Mak Ping v. Choi Po Chun

HCA007085/1988

1988, No.HCA7085

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Master Cannon in Court

Date of hearing: 1 March 1995

Date of delivery: 14 June 1995

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ASSESSMENT OF DAMAGES

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1. On 18th October, 1986, at about 4.20 am, the plaintiff was driving his taxi along Kwai Chung Road towards the New Territories when a goods vehicle travelling in the opposite direction crossed the central divider and collided with his taxi. The plaintiff was aged 42 at the time of the accident.

2. On admission to the Princess Margaret Hospital, the plaintiff was diagnosed as suffering from a 2 cm superficial laceration over his right forehead, a 0.5 cm superficial laceration over his right face, his right wrist was swollen and deformed, he had a 1 cm laceration over his right thigh, his right thigh was swollen and deformed, he had a fracture of the left 7th and 8th ribs, a fracture of the distal radius, and a segmental fracture of his right femur.

3. His treatment consisted of suturing of the superficial lacerations, and on 23 October, 1986, an open reduction with plating of the left radius was carried out, with open interlocking K-nail fixation of the right femur also being carried out. On 10 November, 1986, he was transferred to Caritas Medical Centre. He was discharged on 12 January, 1987. He attended out-patient physiotherapy at Princess Margaret Hospital. On 24 November, 1987, he was admitted to Princess Margaret Hospital for the removal of the implants, and was discharged on 29 November, 1987.

4. Judgment was entered on 2 July, 1992, with damages to be assessed with costs save in so far as they relate to medical evidence.

5. The plaintiff filed hearsay notices on 13 July 1991 and 18 May 1994. The defendant filed hearsay notices on 1 May 1992, 8 February 1995, and l6 February 1995. Counter notices were filed by the defendant on 20 July 1991 and 19 May 1994 and by the plaintiff on 20 February 1995.

6. At the hearing of the assessment of damages, the plaintiff called eight witnesses. The defence called no evidence.

7. There are two main issues in this assessment, the first being the claim by the plaintiff for damages for sexual dysfunction as a result of the accident and second the claim by the plaintiff that he could not work a full twelve hour shift or a thirty day month as he did before the accident.

8. Dr. O'Donovan gave evidence for the plaintiff, and his report dated 12 March, 1993, was admitted into evidence. It was agreed that Dr. Philip MAO's report, dated 13 February, 1995, at page 183-186 of the defendant's bundle, was admissible without calling him to give evidence.

9. Dr. O'Donovan was referred to the following extract from Dr. MAO's report -

"I would disagree with Dr. O'Donovan's report of l2 March, l993, regarding his left wrist which has a grip of 80 lbs which is much stronger than the average person. I would agree with his loss of function of 5% in the movements of his left wrist. You will note that I assessed Mr. MAK as having a 2% impairment of the whole person which is similar to Dr. O'Donovan's, but I would give him a higher loss of earning capacity finding."

10. Dr. O'Donovan said that he did not use the poundage grip test, because he is of the view that it is purely subjective. Dr. O'Donovan commented that Dr. MAO agreed with an assessment of 5% loss of function of the left wrist.

11. In cross examination, Dr. O'Donovan said that Dr. MAO had taken into consideration other medical specialist reports, including the psychiatric report of Dr. Bernard LAU, dated 16 January, 1990, in which Dr. LAU had recommended additional damages of about 5% of loss of the whole person for the depressive reaction still suffered by the plaintiff. Even taking that into account, Dr. MAO appears to have said that the plaintiff had suffered only a 2% loss of impairment of the whole person.

12. Dr. O'Donovan had not seen the plaintiff since the date of his report in March 1993, and he agreed that it was possible that improvements had occurred since that time.

13. He did not find anything that incapacitated the plaintiff as far as driving a taxi was concerned. The plaintiff had been driving a taxi for 8 hours 4 days per week. Eight hours was a significant stretch, and the plaintiff felt able do to that.

14. Dr. O'Donovan said assessing loss of earning capacity was very subjective, and it was simplistic to think in terms of income only. In assessing physical incapacity at the time of the examination, the doctor had to relate his knowledge of what happened to the patient to whether or not it was within his own experience of taxi drivers whether the plaintiff is able to do a particular job, and whether the injury produced limitations. There is also the problem of assessing the element of exaggeration present in some compensation cases. Pain is subjective, and the doctor has to assess whether the patient presents in an accurate way.

15. With regard to future improvement, Dr. O'Donovan said in his experience in cases coming before the courts, that before the hearing, the patient is concentrated on his incapacity and pain, but after the hearing he gets on with his life, goes back to work and finds distraction in other problems. In this particular case, he did not expect that the plaintiff would improve further. Arthritis may set in the wrist joint, but it would be hard to assess whether that was related to the accident or the normal ageing process.

16. Dr. YU Sing-joe gave evidence. He is a signatory to the report of the Medical Board, dated 2 August, 1989, which was admitted into evidence.

17. In cross examination, Dr. YU said that because of his physical impairment, the plaintiff may need to exert extra effort to keep up with the level of income he received prior to the accident. He was referred to the three disabilities listed in the Report, (a) stiffness of the left wrist, (b) stiffness of the right knee, and (c) scar of the right thigh. He said that the wrist is involved when steering the vehicle and the right knee is involved in the acceleration and braking of the vehicle. It is possible that improvement could have taken place over the intervening period since the Report was prepared in 1989.

18. When it was put to Dr. YU that the assessment took place prematurely, and that with time the stiffness could disappear, Dr. YU said that stiffness can be temporary or permanent.

19. Dr. YU had not seen the reports of the other doctors.

20. In re-examination, Dr. YU said that at the time of the assessment, he thought the stiffness was likely to be permanent. He further noted that the plaintiff had made a reasonably good recovery, he was able to walk, with some residual problems in his right knee, right thigh, and left wrist, which were relatively minor, assessed at 4% of the whole person in 1989.

21. Dr. Bernard LAU gave evidence, and his report, dated l6 January, 1990, was admitted into evidence. He first saw the patient in January 1990, more than three years after the accident.

22. The plaintiff had been referred to him for examination in relation to the sexual dysfunction complained of by the plaintiff. The sexual dysfunction suffered by the plaintiff was probably caused by the emotional illness related to the accident. To a large extent, he based his opinion on what the plaintiff and his wife had told him. The plaintiff and his wife had cooperated, but with some embarrassment.

23. The report notes that the couple attempted intercourse one month following discharge from the hospital, and Dr. LAU said that a patient could be psychologically ready for intercourse at that time, but it is possible that he may not be ready. If the patient is not ready, and his spouse initiates the intercourse, the probability of success is less. It is not a matter of time, but of psychological readiness. He agreed that not having had sexual intercourse for some three months might result in failure on the first occasion, which would produce a sense of frustration, which could grow.

24. When asked whether the plaintiff's wife's demands had led to the sexual dysfunction, he said that in his opinion the plaintiff was already suffering from an emotional disturbance at the time of the first attempt at intercourse. Generally, if the initiating partner becomes too demanding, there may be a loss of interest in sex. He had not examined the plaintiff's wife, and he did not know if she had any problems.

25. In his first report it is stated that the plaintiff's wife took the initiative in attempting intercourse and that she repeatedly asked the plaintiff to seek medical help, and he confirmed that this related to the initial stages of the plaintiff's problem.

26. In his next report, dated 12 May, 1991, he sets out the psychiatric treatment of benefit in mental depression. This report had been prepared in the absence of the plaintiff. He had informed the lawyer of the treatment that could help the plaintiff. He had not advised the plaintiff on treatment because he was not his therapist, but had been engaged simply to assess the plaintiff.

27. He next saw the plaintiff on 28 February, l993. On that occasion, Dr. LAU noted the physical symptoms complained of, and that the plaintiff reported reduced sexual arousability, with difficulty in penetration and that frequency of intercourse had dropped to about once a month since the accident. When it was put to him that these could be caused by many other factors, Dr. LAU said that in this case the symptoms were not transient attacks arising out of a self-limiting ailment, but of some persistence.

28. Dr. LAU said that although the psychological problems did not affect the plaintiff's ability to drive, they did affect his endurance. The plaintiff complained that he could not sit comfortably for long periods with the result that he could only work a shift now and then. In his opinion, it was the emotional disturbance in general which accounted for the plaintiff's inability to drive for long periods.

29. Dr. LAU agreed that he is a psychiatrist and not an orthopaedic specialist. He is an M.B.B.S. (H.K.), with general knowledge of surgical medicine, and he handles general patients. He first examined the plaintiff three years after the accident.

30. While he cannot give an expert opinion, he does have an opinion on the direct effect of the physical injuries suffered by the plaintiff. It was put to Dr. LAU that it was his brief to relate the psychiatric problems to the physical factors present. If a complaint had been made of sexual dysfunction without mention of the car accident, his conclusion could be different. Dr. LAU said that he would consider all the usual causes, and then focus on one possible cause. Here the alleged cause was a traffic accident. It was his duty to see if the sexual dysfunction was related to the traffic accident directly or indirectly, and to consider that possibility.

31. In re-examination, Dr. LAU agreed that in his report he recited the fact that prior to the traffic accident, the couple had a normal sex life. When the plaintiff came to him, he looked for a possible cause of the dysfunction, and obtained a complete history from the plaintiff. As a result of the interview and examination of the plaintiff, he could not find any other cause apart from the accident for the dysfunction.

32. Three taxi drivers then gave evidence.

33. Mr. NG Wai-sum was the first, and he said that in June 1988, the plaintiff hired DC 3940 for four shifts each month at a charge of $140.00 each night.

34. He works the night shift. The change-over takes place after 4 p.m., and in his case he drives from 5 p.m. to 1 a.m. some eight hours. The length of shift varies, depending on the individual driver.

35. For his eight hour shift, he averages $600.00 in fares, with fuel costs of $l00.00 per shift. The car hire charge in 1988 was $140.00 per shift, but it is now $250.00. He is left with $250.00 per shift. $600 per shift is on the low side, but he does not work very hard. He works 26 days per month, resulting in 6,500 per month.

36. His mother owns the taxi. The document dated 21 May, l989, at page 33 of the bundle, was written by him at the plaintiff's request, and he wrote it together with the plaintiff, but he is satisfied that everything he wrote in the document is correct.

37. He has known the plaintiff for over ten years. They are neighbours, not good friends. They know each other because they are in the same trade. If he could lend the plaintiff a hand, he would. The plaintiff hired other taxis in 1988 and 1989.

38. I am satisfied that Mr. NG is a witness of truth, and that the document at page 33 of the bundle is true and correct.

39. Mr. LEE Chi-ho is the second taxi-driver who gave evidence. He is a night shift driver, and operates from 4.30 p.m. to 2.30 a.m., being ten hours, with breaks for dinner and night snacks.

40. In January, 1995, his average receipts were $750.00 per shift. Once he achieves takings of $750.00, he stops driving. If he does not take that amount by 2.30 am., he might work to 3 or 4 am. On Chinese New Year eve, he earned $1,200.00.

41. In January, 1995, on four Saturday nights, he earned around $900.00. The hire of the taxi was $280.00 per shift and fuel cost $130.00-140.00 a shift for Saturdays, and $110.00-120.00 for the other nights. He works 26 shifts per month, so that his monthly income is about $9,000.00 to $9,100.00 per month.

42. In cross examination, he said that there were few nights when he could not earn $750.00 per shift. The $750.00 does not include tips, and he did not often tips. He did not think it was exceptional for a taxi driver to earn $750.00 for each shift, and many night shift drivers earn much more than that. He did not think that any night shift taxi driver earned less that that. Some night shift taxi drivers work 12 hour shifts. He has worked in the trade for 20 odd years, and he knows where to pick up fares. Less experienced drivers are usually hard working and work 10 odd hours. The night shift is easier because there are fewer restricted areas during night hours. After a spell of 3-4 hours, he stops for his meal, and it is not problem.

43. I am satisfied that Mr. LEE is a witness of truth.

44. Mr. LAI Sin-yuk was the third taxi driver. He owns his own taxi. He signed the document at page 32 of the bundle and everything in that document is correct. The plaintiff was a relief driver for him from June 1988 to 1991.

45. He works the day shift, from 8.30 a.m. to 4 p.m. for 26 days per month. He leases the taxi out for the night shift. He charges a lease fee of $240.00 for the day shift and $260.00 for the night shift. It is higher for the night shift because it is a longer shift and usually better than the day shift. He has always worked the day shift, and continues to do so because of his age. His average day shift turnover is $500.00. The highest figure he earned during January and February, 1995, was $1,000.00 and the lowest was $350.00. He cannot recall receiving anywhere near $1,000.00 in 1994. During January and February, 1995, there were 4-5 days when his takings exceeded $600 odd and 5-6 days when his takings fell below $400.00 odd. He spends $70.00 per shift on fuel. If he leased the taxi out for the day shift he would charge $240.00, so the income would be $5,000.00 odd per month.

46. In cross examination, he said that he does not pay tax. His taxi is under hire purchase and he does not earn any profit on it. He does not keep a record of his earnings and the figures he mentions are rough recollections only.

47. The $70.00 he spends for fuel would produce a mileage of 110 kilometres. As to the meter charges, the first two kilometres flag fall is $l11.50, increased to $13.00 in the middle of January 1995. Then the charge was $1.00 per one-fifth kilometre before the increase. He averages about twenty hires on each shift. The average for each hire is $25.00.

48. He said night shift drivers work longer hours and therefore have a better chance to get fares. By its nature the taxi business varied from shift to shift.

49. The document at page 31 was signed by him. At first, he did not recall who wrote the document or who asked him to sign it, but then said that he thought it was the plaintiff who asked him to sign it. Although he does not keep records of turnover, he does keep records relating to drivers for one year because of the possibility of a driver committing a traffic offence. The five shifts per month meant one shift per week. He did not know whether the plaintiff was a relieving driver in May or June 1988.

50. The certificate is for the period between June l988 and the date of signature, 20 May 1989. The figure of $130.00 per shift was accurate, but he cannot recall when the hire charge changed. When the plaintiff started, it was $130.00 per shift.

51. The witness lives in Kwai Chung Estate East and the plaintiff in Kwai Chung Estate West. He has known the plaintiff since the beginning of 1986. They are fellow tradesmen, they sometimes play mahjong together, they are ordinary friends but not good friends.

52. The plaintiff did relieve him in accordance with the certificate, and he felt obliged to sign it. The contents of the certificate are correct.

53. He saw the plaintiff drive taxis for one or two other taxi owners.

54. I am satisfied that Mr. LAI is a witness of truth.

55. The plaintiff gave evidence. He says that just before the accident, he worked the night shift driving a taxi from 5 p.m to 5 a.m. He worked a twelve hour shift because he had children at school and his wife did not work. His average total receipts for each shift was about $500.00, and he paid a hire charge of $135.00 with fuel costs of about $115.00. So his net income was $250.00 per shift. If he could not get a relief worker, he worked 30 days per month. He earned approximately $7,000.00 per month.

56. At page 30 of the bundle is the declaration of the plaintiff dated 22 January 1987, which he signed three months after the accident. In that document it is stated that his daily income is about $220.00 per day. He says that the difference between the $220.00 and the $250.00 in his oral evidence is due to the fact that he only filled in an approximate figure in the declaration.

57. His sick leave expired in January 1988. He attempted to drive in January 1988, but after one or two hours, his leg felt very uncomfortable and very tired, and he had to bend the leg. He thought he should rest for a further period of time. He wanted to drive again, but he felt numbness when walking or standing, and he felt it was dangerous to drive. He tried to drive again in June 1988.

He was referred to the certificates produced by the witnesses, and he agreed that he paid an average of $140.00 for the night shift hire of the vehicle. He worked from 7 p.m. to about 1 a.m., about six hours, about half his pre-accident working hours.

58. He earned about $330.00 per shift, and petrol cost about $50.00 per shift, leaving a net of $l40.00 per shift. His counsel referred the plaintiff to his pleaded case, which claimed that when he returned to work he was earning $2,800.00 per month, which on a net of $140.00 per shift would mean that he worked 20 days per month when he first resumed work.

59. The plaintiff responded by saying that when he resumed work in June 1988, he earned about $350.00 per shift, less $140.00 vehicle hire and $50.00 for fuel, leaving a net of $160.00 per shift. His counsel then put to him that on his pleaded case of $2,800.00 income per month, this would mean he worked 17-18 days per month at that time, and the plaintiff agreed.

60. He would have liked to work more days but was not able to do so because of the pain and numbness in his leg. He discussed this with his doctor, who told him that there was no resolution of this problem.

61. He was referred to page 40 of the bundle, which is the Labour Department registration card, dated 1 February, 1990. He went to the Labour Department to see if they could find him a job driving light vehicles, perhaps with the government, which might be more suitable in his situation. The Labour Department did not find him a job, and he continued to drive the taxi until now.

62. He now works the same hours, from 7 p.m. to 1 a.m., earning about $4,.500.00 to $4,600.00 per month. He earns about $500.00 per shift, with a hire charge of $250.00 and fuel costs of $115.00, leaving him $135.00 per shift.

63. When it was put to him by his counsel that those figures would mean that he is working 33 days per month, and that did not sound right, the plaintiff corrected himself, saying that in relation to fuel costs, his average mileage per shift was 120 kilometres and his fuel cost is $75.00 per shift and not $115.00. The amended figures would result in a net figure of $175.00 per day and at 26 days per month, his monthly income would be $4,550.00. He works for 26 days per month, but works the shorter period of six hours, so that he earns less.

64. He had always been a night shift driver, although on a few occasions he did work the day shift.

65. Day-time fares consisted of office workers, women on shopping trips and schoolchildren. Night-time fares are going out for entertainment and are more likely to travel longer journeys, from the New Territories to Kowloon for instance, and they are not so concerned about the cost of the fare. Long journeys are more profitable to the driver. He did not know how much more a night driver earned compared to a day driver.

66. He was referred to page 7 of the pleadings, and he confirmed the figure for crutches, although there is no receipt for this item. An amendment was made by the addition of $26.00 for medical expenses, for which he had receipts. He confirmed the figure of $2,050.00 for damage to clothing, and he said that this figure included a Tissot watch as well the clothing he wore at the time of the accident. The watch cost about $1,800.00 and the clothing about $300.00.

67. He was referred to the items of tonic good, set out for three periods, the first being immediately after the accident. He took the Chinese medicines because he felt dizzy and suffered headaches. He did not consult a doctor before taking the Chinese medicine, and his wife prepared the medicine. At that time, he took the medicine twice a week, and it cost $180.00 each time. For the second period listed, he took the medicine once per week. During that time, he felt dizzy and his heart beat fast. For the third period, he took the medicine twice per week. This period related to his admission for the removal of the implants.

68. As for the travelling expenses, he lives at Kwai Chung and he travelled for outpatient physiotherapy treatment at the South Kwai Chung clinic for ten months, being 120 times, and it cost him $10.00 for the round trip each time.

69. In cross examination, he said that at present his fuel costs were $75.00 per shift, that it cost 60 cents per kilometre, and he covered about 160 kilometres each night. The plaintiff then said that he was not sure which year he was being asked about. He then agreed that now he drove 26 days per month, that he makes $500.00, with hire charges of $250.00 and fuel of $75.00, and that he covered 120 kilometres a night.

70. He agreed that calculating 60 cents x $75.00 results in l20-l30 kilometres. Later in the cross examination, he denied that he covered 150-160 kilometres per shift, and said that he had made a mistake in chief when he said that his fuel charge each shift was $115.00. He said that he covers 120 kilometres and that his fuel costs are $70.00-75.00. Later it was put to him that the figure of $115.00 he originally mentioned is the correct figure, he disagreed.

71. He had no difficulty finding a place to stop and rest and have his meal during the night shift. He usually stops every two hours for about 15 minutes, and usually takes two stops per night. He can only drive a 6 hour shift, while some drivers can drive a 10-12 hour shift. After two hours, his legs feel very tired with numbness at the operation site. Although he only works 6 hours on the shift, he has to pay the full fee for hire of the taxi.

72. When it was put to him that after six hours driving, and after taking a rest, he could continue with his shift, he said that his health is not good. After the accident he was not in a good condition, spiritually as well, he was not in a "good spirit" to drive. The major problem is the pain in his leg. After rest, the numbness improves, but he still feels tired if he continues to drive after six hours, and it would be a threat to the safety of his passengers and himself if he continued to drive. It was not just a question of choice that he drove for only six hours per shift. He could not drive a 10 or 12 hour shift. The doctor had told him if he felt numbness in the leg, he should take rest, but had not advised him whether he could or could not continue to drive.

73. While I am aware that for a layman, giving evidence in court can be a traumatic experience, and that a witness can easily become confused when giving evidence of figures for different periods of time - in this case, before the accident, when he recommenced work in June l988 and now - I would have expected the plaintiff to be more consistent than he was in this regard. I also bear in mind that consumption of petrol will vary from shift to shift, but again I would have expected the plaintiff to give at the very least a consistent average figure. I am also satisfied that the plaintiff tended to exaggerate his evidence in certain areas.

74. The plaintiff's wife gave evidence relating to the Chinese medicine. She also gave evidence about her travelling expenses incurred for visiting the plaintiff in hospital. She travelled by taxi to visit him because there was no PLB to Princess Margaret Hospital. She visited her husband twice a day, and the round trip cost $40.00. When the plaintiff was transferred to Caritas Medical Centre, she travelled by bus and then by taxi, and the round trip cost $34.00 twice per day. When he was re-admitted to remove the implants, she again visited him twice a day, and the round trip cost $40.00. I accept the plaintiff's wife's evidence as credible.

75. The defendant called no evidence.

76. In his address, counsel for the plaintiff submitted the plaintiff's quantification of the damages.

77. As to special damages, he noted that although a figure of $16,560 .had been spent, the claim for tonic food had been reduced by 50% to $8,280.00.

78. In this regard, he referred to the cases on the issue of tonic food. In YU Ki v. CHIN Kit-lam and another, decided in May 1981, it was said to be proper, even in the absence of the necessary evidence required as to the advisability or suitability of the food, "to allow a nominal sum where relatives have spent this on food which the injured person or relative reasonably believed to be helpful to the patient's recovery." In that case, $10.00 per day for additional food during the period the plaintiff was in hospital only, was allowed, being a sum of $350.00. In the case now before me the hospital stay amounted to 91 days, and fourteen years have elapsed since the judgement in YU Ki v. CHIN Kit-lam.

79. In LAI Yee-king v. Top Crown Electroplating Factory Ltd., decided in October, 1987, a claim for $3,000.00 for nourishing foods without supporting evidence was thought to be too high, and $2,000.00 was awarded to nourishing foods.

80. In LAW hing v. LEUNG Tink-kan, a decision in December, l988, an award of $5,400.00 was made for nourishing food and drink. In that case the plaintiff was hospitalised for l8 days, so that the figure for nourishing food amounted to $300.00 per day.

81. In Kings Light Industrial Ltd. v. LO Wai-keung, a Court of Appeal judgment of 2l December, 1992, there was a claim for $28,060.00 for nourishing foods. The Court of Appeal concluded that there was insufficient evidence before the trial judge to enable him to find that the claim had been for the purposes of medical treatment of the respondent, and the award was reduced to one of $5,000.00.

82. As to loss of future earnings, Counsel for the plaintiff suggested that a multiplier of 8 be used for that calculation. The defendant noted that the plaintiff is now aged 50, and that 8 was on the high side, and he suggested a multiplier of 6 or 7 as being appropriate.

83. Counsel for the plaintiff submitted that on the pleaded case the plaintiff was earning a monthly income of $7,000.00 at the time of the accident, and that the loss of earnings from the 18 October, 1986, the date of the accident, to l5 June, 1988, when the plaintiff commenced work, being a period of 22 months, would amount to $154,000.00

84. For the period from l5 June, l988, to the assessment of damages should be calculated on the average monthly earnings of $3,650.00, and that the interval was 80.46 months, resulting in a figure of $293,679.00.

85. As for PSLA, a figure of $l50,000.00 was suggested, including the sexual dysfunction, based on the evidence of the medical reports of Dr. Bernard LAU.

86. On the issue of PSLA, Counsel for the defence referred to the case of IP LAM Yuk-lin v. YEUNG and another, decided in October 1991, where a 64 year old woman was awarded $70,000.00 for PSLA for fractures of the left femur and the left radius. Taking into account the time lapse, an increase to $100,000.00 would be appropriate at this time in this case.

87. Counsel for the defence submitted that the cost of the crutch was not recoverable, since there was no receipt. He made no submissions on the issue of the damaged clothing, the damaged watch or the travelling expenses.

88. On the question of nourishing food, he submitted that a nominal sum should be awarded, and suggested $20.00 per day as being appropriate to 1988. He referred to CHAN Yuk-lee v. CHAN Chiu-ying and others, an assessment of damages dated 9 May, 1988, where nourishing food was assessed at $1,200.00, where the plaintiff had spent 75 days in hospital, which produces a figure of $16.00 per day.

89. On the issue of sexual dysfunction, Counsel for the defence submitted that no award should be made on this claim. Neither the plaintiff nor his wife had given evidence on this head of damage. Dr. LAU's report of 1990 was unreliable. Dr. LAU had first seen the plaintiff three years after the accident as the result of a referral from the plaintiff's solicitor, with the specific purpose of giving an opinion on whether the accident was the cause of the sexual dysfunction. Dr. LAU knew nothing of the accident itself, and he based his opinion on what the plaintiff and his wife told him. To conclude on that basis that the accident was the cause of the sexual dysfunction was dubious.

90. The report was not agreed, with Dr. LAU giving evidence and producing his report in court. The report was based on a set of presumed facts. There was no direct evidence from the plaintiff or his wife as to the facts.

91. Even if the plaintiff suffered sexual dysfunction, there is no evidence that he followed the suggested course of treatment and is now cured, or that he has not followed the course of treatment, or as to whether he continues to suffer from sexual dysfunction or not. If he has refused treatment, as a matter of law he cannot claim damages.

92. Defence counsel did not challenge the expertise of Dr. LAU, but Dr. LAU's brief was to connect the accident to the sexual dysfunction, and he had overlooked the part played by the wife in the causation. The sexual dysfunction element in the award for PSLA cannot stand.

93. As for the loss of earnings, defence counsel submitted that the medical experts were in agreement that the plaintiff had made an excellent recovery, with no significant diminution of movement. The plaintiff had recovered sufficiently to carry on his job as a taxi driver and there was no future loss of earnings. The pre-trial loss of earnings should not be allowed for the whole period claimed, but possibly for a period of not more than about five months after release from hospital on the second occasion. The plaintiff's claim should be drastically reduced.

94. As for the calculations provided to the court, Counsel submitted that these were suspect.

95. The figure of $7,000.00 at line 17, for earnings from pre-accident employment, did not coincide with the figure in the plaintiff's statutory declaration dated 22 January 1987 at page 30 of the bundle, which sets out a daily income of about $220.00. $220.00 x 26 days equals only $5,720.00, a difference of $1,280.00 per month. He submitted that the assessment of pre-trial loss should be based on the figure of $5,720.00 per month.

96. As for present wages, government statistics do not provide an average for taxi drivers, but only for drivers. The average wages for March l994 is found at page 178 of the defendant's bundle, and is $7,823.00, which includes all benefits.

97. Counsel for the plaintiff submitted that the statistics for a general driver were irrelevant. A taxi driver is usually self employed, and the job demands greater effort and carries heavier responsibilities than an ordinary driver. The job should be entitled to a higher remuneration. He submitted that the figure of $8,840.00 in the plaintiff's quantification should be the figure used.

98. Counsel for the defendant submitted that victims who suffer fractures of the bones usually suffer some residual numbness and pain. The plaintiff agreed that after a period of about fifteen minutes rest, he felt all right. There is no reason why he could not work eight or ten hours. The decision to work only six hours was a personal choice, and there is no medical evidence to support that decision. he plaintiff is now aged 50, and he said in evidence that part of his problem with work was that he lacked spirit, which is a matter of his mood rather than being related to his accident.

99. With regard to the sexual dysfunction, counsel for the defendant referred to PUN Kai-on v. FUNG Kam-wah and others, an assessment of damages made in June 1991, involving impotence caused by injury to the penis, with residual problems of numbness, pain and prickling in the penis. In that case an assessment of 5% of the loss of the whole person was made for psychological impairment. Dr. LAU's assessment is the same, but this is not a case of impotence, and the claim is dubious.

100. He further submitted that it appeared strange to pay for the use of the taxi for twelve hours and yet only use it for six hours. Counsel submitted that the plaintiff's evidence on his receipts was not to be believed. No documentary evidence had been produced to authenticate his evidence, and in particular no tax return had been produced. The result is that it is impossible to check his earnings per shift.

101. Counsel for the defence referred to the fact that initially the plaintiff said that his fuel charges were $115.00. The plaintiff then changed that evidence, and said his fuel charges were $75.00, to marry up with the 120 kilometres average mileage per shift he claimed to drive. I note that on this point, the plaintiff mentioned the figure of $115.00 on two occasions in his evidence in chief, first when he said that before the accident his fuel costs were $115.00 per shift, and in this regard he said that he worked a 12 hour shift. Later, he said in evidence that he spent $115.00 per shift on his present 6 hour shift, and he then corrected that, and said he spent $75.00 per shift. I accept that the plaintiff may have become confused as to which $115.00 he was cross examined on, but there was no reason for any confusion in his examination in chief, which is where the initial confusion arose.

102. Counsel for the defence noted that LEE Chi-ho in his evidence said that his fuel charges for the night shift were $110.00-120.00, which coincides with what the plaintiff said originally. In this regard, I note that Mr. LEE worked a ten hour night shift.

103. As to my findings, I do not accept that the plaintiff worked a 12 hour shift prior to the accident. I am satisfied that there is an element of exaggeration in this evidence. I accept that he worked a l0 hour shift prior to the accident. I reject the oral evidence of the plaintiff when he says that he earned $250.00 per shift prior to the accident. I am satisfied that the plaintiff earned $220.00 per shift prior to the accident as stated in his declaration dated 22 January 1987. I accept that he worked 30 days per month, so that his monthly income would be $6,600.00 prior to the accident.

104. I accept that the plaintiff could not resume work until l6 June, 1988.

105. On these figures, the plaintiff's loss of earnings from 18/l0/86, the date of the accident to l5/6/88, when he resumed work, would be $132,000.00 ($6,600.00 x 20 months). However, I am of the view that it is more appropriate to calculate the loss for the whole period from the date of the accident to the date of trial, including this period, on the basis of an average of earnings of $7,450.00, as calculated at line 19 below.

106. I accept that the multiplier for pre-trial loss is 100.40 months, and that the interval from recommencing work on 15/6/88 to the trial is 80.46 months. I am satisfied that the multiplier for future loss should be 7 years, that is, 84 months.

107. With regard to the post trial earnings, the plaintiff bases his claim on a figure of $8,840.00. There is the evidence that the March 1994 earnings for a general driver is $7,823.00. I accept the contention that there should be an additional figure allowed for the extra responsibility borne by a self employed taxi driver. I am satisfied that the post trial earnings figure should be $8,300.00 per month.

108. In reaching this figure, I have taken into account inflation since March, 1994. I have also borne in mind the evidence of Mr. NG Wai-sum and Mr. LEE Chi-ho, the two night-shift drivers. Mr. NG said that he now makes $6,500.00 per month for an eight hour night shift for a 26 day month, although he does not work hard. Mr. LEE Chi-ho said that he earns about $9,000.00 for a 10 hour night shift for a 26 shift month. He has been a taxi driver for 20 odd years. The average for these two operators is $7,750.00.

109. These figures would produce a monthly average income of $7,450.00 ($6,600.00 + $8,300.00 ÷ 2 = $7,450.00).

110. As to post accident employment, I accept that when he first recommenced work he could work for only six hours a shift and for only 20 days per month. I accept that he earned $160.00 per shift. This would produce a monthly income of $3,200.00 per month for his initial earnings.

111. As to his monthly earnings today, the plaintiff says that he earns $4,500 per month. At first he said that he earned $135.00 net per shift, then he said that he earned $175.00 net per shift. The plaintiff's evidence in this regard is inconsistent and there is no documentary proof to support his claims. I am satisfied that he could earn $175.00 per six hour shift. I accept that the plaintiff will find it more stressful due to his injuries to return to a l0 hour shift for 30 days per month, but I do not accept that he can only work a 6 hour shift. I am satisfied that he can now work an eight hour shift for 26 days per month.

112. The earnings of $175.00 for a six hour shift produces an hourly rate of $29.16, resulting in an income of $233.33 per eight hour shift ($175.00 ÷ 6 x 8 = $233.33). For 26 days per month an income of $6,067.00 per month is produced. According to my calculations, Mr. NG Wai-sum earned $3l.25 per hour ($250.00 per eight hour shift), and Mr. LEE Chi-ho earned $35.00 per hour ($350.00 per ten hour shift). There is some difference among the taxi drivers in the hourly rate of earnings, but this is to be expected, and I am satisfied that the plaintiff's figure is acceptable in this regard.

113. Based on my findings that the plaintiff's initial earnings per month were $3,200.00 and that his monthly earnings today are $6,067.00, an average monthly earnings figure of $4,633.50 emerges.

114. On my findings, and following the form of the plaintiff's quantification, loss of earnings would be as follows -

115. There is no claim for loss of earning capacity.

116. As for the amount to be awarded for pain, suffering, and loss of amenities, I do not accept that the plaintiff has a sustainable claim for sexual dysfunction on the evidence before me, and I decline to make an award for that claim. Neither the plaintiff nor his wife gave evidence in relation to this head of claim. The claim rests on the medical report of Dr. LAU, which was obtained some three years after the accident as the result of a specific reference to the doctor for his opinion on whether the accident was the cause of the sexual dysfunction. That, in my opinion, renders the report of little evidential value. There is no evidence on whether the course of treatment suggested by Dr. LAU has been taken up by the plaintiff, or what the present position is with regard to this problem. The medical evidence is restricted to the doctor's examination of the plaintiff, with no examination of the plaintiff's wife, or of the possibility that she played some part in her husband's condition.

117. As to the amount for pain, suffering and loss of amenities exclusive of the claim for sexual dysfunction, I make an award of $l25,000.00. In reaching this figure, I take into account the award of $100,000.00 made in the case of IP LAM Yuk-lin v. YEUNG and another, and an inflation figure of about 7-8% for the past 3-l/2 years.

118. The claim for an award for tonic food was reduced to $8,280.00. The plaintiff was admitted to hospital on l8th October, 1986, and discharged on 12 January, 1987, being 86 days. He was re-admitted to hospital for the removal of implants on 24 November, 1987, and was discharged on 29 November, 1987, being 5 days. The 1981 decision in YU Ki v. CHIN Kit-lam and another provides authority for allowing a nominal sum spent by family members and reasonably believed to be helpful to the patient's recovery. I am satisfied that in this case I should make an award of $4,000.00 under this head of damages.

119. I accept the other claims made for special damages, that is, nursing and medical expenses of $26.00, damaged clothing and watch, $2,050.00, and travelling expenses of $4,920.00. I make no award for the crutch.

120. To summarize,

121. I make an award of interest on general damages from the date of writ to the date of judgment at 2%, and on special damages from the date of the accident to the date of judgment at 5%.

122. I make an order that costs be to the plaintiff, on the usual l4 days costs order nisi.

Representation:

Mr. T. Lai instructed by Messrs. Lie Lai & Chan

Mr. P. Lo instructeed by Messrs. K.F. Chan & Co.