Lee Kit Ha v. The Kowloon Motor Bus Co. (1933) Ltd.

HCPI000539/2000

HCPI 539/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.539 OF 2000

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Coram: Deputy High Court Judge Carlson in Court

Dates of Hearing: 16 - 20 September 2002

Date of Judgment: 7 October 2002

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J U D G M E N T

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INTRODUCTION

1)This is an action for damages for personal injury and other consequential losses which is brought by the plaintiff against the defendants, her employers, the Kowloon Motor Bus Company (1933) Limited. The plaintiff is employed by the defendants as a bus driver and, captain, which means that she is also responsible for the collection of fares as the passengers board her bus. She is now aged 52, having been born on 19 March 1950. She was married when she was 25 years old, prior to which she had worked in the garment industry. She and her husband have two sons who are now grown up. They separated shortly after the accident which has given rise to this action and are now divorced. I will need to return to this in due course because the plaintiff says that her medical condition and its consequences following the accident was substantially causative of the breakdown of her marriage. After 14 years of married life, she returned to work, obtaining employment as a bus driver with these defendants. This was in 1989. She had in fact obtained her driving licence many years before. She is very proud to have found this employment being one of the relatively few lady drivers of public buses in Hong Kong - certainly in 1989 - but perhaps less so nowadays. Her work has given her great pleasure and satisfaction. The defendants have found her to be a model driver. She has been praised by them on several occasions for the high quality of her driving and in 1995-1996, she was awarded a certificate of safe driving. In 1996, she also received an annual award for safe driving and highly commended by a passenger for her conduct. The documents evidencing this are at Bundle B starting at page 84. The plaintiff can be justifiably proud of what she has achieved in the course of her work. These testimonials must give her great satisfaction.

THE ACCIDENT

2)A little after 9:15 a.m. on 7 July 1997, the plaintiff had driven her bus, route 224X, into the defendants' Kai Yip Estate Bus Terminal at Kwun Tong. She took a break after which she was due to drive the bus out again to the company depot so that it might be serviced. At about 9:45 a.m., she walked out of the defendants' rest area which is accommodated inside the commercial complex at the Kai Yip Estate in order to board her bus and drive it away. She says that at the time the terminus was full with buses waiting to leave the parking bays and others to pull into the bays once they became free. Exhibit P1 is a sketch that the plaintiff has drawn in the course of her evidence which purports to show the situation as it was at the time. This differs materially from a previous sketch drawn by her. At all events, she says that she had to weave her way between waiting buses being buses A, B, C and D which she has drawn on Exhibit P1. More particularly, she had to emerge between buses C and D but given their close proximity to each other, she stepped out between them sideways-on. As she emerged she stepped onto a greasy patch on the road surface which was about 16 inches in diameter. This patch, she assumes, was a deposit of oil or other greasy debris which had come off the buses using the terminal. She says that she slipped, loss her balance and fell forwards onto her knees and elbows and that her head also hit the ground. She has said that her view of this dark patch was obstructed by the buses, it came shortly after she had stepped out between buses C and D and the fact that she stepped out sideways made it more difficult for her to see it in time to step around it.

3)Having fallen down, two passing policemen helped her up and sat her down on a nearby kerb. They called an ambulance which conveyed her to Queen Elizabeth Hospital. This, for present purposes, is a sufficient recitation of her case on liability. The allegation against the defendants is that it was negligent of them or alternatively a breach of their common duty of care as occupiers of the terminal to have allowed the oily patch to remain on the road surface causing her to slip and fall on it.

INCONSISTENCIES IN THE PLAINTIFF'S CASE

4)If the evidence was as I have just recounted it, it would have been a relatively straightforward matter to determine whether the evidence discloses a breach of duty by the defendants and if so, whether the plaintiff has been contributorily negligent in not seeing the oil patch before stepping into it.

5)In this case, the dispute is much more fundamental. The plaintiff accepts that in statements made to her employers on the same day and the following day, she had told them not that she slipped on oil but that she had tripped on a kerb or some other hard object causing her to fall over. There is no dispute that this is what she told them. The defendants also say that Mr Lam, the person in-charge at the terminal, saw her seated on the kerb being attended by police officers and that he went over to her to find out what had happened to her. She allegedly told him that she had tripped on something hard and had fallen over. She made no mention of slipping on an oily patch. The police officers have been asked before trial to recollect what the plaintiff had told them as being the cause of her fall but they have been unable to remember.

6)The defendants say that the truth must be what the plaintiff said at the time and also shortly thereafter. She had no reason not to be truthful then, but later, when she realized that the consequences of her fall were much more disabling, she has been unable to return to work since then, that she has decided to make up an account of slipping on a patch of oil with a view to getting substantial damages, far more than she would be able to get on the "no fault" basis provided for under the Employees Compensation Ordinance.

7)Although she accepts, save for her conversation with Mr Lam about which she has no recollection, that she had originally given a wholly different account of how she fell when she first spoke of the accident she says that she only did so because she did not wish to embarrass her employers for whom she has the highest regard because of the generous and fair way that they had treated her throughout her employment with them. She was also concerned that if she did, they might take unkindly towards her if she was seen to be criticizing them for allowing an oily and dangerous patch to remain on the forecourt of the bus terminal. It was only after it became clear to her that her injuries were incapacitating to the extent that she could not return to work that she realized that she had to tell the truth and do something about getting compensation for herself by applying for employee's compensation and by means of this negligence action.

8)The matter on liability reduces itself to this. Firstly, that the plaintiff must persuade me on a balance of probabilities that the accident did indeed occur in the way that she has now indicated. An important part of that process of persuasion includes my accepting her explanation as to why she had originally given a quite different account of her tripping against a hard object - probably a kerb along the bus parking bays. If she fails to carry that burden, the action must also fail and judgment must be entered in favour of the defendants because she will have failed to demonstrate that she was injured in the way that she alleges. Then, even if she does persuade me that what she now says is true, the defendants contend that a transient danger such as an oil patch measuring 16 inches on the terminal forecourt cannot amount to a breach of duty by them amounting to negligence, where as will appear shortly, they had and still have a sensible and adequate cleaning regime designed to deal with, as best as can be devised in the circumstances, these sort of transient problems. And then, even if that line fails and if I were to hold that the defendants have been negligent, it is contended on their behalf that the plaintiff should have been more careful for her own safety and had she been as attentive as she ought to she would have seen the oil patch and avoided it. It is submitted, therefore, that in such circumstances, she should be held to have been contributorily negligent as to 50%.

DID THE PLAINTIFF SLIP OR DID SHE TRIP?

9)This issue largely falls to be determined by the view that I form of the plaintiff as a witness of truth. There is no doubt, in my mind, that in the ordinary course of her daily life, the plaintiff is a perfectly decent law-abiding person who conducts herself honestly in everything that she does. I have formed a very favourable impression of her. She is hardworking and would wish for nothing more than to be able to return to her job which she cares about very much. This fall has cost her dearly. Irrespective of whether all her symptoms are directly referable to the accident, its consequences have been shattering for her. Her morale is extremely low. She realizes that she cannot work as a driver anymore and I believe that she sees herself as a psychiatric patient. She has been seeing psychiatrists to ease her depression and they are having to give her medication which inevitably has unpleasant side effects. Prior to giving evidence, she was having to take medication which left her very lethargic, plainly heavily tranquilized in order to endure and cope with the stresses of having to come to court. I have no doubt that she has gone progressively backwards since her accident and one hopes that irrespective of the outcome, the end of this litigation will provide some relief for her. If she has not told me the truth about how she fell and injured herself on 7 July 1997, this, in my judgment, would amount to what I am sure is an exceptional aberration for a normally admirable individual who now feels that she must find someone to blame in order to obtain compensation for an accident that was not expected to have the severe consequences that have developed over the years since it occurred.

10)I am afraid that far from proving her case, the evidence has satisfied me that in a moment of inadvertence, the plaintiff, as she was making her way back to her bus, did in fact kick against something hard, probably the side of a kerb, and tripped forwards landing on her elbows and knees.

WHY DO I SAY THAT?

11)Before I deal with the evidence that has persuaded me to this view, I am satisfied that what has caused the plaintiff to depart from her usually high standards of honesty and give a false account of this matter is the unexpectedly parlous state that she found herself in two years after the event, by which time her medical and mental condition had deteriorated and it became clear that she would need to litigate and try to cast blame on her employers in order to get proper compensation. At the time of the accident and in the days that followed, there was really nothing there on the medical evidence which was suggestive of what has actually come to pass. At that time, I am convinced that she had given the truthful account to her employers. Firstly, to Mr Lam, the bus company supervisor at the terminal who came up to her as she sat on the kerb with the two police officers in attendance. I am satisfied that he told me the truth when he said that he asked her what had happened and she told him that she had "kicked against a hard object". There was absolutely no mention of a slip on a greasy patch of oil. Making every allowance of the fact that she must have been in some shock and pain from the fall, I am satisfied that she told Mr Lam what actually happened. I do not believe that Mr Lam would have made this account up and of course, in any event, his evidence is to the same effect as the report that the plaintiff herself gave her employers later on that day and on the following day. I attach particular importance to what she told Mr Lam coming as it did so soon after the event and before she had time to consider the prospect of litigation. I understand the point which Mr Yau, who appears for her, has pressed about how Mr Lam although not told by the plaintiff that she had in fact tripped against the kerb indicated that this is what she had said to him when he made his own report to the company. This was his rationalization after the event of what she was telling him and that is why he introduced "the kerb" instead of "a hard object". That was a fair way of putting it - a kerb being the most likely hard object although there might have been other hard objects around such as the supporting columns to the bus shelters. Then, she came to give her own account to the company on the same day and she too has spoken of having "kicked onto an object" (see page 100 Bundle B). The following day she gave another statement (B103) to the effect that she "kicked onto a kerb". Faced with these difficulties she has now tried to finesse the point by trying to somehow assimilate "kick" with "slip" but really that is going too far. As to this statement which was taken down by Mr Chan, the defendants' Assistant Insurance Assessor, Mr Yau has drawn attention to the fact that this was not written by the plaintiff herself but by Mr Chan who before committing pen to paper has discussed the matter with her to try and get a sense of what she was saying to him and he then wrote out in statement form what she had told him. The statement was then shown to her and she signed it, presumably signifying that it contained what she had wished to say to him. The other important document in the case in this series of reports at the time, or soon afterwards, is the Statutory Form 2 which an employer is required to complete as part of his report to the Labour Department whenever a person is injured in the course of employment. An important document, therefore. This is at page 10 Bundle D, the relevant page being page 11 which contains a description of the accident as follows :

"According to the allegation of the employee : when walked pass [sic] a vehicular pit, slipped carelessly and sprained left shoulder."

It is dated 18 July 1997, 11 days after the accident and after all the other reports had been drawn up. This document, at variance with the other reports which referred to kicking against a kerb or kicking against a hard object, has provided something of a lifeline to Mr Yau who quite understandably has sought to make as much as he properly can from this important statutory report. Firstly, in the course of the trial, he called for and received all the defendants' papers to see whether there was some other report or document which had described the plaintiff as having slipped. There was none. Nevertheless, Mr Yau with much justification in my view, sought to use this conflicting record to undermine the whole of the defendants' investigative process into what was, after all, factually an uncomplicated event. How, he asks rhetorically, can I now trust the reports when faced with a plainly inaccurate statutory document? A good point so far as it goes, but one needs to remember that the plaintiff, on her own case, has said that she did not refer to a slip, let alone a slip on oil, but had spoken of a kick and a trip. So in the final analysis, this Form 2 is no more than careless drafting by whoever prepared this on behalf of the defendants. It is no more than that.

12)The overwhelming message from the evidence is that this lady told her employers that she had tripped or kicked against something hard, almost certainly the kerb (which is my interpretation of what actually happened). She never told them that she slipped on a patch of grease or oil. She told them that she tripped because that is what had happened to her. I simply do not accept her explanation as to why she had not given what she now says is the proper account, which is because she feared her employers' reaction. There was simply no good reason why she should not have given what she says is the truthful version at the time. The reason why she did not give that account is because it did not occur in that way. In these circumstances, I am satisfied that the trip which she described at the time is not one for which the defendants can be held responsible and accordingly, her claim must be dismissed with the consequence that there must be judgment for the defendants.

13)That is sufficient to dispose of the action but in the event of an appeal and for the sake of completeness, I should also indicate my views on the alternative ways in which this matter has been argued by counsel on the issue of liability. I also propose to indicate my view on quantum had I been required to assess damages.

HAD THE PLAINTIFF SLIPPED ON AN OILY PATCH, WOULD THE DEFENDANTS HAVE BEEN LIABLE?

14)The plaintiff's case is perfectly straightforward on this matter. Mr Yau submits that allowing a patch of oil to remain on the terminal forecourt amounts to a breach of the defendants' duty of care to ensure that the place was kept reasonably free from danger to persons who might walk across it. I think Mr Yau is right that provided the plaintiff had shown that she slipped on a patch of oil or other greasy substance in the circumstances that she has described, then the onus would have shifted to the defendants to demonstrate that they had taken all reasonable steps to ensure that their premises were as safe as might be reasonably expected in all the circumstances. In this regard, the defendants have called the person in charge of the cleaning schedule at all the defendants' premises. It is clear from the evidence that the defendants have in place a detailed and well-implemented routine for cleaning their various bus terminals. Some will receive more attention than others, having regard to the size of the particular terminal and the number buses that use it. This particular terminal at Kai Yip Estate is cleaned twice a month, using heavy duty detergent to remove the oil and grime that inevitably comes off a heavy duty vehicle such as a bus. The photographs of the bus terminal show very clearly that the parking bays in particular, are apt to become very discoloured as a result of buses remaining stationary in those places, frequently with their engines running. The evidence has been that experience has shown that the twice monthly cleaning routine is adequate for this purpose. I have also been told that as and when necessary, additional ad hoc cleaning can be arranged and is carried out once a particular report is made that something needs attending to. The evidence also is that the Urban Services Department carries out cleaning of the public areas of the terminal. The terminal itself is watched over by a regulator, as he is called, in this particular case, Mr Lam whose principal duties appear to be to ensure that buses run on time, but he is also required to inspect the terminal to ensure that all is well and in good order. On the question of cleanliness and safety, one needs to remember that this after all is a bus terminal and the cleaning routine has to measure up to what is reasonable for a terminal such as this. I am not required to consider the safety or cleanliness of an operating theatre at a hospital. This type of situation was considered by the Court of Appeal in Cheung Wai Mei v. The Excelsior Hotel (Hong Kong) Ltd t/a The Excelsior, CACV38/2000, where the plaintiff was alleged to have slipped on a damp area as she was about to enter the hotel. The court observed that the hotel in such circumstances did not owe the plaintiff an absolute duty to ensure that the surfaces on which people coming onto the hotel premises might be expected to walk over where dry all of the time. Otherwise, as Mayo VP observed they would have to employ someone with a bucket and cloth to dry every area of wetness as one became apparent. That was to put the duty of care far too high. Similarly, in this case, it seems to me that the system for cleaning this terminal and for generally keeping it in a safe condition was perfectly reasonable in all the circumstances. And so if I had been put to it, I would have found that the defendants had discharged their duty of care by adopting the cleaning regime which they had put in place and that the plaintiff would have failed to demonstrate that they had been negligent or in breach of their common duty for care as an occupier of the terminal. So, for this additional reason, the action would have had to be dismissed.

CONTRIBUTORY NEGLIGENCE

15)For the sake of completeness, in the event that I had found negligence, I would have been required to go on and consider whether the plaintiff herself had been guilty, in all the circumstances, of a failure to take sufficient care for her own safety. Mr Yau submits that given these circumstances where she had to navigate her way between stationary buses, that she can hardly be blamed for not seeing this greasy patch before she stood on it. Mr Lam, on behalf of the defendants, submits that she should have been far more careful. Even making every allowance of the fact that she had to step out between the buses, on her account of this, by walking sideways, she still ought to have been careful, particularly as she was crossing the forecourt of a busy bus terminal which of its nature might be expected to have, from time to time, transient hazards such as the one that she says was there on this occasion. Had I been put to it I would have found a degree of contributory negligence, on this occasion, to the extent of one-third. I have felt unable to say that it would have been as high as 50% as Mr Lam contends, because allowance needs to be made, on the facts as presented by the plaintiff, although, of course, rejected by me, that she was having to manouver between buses that were very close to each other and as a result she was forced to walk sideways-on and in such circumstances whilst she should undoubtedly have taken more care than she did, on the basis of the facts presented by her, negligence on her part is not as high as Mr Lam suggests. So, that would have been my finding on contributory negligence.

QUANTUM

16)The medical evidence has been the subject of very sharp dispute. I have absolutely no doubt that this incident has left the plaintiff severely incapacitated. As I have indicated, she is nothing like the person she was on the day of the accident. Whereas she was someone who was happy, healthy, looking forward to her work everyday, she is now deeply distressed, depressed and physically much diminished.

17)Notwithstanding the fact that I have disbelieved her as to the circumstances of her fall, I have no doubt that she has not come to exaggerate her physical or mental state.

18)I can dispose of one issue shortly which concerns the question of the breakdown of her marriage. She has told me that because she was no longer able to work, this put enormous pressure on her marriage, as did her depressed mood. As a result, soon after the accident, her husband left her and following two years' of separation, they were divorced. Her husband has given evidence supporting what she had said. I do not accept that what, she says, was a good marriage before the accident could have deteriorated so rapidly after the accident to such an extent that the husband felt that he could no longer continue living with her. The way the plaintiff and her husband have described the matter simply does not have the ring of truth, nor is it grounded in the realities of life or the state of matrimony. I am convinced that this marriage had been deteriorating long before the events of 7 July and that the effects of the accident had no bearing on the plaintiff's separation from her husband and their eventual divorce. In those circumstances, this aspect would have had no part to play in my assessment of damages.

THE PHYSICAL INJURIES

19)These injuries are the subject of some dispute between Dr Chin on behalf of the plaintiff and Dr Tsoi who has given evidence on behalf of the defendants. Both are agreed that she has sustained a disc prolapse at C3/4 and C6/7. Dr Chin is of the view that this deterioration of the cervical spine is directly referable to the fall. Dr Tsoi, on the other hand, says that having regard to her age, it is not at all uncommon to find these degenerative changes in a person and this is all down to the natural aging process and is not to be linked to her fall. The other main disagreement between the two medical experts concerns the persistent pain on the left side of her neck. It should be observed that her main complaint when she attended the Accident and Emergency Department was the pain coming from her left shoulder which was diagnosed as a sprain and treated conservatively. There was no mention of pain to the neck and this did not really emerge, on the medical notes, until about eight months after the accident. Dr Tsoi has pointed to the fact that the government doctor who referred her to a specialist has made no reference of her having complained to anybody about neck pain. Having regard to that and that the symptom first emerged eight months after the accident, Dr Tsoi concludes that this is quite unrelated to the effects of the accident. Dr Chin, on the other hand, says that having regard to the relative proximity of the neck to the shoulder, it does not surprise him at all that the plaintiff was not necessarily aware that the site of the pain was in fact at the neck rather than further along at her shoulder. There is now no doubt of course that the neck is the part that appears to give her most trouble. Dr Chin has no doubt that the neck and shoulder symptoms are all referable to the accident. Dr Tsoi, on the other hand, excludes the neck as a consequence of the accident and puts it down to more of a psychiatric problem post the accident. I will need to refer to the psychiatric condition separately in a moment, suffice it for present purposes to repeat that this lady is seriously depressed and having to have psychiatric treatment. Dr Chin's opinion is that the physical injuries including her neck are all a consequence of the accident. The fact that the accident has had the effect of preventing the plaintiff from resuming her work as a driver and the pain and discomfort caused by the injuries has brought about this serious depressive illness. According to him, it all relates back to the events of 7 July. On the other hand, Dr Tsoi has indicated that only the shoulder can be properly laid at the door of the accident. The other physical symptoms are part of a natural process of degeneration and that this in turn has brought about her psychiatric difficulties. But there is a clear line to be drawn between the shoulder injury and everything else that she complains of. This accounts for the very substantial divergence between the two doctors as to loss of earning capacity, 35% in the case of Dr Chin with only 4% being awarded by Dr Tsoi.

20)I have come to the view that the evidence of Dr Chin is to be preferred. Whilst one would not normally expect a trip to have such overwhelming consequences, it certainly has in this case. This lady was symptom-free before 7 July and happy in her employment. She is now a seriously diminished individual. I say that, having observed her for the better part of three days as she struggled with her evidence. I do not accept that, given the severity of her symptoms, even without the facts of this accident, natural degenerative changes would have brought about the condition in her cervical spine and in her neck with its attendant psychiatric problems. There is no question that Dr Chin is correct in his assessment that this all relates to the fall on 7 July.

PSYCHIATRIC CONDITION

21)I have already drawn sufficient attention to this. She is going to be in need of further psychiatric help for the foreseeable future and as I have already indicated, this is directly referable to the effects of the accident.

THE VIDEO SURVEILLANCE TAPE

22)I have watched a tape of the plaintiff shopping at the flower market in March 1999, some 20 months after the accident. Mr Lam submits that this shows that the plaintiff is able to move about quite freely, to board a bus without difficulty and to shop for flowers in a manner which suggests that she is symptom-free. Her explanation about this, which I accept, is that on occasions she can have better days than others and that on this occasion, she had taken her medication which substantially dulled her pain and that she was at her best on that particular day. I am bound to say that from the medical evidence, which I am prepared to accept, her overall condition appears to have deteriorated since then, resulting in her having to be given even more medication to control her pain, her mood and to enable her to sleep more easily.

23)I am satisfied that up till now, it would be unreasonable to expect that she should return to work. Very early on, she had attempted to go back to work as a bus driver but her physical limitations were such that she could not resume that employment and I am abundantly satisfied that she will never be able to return to that job which has given her so much pleasure. Hopefully, she will, in due course, be able to take up less physically demanding employment such as a shop assistant or doing work of a clerical nature which, I have no doubt, will not give her the level of satisfaction that she had when she worked for the defendants. Her fear about becoming re-employed is that people will reject her simply because they will learn of her psychiatric problems and not want to employ her. Dr Chin who is concerned for her has indicated that with proper psychiatric counselling and medication she should in due course be able to find employment which hopefully will have the effect of raising her self-esteem.

THE AWARD

24)This, therefore, is a matter where had I been put to it to assess damages, other than on this hypothetical basis, I would have awarded the plaintiff a substantial amount.

(a) Pain and suffering and loss of amenity

25)The plaintiff has had a wretched time since the accident. She has had to put up with constant pain which needs to be controlled by medication and with attendant and distressing psychiatric problems. Under this head, I would have awarded her $600,000. I would have taken into account that she would have had to undergo psychiatric help for about a further two years and that the pain would be of a permanent but, hopefully, lesser and better controlled degree.

(b) Loss of congenial employment

26)This is a head of damage, which is now recognized, under which I would be disposed to make an award of $80,000. Mr Lam has submitted that this should not attract further damages where she has come to driving fairly late in life, having not worked for 14 years following her marriage. But I am satisfied that this work meant a great deal to her and that she looked forward to pursuing it until normal retirement. Accordingly, there should be a separate award under this head.

(c) Loss of earnings pre-trial

27)This is agreed $371,005.15.

(d) Loss of earnings post-trial

28)Mr Yau contends for the sum of $930,036. He has submitted that contrary to Dr Tsoi's view that she would have had to give up at 55, there is simply no reason on the medical evidence why she should not have gone up to normal retirement. I agree with that assessment and accordingly, the correct multiplier should be one of seven years having regard to her age. He has accepted that she must be expected to find other less well-paid employment in about two years' time, if one follows Dr Chin's evidence, which I accept. His calculation, therefore, is to take her pre-accident earnings, multiply those by the two years that she will remain under medical treatment and thereafter for a further period of five years. He takes her pre-accident income less $4,000 which is about right for other employment that she might be expected to hold down and multiply that by five years, giving a total of $930,036 and that is the sum that I would have awarded for post-trial loss of earnings.

(e) Loss of retirement fund

29)This is agreed at $76,754.34.

(f) Special damages (other than loss of earnings)

30)$75,000 and this amount is agreed.

(g) Future medical expenses

31)Mr Lam would say that $60,000 is the correct allowance to make. Mr Yau invites me to award what Dr Chin has put, being $118,800 for his own medical fees for treating her and a further $20,000 for psychiatric expenses. It seems to me that if this lady is to be properly and effectively treated, she does require the services of a private doctor who will be able to give stronger, if more expensive, medication as Dr Chin has indicated, and that is a proper figure to award. Interest would have had to be added at the appropriate rates for general and special damages.

(h) Compensation for loss of free ride benefits

32)The plaintiff now receives a free bus pass which she would have the benefit of during her employment and provided she remains in employment until normal retirement, for the rest of her life. This is a valuable benefit. There is a claim here quantified on the basis of four journeys each day at an average cost of $7.5 per day. The calculation is $7.5 x 4 x 365 x 14 (being the multiplier) which amounts to $153,300. That is too high. I propose to take a global view on this and say that I would have awarded $90,000 as a reasonable sum to compensate for the loss of this benefit.

33)It is clear therefore that had the plaintiff succeeded, she would have been awarded a very substantial amount of damages less a one-third discount for contributory negligence and she would have had to have given credit appropriately for what she has already been awarded in the employment compensation proceedings and give credit for these damages in respect of any further award in that jurisdiction.

34)I have felt it necessary, for the sake of completeness, to indicate my view on damages in circumstances where I have dismissed the plaintiff's claim in its entirety. I can well understand that may only serve to add insult to injury so far as the plaintiff herself is concerned, particularly where any award would in my judgment, have been a substantial one, but no doubt it will be explained to her why I have considered it necessary to indicate my view.

Representation:

Mr Albert Yau, instructed by Messrs W.K. To & Co., for the Plaintiff

Mr Paul Lam, instructed by Messrs Woo, Kwan, Lee & Lo,for the Defendant