Lam Yan Foo v. Pun Wai Hong and Another

HCPI000005/1997

HCPI 5/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 5 OF 1997

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Coram: Deputy Judge McMahon in Court

Date of Hearing: 9 - 12, 15, 22 - 24 February 1999

Date of handing down Judgment: 22 March 1999

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J U D G M E N T

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1. These proceedings arise out of a road accident which occurred on the 18 September 1991 at about 12:15 a.m. at the junction of Sheung Yee Road and Wang Chiu Road, Kowloon, as the Plaintiff, the driver of a Kowloon Motor Bus, attempted to turn east into Sheung Yee Road from his northerly direction of travel along Wang Chiu Road.

2. At that time, the Plaintiff's bus collided with the 2nd Defendant's motor lorry driven by the 1st Defendant which was proceeding south across the intersection in the opposite direction along Wang Chiu Road.

3. It is not in issue that as a result of that collision, the Plaintiff suffered serious intestinal injuries as well as other more minor injuries to the region of his right shoulder and neck.

4. The Plaintiff, by his writ, asserts that the collision and the injuries he suffered were caused by the 1st Defendants negligent driving of the motor lorry which came into collision with the Plaintiff's bus.

5. The Defendants deny that the collision and injuries the Plaintiff claims he sustained were caused by the 1st Defendant's negligence and further aver that the collision and injuries sustained by the Plaintiff were caused by, or contributed to by, the Plaintiff's own negligence.

6. It is not in issue that the Defendants are jointly and separately liable in the event the Plaintiff establishes his claim.

Liability

The Plaintiff's case

7. On the day of the accident, the Plaintiff, a man then aged 56, had been employed by the Kowloon Motor Bus Company ("KMB") as a bus driver since 1967.

8. For the major part of that period, he said, he had driven the same route over the same hours. At the conclusion of his shift he had, for about 4 years prior to the 18 September 1991, driven his empty bus north in Wang Chiu Road and turned right into Sheung Yee Road so as to proceed to the KMB terminal at Kowloon Bay.

9. By his statement of claim at paragraph 3, the Plaintiff asserts he was travelling along Wang Chiu Road in a westerly direction. Nothing arises out of this however as it is common ground that at the point where Wang Chiu Road intersects with Sheung Yee Road, Wang Chiu Road, which generally does travel in a westerly direction, turns to the north.

10. The Plaintiff said in his evidence that on the night of the collision, he had approached the junction of Wang Chiu Road and Sheung Yee Road ("the junction") from the flyover at the southern approaches of Wang Chiu Road.

11. He said he saw the primary, or round, traffic lights facing him at the junction turning from amber to red as he arrived and that he drove into the marked right turn "pocket" beyond the pedestrian crossing at the intersection and stopped. He traced his vehicle's path in this regard onto a copy of a scale Transport Department plan of the intersection at section E78 of the agreed bundle which became Exhibit P2. He said when he stopped his bus in the pocket, he had gone about 4-5 feet beyond the marked end of the pocket. He illustrated this with a further drawing Exhibit P1.

12. He said after the primary intersection lights facing him had turned red and about 4-5 seconds after he stopped in the right turn pocket, the green arrow governing his right turn into Sheung Yee Road came on and he commenced that right turn.

13. He said after he had travelled a short distance, some 2-3 feet, into the intersection in the course of his turn into Sheung Yee Road, he saw a dark shadow approach his bus along Wang Chiu Road travelling south and then a lorry collided with his bus.

14. This happened so quickly he was unable to apply his footbrake. He said the lorry had not had its headlights on at the time of collision.

15. So far as the issue of liability was concerned, no other witness was called in support of the Plaintiff's evidence.

The Defence case

16. In the defence case on liability, the 1st Defendant gave evidence. He was a professional driver aged 24 at the time of the accident. He said he had, at the relevant time, approached the junction along Wang Chiu Road travelling in a southerly direction. He had been driving his vehicle, a medium goods vehicle "about the size of a supermarket truck", at about 50 kph, which was the speed limit in that area. His assistant was a passenger in the vehicle at the time. He said as he approached the junction and was about 3 vehicle lengths from it, he observed the traffic light facing him was green and so, after slowing slightly, he proceeded onto the junction.

17. He said as he did so, he suddenly saw the Plaintiff's bus in front of him and braked but collided with it.

18. The 1st Defendant said he had been on duty since 9 a.m. and had been working for 15 hours at the time of collision and was returning to his company to go off work when the collision occurred.

19. He said he had not noticed the bus prior to seeing it immediately before the collision as it had come from the opposite lane and he normally did not pay much attention to traffic travelling in the opposite direction.

20. He said had only seen the green light governing his direction of travel when he was 3 vehicle lengths away and that he did not normally look far ahead when driving.

21. He said he was sure the light controlling his lane was green as he proceeded into the junction and that he had looked at it twice. He had not seen it change before the collision.

22. He saw the Plaintiff's bus before the collision only when it was 1-2 feet away and could not say if it had been stationary in the pocket prior to that or not.

23. That was the oral evidence in the defence case regarding liability. The assistant of the 1st Defendant, who was a passenger in the lorry at the time of the collision, was not called to give evidence.

24. It's apparent from the evidence of both the Plaintiff and the 1st Defendant that both claim to have had, at the time of collision, a green light in their favour.

25. The Plaintiff claims that he only commenced his right turn out of the right turn pocket after the green arrow governing that turn had illuminated.

26. The 1st Defendant claims that he proceeded onto the junction only after he had checked that the green light governing his lane permitted him to do so.

27. In other words, a fundamental factual issue revolved around the credibility and reliability of each of the Plaintiff and the 1st Defendant as to their evidence that they proceeded on their paths on or into the junction in accordance with their governing traffic lights. In this regard I observed their demeanour closely whilst they gave evidence and carefully considered that evidence.

28. They both appeared to me to be truthful witnesses. Neither exaggerated their evidence in any material way. Both witnesses were quite prepared to admit the faults in their behaviour at the time, e.g. the 1st Defendant admitted he and his associate had slapped and mistreated the Plaintiff after the collision not knowing he had intestinal injuries. The Plaintiff admitted he had travelled a few feet beyond the right turn pocket markings before stopping his bus.

29. Apart from their evidence, the only other evidence in the case as to the operation of traffic lights at the junction is the traffic light signal cycle diagram ("the signal diagram") for the junction at the relevant date prepared by the Traffic Engineering Division of the Transport Department which was admitted into evidence together with admitted facts dated 10th February 1999 which adopted and explained the bar code forming part of that diagram and which set out the sequence of operation of the traffic lights at the junction.

30. According to that signal diagram, the Plaintiff's evidence as to the sequence of lights as he came onto the junction simply cannot be right. This indeed was accepted during the course of the trial by his counsel Mr Li.

31. The Plaintiff said as he approached the junction the primary light facing him was amber preparatory to turning red.

32. He said he went through to the right turn pocket, which intrudes into the central area of the junction, because he knew the right turn green arrow would come on a few seconds after his primary traffic light had turned red.

33. But according to the cycle diagram, this could not have happened. If the Plaintiff went into the right turn pocket at about the time the primary light governing his direction of travel along Wang Chiu Road, i.e. light "B" on the signal diagram, was turning red, then the green arrow light, "C", which allowed his right turn into Sheung Yee Road had also turned red.

34. From the signal diagram, a full sequence of the light cycle had to complete itself, including the sequence governing the cross traffic in Sheung Yee Road, governed by lights "D" and "E" on the signal diagram, before the green arrow directed at the Plaintiff illuminated again.

35. Quite simply the Plaintiff's evidence of the sequence of lights he said he experienced as he proceeded into the right turn pocket and began to turn right into Sheung Yee Road cannot be right. Further, if he proceeded onto the junction as his primary light "B" was commencing to turn red, as he said, then from the cycle diagram, light "A" governing the 1st Defendant' s passage into the junction was already red and had been so for a matter of some seconds.

36. That would give rise to the conclusion, if the Plaintiff's evidence as to his primary light "B" turning amber as he proceeded into the junction was accepted, that both the Plaintiff and the 1st Defendant had commenced to turn right and crossed the junction respectively in the face of red lights.

37. I do not think it at all likely that both drivers collided while both were on the junction in breach of red lights governing their respective directions of travel.

38. It seems to me unlikely that the Plaintiff's evidence as to arriving at the junction and proceeding through to the right turn pocket as his primary light "B" was turning amber preparatory to red can be correct.

39. In my view the Plaintiff was a man whose recollection of details, some 7 years after the event, was faulty. This is a conclusion based not only upon his evidence as to the sequence of traffic lights at the time immediately prior to the collision, but upon his evidence in general.

40. Regardless of the fact that he was familiar with these traffic lights in the sense that he had passed through them regularly in the 4 years leading up to the accident, in my view, he was unable to recollect their sequence accurately.

41. His general demeanour, as I have said, was that he appeared to be a truthful witness. But equally, he appeared to be an often confused witness and one who had difficulty both remembering events and, perhaps because of that, explaining them coherently.

42. On the other hand, the 1st Defendant expressed himself clearly. He had, apparently, a good recollection of the events leading up to the collision and was able to give evidence as to the sequence of the traffic lights at the junction which accorded with the sequence set out in the signal diagram.

43. He was not shaken in his recollection of events in any way during cross-examination so as to cast doubt on his truthfulness or credibility.

44. It is true that his behaviour and that of his associate in scolding and briefly assaulting the Plaintiff immediately after the collision was far from commendable, but his direct admissions as to these events when pressed in cross-examination enhanced his credibility as a witness.

45. I might add in regard to this particular aspect of the evidence that I do not take into account these reactions of the 1st Defendant and his associate as being in any way proof of the facts of the collision. I take this evidence into account only in the way in which I have referred to it.

46. In my view, at the end of the day the 1st Defendant's evidence of the events and the state of the traffic lights at and immediately before the collision between the two vehicles is more reliable than the confused and probably mistaken recollection of the Plaintiff. In this regard, the Plaintiff's evidence as to the state of the traffic lights cannot stand against the plain sequence of the junction traffic lights as set out in the signal diagram which I accept as establishing the true sequence of the lights at the junction.

47. It most certainly is true that the Plaintiff's evidence in this regard makes little sense, when compared to that signal diagram. In my view, his evidence as to the state of the lights facing him on the junction was less reliable than that of the 1st Defendant.

48. But the matter goes on from there. On the basis of the 1st Defendant's evidence taken together with the signal diagram, if the light the 1st Defendant went through was green, as I accept from his evidence it was, then although it may well be that the Plaintiff did not necessarily have a green arrow allowing him to turn right, he most certainly would have had a green primary light "B". That is because whenever light "A", the light governing the 1st Defendant's progress across the junction, was green, light "B" governing the Plaintiff's direction of travel northwards in Wang Chiu Road was also green according to the light sequence set out on the signal diagram.

49. Accordingly it must be that the Plaintiff did not attempt to turn right into Sheung Yee Road against a light prohibiting him from doing so. He was entitled to turn right on the primary green traffic light at "B" in the signal diagram. The green arrow light "C" when off was not replaced by a red arrow light.

50. From the 1st Defendant's evidence and the Plaintiff's evidence in this regard and from the agreed signal diagram (as amended) it was common ground a right hand turn into Sheung Yee Road from Wang Chiu Road, as attempted by the Plaintiff, was permissible on a green primary light at "B" on the diagram.

51. Accordingly, in my view, that leaves as the most probable conclusion on the evidence that the Plaintiff commenced his turn right into Sheung Yee Road into the path of the 1st Defendant's oncoming lorry which had proceeded onto the junction in accordance with a green light shown at "A" on the signal diagram. That meant also however that the Plaintiff had turned in accordance with a green primary light at "B" on the signal diagram.

52. In other words, the Plaintiff quite simply turned into the path of the 1st Defendant. He did so without having properly checked to ensure there was no oncoming traffic. In this regard, the Plaintiff's negligence was the primary cause of the accident.

53. Nevertheless, from the 1st Defendant's own evidence, he also had not kept a proper lookout. I accept the Plaintiff's evidence when he says his bus, being a large diesel vehicle, accelerated slowly from a stopped position. I accept that the Plaintiff's bus travelled but a few feet before being struck by the 1st Defendant's lorry.

54. The 1st Defendant had said that he did not pay attention to traffic coming from the opposite direction. He had said also he did not look far ahead when driving. He said that he had not seen the bus driven by the Plaintiff until it was 1-2 feet away from his lorry.

55. In my judgment, given the failure of the 1st Defendant to notice the Plaintiff's bus, which I accept on the Plaintiff's evidence had stopped in the right turn pocket, or slightly outside it, which failure the 1st Defendant says was because he did not pay attention to traffic coming from the opposite direction, the Defendant had not kept a proper lookout. He had, as he proceeded into and across the junction apparently ignored the existence of traffic on his right wishing to turn across his path into Sheung Yee Road. There was nothing to prevent him seeing the Plaintiff's bus. It was large, I accept it had at least its headlights on. There was little traffic in the vicinity of the junction.

56. I am satisfied the 1st Defendant's negligence in this regard also contributed to the occurrence of the collision between the two vehicles.

57. I assess the Plaintiff's contributory negligence to be 80% and the Defendant's 20%.

Quantum

PSLA

58. There was no dispute at hearing as to the nature of the injuries suffered by the Plaintiff.

59. I accept that the Plaintiff's intestinal injuries were serious. He suffered 2 perforations of the small bowel and one perforation of the large bowel. This was common ground.

60. He underwent 3 operations. The first involved a resectioning of the bowel involving the removal of two segments of intestine.

61. The second was occasioned by a need to clean and debride the abdominal wound which had become infected and, the third involved the closing up of a cholestomy which had been created by the surgeons leading a section of the Plaintiff's bowel to the outer surface of the abdomen for the purposes of the first operation. The Plaintiff spent 2 months in hospital and after his discharge on 21 November 1991, received continuing follow up treatment for more than 3 years.

62. That involved in the early stages some physiotherapy in respect of the injury to his shoulder and neck area which he now describes as causing him some discomfort, for example, when he gets dressed. There was no other material put before me concerning this latter injury.

63. Since his intestinal injuries and treatment, the Plaintiff said that he had had "uncontrollable urges to go to the toilet" and defecated some 3-4 times a day. He said that as of the present, there had been some improvement in this condition and that a diet high in fibre had to some extent allowed him to control the problem. He said this improvement had occurred over the last year or so.

64. He said he additionally, as a result of his injuries, found it difficult to sit for periods of greater than 15 minutes or so and had to stand or change his position as a result of abdominal wound pain or discomfort.

65. He said he suffered from abdominal pain, which he described also as wound pain, continuously and said that his sex life had deteriorated. It had reduced by about half as a result of this pain and discomfort.

66. He said he had been on sick leave up to when he had retired from KMB in April of 1995.

67. He had tried alternative employment. He had driven a school bus for Lingnan College in the early part of 1996 for 4 months for which he had been paid $12,000 per month but had had to stop this because of difficulties he had had with his bowel movements. He said he had generally managed on a trip by trip basis but that at the end of the day it had been too difficult to continue.

68. He said he had not tried other jobs such as delivery driver or watchman though they had been available as he had thought he could not do them.

69. He said he had intended to work with KMB up to the age of 60 and then apply to continue working with them driving buses until the age of 65.

70. He said KMB allowed drivers to work on to the age of 65 from the normal retiring age of 60 quite commonly if they could show they were physically fit and had a good driving record.

71. He agreed his average income at the time of the accident was $8,438.70.

72. The Plaintiff relied upon the medical evidence of Dr Vincent K. L. IP a gastroenterologist. Dr IP had seen the Plaintiff on March 1 and March 17 1994, July 4 1995 and December 16 1998.

73. He had formed the view upon first seeing the Plaintiff that, as a result of the abdominal wound and necessary resectioning of the Plaintiffs bowel, the Plaintiff suffered from extensive adhesions of the bowel which had caused a partial bowel obstruction. He said he came to this conclusion from his experience of such injuries resulting in such adhesions and from the Plaintiff's symptoms of under nutrition, irregular bowel movements, bloating pain and, earlier in the Plaintiff's history, dizziness and vomiting.

74. He said from the Plaintiff's history the first 5 years had been worse but that there had been some improvement in the last 2 years or so as a result of the Plaintiff's improved high fibre diet.

75. He said medication could not be of long term assistance to the Plaintiff and that diet management was all that could be done for him.

76. In his view the Plaintiff's past operative history of infection and the development of an incisional hernia also supported the present existence of a partial blockage.

77. He agreed he had not conducted nor had access to the results of any Barium meal test in formulating his view that there was a partial blockage of the Plaintiff's bowel.

78. He had not ordered such a test as he was satisfied his diagnosis was correct and that a Barium meal test could have posed some difficulties for the Plaintiff if there was a blockage. He agreed there were other tests which could have been employed to reveal any blockage but he had not recommended any such test.

79. He agreed that if the Plaintiff had said, as stated in the United Christian Hospital ("UCH") follow up notes of September 1993 that he had a normal bowel habit and a good appetite then the situation was less serious than that described to him by the Plaintiff.

80. He agreed also from the results presented to him from the Elite Laboratory at C5 and 6 of the bundle that the Plaintiff's malnutrition was not severe but said that the iron and fibrinogen results were in the lower range of the normal distribution and that this together with the Plaintiff's failure to put on weight normally since the operations showed some malnutrition.

81. In Dr IP's view the Plaintiff had suffered 80% disability and was unsuitable for occupations requiring extended periods of sitting. His urges to defecate rendered unsuitable any occupation where that difficulty could not be accommodated.

82. The Defendant's called Dr CHING Chi Kong. He saw the Plaintiff on two occasions; the 29 October 1996 and the 5 January 1999.

83. On the first occasion as the result of direct questioning the Plaintiff denied symptoms of colic, nausea or vomiting. He said however that he suffered diarrhoea 4-5 times a day and that pain from his scar wound made it difficult for him to sit.

84. Dr CHING disagreed with Dr IPs assessment of the Plaintiff having a partial obstruction of the bowel as the underlying cause of his symptoms and said the sole cause of the Plaintiff's diarrhoea was the removal of a significant length of the Plaintiff's small bowel resulting in a rapid transit of the food matter.

85. In support of this he pointed to the fact that the Barium meal test results were normal and that the Plaintiff had not complained to him of symptomatology supporting a partial obstruction of the bowel.

86. He further suggested his conclusions were preferable to those of Dr IP because the Elite Laboratories results (at C5 and 6 of the bundle) showed the Plaintiff's results in respect of minerals and compounds present in his blood were in the normal range. He particularly suggested that as the Plaintiff's blood calcium content was normal it was unlikely that he suffered malnutrition and therefore unlikely that there existed any serious obstruction in the bowel.

87. He said, so far as the Plaintiff's complaint of discomfort or pain from the wound site was concerned, that in his view any pain felt by the Plaintiff was likely to be "phantom" pain.

88. He said he formed this view because during the 20-30 minutes he had seen the Plaintiff on the 29 October 1996 he had asked the Plaintiff to bend forward while he was seated and the Plaintiff had done so without complaint. In Dr CHING's view if there was a real basis for the Plaintiff's complaint of pain, the Plaintiff would not have performed this task without obvious discomfort.

89. Dr CHING in a report adopted by him and dated 30 January 1997 suggested that the Plaintiff had suffered 10% disability and was fit to return to work as a bus driver as of that date. He further suggested in his report of 12 February 1997 also adopted by him that the Plaintiff would have been fit to return to work involving sedentary duties, such as that of a watchman, where the Plaintiff was not physically restricted, three months after the accident in September 1991.

90. When he saw the Plaintiff again on 5 January 1999 the Plaintiff's complaints had been consistent and had not worsened in the two years since he had seen him. He said the Plaintiff had said his diarrhoea had improved. He said the Plaintiff had not undergone any weight loss in that period.

91. Dr CHING in no way suggested that the Plaintiff had been exaggerating his symptoms so far as his diarrhoea was concerned. The evidence of both Dr IP and Dr CHING was consistent in regard to the Plaintiff's complaints in this regard. Both said the Plaintiff had complained of diarrhoea 4-5 times a day initially, but upon their seeing him again on December 1998 and January 1999 respectively he had told them there had been some improvement.

92. This was in accordance with the Plaintiff's evidence in this court that his symptoms in this regard had improved in recent years as a result of his fibre diet.

93. In my view it is somewhat academic as to what in fact has caused the Plaintiff's increased frequency of bowel movements, whether it be a partial obstruction of the bowel or the effects of rapid transit of food matter as a result of the shortening in length of the Plaintiff's small bowel.

94. In either event the results are the same and those results considerably restrict the Plaintiff's daily activities.

95. Further both Dr YIP and Dr CHING concede that the Plaintiff experiences pain from the wound site. Dr YIP regards it as being transferred pain from the intestinal damage the Plaintiff has suffered whereas Dr CHING describes it as "phantom" pain with no real underlying causation.

96. Though Dr CHING seemed to suggest that the Plaintiff may have exaggerated this pain he was not able to go so far as to say that it did not exist.

97. Again it seems irrelevant to me whether there is a real organic basis for the pain perceived by the Plaintiff or whether it is "phantom" as Dr CHING suggests.

98. If the Plaintiff feels the sensation of pain that sounds in damages whether it be organic or not.

99. Dr Daniel LEE was called by the Defendants as DW1. He was a surgeon with UCH in September 1991. He had been one of the surgical team which had operated on the Plaintiff following the accident. He had also seen the Plaintiff following those operations.

100. Dr LEE gave evidence of the nature of the Plaintiff's injuries and the surgical procedures adopted to repair those injuries. He said the Plaintiff upon his discharge from hospital had been well with a normal diet and bowel habits, but said that in early 1992 the Plaintiff had commenced to complain of diarrhoea and colic and abdominal or wound pain.

101. He referred to the UCH out-patient Department notes made on the occasions of the Plaintiff's attendance for follow up treatment and the obtaining of sick leave certificates and said, having gone through those notes in considerable detail in his evidence, that the Plaintiff's complaints as to diarrhoea had ceased for a considerable period of time in late 1992 before resuming about one year later as to diarrhoea and colic.

102. He gave evidence of the Barium meal examination then conducted of the Plaintiff's bowel returning normal results both as to an apparent lack of obstruction and normal transit time. That examination related only to the Plaintiff's upper bowel and did not encompass the site of the injuries to the lower bowel.

103. In short however, from the UCH follow up notes it is apparent that from early in 1992 the Plaintiff had commenced to complain of both wound pain and diarrhoea.

104. These complaints continued according to those follow up notes up until the cessation of the Plaintiff's attendances for sick leave certificates in April 1995 when he retired from KMB. It is true that there were periods when no complaints of diarrhoea or wound pain were made. But in my view, overall the Plaintiff's complaints of diarrhoea and wound pain commenced at an early stage after his discharge, though upon his discharge he had made no such complaints, and continued relatively consistently until his last substantial attendance in April 1995 by which time he had already been examined and advised by Dr Ip.

105. In my view the probabilities are, from the medical evidence in this case and from the Plaintiff's evidence that the Plaintiff did and does suffer from recurrent bouts of diarrhoea and does suffer from continuing discomfort from his wound site.

106. In his own evidence he did not exaggerate his present condition, and agreed that it had improved of recent years and that now he "can stand it and control it".

107. In my view there is no substance in the Defence suggestion that as the Plaintiff ceased follow up attendances at UCH following his resignation from KMB that his attendances and complaints as recorded in the UCH notes were merely designed for him to obtain sick leave certificates. That may have been the reason for the attendances but the probabilities are the complaints were genuine. Why otherwise on occasion would the Plaintiff describe himself as well?

108. In his evidence, as I have said, the Plaintiff on occasion seemed vague and confused. But in my view he was truthful and did not exaggerate his complaints. He had an opportunity to do so to effect with Dr CHING who he knew was the Defendant's Doctor but did not do so.

109. The Plaintiff suffered serious intestinal injuries. I am satisfied the Plaintiff did have considerable discomfort develop at his wound site after his discharge from hospital accompanied by "on and off" symptoms of diarrhoea as described by him in evidence and in the UCH notes, which latter symptom has improved in recent years as a result of diet to the extent it is now controllable. I am satisfied he has also a minor but continuing disability with his neck and right shoulder which causes him some inconvenience in activities such as dressing or lifting objects.

110. In my view the Plaintiff's injuries are somewhat under the level of the "serious injury" category of LEE Ting Lam (1980) HKLR 657 and accepting the enhancement of range of damages relating to that category as of 1996 in CHAN Pui Ki (1996) HKC 565 allowing for inflation since then I allow under this heading $350,000.

Other Special Damages

111. These are agreed at $17,036.00

Loss of Accrued Earnings to Date of Trial

112. There are two primary factual issues requiring resolution under this head. The first is whether the Plaintiff was fit to return to work in any way prior to trial. The second is whether he would probably have been re-employed by KMB after he reached the KMB designated retiring age of 60 on the 14 April 1995.

113. As to the fitness of the Plaintiff for a return to work I have no hesitation in concluding on the evidence that with his difficulties in managing his bowel movements he could not reasonably have been expected to return to work as a bus driver before his reaching 60 years in April 1995. I take into account in this regard that he does suffer significant discomfort from prolonged sitting.

114. Further in this regard I bear in mind also that up to April 1995 the Plaintiff regularly attended UCH as an out-patient for follow up treatment and to obtain sick leave certificates.

115. From those certificates I infer that he was unable to return to work as a driver up to that point of time and for a period of time thereafter.

116. In my view however whilst unsuitable for work as a bus driver on a permanent basis his 4 month return to work in January 1996 at Lingnan College apparently broadly coincided, on the evidence of the UCH notes and the medical evidence in this case, with some improvement in his symptoms of diarrhoea. Given his diet change, the Plaintiff was as of from that time able to take up some job such as office or shop assistant or watchman which allowed him sufficient freedom to stand or walk and which did not have the same obvious constraint on him going to the toilet on several occasions if necessary during his working day or night.

117. Indeed after that time the Plaintiff apparently did consider employment as a watchman but did not actively seek such a job because he assumed they wanted younger man or the hours were too long and he "had family responsibilities".

118. In my view from January 1996 onwards the Plaintiff could have reasonably worked in a category of work such as watchman and from that time his period of full loss ended.

119. So far as the second issue is concerned, that is the Plaintiff's prospects of continuing employment with KMB as a driver after the age of 60 up to the age of 65, I find that there has been insufficient put before me to establish the Plaintiff's case in this regard.

120. The Plaintiff's assertion that it was "common" for employment of drivers to continue after the age of 60 does not seem borne out by the figures supplied by the Defence by agreement which showed in 1994 only 71 of KMB's total complement of 6,458 drivers were over 60, and though this had increased by 1998 to 130 out of a complement of 7,942 it cannot be said from these figures such a practice was "common". There are of course no figures, and there is no evidence, of what proportion of KMB driver applicants at 60 were accepted in 1995 (when the Plaintiff would have turned 60) for continuing employment. Further, apart from evidence that KMB's general policy was that only drivers with good driving records and in good health would be accepted for further employment, there is no evidence as to whether in KMB's view the Plaintiff fulfilled these criteria or whether there were sufficient vacancies at that time to accommodate the majority or otherwise of applicants. There is evidence that the Plaintiff suffered hypertension. There is also evidence, from him, that he had a good driving record.

121. At the end of the day, in respect of this issue, the evidence I am asked to rely upon by the Plaintiff is simply too speculative. Accordingly the Plaintiff has not established this aspect of his claim for damages.

122. Nevertheless I accept from the Plaintiff's evidence that he could have gotten a job such as the driving job he had with Lingnan College after the age of 60. It is common ground, or at least not challenged in evidence that such work was available for the Plaintiff in 1996.

123. Accordingly for the reasons given, I allow the Plaintiff full loss of his KMB earnings from the date of accident in September 1991 to his retirement at the age of 60 in April 1995.

124. In that regard I accept the calculations of the Defendant's as set out in their Answer to the Plaintiffs Revised Statement of damages at paragraph 9(b) thereof that the Plaintiff's earnings in 1994 would have been an average of $11,541 per month. This is borne out by the increase in the basic daily wage of the Plaintiff as a KMB bus captain as set out in the brief schedule agreed at E75 of the bundle.

125. I take that figure to apply also to the Plaintiff's earnings in the first four months of 1995.

126. Accordingly the median income of the Plaintiff in terms of average monthly earnings from the date of accident in September 1991 (agreed at $8,438.70) to his retirement in April 1995 (calculated at $11,541) is $9,990. For the period involved being 43 months that is an amount of lost income of $429,570.

127. I am satisfied that even if he had retired from KMB at the age of 60 the Plaintiff would have been able to obtain an equivalent job. This is borne out by his employment for 4 months at Lingnan College commencing in January 1996.

128. Accordingly between May 1995 and December 1995 I allow the Plaintiff a sum of $11,541 as average monthly income being the equivalent of the lost average monthly income earned by him at KMB as established by the evidence.

129. That period of 8 months results in an amount of lost income of $92,328. It is also the end of the full loss period.

130. Thereafter I am satisfied the Plaintiff could have earned at least $12,000 per month. From January to April of 1996 he did in fact earn this sum.

131. In his submissions Mr LI did not try to enlarge that figure over the remaining 34 months of the pre-trial period up to February 1999. There was no evidence placed before me by the Plaintiff as to what increase could reasonably be expected in the earnings of a driver of school buses or PLB's. There was no evidence before me generally of the increase in income for drivers of such vehicles from January 1996 up to the date of trial.

132. Accordingly for that period of 34 months I calculate the Plaintiff's loss of earnings at the level of $12,000 per month.

133. During the period up to trial, as I have said, I am satisfied the Plaintiff could have earned income in an occupation such as watchman from May 1996, when he discontinued driving the school bus for Lingnan College.

134. From the figures provided to me by the Defendants as set out in the government statistics I am satisfied that the average monthly income to the Plaintiff from such work as of March 1995 would have been $7,010 and as of March 1998 would have been $7,968. That is a median monthly income over that time of $7,489. That means the Plaintiff's partial loss of income is calculated at $4,511 per month.

135. Taking that figure for the 34 month period May 1996 to February 1999 the Plaintiff's partial loss of income is an amount of $153,374.

136. A summary of those calculations is as follows.

Plaintiff's Loss of Earnings Pre-Trial

Full loss period

September 1991 - April 1995	429,570
May 1995 - December 1995	92,328

Partial loss period

May 1996 - February 1999	153,374
	$675,272

Loss of Share in Retirement Fund

137. It is agreed that as a result of his period of sick leave up to his retirement the Plaintiff lost $ 6878 as part of his share of the KMB pension fund.

Loss of Future Earnings

138. It has been agreed that the appropriate multiplies is 1.

139. There is no evidence before me, as I have said, as to the increase in income between 1996 and now of a job such as school bus or PLB driver. I cannot assume that such an increase would follow in the footsteps of KMB wage increases for bus captains.

140. Nor is there evidence before me of any general increase in wages over that period.

141. Accordingly I take the same figure $12,000 per month as the notional income the Plaintiff would have earned if not for the accident. I take the figure of $7,968 per month as the notional income the Plaintiff could have earned working as a watchman or in some equivalent occupation. That figure is the most recent available from the Government Statistics provided to me.

142. That is a balance of $4,032 representing the Plaintiff's income over the 1 year period of the multiplier.

143. That is a figure of $48,384 allowed to the Plaintiff under this head.

Summary

144. There will therefore be an award to the Plaintiff adjusted for 80% liability as follows.

145. General damages are awarded interest at 2% per annum from the date of writ until the date of this judgment.

146. Special damages are awarded interest at 6.43% from the date of accident to the date of this judgment. I might add that I do not order any lesser period of interest to run because of any delay in these proceedings as urged upon me by Mr Sakhrani. It is true that the time taken to bring this action to trial was lengthy. It is also true that a large part of the delay in the proceedings was by consent between the parties. I do not think that the period of delay, in any event, was so great as to be reflected in any restriction of the period over which interest is to run.

Employees Compensation

147. As agreed between the parties I order the amount of $455,655.18 received by the Plaintiff as Employees Compensation be deducted from the sum awarded. Subsequent to submissions I received the written confirmation of the parties as to this agreement between them.

148. It is obvious that this deduction exhausts the damages awarded to the Plaintiff even with interest and accordingly I order costs nisi in favour of the Defendants.

Representation:

Mr Andrew S Y Li instructed by Messrs. Hastings & Company assigned by DLA for the Plaintiff.

Mr Ashok K Sakhrani instructed by Messrs. Deacons, Graham & James for the Defendants.