Wong Eleven v. China Way Transportation Ltd and Another

DCPI 1697/2015

[2018] HKDC 1016

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1697 OF 2015

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Before: Deputy District Judge Simon Ho in Court

Date of Hearing: 29-30 January 2018

Date of Judgment: 21 August 2018

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JUDGMENT

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1.This is a claim for personal injuries and property damage arising out of a traffic accident.

Liability

The plaintiff’s case

2.The crux of the plaintiff’s case can be stated thus.  On 3 April 2013 around 9 am, he was driving his light goods vehicle of registration number KE9948 (“KE9948”) along Po Shek Wu Road northbound heading to Fanling.  On reaching the roundabout near Jockey Club Road (“the Roundabout”), he drove into the Roundabout’s outer circle lane from the 2^nd lane[1] of Po Shek Wu Road.  While KE9948 was travelling within the Roundabout’s outer circle lane, a medium goods vehicle of registration number EY231 (“EY231”) driven by the 2^nd defendant (which had travelled in the inner circle lane) was pulled out, and its nearside-front collided with the offside-rear of KE9948.  Before entering into the Roundabout, EY231 was travelling on the 3^rd lane of Po Shek Wu Road[2].  The plaintiff suffered personal injuries, and KE9948 was damaged as a result of the collision.

3.At the material time, according to the plaintiff’s pleaded case, the 1st defendant was the registered car owner of EY231, and the 2^nd defendant was driving the same as the 1^st defendant’s employee, servant or agent.  The plaintiff said the accident was caused by the 2^nd defendant’s negligent driving, for which the 1^st defendant was vicariously liable.  At trial, the 1^st defendant agreed that in the event the court hold the 2^nd defendant liable, the 1^st defendant will also be vicariously liable.

The defendants’ case

4.The 2^nd defendant’s account is wholly different.   When the accident happened, EY231 was travelling in the outer circle lane of the Roundabout instead.  Before EY231 entered into the Roundabout, it was waiting on the 2^nd lane of Po Shek Wu Road with its left-turn indicator flashing, and at that time there was a 40-feet container truck entering into the outer circle lane of the Roundabout proceeding from the 1^st lane of Po Shek Wu Road and turning left into Jockey Club Road (Man Kam To exit).

5.The plaintiff had not arrived at the Roundabout then.  Having checked there was no oncoming traffic on his right, the 2^nd defendant drove EY231 into the outer circle lane of the Roundabout with its left-turn indicator on.  While the 2^nd defendant was in the outer circle lane of the Roundabout and intending to turn left into Man Kam To exit, the plaintiff attempted (by accelerating KE9948 and proceeding from the 1^st lane[3] of Po Shek Wu Road) to overtake or pass EY231 in the Roundabout.  To avoid KE9948, the 2^nd defendant braked and swerved to the right.  Despite his effort, EY231 still collided with KE9948.

Analysis of evidence

6.Having carefully considered the testimony from both sides, it is observed that the plaintiff’s evidence on liability is unshaken after cross-examination and overall consistent. I also find the plaintiff’s case and evidence inherently probable and credible, whereas 2^nd defendant’s case and evidence contradictory, incredible and improbable. 

7.First, the 2^nd defendant said earlier in his statement to the police[4] that he saw from the left rear view mirror that KE9948 travelling very fast from the 1^st lane of Po Shek Wu Road entering into the Roundabout.   But such material evidence was seriously contradicted by his own testimony given in court that he saw KE9948 only for the first time when it was already next to the nearside door of EY231 in the Roundabout.  If this is so, he could not possibly have seen the plaintiff using the 1^st lane of Po Shek Wu Road.  The 2^nd defendant’s case[5] is thus incredible and falls apart.

8.Second, according to the 2^nd defendant, while EY231 was travelling along the outer circle lane at the Roundabout, he intended to turn left with a view to drive into Man Kam To exit.  If that were true, and if the plaintiff were also driving KE9948 from behind at the 1^st lane of Po Shek Wu Road (which was supposedly following the container truck as ‘identified’ by the 2^nd defendant[6]), seeing EY231 with the left-turn indicator on, and then trying to overtake EY231, such a picture as painted by the 2^nd defendant would be suggestive of the plaintiff taking a very dangerous move.  But in my view, this seems unlikely in the circumstances, especially when one bears in mind that the length of EY231 was at least double of KE9948[7], and it was also common ground that EY231 had driven into the Roundabout before KE9948 did so.

9.Third, it was the unchallenged evidence of the plaintiff that he was familiar with the road conditions near the Roundabout by driving pass there often for getting his employer’s Rehab bus[8] parked at Tin Ping Shan carpark at Sheung Shui or for parking it back at such carpark after work.  For such purposes, he would drive pass the Roundabout from Po Shek Wu Road to the Jockey Club Road (Fanling exit) at the right side of the Roundabout[9] about 10 to 15 times each month before the accident.  Sometimes he used the 2^nd lane to enter into the Roundabout and sometimes the 3^rd lane.   When the accident happened, he was on his way to get the Rehab Bus.

10.Given such familiarity with the travelling routes and if there were really a 40-feet container truck as allegedly occupying the 1^st lane of Po Shek Wu Road, it is unlikely that the plaintiff would use such 1^st lane which was least convenient when there was no car on the 3^rd lane.  Viewing the background of accident from such perspective, I also find the plaintiff’s account more probable.

11.Fourth, I have fully considered the matters raised in paras 3 to 14 of the written closing submission of Mr Vincent Chen (counsel representing the defendants) to attack on the credibility of plaintiff’s evidence. 

12.However, with respect, I think those submissions only go to the peripheral.  Mr. Chen submitted that the plaintiff’s evidence evolved from the date of accident by adding further details as time goes by.  However, the fact of the plaintiff providing more information to the police in a subsequent interview on 12 April 2015[10] than that taken down by the police officers at the scene would not detract from my above analysis that the plaintiff’s case and evidence is much more probable than the defendant’s.  Despite Mr. Chen’s submission, I am also convinced that the plaintiff’s evidence is overall consistent and truthful about how the accident happened.

13.In fact, Mr Chen only refers this court to the statement of police officer PC 5755[11] but conveniently ignores the statement of another police officer PC 10986 who had arrived at the scene earlier than PC5755.  PC 10986 gave a much fuller account of how the accident happened in his statement (in accordance with his investigation at the scene) and such account is largely consistent with the plaintiff’s evidence given for this action.[12]

14.Mr. Chen do fairly remind this court of the discrepancies of the plaintiff’s evidence given for some quantum issues (such as about his loss of income) which might affect his general credibility.  I have borne these matters in mind and for that reason I am particularly vigilant in surveying the plaintiff’s testimony given for the question of liability.   But still, after carefully considering the totality of evidence before me, my view remains unchanged that the plaintiff’s account is more credible and probable for reasons as explained above.

15.In these circumstances, I accept the plaintiff’s case and evidence as to how the accident happened and rejected the 2^nd defendant’s case and evidence in toto.  

16.Without prejudice to the generality of the foregoing, in particular, I accept the plaintiff’s evidence as to the lanes the two vehicles were travelling on when they were at Po Shek Wu Road (before entering into the Roundabout) and at the Roundabout.  While EY231 entered into the Roundabout first, I accept the plaintiff’s evidence that EY231 was entering into the inner circle lane with a much slower speed than KE9948, and upon reaching the Man Kam To exit, about half of KE9948 was already ahead of EY231.  I also find that, after entering into the Roundabout, KE9948 was travelling at a faster speed than EY231 at about 30 to 40 km / hour, which was within the speed limit of 50 km / hour for the location.  I also accept the plaintiff’s evidence that before the collision took place, KE9948 was travelling within the outer circle lane of the Roundabout, and it was due to the pulling out of EY231 from the inner circle lane onto the outer circle lane that its nearside-front collided with the offside-rear of KE9948. 

17.Mr. Chen seeks to argue that since the plaintiff could not see how the collision actually occurred, and he was only alerted to the same by the sound of collision, so his evidence of the 2^nd defendant pulling out of the inner circle lane was merely speculative. 

18.With respect, I cannot accept this submission.  First, apart from hearing the sound of collision, the plaintiff also said in both his witness statement and police statement that he then looked into the rear view mirror on his right and saw EY231 drove onto the outer circle lane from the inner circle lane.[13]  Second, as this court also accept the plaintiff’s evidence that when he was in the course of driving pass EY231, KE9948 was travelling within the outer circle lane, and EY231 was travelling in the inner circle lane, a reasonable inference can also be drawn (insofar as may be necessary) that the collision took place because the nearside-front of EY231 has crossed the boundary of the inner circle lane onto the outer circle lane and hit the offside-rear of KE9948.

19.After considering the totality of evidence before me, this court also find that the collision happened in the aforesaid manner because of the improper manoeuvring of EY231 by the 2^nd defendant while driving at the Roundabout without due care and attention.  The damage at the offside-rear of KE9948 as depicted in the photos enclosed in the survey report is caused by the collision.[14]  I also hold that the 2^nd defendant was negligent in causing the collision, for which the 1^st defendant is vicariously liable for reasons as mentioned in para 3 above.  

Contributory negligence

20.In light of the above findings, I do not see there is any contributory negligence on the plaintiff’s part.  In particular, basing on the plaintiff’s account which this court accept, there is no question of the plaintiff cutting or attempting to cut into the lane of EY231 at the Roundabout before the collision.

21.However, since I wholly reject the 2^nd defendant’s case and evidence as mentioned above, I would not accept the 2^nd defendant’s evidence that he had turned on the left-turn indicator before EY231 entered into the Roundabout or while travelling in the Roundabout.   The plaintiff denied the 2^nd defendant had done so. 

22.Not only that I do not find the 2^nd defendant to be a credible or reliable witness in light of the above analysis, it is also remarkable that the 2^nd defendant said nothing about such material piece of information (if truthful) in his statement to the police. He did not even supplement his evidence with such material detail when he adopted his earlier police statement as his witness statement for this action[15].  

23.Mr Chen also pointed out that the plaintiff did not mention about turning on the right-turn indicator before entering into the Roundabout in his police statement.  However, the plaintiff did say so in his witness statement for this action.  Despite Mr Chen’s submission trying to persuade this court to the otherwise, I nonetheless find such evidence of the plaintiff plausible and accept the same. 

24.Purely for the sake of argument, even if this court disregard such piece of evidence, I think the absence of turning on the right-turn indicator per se does not necessarily imply contributory negligence on the plaintiff’s part.  One should bear in mind that according to the plaintiff’s case and evidence which this court accept, although he saw EY231 driving into the Roundabout first, there was nothing at the time suggesting to him that EY231 (travelling in the inner circle lane of the Roundabout) intended to turn left when KE9948 was travelling along the outer circle lane before the collision. 

25.The burden rests upon the defendants to prove contributory negligence of the plaintiff. However, they are not putting forward a case in this action that EY231 was travelling in the inner circle lane of the Roundabout and intending to turn left into Man Kam To exit before the collision.  In fact, Mr. Chen made no submission as to how the plaintiff would be contributory negligent when the court accept the plaintiff’s account.

26.In these circumstances, even if the plaintiff did not turn on the right-turn indicator at the time, the defendants cannot successfully demonstrate to this court that such a condition would contribute to the happening of the accident basing on my aforesaid findings.

Quantum

Nature and extent of injuries and treatments received

27.After the accident, the plaintiff was sent to A&E Department (“A&E”) of the North District Hospital (“NDH”) by ambulance from the scene[16].  According to the A&E Medical Report, physical examination revealed tenderness at the left trapezius muscle at the neck.  No external wound was noted and X-ray of the neck did not show any bony fracture. His general condition was satisfactory and the provisional diagnosis was sprain neck. 

28.He was treated with analgesic, and a neck collar given[17]. He was discharged on the same day with three days of sick leave granted.[18]  According to the plaintiff, after the expiry of such sick leave, he still had pain over the left side of the neck and left upper trapezius area.  However, since he had freelance jobs and because of financial reasons, he did not take further sick leave or seek further medical treatment.  Though, his wife would use ointment to massage his neck/upper trapezius when he had pain.[19]

29.On 21 March 2016, the plaintiff was examined and assessed by two orthopeadic experts engaged by the parties - Dr. Johnson Lam (P’s expert) and Dr. Kwok Hau Yan (Ds’ expert). Subsequently, they prepared a joint medical expert dated 26 April 2016 setting out their findings and respective assessments of the plaintiff’s medical condition (“JMR”).  At the joint examination, the medical experts noted mild tenderness and muscle guarding over the plaintiff’s left cervical paraspinal muscle and left upper trapezius but without muscle spasm. There was no muscle wasting over bilateral shoulder girdles.[20]

30.Both experts agreed on the plaintiff’s medical history, the findings from their physical examination of the plaintiff, the information of the medical records.  They also agreed that the 3 days’ sick leave issued by NDH was reasonable and should be endorsed.[21]

31.Dr. Lam’s diagnosis was soft tissue injury to the neck, and he opined that this is consistent with the mechanism of injury as described by the plaintiff[22].  As recorded in JMR, the plaintiff told the two experts that at the time of accident, his seat-belt was fastened[23] and there was jerky movement of his neck and body[24].

32.According to Dr. Kwok, the mechanism of injury is compatible with a whiplash.  Normally with usual conservative treatment, the neck symptoms would subside in 3 to 6 months.  Dr. Kwok opines that the plaintiff’s case is simple sprain injury to the neck without neurological or radiculopathy symptoms.  There could be residual neck pain, but that should not cause significant effect to the physical function. 

33.According to Dr. Lam, the mild decrease in cervical lordosis is consistent with the findings of tenderness and muscle guarding, and this suggests genuine pain and discomfort in the neck region.  In his view, the degree of residual pain and impairment is estimated to be mild or mild-to-moderate.[25]

34.In Dr. Kwok’s opinion, the prognosis to neck pain is fair, and the neck pain should not affect the patient’s daily activity or occupation[26].  Dr. Lam does not really dispute such observation of Dr. Kwok.  In fact, Dr. Lam expresses similar opinion that functionally, the plaintiff could engage himself in jobs that require considerable physical demand on the neck (eg driver-cum-delivery work and driver of Rehab-bus)[27].  Although there were mild pre-existing degenerative changes at the cervical spine, both experts are nonetheless in consensus that such pre-existing condition is not causing symptoms on the plaintiff nor it has complicated the recovery of his neck injury.[28] I accept the aforesaid medical opinions of the two medical experts, save that I find the residual neck and left upper trapezius pain of the plaintiff to be mild only.

35.Basing on the evidence before me (particularly the medical experts’ evidence), I find the subsequent symptoms (i.e. the neck and left upper trapezius pain since the accident) as experienced by the plaintiff are caused by the accident.  Apart from the pertinent medical opinions highlighted above, I have also had regard to the undisputed fact that the plaintiff had no previous injury or pain at his neck, left upper trapezius and upper back, and that he complained to the A&E of sprain neck and neck pain on the same day of accident.[29]

36.As the medical evidence now stands, Dr. Lam assessed the percentage of permanent impairment of whole person as attributable to the plaintiff’s neck injury at 3%, whereas the Dr. Kwok’s assessment is 0.5%. 

37.In this connection, I prefer Dr. Kwok’s assessment to Dr Lam’s, bearing in mind the plaintiff’s medical conditions as discussed above, the overall physical force exerted on KE9948 should not be too strong, and that he received minimal treatment in A&E without hospitalization.  Further, the subsequent symptoms developed should not be too significant in the sense that he could manage to resume his pre-accident job duties without seeking any further medical treatment either. 

PSLA

38.The plaintiff claims HK$180,000 for PSLA.  The defendant counter proposes HK$50,000.

39.Among the authorities cited by Mr. Ko, I only find the cases of Chan Siu Youn v Ng Kam Man & Ors (HCPI 533/1999, 28 July 2000); and So Kim Lung v Lee Pak Wai (HCPI 494/2010, 1 November 2012) more pertinent for comparison.  On the defendants’ side, Mr. Chen cited the following authorities on PSLA in support of their proposed figure: Chan Kin Man v Cheuk Siu Tong, DCPI 1970/2008, 16 November 2009; Li Ting Fai v Woo Chi Keung, DCPI 807/2007, 18 January 2008; and Tse Tsz Keung Poco v Chan Yick Chun, HCPI 214/2009, 30 June 2010.

40.Mr. Tony Ko, counsel representing the plaintiff, submits that because of the injury, the plaintiff could no longer enjoy his pre-accident hobbies like hiking, canoeing, mountaineering, rock climbing, camping, ropes course and archery. 

41.However, since his soft tissue sprain neck injury as observed by the experts is relatively mild against his medical condition discussed above, it is highly doubtful whether the plaintiff could really not participate in such hobbies at all.  This is especially so when the plaintiff’s residual impairment due to such whiplash as found by this court is likewise small.  (see : paras 36 and 37 above) 

42.Mr. Chen also rightly pointed out that according to the plaintiff’s tax return (for 01.04.2013 to 31.03.2014), he still maintained the part-time campsite instructor job with The Hong Kong Federation of Youth Groups post-accident earning even more than what he did before[30], and such job also involves teaching of canoeing. 

43.As pointed out above, it was Dr. Kwok’s view that the plaintiff’s residual neck and left upper trapezius pain should not affect his daily activity or occupation.   Even Dr Lam queried the degree of pain may not be as severe as the plaintiff alleged[31].   The burden of proof rests upon one who alleges.  But on the factual and medical evidence before this court, I do not accept that he could no longer enjoy these hobbies or that his injury per se would prevent him from obtaining the necessary certificates for becoming a coach in canoeing and wilderness adventure as he alleged[32].

44.On balance, I find his mild residual neck and left upper trapezius pain should allow him participate in these hobbies, although on the other hand such residual pain can occasionally create some minor discomfort adversely affect his enjoyment of the same.

45.In So Kim Lung, the plaintiff was found by the court to suffer from lower back and neck injury at the accident with no neurological deficit or bony fracture, and the degree of his residual disability is particularly similar to the plaintiff in the present case : the court in that case accepted there was 0.5% residual mild pain and ache at the plaintiff’s neck and lower back.  But in contrast with the present one, much more sick leave (6 months) was granted in So Kim Lung. The learned Master granted HK$120,000 for PSLA.   In Chan Kin Man, only 4 days of sick leave was granted to the plaintiff who suffered sprained injuries to neck and back, and $50,000 was awarded for PSLA. 

46.Viewing thus and given my above findings, the plaintiff’s claim for PSLA is obviously on the high side.   Having said that, the evidence before this court do show that the plaintiff is a great lover of sports and outdoor activities, and his residual neck and left upper trapezius pain may cause him minor discomfort and diminish his enjoyment of some of these sports or outdoor activities as mentioned above.

47.Having carefully considered the authorities cited from both sides, and the relevant circumstances of this case, in particular, giving due regard to the nature and degree of pain and suffering as experienced by the plaintiff in light of the medical evidence discussed above, and the adverse effect of his residual neck and left upper trapezius pain on his hobbies, I hold that the appropriate PSLA award for the plaintiff is HK$120,000.   

Pre-trial loss of earnings

48.Before the accident, according to the plaintiff, he had three part-time jobs.  For the first one, he worked as a driver for various charitable organizations (including The Hong Kong Society for Rehabilitation).  In the second, he taught adventure courses for The Federation of the Youth Groups as mentioned above, and the third was a self-employed van driver cum delivery worker. 

49.After the accident, he could resume the first two part-time jobs with some modification of duties.   However, the plaintiff alleged that he had to quit the van driver cum delivery worker job because of his neck and left shoulder pain, and his averaged pre-accident monthly income for such self-employed job was about HK$1,500 to HK$2,000.[33] He therefore claimed a total pre-trial loss of HK$77,000 flowing from his inability to continue such job.

50.However, not only no loss of earnings can be discerned from the tax documents produced by the plaintiff himself, these documents actually show the contrary : his post-accident annual income (for 2013-2014) is higher than the preceding year’s (for 2012-2013),[34] and his annual income for 2014-2015 went even further up.[35]

51.I also accept Mr. Chen’s submission that the plaintiff’s claim for loss of earnings for such alleged self-employed job is not supported by any other contemporaneous documents either.   The plaintiff declared no such alleged income in his own tax returns[36].  Although the plaintiff’s bank statements were produced, no attempts were made to identify which payments into his account were from such alleged self-employed job.   Given such state of evidence, this court simply cannot accept the plaintiff’s bare allegation that he has suffered such income loss.  In fact, Mr Ko fairly and sensibly indicated in his written closing submission that he would make no further submission on this head of loss in light of the plaintiff’s admission at trial that the injury did not have a negative impact on his income.  In these circumstances, the claim for pre-trial loss of earnings is disallowed.

Loss of earning capacity

52.At the time of trial, the plaintiff was 40 years old, and his averaged monthly income is about HK$13,528.   The plaintiff claims a lump sum of HK$162,336 under this head.  The plaintiff testified that certain difficult tasks previously undertaken by him as a camp instructor (requiring high physical demand on his left arm) have to be undertaken by other instructors after the accident.  Mr Ko submits that there is a real risk for the plaintiff to lose this employment in future.

53.With respect, I do not accept such submission.  First, not only his overall annual income has been on the rise as demonstrated above, the income for the individual part-time camp instructor job with Hong Kong Federation of Youth Groups has also been going up since the accident.[37]

54.Second, this court also take such evidence of the plaintiff with a pinch of salt.  The plaintiff has sought no further medical treatment after discharge from A&E on 3 April 2013.  There are thus no contemporaneous medical notes and record documenting his persistent neck pain or its severity.  Both experts’ common finding shows that the plaintiff only had mild tenderness and muscle guarding over the left cervical paraspinal muscle and left upper trapezius[38].  The physical examination of the upper limbs showed that range of motion for both shoulders is full, and general power and sensation of upper limbs on both sides are the same[39].

55.In Dr. Kwok’s opinion, the symptoms described by the plaintiff is subjective and is out of proportion to the objective findings at the joint examination, with which Dr. Lam did not really contest.[40]  As said, even Dr. Lam himself doubted the plaintiff’s complaint about his neck pain sometimes reached 8/10 in intensity requiring rest for 1 to 2 days.  Dr. Lam only seeks to postulate that the plaintiff may have suffered a significant soft tissue neck injury that caused or significantly aggravated disc protrusion(s) at the neck which in turn caused the persistent neck pain[41].  And yet, such possibility is not verified or otherwise investigated into by any MRI scan.[42]  I do not accept such postulation of Dr. Lam.

56.By viewing the evidence in the round and having particular regard to his mild residual neck and left upper trapezius pain, this court is not satisfied that the plaintiff would indeed suffer a real risk of unemployment in future so as to warrant an award under this head.  

Special Damages

Medical expenses and travelling expenses

57.The medical expenses of HK$100 and travelling expenses of HK$100 as claimed are in my view reasonable in the circumstances, and they are fully allowed.

Tonic food

58.The plaintiff also testified that he had taken some tonic food which he believed was conducive for his recovery.  Such evidence is not challenged, and this court accept the same.  The plaintiff said he had spent HK$5,000 on this item, but he cannot produce any supporting receipt.  Given the plaintiff’s minor soft tissue neck injury, and the fact that he needed not seek any further medical treatment after the injury, this court however will not take the figure of HK$5,000 at its face value.  Only a reasonable sum of HK$3,000 is allowed under this head.

Repair costs for the vehicle

59.In the Revised Statement of Damages, the plaintiff claimed costs for repair of his damaged vehicle at HK$29,708 as per the garage’s quotation[43] and the corresponding motor surveyor’s fee in the sum of HK$800.[44]

60.In the motor survey report, the surveyor cut down the repair costs (labour plus materials) to HK$25,837.2.  The surveyor also assessed a further deduction of HK$3,701.20 for depreciation.[45] However, as a matter of law, if the betterment to the vehicle’s condition is inevitable after repair, such betterment should not be discounted and is recoverable.  See :Wong Ping Mui v Mak Hung On, DCCJ 2874/2001, 12 October 2001; Harbour Front Investments Limited v Lock Kwok Leung & Ors, HCSA 68/2002, 26 February 2003.  

61.Having considered the relevant evidence on this issue, I find the element of betterment (as so assessed by the surveyor) is inevitable in the circumstances of this case and it is fully recoverable.  In light of the aforesaid, despite the plaintiff has actually paid HK$29,708 to the garage[46], I find it reasonable to allow the repair costs at HK$25,837.20 only.

62.The motor survey fee of HK$800 is reasonable and it is allowed in full.

Loss of use of the vehicle

63.The plaintiff alleged that he had to use his wife’s private vehicle instead during the repair of his damaged car.  In the Revised Statement of Damages, he claimed HK$3,600 for additional gasoline costs for 4 months since the accident. 

64.However, the plaintiff admitted under cross-examination that his vehicle was left idle with the garage from April 2013 to 16 June 2013, during which period no repairs were performed.  He could offer no reasonable explanation for such idleness.  He also said in court that he could get back his car in June 2013. 

65.Apart from that, the plaintiff could not demonstrate how the extra gasoline costs were actually incurred.  As such, I accept Mr Chen’s submission and find that, firstly, the plaintiff’s alleged loss of use of vehicle was largely due to his own procrastination.  Secondly, he could not establish the extra gasoline costs whether as claimed or at all in any event.   Thus, no sum is allowed under this head.

66.Given the aforesaid, the special damages as allowed is in the total sum of HK$29,837.20 only (i.e. $100 + $100 + $3,000 + $25,837.20 + $800).

Summary

67.The summary of the plaintiff’s quantum as allowed is set out in the following table:-

Head of Damage	Amount (HK$)
PSLA	120,000
Pre-trial loss of earnings	Nil
Loss of earning capacity	Nil
Special Damages	29,837.20
Total :	149,837.20

Interest

68.Apart from that, interest should also accrue on (1) the damages for PSLA in the sum of HK$120,000 at 2% from the date of service of writ to the date of judgment, and thereafter at judgment rate until payment and (2) the special damages totaling HK$29,837.20 at half of the judgment rate from the date of accident to the date of judgment, and thereafter at judgment rate until payment.

Disposition

69.In the premises, judgment is entered in favour of the plaintiff against the 1^st and 2^nd defendants in the sum of HK$149,837.20 together with interest as mentioned in para 68 above.

Costs

70.Costs should normally follow the event.  I make a costs order nisi that the 1^st and 2^nd defendants shall pay the plaintiff’s costs of this action (including all previously reserved costs, if any), with certificate for counsel, to be taxed if not agreed.  Such costs order nisi shall become absolute in the absence of any application within 14 days to vary the same.

71.The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

72.Lastly, it remains for me to thank counsel on both sides for their assistance rendered to the Court.

Mr Tony Ko, instructed by Tsang, Chan & Woo, for the plaintiff

Mr Vincent Chen, instructed by Cheung, Chan & Chung, for the 1^st and 2^nd defendants