant" product might after spraying be explosive if a concentration of the discharged gas was exposed to an electric spark, such as, from a household electrical appliance. There was therefore a duty on them to warn the user of this danger by adequate labelling and instruction. In that duty they failed.

34. I do not see that the defendants can rely as a defence on their compliance with all Government regulations and guidelines. Regulation 12(f) of the Pesticides Regulations, Cap. 133 sub. leg. requires that instructions and precautionary measures be shown on the pesticide label, but it is for the manufacturer to decide in the light of his own knowledge what instructions and precautionary measures are needed.

35. I turn to the question of contributory negligence. The defendants rely on findings by the police that there had been "overspraying" and, in particular, on findings by the experts as to how much had been sprayed. Dr Hamilton found that 217 grams of spray had been used and calculated that this would have taken 94 seconds. Dr Wong found that it would be necessary to spray for 18 seconds to fill a space half the external dimensions of the washing machine with an explosive mixture of gas and air. This is not necessarily the proper measure because the washing machine is not an empty vessel; it has a large drum inside. One does not know what the true volume is. The defendants point to the label which instructs the use of the product as a space spray in a closed room for 5-10 seconds. They say that the plaintiff must have sprayed too much.

36. It is clear from the evidence of the sister-in-law that the plaintiff must have read the label, because his instructions to her were pretty much the same as what was written. Much of the label is concerned with the toxicity of the spray. The requirement of short spraying in a closed room and keeping the room closed and empty is obviously meant to safeguard humans from that toxicity. The plaintiff was obviously alive to that because he did not want his little girl to breathe the fumes.

37. The other use of the spray is as a surface spray. No specific instructions are given about that use, except to spray thoroughly until the surfaces are wet. Mr Sham says that he could cover a 2.5 sq. m. surface with a 10 second spray, but the label does not specify how long surface spraying should take. I expect that most people would regard the instruction to spray thoroughly as an instruction to use the spray as one would use an aerosol paint can, to produce an even wetting of the surface. How long this takes will vary according to how much the user thinks is necessary for a full covering, how close to the surface the can is held and so on. In any event, the spraying of a horizontal surface is going to produce a layer of gas above the surface because, as the evidence indicates, the gas is heavier than air.

38. What we do not know is how much insecticide the plaintiff sprayed in the kitchen and how much in the other parts of the flat, except for the master bedroom. There is no evidence of that though it appears from what the sister in law says that he did spray generally. There was a newspaper report, which the 1st defendant even reproduced in its defence, that said that the plaintiff had discharged most of the can in the kitchen, closed it up and then sprayed more inside, but this cannot be regarded as having any weight. One can admit and rely on hearsay under the provisions of section 47 of the Evidence Ordinance, Cap. 8, as the plaintiff says the court should in respect the evidence of what he told his wife and sister-in-law but cannot now remember. However, there is absolutely no way of knowing the origin or the accuracy of what is written in this newspaper report and no way in which a court can rely on it. In any event, there is direct evidence that : a) the kitchen window was never opened; and b) the kitchen door could not be closed, which directly contradicts what is in the report.

39. It is clear to me that even if the plaintiff sprayed a large quantity of insecticide in the kitchen, there was nothing on the label to make if foreseeable to him that this might cause a risk of explosion. There was nothing else in my view which could have made it the plaintiff aware of that risk.

40. As Mr Ho says, it is a matter of common knowledge that LPG can cause an explosion in a kitchen. Many ordinary people in Hong Kong use gas for cooking, be it piped gas or LPG; these gases have been in use for years. Unfortunately, from time to time there are newspaper reports of household explosions caused by gas leaks. Small LPG burners, with the LPG contained in a canister not unlike the "Giant" bottle in size and shape are generally available here for table-top use at home or in restaurants. So are the larger containers which have to be connected to the burner or burners by a tube. Commonly, a gas burner may be lit by a spark; some of them have a built in sparking mechanism.

41. It seems to me that any ordinary person must be able to foresee that if he discharges LPG, it may catch fire if it comes into contact with a spark. Also, ordinary people in Hong Kong have been exposed to household electrical appliances for a very long time and must know that the electricity may cause sparks in those appliances. So, anyone who suffers a gas leak should know not to turn on any electrical appliance until the room has been ventilated and the gas has dispersed.

42. The ordinary person using "Giant" would know from the label on Exh. P1 that it contained something inflammable that might catch fire if sprayed on or near a flame. He would know that the can could explode if punctured or heated. He would not necessarily know that a concentration of the released gas could cause an explosion, because he does not know what gas it is. Not all gases necessarily carry with them the same risk of explosion. CFC, for instance, is inert. Nor can the ordinary person, if he knows a gas is flammable, have any idea of the amount required to produce an explosive mixture with air; that is the province of the expert.

43. The label does not say what gas is inside. Even the new label only says that it contains no CFC. Perhaps if it had specified that it contained LPG, the plaintiff would have known that the insecticide bottle was something like the small LPG canister used for a table-top burner, and should have known to treat any discharge as he would a gas leak; but it did not. There was nothing to put him on his guard against using it in his kitchen with the washing machine running.

44. I conclude that the plaintiff himself cannot be found to have contributed to the accident by his own negligence.

45. I turn to the 3rd defendant. The case against him depends entirely on whether it can be proved that he is the seller of the insecticide bottle, Exh. P1.

46. The plaintiff's wife says that the plaintiff told her that he had bought insecticide from the 3rd defendant's shop, where the family bought toiletries. This is hearsay. No objection has been taken to the admission of this evidence. Under section 47 of the Evidence Ordinance, Cap. 8, it may not be excluded. The question is, what weight can be attached to it? In deciding this, one must look at the other available evidence.

47. There is no dispute that the 3rd defendant was a retailer of "Giant" insecticide; he bought it directly from the 2nd defendant. His shop was about 5 minutes' walk from where the plaintiff lived. There are, he says, other shops selling insecticides nearby; he only sought to specify how many, and where they were situated in his final submissions, rather than his evidence, but I have no difficulty in accepting that there could be many such shops in a small area in a district such as To Kwa Wan.

48. Before the 3rd defendant bought the business, the shop was situated on the ground floor of the block where the plaintiff lived; the previous owner moved to the shop's present location and after that, the 3rd defendant bought it.

49. Madam Yung, the plaintiff's wife, relied on her statements. From what little oral evidence she gave she seemed believable enough, but the defendants were not represented, and only the 1st defendant cross-examined her and that briefly. Unfortunately, neither her evidence of what her husband told her, or that the family habitually patronised the 3rd defendant's shop, has been tested by cross-examination.

50. Mr Fung, the 3rd defendant, was cross-examined at length. He appeared to be a very fair and truthful witness and I did not get the impression that he was trying to hide anything. He said that he vaguely recognised the plaintiff's wife, but could not be sure. He could not remember having seen her and the plaintiff together.

51. It is argued that the plaintiff and his family would have tended to patronise the shop when it was in the same block and would have continued to patronise it when it moved away. I accept that this is possible but it is not necessarily likely if there are other shops closer to hand. Further, if the plaintiff's wife patronised the shop often, one would have expected the 3rd defendant to have a better memory of her.

52. A further problem is that it is a little difficult to understand why the defendant would have told his wife where he bought the insecticide. I can well imagine him telling her that he had bought the insecticide and was going to use it in the house, but there would be no reason for him to tell her where he bought it, unless, perhaps, it was offered at a special discount or something of that sort; and there is no evidence that it was. I hesitate to say that Madam Fung made up her evidence of what the plaintiff told her, but it is hearsay and it does need something to back it up.

53. I note that no one from the 3rd defendant's shop has come to give evidence as to whether or not the plaintiff went there on 30 March 1998. I do not see that I can infer anything from this because it is for the plaintiff to make out his case, even in a civil trial where he has only to prove it on the balance of probabilities.

54. There is really nothing to support Madam Yung's assertion of what the plaintiff told her. As I have indicated, it is hearsay and it needs something to support it. I do not think it would be right to fix liability on the 3rd defendant, as one of a number of possible sellers, on this unsupported hearsay. I am not satisfied that it is more probable than not that the plaintiff bought Exh. P1 from the 3rd defendant's shop. The plaintiffs claim against the 3rd defendant fails.

Quantum

55. I turn to quantum. The plaintiff's claims are set out in his Statement of Damages. The defendants, being in person, are not in any position to argue but I take into account, in respect of all of them, the arguments put forward on behalf of the 1st and 3rd defendants by their solicitors in their Replies to the Statement of Damages, when they had legal representation in the earlier stages of this case.

56. There are medical reports from Dr Edmund K.W. Woo and Dr Brian Choa, as well as the hospital reports. The reports show that the plaintiff suffered a left temporal epidural haematoma and diffuse cerebral oedema, as well as a fracture of the left orbit and maxilla. He required two craniotomies in the first two days after the accident, to reduce the pressure in his skull. He was in intensive care for two weeks, during which time he required mechanically-assisted ventilation and tracheostomy. In other words, he could not breathe by himself. His conscious level did not improve for four weeks. He was in hospital for four months in all. He has had to have occupational therapy, speech therapy and psychotherapy as well as maintenance anti-convulsant drugs though there is no history of seizures. He is left with global cognitive dysfunction, psychomotor retardation, impaired left visual acuity, irritability and right hemiparesis.

57. Dr Woo, who saw the plaintiff in August 1999, put the plaintiff's loss of earning capacity at 60% and said that he could work at simple menial tasks such as those of a messenger or cleaner. Dr Choa, who saw him in June 2000, said that most of the improvement that the plaintiff may achieve has probably been achieved already, and that it was unlikely that he could work in the open market in the foreseeable future. He suspected that the true permanent loss of earning capacity would be 100%.

58. Madam Yung says that the plaintiff has a very bad memory. He has great difficulty in learning. She has to tell him how to do many things in his daily activity. He has lost his judgment; when they are out, he cannot even decide when it is safe for him to cross the road. He cannot even be trusted to cook noodles on his own.

59. I accept that the plaintiff has suffered the injuries and continues to suffer the after-effects stated. I accept on the basis of what Dr Choa and Madam Yung tell me that his now has a total lack of earning capacity. It is impossible, on the evidence, to imagine him working even as a cleaner or a messenger, let alone a waiter.

Pain, Suffering and Loss of Amenity

60. Mr Mok says that the plaintiff is at the top of the "substantial injury" category and seeks an award of $800,000. He relies on Chan Pui Ki v. Leung On [1996] 2 HKLR 401 which revised the Lee Ting Lam guidelines for this category upwards to a figure between $540,000 and $660,000. He also relies on Ng Chi Chung v. Lau Kam Ping [2000] 2 HKC 759 in which Deputy Judge Carlye Chu (as she then was) increased the upper figure to $792,000 to allow for inflation between the date of the decision in Chan Pui Ki and 1998.

61. He also cites the case of Lai Tim Fai, Jacky v Lee Yuk Ping, HCPI No.762/1996, unreported, as an example of a comparable head injury case.

62. The Lee Ting Lam guidelines were mainly concerned with physical and functional disabilities, but one has to look at the total effect on the plaintiff. As Litton J put it in Chan Pui Ki :

"There are cases, such as the present one, where the injuries are composite; physical, mental and psychological. It is the total effect of the injuries which must be assessed rather than the artificial "category" into which they fit most comfortably."

63. Given the evidence from Dr Choa and the plaintiff's wife, it seems to me that the plaintiff had and is left suffering from the permanent effects of a substantial injury. He may be put at the top of the scale. I will award $800,000.

Pre-trial loss of earnings

64. From his tax returns, it appears that the plaintiff's pre-accident earnings were $14,164 per month. Mr Mok argues for an inflation increase of 6% per annum based on the authority of Tsang Mei Ying v. Lam Pak Chiu [1999] 2 HKLRD 807. The 1st defendant's Reply put the inflation estimate at 5%. The 3rd defendant's Reply put it at nil. Now Mr Sham says it should be 2%. Considering the economic downturn which has plagued Hong Kong since late 1997, with consequent wage freezes or very small increases, it seems to me that 2% rather than 6% is a realistic figure, and I will allow that.

65. On that basis, I have calculated the median income at $14,598 per month, and pre-trial loss of earnings for 35.5 months at $518,229.

Pre-trial loss of earnings of wife

66. I accept that the plaintiff's wife would have had to stay at home to look after the plaintiff at any rate in the early stages. It could not have been left to the sister-in-law to do that; it appears from her statement that at the time of the accident she was an overstayer, though she now says that she has applied to stay in Hong Kong.

67. Documentary evidence shows that the plaintiff's wife was at the date of the accident a cashier. She took no-pay leave from 1 April 1998 to 30 May 2000, i.e. 26 months. She then returned to work. In the interim, she missed annual and promotion increments which would have brought her basic salary to $8,000. Her average pre-accident monthly earnings were $8,237. This includes an annual bonus element; this can be seen from the actual pay-sheet figures provided although it is not readily apparent from the employer's letter. Applying the same bonus (two months' extra per year) to the salary as increased by the increments would produce a monthly average of $9,333. Mr Mok says that she should have two months at $8,237 and 24 months at $9,333, but there is no basis for this that I can see. The employer's letter does not give the incremental date. Normally, where a person is employed on the basis of being paid 13 months' or 14 months' pay per year, the operative date for bonuses, increments etc. is the Lunar New Year. I think the only way to deal with this is to allow salary at the lower rate for 10 months, to the following January and then at the higher rate for 16 months. The final figure will be (8,237 x 10) + (9,333 x 16) = $231,698.

Future loss of earnings of the plaintiff

68. The notional monthly figure at the date of trial after applying a 2% per annum increase is $15,031. The plaintiff is aged 39. He worked as a receptionist in a sauna, which he could do until after he was 65. Mr Mok says that the multiplier should be 13. He compares this with multipliers of 13 for a 42-year-old painter in Tsang Mei Ying and 16 for a 37-year-old plumber in Ta Xuong v. Incorporated Owners of Sun Hing Building [1997] 4 HKC 171. I consider a multiplier of 13 proper. I have accepted a total lack of earning capacity. The award will be $15,031 x 12 x 13 = $2,344,836.

Future investment and management advice

69. Counsel says that this should be 1.75% of 50% of the award, relying on Ta Xuong. I accept that. This figure is awarded.

Future domestic help

70. I accept the evidence of the plaintiff's wife that the plaintiff cannot go out on his own, and cannot be left to do simple, if potentially dangerous household tasks like cooking noodles. At the same time, he not bedridden. He can walk about. There is no real evidence that he needs full-time care. I accept that full-time care would cost $4,000 per month and that a proper multiplier for this would be 20. However, since the plaintiff does not need full-time care, I propose to allow for part-time care at half this rate. The award is $480,000.

Loss of provident fund

71. This will be 5% of the future earnings, i.e. $117,242.

Future medical expenses

72. Since it appears from Dr Choa's report that the plaintiff is now unlikely to improve, future medical expenses is not appropriate. Counsel accepts this.

Miscellaneous items of special damages

73. The plaintiff claims for a static bicycle, stepping exerciser and electrical stimulator at a total cost of $3,630. I accept that this was necessary given that he had to have physiotherapy, occupational and speech therapy; use of these items would improve his condition.

74. He claims expenses for his wife's travel to hospital at $12 per day to a total of $1,200. This is reasonable and is awarded.

75. He claims nourishing food at $17,000, i.e. $1,000 per month for 17 months. There is no supporting documentation for this. It equates to about $30-$35 per day. This seems reasonable enough; cf. Law Hing v. Leung Tin Kan [1989] 1 HKC 572, 579. It is awarded.

76. The value of the damaged items must be estimated as best one can. I will allow $1,000 each for the washing machine, window and gas stove. I do not see any evidence for replacement of a kitchen floor or of clothing.

77. The total of special damages will be $24,830.

Miscellaneous items of Special Damages	$24,830
Pre-trial loss of earnings of the plaintiff	$518,229
Pre-trial loss of earnings of the plaintiff's wife	$231,698
Pain, Suffering and Loss of Amenity	$800,000
Future loss of earnings of the plaintiff	$2,344,836
Future domestic help	$480,000
Loss of provident fund	$117,242
Future investment and management advice	$39,522
Total	$4,556,357

78. There will be judgment in favour of the plaintiff against the 1st and 2nd defendants for $4,021,720.00. Interest on the special damages at half the judgment rate from the date of the accident. Interest on the general damages at 2% p.a. from the date of the writ. Costs (nisi) to be taxed, if not agreed.

79. The plaintiff's claim against the 3rd defendant is dismissed with costs to be taxed, if not agreed.

80. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.