LI MAN YUEN v. LI CHUNG

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J U D G M E N T

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Clough, J.A.:

1. This is the judgment of the court.

2. The plaintiff and the defendant respectively appeal and cross appeal against the judgment dated the 3rd May 1991 of Mr. Ronny Wong Q.C., sitting as a Deputy Judge of the High Court, awarding the plaintiff damages in the sum of $340,900.45 in respect of his claim for damages for personal injuries against the defendant, his employer, on the grounds of negligence and breach of statutory duty. The sum awarded represented the final balance after deducting 35 per cent from the original amount of damages and accrued interest in respect of the contributory negligence held to have been established against the plaintiff, and then making a further deduction of the sum of $100,569 being the amount of the award obtained by the plaintiff against the defendant under the Employees' Compensation Ordinance (Cap. 282).

3. The plaintiff appeals against the judge's finding of contributory negligence against the plaintiff, contending that the judge should have found that the plaintiff was not contributorily negligent at all, or, alternatively, that the judge should have attributed a lesser degree of fault to the plaintiff, so that the 35 per cent apportionment was excessive. The plaintiff also appeals against the failure of the judge to make a separate award in respect of the plaintiff's loss of future earning capacity.

4. The only matter which was pursued under the cross appeal concerned the award by the judge of the sum of $198,495 as part of the plaintiff's pre-trial loss of earnings. This sum was held to represent the measure of the plaintiff's loss of earnings by reason of his inability to accept the offer of his friend, Mr. H.S. Wong, then a chef at the Great Wall Beijing Sheraton Hotel (made to the plaintiff through H.S. Wong's wife after the accident) to join him as his assistant at a salary of (US) $1,200 per month. The defendant contends that this award should be set aside.

5. The plaintiff was a full-time Chinese restaurant cook but also worked part-time for the defendant as a press machine operator in the defendant's factory premises at 5/F - 7/F Shing Dao Industrial Building, 232 Aberdeen Main Road. The plaintiff had worked for the defendant between the 8th June 1984 and January 1985. He began to work for the defendant again in June 1985. The accident which gave rise to the plaintiff's claim occurred on the 13th September 1985 when he was 38.

6. The machine operated by the plaintiff was used in the process of manufacturing nylon nets and insulating sheets for the electric wiring systems of hair dryers. The machine stood on a platform. When insulating sheets were to be pressed a number of sheets measuring about 4 feet by a little more than 2 feet would be placed on a wooden board measuring about 2 feet by 1 foot odd. A mould would be put on to the insulation sheets and the wooden board (with the sheets and the mould on it) would be slid into the machine. The machine would be operated by the operator stepping on a foot pedal which caused the press to descend and press the mould into the sheets. The press would then automatically return to its initial upward position and the operator would slide the wooden board out of the machine, using a hammer with his right hand to hit the wooden board in order to extract the mould.

THE APPEAL

(i) Contributory negligence

7. The plaintiff's evidence, which the judge accepted, was that at the time of the accident he had put his left hand into the press to remove the insulation sheets which had been pressed when, although he had not touched the foot pedal, the press dropped down of its own motion and continued to move up and down, thereby injuring his left hand.

8. The plaintiff's pleaded case in paragraph 4 of his re-re-amended statement of claim attributed the accident to negligence and/or breach of statutory duty on the part of the defendant. In paragraph (b) it had been pleaded inter alia that the machine in question "contained dangerous parts within the meaning of" the Factories and Industrial Undertakings Ordinance (Cap. 59). These dangerous parts were alleged to be inter alia "reciprocating press tools and closing nips between plater motions". The pleader clearly had in mind here the definition of "dangerous part" in regulation 2 and items 12 and 14 of the First Schedule to the Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations ("the Regulations").

9. The particulars of negligence pleaded in paragraph 4 included reference to the failure to fit the machine with effective guards and with an efficient starting and stopping device. The particulars of breach of statutory duty pleaded in the same paragraph were:

"     Contrary to regulations 4, 5 and 8 of the Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations, Cap. 59, failing to ensure that the said dangerous parts of the said machine were effectively guarded."

Regulations 4 and 5 contain the relevant requirements for the effective guarding of dangerous parts and regulation 8 relates to the requirement of efficient starting and stopping devices for machinery or plant. Regulation 5(1) (d) indicates that a trip guard (defined in regulation 2) is one of the methods for complying with the duty, imposed by regulation 4, to guard a dangerous part effectively. In the further and better particulars (albeit of negligence) dated the 26th October 1990 and served in response to the defendant's request for particulars of the exact type and nature of guard which it was alleged should have been fitted to the machine, the plaintiff alleged that the guard should have been a trip guard as defined in the Regulations. However, although these particulars were given, the onus was not upon the plaintiff (whose case was that the machine was not guarded at all) to prove that any particular form of guard was appropriate.

10. In his careful judgment the judge, when dealing with the issue of liability, observed that there were two principal issues opened before him and to which the evidence had been directed. The first of these issues concerned a spring in the machine which controlled its movement. It was alleged by the plaintiff that the spring had been broken, that the remedial works carried out had been inadequate and that this had resulted in the press descending suddenly on the plaintiff when operating the machine. The second issue related to the absence of an on-off switch on the machine. There had only been a device on the wall which controlled the electricity supply to the machine. The judge commented:

"     Whilst the Re-Re-Amended Statement of Claim made an allegation that there was failure on the part of the Defendant to fit the machine with effective guards, this matter was not opened before me. Counsel for the Plaintiff touched on this allegation for the first time in her closing speech. From the way in which this case proceeded, it would be unfair to make any finding against the Defendant on this head. I would therefore confine myself in examining the evidence relating to the first two complaints outlined above."

11. The judge then reviewed the evidence of the plaintiff and of Mr. Cheung (for the defendant) on the issues with which he thus concerned himself. The plaintiff's evidence included an account of what the judge called the "phenomenon" of the defective spring (controlled by the foot pedal) on the machine causing the press to come down repeatedly when the machine was switched on although the foot pedal had not been operated. The judge preferred the plaintiff's evidence to that of Mr. Cheung and concluded:

"     In the context of a phenomenon which took place all the time, I do not accept Mr. Cheung's evidence that the complaint two weeks before the accident by the Plaintiff was the sole complaint. In view of this 'phenomenon' and the haphazard manner whereby the Plaintiff's complaint was dealt with, I find on a balance of probabilities that the machine was indeed defective and did behave in the way as described by the Plaintiff. I therefore find in favour of the Plaintiff on the issue of negligence. I do not attach any weight to the absence of the switch on the machine. Bearing in mind the manner whereby the accident happened, I do not find the absence of a controlling device to be a material cause of the accident."

12. When considering the issue of contributory negligence the judge was mindful of (and seems to have accepted) the difficulties which the plaintiff had said in evidence that he had encountered when operating the machine and which had led to his putting his hand into the machine to get hold of the insulation sheets so as to slide the wooden board out of the press. These difficulties related to the condition of the wooden board on which the heavy insulating sheets had to be placed for pressing. The board had, according to the plaintiff, become warped and its surface was uneven and a nylon cord previously affixed to it had come off and could not be re-attached securely. The plaintiff's evidence was that two weeks before the accident he had complained to Mr. Cheung unsuccessfully about the condition of the board which also resulted in his having to push all the board into the machine in order to obtain the full force of the press. Mr. Cheung, on the other hand, had said, inter alia, that the state of the board would affect the speed of production but would not hinder the movement of the board. The plaintiff had accepted that it was possible to remove the board by grabbing its sides but he said that to do this would be unrealistic for a piece worker.

13. The judge concluded that the plaintiff could not be exonerated from blame. He said:

"     However, I do not find the reasons that he put forward for the presence of his left hand under the press sufficient to absolve him from blame. He was over 38 years of age at the date of the accident. He had previously worked with the Defendant in 1984. He was warned at least by Mrs. Kwok not to insert his hands under the press. He knew that his press machine had broken down two weeks before the accident. He himself accepted that inserting his hand under the press was a risk but was prepared to assume such risk by virtue of the rudimentary repair being undertaken by Mr. Cheung. In this connection, I have born in mind para. 1-145 at p. 102 of the 16th Edition of Clerk & Lindsell on Torts:-

"A person is guilty of contributory negligence whenever he ought reasonably to have foreseen that, if he did not act as a prudent man, he might hurt himself; and in his reckonings, he must take into account the possibility of others being careless."

Mr. Fenton for the Defence argued that on the basis of a finding that the Plaintiff was using insulation sheets, I ought to hold him contributorily negligent to the extent of 30% to 40%. I agree with his submission and find the Plaintiff contributorily negligent at 35%."

14. The plaintiff's first contention on appeal was that the judge should have found an additional causative fault against the defendant, namely failure to comply with regulations 4 and 5 by providing an effective guard against the dangerous part of the machine. A similar argument based on the breach of regulation 8 by failing to provide a starting and stopping device on the machine was abandoned. Mr. Pritchard (who represented the plaintiff on appeal but not at the trial) pointed out that this breach of statutory duty had been pleaded and that the plaintiff's uncontroverted evidence had been that the machine had had no guard. The record shows that when counsel for the plaintiff relied on this point at the trial the judge dismissed it as an issue which had not been investigated.

15. Mr. Fenton, for the defendant, contended on appeal that there was only one reference in the evidence to the absence of a guard on the machine and there was no evidence of what sort of guard was required nor did the plaintiff discharge the onus which was upon him to show that the absence of a guard caused the accident. We are satisfied that, in the absence of any reliance by the defendant on regulation 4(2), regulations 4 and 5 were applicable to the machine which was admitted in paragraph 1(b) of the amended defence to be situated in a factory, and therefore to be a "notifiable place" (within paragraph (a) of the definition of that expression in section 2 of the Ordinance) to which the Regulations apply : see regulation 3. On the pleadings, to which reference has been made above, and on the evidence, brief though it was, it seems to us that the plaintiff had established at least a prima facie case of a causative breach by the defendant of regulations 4 and 5 in failing to provide an effective guard for the machine.

16. This case was never rebutted and Mr. Fenton informed this court that he had been instructed that the machine had no guard. Furthermore Miss Wong (who represented the plaintiff at the trial) was, in our opinion, right when she submitted to the judge on causation, in effect, that if there had been an effective guard on the machine the accident would not have happened.

17. In our judgment, although it was unfortunate that the issue was not mentioned when the case was opened, the judge was in error when he brushed aside the issue of breach of statutory duty. The plaintiff's case on this issue was never abandoned. On the pleadings and the evidence the judge should have found the defendant liable to the plaintiff not only in negligence but also for breach of statutory duty.

18. Mr. Pritchard argued that in the light of the judge's failure to find that the defendant had been in breach of statutory duty and in the light of the evidence of all the difficulties which the plaintiff had experienced in operating a machine which had two "monstrous" faults the orders given to him not to put his hands in the machine were not practical and the situation was not one where the plaintiff should be found to have been contributorily negligent at all.

19. In support of his submissions Mr. Pritchard cited from the dissenting speech of Lord Asquith in Stapley v. Gypsum Mines Ltd. [1953] AC 663 (H.L.) at p.687 where he pointed out that the introduction of the doctrine of contributory negligence introduced under section 1 of the Law Reform (Contributory Negligence) Act, 1945 (from which section 21 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) derives) had not displaced the common law doctrine ".... that two causes may both be necessary pre-conditions of a particular result - damage to X - yet the one may, if the facts justify that conclusion, be treated as the real, substantial, direct or effective cause, and the other dismissed as at best a causa sine qua non and ignored for purposes of legal liability".

20. Mr. Pritchard also relied on the dictum of Lord Pearce in The Miraflores [1967] AC 826 (H.L.) (a case concerned with the application of section 1(1) of the Maritime Conventions Act 1911) where at p.845 C-F Lord Pearce emphasised that true apportionment of liability under the 1911 Act was concerned with fault (including blameworthiness) as well as causation. By way of illustration (which is also helpful in relation to section 21 of the Hong Kong Ordinance) Lord Pearce observed:

"     This is most easily illustrated by taking an extreme case from a type of litigation which is tried daily in the courts. A dangerous machine is unfenced and a workman gets his hand caught in it. So far as causation alone is concerned it may be fair to say that at least half the cause of the accident is the fact that the workman put his hand into the danger. But so far as 'fault' (and therefore liability) is concerned the answer may be very different. Suppose that the workman was a normally careful person who, by a pardonable but foolish reaction, wanted to save an obstruction from blocking the machine and so put his hand within the danger area. Suppose further that the factory owner had known that the machine was dangerous and ought to be fenced, that he had been previously warned on several occasions but through dilatoriness or on the grounds of economy failed to rectify the fault and preferred to take a chance. In such a case the judge, weighing the fault of one party against the other, the deliberate negligence against the foolish reaction, would not assess the workman's fault at anything approaching the proportion which mere causation alone would indicate."

21. Mr. Pritchard further contended that if the plaintiff were to be held on appeal to be responsible at all for his own injuries it would not be "just and equitable" within the meaning of section 21 of the Ordinance to sustain the judge's assessment of 35 percent contributory negligence, given the degree of fault attributable to the defendant compared to that of the plaintiff to which very little if any significance should be attached.

22. For the defendant Mr. Fenton contended that even if, by ignoring the defendant's breach of statutory duty, the judge took the wrong route to his 35 per cent assessment of contributory negligence, he nevertheless arrived at the correct result after taking into account all the difficulties encountered by the plaintiff in operating the machine with a warped board and heavy insulation sheets. Mr. Fenton emphasised the evidence of the plaintiff himself under cross-examination admitting that the machine was a simple one and that it was possible to work it without putting his hand into the press, although it would take a longer time with insulating sheets, and that he had taken the risk of putting his hand in because he wanted to hurry. The plaintiff had not, Mr. Fenton submitted, had proper regard for his own safety and had admitted he had been prepared to take a risk, so that a contributory negligence assessment of 35 per cent (being the mean between the 30-40 per cent bracket advocated by Mr. Fenton at the trial) was very reasonable.

23. Mr. Fenton invited comparison with the extreme case of Rushton v. Turner Brothers Asbestos Co. Ltd. [1960]1 WLR 96 where Ashworth J., applying the jury common sense principles referred to by Lord Birkenhead in Admiralty Commissions v. S.S. Volute [1922]1 AC 129, 144 quoted by Singleton L.J. in Williams v. Sykes and Harrison [1955]1 WLR 1180, 1189, held the plaintiff's employers not liable for his injuries sustained by his "crazy" act of deliberate folly in putting his hands into a crushing machine when it was in motion, (an act which was the operative and effective cause of the accident), notwithstanding the fact that the employers were in breach of the fencing requirements of section 14(1) of the Factories Act 1937.

24. The trial judge having been held by this court to have erroneously omitted the factor of the defendant's breach of statutory duty from his consideration when assessing the degree of contributory negligence of the plaintiff, it falls to this court to determine on the facts found by the judge whether, as was Mr. Pritchard's primary contention, the combination of the negligence and breach of statutory duty on the part of the defendant was the sole operative and effective cause of the accident and, if not, to carry out again the exercise of apportionment under section 21 of the Ordinance which the judge carried out without regard to all the material factors.

25. It seems to us that this is not a case where the plaintiff has been injured as a result of operative and effective causes wholly attributable to the defendant's breaches of duty, serious though those breaches were. The judge was, in our opinion, right to regard him as to some degree responsible (both on the basis of causation and blameworthiness) for the accident. His frank admissions show this. However, in our opinion, once a material breach of statutory duty by the defendant is established, in addition to liability for negligence, the case falls into the category referred to in Clerk and Lindsell, 16th edition, at paragraph 1-145 in the passage immediately following that cited by the judge. The editors there rely on the following citation from Lord Tucker in Staveley Iron and Chemical Co. Ltd. v. Jones [1956] AC 627, 648 and a long line of authority when they say:

"     It is possible, however, that there are certain special cases in which the position is different. Where the defendant is charged with the breach of a statutory duty, the standard by which the plaintiff's contributory negligence is judged appears to be less exacting than that used for ordinary negligence. Lord Tucker stated it in this way:

'This is not so illogical as may appear at first sight when it is remembered that contributory negligence is not founded on breach of duty, although it generally involves a breach of duty, and that in Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute.'"

These are the principles which are reflected in the dictum of Lord Pearce in the Miraflores upon which Mr. Pritchard relied. The editors of Clerk and Lindsell go on to comment (at p.103 in para 1-145) that in Mullard v. Ben Line Steamers Ltd. [1970]1 WLR 1414 the English Court of Appeal cautioned against undermining the object of statutory provisions by excessive findings of contributory negligence.

26. In the present case, apart from the breach of the absolute statutory duty to provide an effective guard on the machine the defendant was guilty of blatant negligence in failing to provide effective maintenance for the machine which was left with a dangerously defective actuating spring and a warped pressing board despite the plaintiff's complaints. As a piece worker he was left to manage best he could and take the choice between low output and consequential uneconomic remuneration or taking a risk. Given that the plaintiff here can be said to have chosen to take a risk and to have gone beyond mere inadvertence or momentary inattention and that his contribution to the causation of the accident was not insignificant, we nevertheless regard his degree of culpability or blameworthiness for the accident in all the circumstances as being very small compared with that of the defendant. We do not therefore assess his degree of contributory negligence at more than 20 per cent, having due regard to the very serious breaches of duty by the defendant.

(ii) Loss of earning capacity

27. The plaintiff lost his left index finger in the accident. Also the skin over the middle finger at the palmar side has some scarring and he has a 3 inch scar over his left wrist. The judge's finding, on the medical evidence, that he sustained a 14 per cent loss of earning capacity is not disputed. The judge dealt with the plaintiff's claim for a lump sum independently of the assessment of the plaintiff's loss of actual future earnings under the rubric "FUTURE LABOUR MARKET RISK" in the following passage in his judgment:

"     I am again guided on this matter by Ng Wan Kong. There must be evidence in support of a claim for an award under this head. There is no suggestion in this case that the Plaintiff was unsuccessful in any attempt to find a job. He admitted that he would have no difficulty in retaining his position with the security company at the airport had he wanted to. Consequently, I make no award under this head."

28. In Ng Wan Kong v. Kwan Siu Keung & Anor. (1986 No. 306) Kaplan J. (then sitting in the capacity of a deputy High Court Judge) had applied the ruling of a five member division of this court in Lau Che-ping [1988]2 HKLR 650 to the effect that an award should not be made under this head in the absence of evidence to support it and it is not appropriate to award merely a conventional figure.

29. For the plaintiff Mr. Pritchard referred to a passage in the evidence of the plaintiff under cross-examination. But this did not assist the plaintiff's claim under this head because he admitted that he used his right hand to hold the chopper when working as a chopping board cook (his employment at the date of the trial). Mr. Pritchard also referred to the evidence of Mr. Lee Kam Shing, a restaurant worker, who had worked with the plaintiff since the accident and, in his evidence, described his work as slow; but at the relevant time the plaintiff was employed as a stove cook not a chopping board cook.

30. Mr. Pritchard nevertheless contended that by reason of his injury the plaintiff was in fact at risk and at a disadvantage, albeit a modest disadvantage, in his present employment. He submitted that such a modest disadvantage merited a modest award of $30,000.

31. On the evidence we are unable to accept that the judge should be faulted for making no award under this head. The plaintiff has been fairly compensated for the measure of his loss of earnings attributable to his loss of prospective advancement in restaurant employment. As the judge pointed out, the plaintiff (who had worked in six different restaurants and as a security guard between February 1987 and the date of the trial without ever being dismissed for any reason) seemed to have had no difficulty in finding or retaining employment. We bear in mind that this is not the only relevant consideration because, as Sir Owen Woodhouse indicated in Lau Ho Wah v. Yau Chi Biu [1985]1 WLR 1203 at p.1206C:

"     In ordinary language the concept of earning capacity is certainly not limited to the present or to be measured by some immediate and possibly quite fortuitous achievement. It is concerned with a continuing state, with the potential of an individual and so very much with the future as well."

32. It follows that evidence of post accident employment and earnings, although relevant to the question of future market risk and disadvantage, is not the only or conclusive consideration, because the court has to look to the future. However there seems to us to be no evidence in this case that would justify the conclusion that the plaintiff is, in the language of Sir Gordon Willmer in Clarke v. Rotax Aircraft [1975]1 WLR 1570 (C.A.) (a case which was not cited at the hearing but which is cited in the passage in McGregor on Damages, 15th edition at para 1466 to which reference was made) at p.1577 F-G, facing "a residual risk" that he might, during the 10 years which the judge has used as a multiplier when assessing his loss of future earnings, be out of work and even slightly disadvantaged in finding employment as a chopping board cook or in some employment, such as that of a security guard, paying a comparable wage. He has already been fairly compensated by an award of damages representing his loss of prospective future advancement as a cook. It seems to us that if even a modest sum were awarded under this head in the circumstances of this case there would be a real danger of overlap with the substantial but fair sum already awarded for loss of future earnings.

THE CROSS APPEAL

33. As indicated earlier in this judgment the effective cross appeal was concerned with the award of $198,495 in favour of the plaintiff in respect of his loss of the opportunity to work in the Great Wall Beijing Sheraton Hotel.

34. The grounds appearing in the respondent's notice of cross appeal are to the effect that in making this award the judge erred by basing his finding on mere speculation, relying on the irrelevant subjective belief of the plaintiff that he had in fact got the job, failing to consider that Mr. H.S. Wong was not entitled to offer the job to the plaintiff and failing to give weight to the evidence of a Mr. Leon Lee (a Vice President and Director of Human Resources of Sheraton Asia Pacific Corporation) that Mr. H.S. Wong's recommendation for employment in the hotel's kitchen was not conclusive because the manager of the hotel was the only person with authority to hire the plaintiff, and then only after interview.

35. At the hearing of the cross appeal Mr. Fenton sought to argue that there was no pleaded basis for the plaintiff's claim under this head. The defendant had not raised this ground in its respondent's notice and no application was made to amend to introduce it. Quite apart from that, there was no merit in this point. The claim had not been pleaded or particularized in terms precisely consistent with the judge's findings because the pleaded case was that the plaintiff had been offered the Beijing employment by Mr. H.S. Wong, whereas in fact (as the judge accepted) Mr. Wong had no authority to make any contract of employment on behalf of the hotel company which employed him in Beijing. However the substance of the claim was pleaded and there could have been no surprise to the defendant who called Mr. Leon Lee to rebut it.

36. Mr. H.S. Wong had given evidence about this matter on the 11th and 12th April 1991 before the trial. The judge had his depositions before him at the trial. He dealt fully in his judgment with the relevant evidence of Mr. H.S. Wong, the plaintiff and Mr. Leon Lee. The judge expressed his conclusion in the following terms:

"     I have anxiously considered the Beijing Sheraton episode. My anxiety stemmed from the letter that Mr. H.S. Wong signed ["Exhibit D1"] bearing the letter head of Beijing Sheraton which would suggest that the position was held open for the Plaintiff for 2 or more years. The manner whereby the claim was formulated also raised doubts in my mind. Having seen the Plaintiff in the witness box and the conviction that he displayed in the course of giving his evidence on this matter, any disquiet that I had was effectively dispelled. I hold that Mr. H.S. Wong did make an offer to him in September 1985 to work at the Beijing Sheraton at US$1,200 per month. I accept as proved the figures outlined at page 2 of the letter dated 18th May, 1990 bearing reference number 294338 from the Defendant's solicitors to Mr. Leon Lee which Mr. Leon Lee accepted as 'reasonable'. That would give a figure of HK$220,550 for the period between 1st November, 1985 to 30th June, 1989. I have considered whether I should give any discount to this figure in view of the recruitment procedure of Beijing Sheraton and the fact that there was no binding contract between Beijing Sheraton and the Plaintiff. I have reminded myself the principles set out in Chapter 8 of McGregor on Damages 15th Edition para. 360 onwards. The personal relationship between the Plaintiff and Mr. H.S. Wong and the mode of operation of kitchens in Chinese restaurants convinced me that the Plaintiff would probably have obtained the job which eventually went to Mr. Choy Kai Chong. Consequently, I would only allow a 10% discount on the various contingencies surrounding this episode. This would give an award of HK$198,495.00 under this head. By virtue of the 4th June, 1989 incident in Beijing, I hold that the Plaintiff would not have continued with that employment beyond June 1989."

37. Bearing in mind the clear evidence of the way in which cooks in Chinese restaurant kitchens operate and have to co-operate and get on with each other, that Mr. H.S. Wong obtained his job in Beijing on the recommendation of a friend (Mr. Yuen whose job he succeeded to), that the plaintiff was a former colleague and friend of Mr. H.S. Wong, and that when the plaintiff could not accept Mr. H.S. Wong's "offer" of employment the job was given to Mr. Choy Kai Chong on Mr. H.S. Wong's recommendation, it seems to us that the judge's decision on this issue and the reasoning upon which it was based cannot be faulted. We are wholly unable to accept the criticisms expressed in the grounds of appeal or in the argument of Mr. Fenton who contended that the damages awarded were too remote and that there was more than a 10 per cent area of uncertainty. Mr. Fenton had helpfully dredged up the reserved decision of Erle C.J. in Hoey v. Felton (1861) 11 C.B. (N.S.) but that was clearly a finding of remoteness of damages on the particular facts of the case and, in our opinion, there is nothing in the authorities which renders the judge's conclusion under this head erroneous at law.

38. We therefore allow the appeal to the extent of reducing the apportionment of the plaintiff's contributory negligence to 20 per cent and dismiss the cross appeal. There will be an order nisi awarding the costs of the appeal and cross appeal to the plaintiff with a direction that there be a legal aid taxation of his costs.