Chung Sung Yong v. Au Sze Hung, Christopher and Another

HCA000118/1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Liu, J. in Court

Dates of hearing: 20 - 24, 27 - 31 May & 3 - 5 June 1991

Date of delivery of judgment: 10 June 1991

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JUDGMENT

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1. The plaintiff was the owner of a family inn in Seoul. The Olympic Games were to be staged in his city. He came to Hong Kong with his wife on the 27th February 1987 with a tour group. The primary purpose of the plaintiff's visit was to expose himself more fully to the hotel trade in his preparation for the reception of the imminent Seoul Olympic. He was then a young man of 35. Mr & Mrs Chun took a bus tour on the 27th. They allowed themselves a shopping spree, the next day, the 28th from 9:00 to 6:00. The plaintiff and his wife claimed to be well-disciplined pedestrians under the aegis of their Korean Government. From 9:00 - 6:00, they lingered about in the Tsimshatsui district between the Ocean Terminal and the Miramar Hotel. They had crossed many of our roads. They returned to the Miramar Hotel for a short coffee break and rest. Little time was wasted before they set out again for another shopping expedition in the vicinity of Nathan Road at about 7:30.

2. The Nathan Road runs up North away from the harbour and down South towards it. Our system is, of course, one of left-hand-drive. Bordering that stretch of Nathan Road on the western side is the Kowloon Park. On the eastern side are the Granville Road and Kimberley Road joining the Nathan Road both at a right angle. In other words, when one drives away from the harbour in the northerly direction, the junctions with the Granville Road and Kimberley Road respectively are both on the right hand side. The Granville Road junction comes first. The Nathan Road is a dual-carriageway road, two lanes up and two down. Each lane is 3.2 meters. So each carriageway is 6.4 metres. The two carriageways are divided by railing erected on a raised concrete base. The plaintiff and his wife were drawn to the shops across the Nathan Road adjoining the Kowloon Park and they decided to cross the road along a pedestrian crossing a little away from the Kimberley Road junction near their hotel. In the process of making that crossing, the plaintiff was knocked down by a Mercedes Benz 300 driven by the 2nd defendant as servant or agent of the 1st defendant owner.

3. The point of collision was in the slow lane of the northern-bound traffic i.e. the lane closer to the Kowloon Park. The wind-screen was shattered. The force of impact threw the plaintiff some 19 feet ahead. The plaintiff was knocked unconscious for three days. He was quite badly injured. The mishap has brought years of misery to the plaintiff and untold anxiety to the driver defendant who has since kept himself from the wheel.

4. According to the plaintiff and his wife, before they started to use the pedestrian crossing close to Kimberley Road for the pavement on the Kowloon Park side of the Nathan Road, the pedestrian light was red. They waited for the light to change to green and noticed that cars travelling South came to a halt on their right-hand-side. Then they proceeded to walk on the pedestrian crossing. Having held his wife's hand on seeing the red pedestrian signal, the plaintiff released it for their journey crossing the Nathan Road. He was just in front of his wife. The plaintiff's wife was wearing a pair of new shoes, and she had a sore left foot. She was thus walking a little slower than her husband. They both explained that they walked together with 6 - 7 other pedestrians. The plaintiff was two/three steps in front of his wife. At the time when they crossed the centre pedestrian refuge, the opening in the railing into the northern-bound carriageway of Nathan Road, still on the pedestrian crossing, the pedestrian light stayed green. It was a "Green-Man" signal. Both husband and wife focused their attention on that green signal. By the time, the plaintiff had walked past the fast lane into the slow lane of the northern-bound carriageway, with his wife two/three steps behind, he was hit by the Mercedes Benz driven by the 2nd defendant. He was thrown onto the wind-screen, smashing it, then carried by the momentum to the level of the roof and thereupon catapulted into the air landing some distance ahead on the road surface. He was seen by the driver defendant attempting to sit up but immediately collapsing again. The plaintiff sustained injuries to the tibia and fibula in his left leg and bones in his left shoulder. According to the wife of the plaintiff, he was unconscious and did not regain his consciousness until some three days later in hospital.

5. Mr Kwan, the driver defendant, recalled that the plaintiff was very vocal in Korean at the Casualty as if the had been complaining. I accept the evidence of the plaintiff's wife that the plaintiff was knocked unconscious. He seemed to be dead. The plaintiff himself was oblivious of what had taken place until some 3 days later when he "asked (his) wife as to the reason why (he) was there" and "said to (his) wife it was not (his) fault. When (he) saw the light was green, (he) began to walk". If, indeed, he was overheard to express himself in a loudly agitated voice at the Casualty, he could not have been really himself.

6. Counsel for the defendants agreed with the postulation that there were four possibilities : (1) the plaintiff and his wife misread the vehicular traffic signs for a pedestrian signal, or (2) without making a judgment on their own the plaintiff and his wife crossed the road, foolishly but blindly following some of the irresponsible co-pedestrians, against a red pedestrian signal, or (3) the plaintiff was wholly negligent ignoring a red pedestrian signal or (4) lastly the defendant driver was wholly negligent in disobeying the traffic red signal.

7. From the positions of the plaintiff and his wife as indicated on the sketch which I accept, they were unable to see or have any clear view of the vehicular traffic lights. It is almost impossible for any of them to have mistaken a traffic light for a pedestrian signal. Although both the plaintiff and his wife said in evidence that they were crossing with the 6 - 7 co-pedestrians, they were firm that they chose to be guided exclusively by the pedestrian green signal. The plaintiff stated categorically that he "did not have to look at any other things". I am unable to accept that the plaintiff and his wife could have just tagged along after some careless co-pedestrians in their crossing against a red pedestrian signal.

8. The driver defendant testified that he dropped his passenger off at the Peninsula Hotel after 8:00 and was proceeding along Nathan Road in the Northerly direction with a view to finding a vegetarian restaurant near his shop for a meal. The night before, i.e. the 27th February, he was going home but not on the 28th. According to him, after passing the junction at Granville Road with the traffic light in his favour, he found the traffic light at the junction of Kimberley Road also green. He was travelling at 25 to 30 m.p.h. in the slow lane with dipped head lights. In fact, he had only stopped earlier at the junction of Hai Phong Road for the red traffic signal. From a distance of some 18 ft., he saw the plaintiff standing at the far end of the pedestrian refuge. He saw 8 - 10 other pedestrians waiting in the middle of the pedestrian refuge a split second before at a distance of about 20 feet. He described the plaintiff as standing away from that group of pedestrians, alone and further north near the Mongkok side. Then, the plaintiff dashed out across his path. In giving details, he described to the police how a human shadowy figure appeared. Evidently, if he had kept his eye on the  plaintiff, then waiting, he should have been surprised by the plaintiff himself and not merely "a human shadowy figure".  The relevant portions of his statement to the police immediately after the accident read : "I engaged the 3rd gear in a speed of about 30 km per hour. No vehicle was in front of my car and also no vehicle on my right-hand side ............. However, there were 8 -10 persons standing on the safety island in the middle of the road. There was no pedestrian standing on my left side pavement. On seeing the traffic light was green and nobody use the pedestrian crossing, I continued to drive ahead. However, just when half my car's length had entered the pedestrian crossing, I suddenly saw a human shadow on my right on the safety island in the middle of the road dash diagonally towards his/her (sic) right. Once I saw such human shadow about 5 - 6 ft. away from my car, I applied the brake to stop the car immediately." In examination-in-chief, he said that after he had entered the pedestrian crossing a human shadowy figure suddenly dashed out in front of him, "dashing out diagonally towards me." In cross-examination, he confirmed what he had said to the police that he first saw the 8 -10 stationary pedestrians, about 20 ft. away and that he first caught sight of the human shadowy figure when it was about 5- 6 ft. from him. The driver defendant elaborated that after he had seen this stationary group of 8 - 10 pedestrians, "all of a sudden" the human shadowy figure dashed out.

9. On the evidence of the plaintiff and the defendant driver, either the plaintiff or the driver, one or the other, must have blatantly disobeyed the signal light. If the plaintiff's version is correct, by the time he had - with his wife a little behind him - walker past the fast lane of the northern-bound carriageway and well into its slow lane, covering a distance from the kerb of more than 9.6 meters nearly 30 ft. or over 10 steps, the red traffic signal for the northern-bound Nathan Road traffic must have been on for a considerable period of time. Therefore, if the plaintiff's version is correct, the defendant driver must have had a red signal against him from a long distance back and he must have had deliberately flouted the traffic law, ploughing recklessly through the pedestrian crossing. On the other hand, if the defendant driver's version is correct, with green traffic light for the junction at Kimberley Road already seen from some distance away, the pedestrian light at that same junction must have been for a long time in red against the plaintiff.

10. The police officer called gave evidence that the pedestrian signals for the crossings over both carriageways at the Kimberley junction were operating in the same manner simultaneously. It would provide 22 seconds in stable green, an additional six seconds with the green signal blinking, making it in all 28 seconds. Thereafter, the vehicular traffic light for both carriageways would turn amber for a second before the green for traffic flow to resume. There would be a maximum period of 29 seconds for pedestrians to make it across. If one were to cross the first half or remaining carriageway just before the blinking green pedestrain light, there would be a minimum seven seconds (i.e. 6 blinking seconds of green pedestrian light plus l second amber light for traffic).

11. Rejecting the possibilities of mistaken reading of traffic light for a pedestrian signal and of following some careless pedestrians in crossing against a red pedestrian signal, the only possibilities are, in my judgment, that either the plaintiff or the defendant driver ignored the light signal.

12. The plaintiff was exhaustively cross-examined. Some of the questions asked and answers given gave an impression of discrepancies or inconsistencies. It would not be profitable to analyse each facet of the lengthy cross-examination just for unearthing unsatisfactory answers or seeking plausible explanations. The evidence was taken through double interpretation, with the Korean Interpreter having a substantial Shanghainese background. The interpreter informed the court she was born in Hong Kong but was brought up in Shanghai. Overall, I do not find in the plaintiff or his wife an unreliable witness.

13. The plaintiff clearly identified the wrong crossing for the photographic session of the scene of the accident. Seeking to fortify his identification of the location for these photographs, he explained that his identification was assisted by the site of the Benetton Shop. There is no evidence that the Benetton Shop had moved from the junction of Kimberley Road since 1987. For our purposes, the two crossings, the one identified by the plaintiff and the one for the scene of the accident are almost identical. There was little incentive for the plaintiff to have to adhere to the wrong crossing by fabricating the Benetton Shop. I have considered the possibility of the plaintiff being a man who would go to any length, including fabricating an explanation, to add weight to the accuracy of his recollection. I have had long hours in observing the plaintiff and listening to the evidence he gave. I have come to the conclusion that it was an instance of an honest mistake and faulty recollection, assuming that the Benetton Shop was not at the material time near the junction of Kimberley Road.

14. Naturally, it is more frequent to find a pedestrian ignoring signals than a driver speeding recklessly through red light in utter disregard of danger to life and limb.The former is a common and trivial breach, though neither should be encouraged. It is also to be noted that the standard of proof must be commensurate with a more serious charge.

15. In his statement to the police, the defendant driver explained that "only the injured person rushed out from the safety island. ...... He stood on the side of the safety island nearer to Mongkok". In that statement and his evidence, the defendant driver fell short of explainting satisfactorily his claim that he only realized, for the very first time, the human shadowy figure dashing out diagonally towards him when it was virtually in front of his car. The defendant driver elaborated to the police and repeated the same before this Court that when he had been half a car's length into the pedestrian crossing, the human shadowy figure dashed in front of him 5, 6 ft. away. He corrected that distance in evidence to some 18, 20 ft. He explained that when he re-visited the scene with his barrister, the distance was found, as it was verified by actual measurement in court, 18, 20 ft. rather than 5 to 6. However, if he had first noticed the plaintiff some 18 to 20 ft. away on his approach at the position he marked on the sketch "P1 (1)", he was definitely a distance from the beginning of the pedestrian crossing and not "half a car's length" into it. It is wholly inconsistent with his assertion that only after his car had entered the pedestrian crossing, this shadow appeared "all of a sudden" 5, 6 ft. ahead.

16. Why was it that he could recognise nothing more than a shadow? It is inconceivable that in a brightly lit Nathan Road, at about 8:30 p.m. and driving with both his dipped head lights and an unobstructed view, the plaintiff could not have observed clearly the motion of the plaintiff, but could only manage to have a first glimpse of a shadow suddenly dashing out.

17. The defendant driver described his speed as 25 to 30 m.p.h. 25 miles per hour is 40 kmh. Counsel accepted that the braking distance is 20 meters for a speed of 60 k.p.h. as given in the Road Users' Code. One of the tyre marks is 17.3 meters which is 2.6 meters or 13% less than 20 meters. 13% of 60 k.p.h. is 7.8 k.p.h. Therefore, a tyre mark of 17.3 meters would give a speed of (60 -7.8) k.p.h. i.e. 52.2 k.p.h. 30 mph is 48 kmh. Therefore 52.2 kmh is over 30 mph. He must be travelling over 30 mph or at least too fast for the stretch of Nathan Road in which the accident occurred.

18. It is true that the defendant driver had an unobstructed view with no vehicles on his right. Even so, at that speed of over 30 mph, it would be difficult to accept that it was safe to use the slow lane in Nathan Road at that time of the evening as he would have the Court believe. It was not suggested, however, that the defendant driver did take but unsuccessfully some evasion action, shifting at a high speed from the fast lane to the slow lane, thus leaving a much longer tyre mark by his near-side wheel when the centre of gravity bore on the near-side. I would not and should not speculate. But I find that the driver defendant was definitely driving too fast and jumping a red light.

19. My considered impression of the plaintiff is that he is essentially an honest witness. I reach the same conclusion with his wife. I have listed out matters in Mr Kwan's evidence, which have caused anxiety. Pitching those against the good impression I have formed of the plaintiff and his wife, I prefer the version as given by them to that of the defendant driver. I find that the defendant ignored traffic signal and shot past the pedestrian crossing in reckless disregard of the safety of the plaintiff. Mr Kwan, I also find, failed to keep a proper look-out and/or see the plaintiff in time or sufficient time to slow down, swerve or take any or any successful evasive action. On approaching the Kimberley Road junction, Mr Kwan ought to have, in any case, reduced his speed so as to be able to better hold himself ready for a possible change to amber light. Further, realising that there was a group of pedestrians ahead, there was all the more reason for him to slow down on approaching that junction to allow himself more time for anything untoward. I also find that he failed so to slow down.

20. The plaintiff did not see the coming of the Mercedes Benz careering down Nathan Road with both of its dipped headlights on. If he had stopped before he entered the pedestrian crossing in the northern-bound carriageway of Nathan Road or if he had looked to his left, the accident might possibly have been avoided. Better still, if he had done both, it would have provided a better chance for escaping from the unfortunate collision. The plaintiff maintained that he "did not have to look at any other things" than the green pedestrian light. His wife supported this notion.

21. The centre of the Nathan Road through the opening in the railing is, in my view, a pedestrian refuge, or at least a place for pausing in the event of a red signal or blinking green or other emergencies. Mr Barretto, counsel for the defendants, referred me to the definitions of "central reservation", "light signal crossing" and "pedestrian refuge" in the Road Traffic (Traffic Control) Regulations. In particular, counsel drew my attention to Regulation 33(5) which makes the parts of the road on each side of a pedestrian refuge or central reservation, a separate carriageway. Counsel referred also to Regulations 31 and 32(3) for the provision that even portions of a zebra-crossing on each side of a pedestrian refuge or central reservation are to be treated as separate zebra-crossings. In both the former Highway Code and the present code for Road Users, it is recommended that in crossing a pedestrian crossing spanning over two carriageways, the pedestrian should stop at the pedestrian refuge or central reservation before taking the second half. The pedestrian must also keep his ears and eyes open at all times. Apart from the Code, stopping would obviously make good sense if only to ensure that the pedestrian would have time to notice any reckless driving, emergency vehicle, vehicle with mechanical defects, a driver in distress or similar situations in urgency or emergency. Then the pedestrian would enjoy an additional safeguard to that provided by the green crossing signal. Good common sense dictates that the pedestrian should stop before entering another carriageway on the same crossing and keep a proper look-out throughout his journey. The plaintiff had neither stopped nor kept a proper look-out for Mr Kwan's vehicle. For not having done so, I attribute to him a blame of 25%, 15% for not keeping any proper look-out to his left and 10% for not stopping.

22. If the defendant's version is correct, I would apportion as blame on the part of the defendant driver 20%. contributory negligence for driving with excessive speed in the circumstances, for failing to slow down before the junction, to keep a proper look-out or slow down, swerve or to take any other evasive action so as to avoid the accident.

23. Dr Kim saw the plaintiff in Korea in 1988. Dr Yeung gave a report a year later in 1989, and Dr Li gave the latest report in 1990. Dr Li had substantial overseas experience before he came to the Hong Kong University. Professor Hodgson needs no introduction for Hong Kong. To Dr Li, Professor Hodgson was virtually his mentor. When Professor Hodgson left the University for his private surgery, Dr Li was invited to join him. By then, Dr Li had obtained permission to practise fully in Hong Kong. Dr Li became a partner of Professor Hodgson and took over his practice after the Professor retired. I accept Dr Li as a highly competent surgeon with excellent credentials. He has given evidence in these courts before. He is, without doubt, an expert witness. It will be futile to be drawn into the variations in the reports of these doctors. Suffice it for me to say, all the diagnosis and prognosis of Dr Li accord with common sense and layman's logic. But medical science is not always a question of common sense or logic. For that reason, it would not be profitable for me to repeat the persuasive explanations and forceful presentations of Dr Li. Dr Li's report and the evidence he gave on his examination of the plaintiff were both based on the latest in a series of medical examinations. I prefer his assessment on the extent of injury, their permanency, likely improvement and related conditions of the plaintiff. Dr Li maintained that by the 7th month after the accident, the plaintiff should have been advised to undergo the bone graft operation. Fractures of the nature of those in the left leg of the plaintiff would, if not healing after a few months, be regarded as a symptom of delayed union. By the 7th month, a surgeon ought to have advised the plaintiff to opt for the bone graft operation so as hopefully to quicken or assist the gradual union of the leg bones. After the bone graft operation, another six months would be needed for the leg fractures to heal. On another three months' physiotherapy, the patient would be able to walk unaided, although a further period of physiotherapy would be required. Therefore, unaided motion would be regained after a period of 15 months, i.e. 6 months for the symptom of delayed union to be confirmed, another 6 months to heal after a bone graft operation and three more months of physiotherapy. I prefer and accept Dr Li's estimates.

24. Dr Li also took the view that the imperfect union of the bones in the left leg produced an angle (angulation) which had been reduced to 5^° to 10^°. 5^° - 10^° would not affect the ankle joint. The ankle joint moves principally forwards and backwards and not sideways. It is described as a mortis joint. A 5^° to 10^°angulation would not likely affect the ordinary movement of the ankle. Dr Li further explained that given time the shortness of the left leg by half an inch would not cause any noticeable limbing in walking. There would be no osteoarthritis as the injury did not directly affect the ankle joint. Running and squatting would be hampered. There was some muscle damage in the accident causing weakness in the left leg. That would be permanent to a degree. The stiffness of the left leg and the ankle joint would improve gradually within the five years after the injury. Dr Li's ultimate assessment was 3% for the left shoulder and 4% for the left leg and ankle giving a total of 7% permanent disability. Except for the application of his assessed 7% loss of earning capacity, I prefer and accept Dr Li's assessments.

25. The plaintiff suffered fractures to his left shoulder bones and bones in his left leg. The fractures to his left shoulder caused less complication than those in his left leg. After initial operative corrections, the plaintiff was given a metal fixator to his leg. A metal fixator is a metal device applied outside to his leg with metal pins penetrating into his left leg to steady the fractured bones with a view to assisting healing. He was in a plaster cast which had to be changed from time to time for a better fit to accommodate the improvements and wasting of the leg muscles. He could not clean his left leg which was, as described by the plaintiff, decaying. After the plaster cast, he had to put on a plaster mould for reinforcement. For a time, he had to be content with crutches and various types of walking aids. The plaintiff was driven to tears at times during this period in which he had to endure the severe pain and discomfort. The fractures to the left leg, together with those to the left shoulder, are substantial. Of course, they are injuries serious to the plaintiff, but by no means can they be labelled serious for assessment of damages. The plaintiff skied before the accident. That past-time is now beyond his reach. There is no sufficient evidence to connect bad temper and loss of sex drive with the injuries sustained. It must be accepted that it was an exceedingly frustrating time for the plaintiff. Bearing in mind the authorities cited for my guidance, I would award for pain, suffering and loss of amenities in the sum of 13,000,000 Won. I am satisfied that he has incurred 6,913,240 Won in medical expenses. Travelling expenses of 941,910 Won were not in dispute. I agree with Mr Barretto as to allowing half of the tonic food of 500,000 Won. It is debatable whether tonic food was a claimable item without the requisite medical evidence. The concession as to half of the tonic food was a decent concession made for avoiding any trivial disagreement. The 350,000 Won for the damaged suit was also not disputed. The watch purchased as a gift for the plaintiff some twelve years ago at 750,000 Won should be compensated for by its replacement value. Twelve years have elapsed and the claim for the original value of 750,000 Won is reasonable. I accept it.

26. That would leave only the item for loss of earnings and loss of future earning capacity. The plaintiff and his wife have together sought to explain the governmental tax certificates for the inn the plaintiff kept and the other tax incidents. To Dr Li, the plaintiff gave a profit of HK$30,000 a month. The plaintiff claimed that it was in fact almost double. The plaintiff explained, as corroborated by his wife, that the Korean Government would only tax his small inn 10 out of its 22 rooms and at a special rate. But the whole tax structure was not satisfactorily explained to this Court. The plaintiff did not produce business records to substantiate his larger claim. It is difficult to understand why the plaintiff made no special effort in preserving these documents for proving his actual loss. I accept the plaintiff's claim that he was the sole beneficiary of the income of the inn. The amah and the brother-in-law were apparently both remunerated. The wife is a very able business woman and is a university graduate. The plaintiff is only a high school graduate. The plaintiff's wife apparently had been content with no share. It came out in evidence that women in Korea are not even entitled to become registered land owners. The brother-in-law was paid 200,000 Won a month, the amah, 230,000 Won a month. With all the difficulties, the question can hardly be resolved on how much net profit the inn produced. The inn was a family business run on a family property. The profit, therefore, must have been generated by as well the business effort as the use of the family property. There was no reference to how, if at all, the yield from the use of the family property was taxed. As far as the unspecified return derived from the use of the family property is concerned, there was no evidence whether or not the sale price of 153,000,000 Won for the inn which was vacated on 20th January 1988, would attract a similar return. Out of these net proceeds, certain portion had been sunk in the acquisition of alternative domestic accommodation. The alternative domestic accommodation is definitely an improvement, at least in size. The plaintiff lost substantially in his attempted business venture in shoe business. The plaintiff lent and continued to lend money to associates and acquaintances at what would appear to be a comfortable rate of interest. It is difficult to accurately assess, criticise or justify these acquisition, investment and lending transactions. In particular, the Court was not told of the tax structure for any of them. It is hard to determine whether the present return on the net proceeds of sale matches the return on the family property when it was put to use as an inn. The burden is definitely on the plaintiff. This Court also knows not how much, of the net monthly income of the inn, was then derived from the use of the family property. The business profit of the inn cannot be, in the insufficient disclosures in this case, taken as the basis for assessment of loss.

27. From the evidence available, it may reasonably be assumed that in the responsible, managerial and supervisory position of the plaintiff, he should be paid in addition to his work around the inn, at least three/four times over the monthly pay for the amah at 230,000 Won a month. The plaintiff's extra effort in business promotion on his travels should again attract minimum three/four times what was being paid to the amah. But I would take a most conservative estimate of what would probably have to be allowed to the plaintiff for his personal contribution : he worked in the inn and he should be paid at least 200,000 Won a month, like his brother-in-law, a part-time worker. He should also receive something extra for management and supervision, twice as much as the amah, i.e. 2 × 230,000 Won = 460,000 Won a month; and he should be further remunerated for his travelling, soliciting connections and promoting business for the inn an additional sum twice the pay to the amah, i.e. 460,000 Won. All in all, his personal contribution deserved at least an income of 1,120,000 Won a month (200,000 + 460,000 + 460,000). I have approached his loss of income with caution. It is incumbent upon the plaintiff to establish his loss. In the state of the evidence ultimately left with this Court, only what is the minimal could be, on probabilities, assumed in favour of the plaintiff. The assessment which is open to me to make must be most conservative.

28. For the 15 months which he would have had to endure if he had opted for the bone graft operation, he made no contribution and could ask for no remuneration. If the inn had maintained or uplifted its monthly income during those 15 months, there could have been other causes. Strictly speaking, the plaintiff was unable to participate and lost his total earning capacity worth 1,120,000 Won a month.

29. These aspects and those I am about to consider of assessment have not been specifically pleaded, but matters were sufficiently canvassed to justify them. I would treat the particulars as if they had been adequately amended to cater for such a calculation. However, I would allow a further opportunity to the parties, on the day of judgment or thereafter, to address me on this matter if they so wish.

30. As for the application of the 7% loss of earning capacity, it is far from being simple. The plaintiff is a high school graduate. He knows of no other calling than being an inn keeper and for that matter, keeper of a small family inn. I accept his evidence that he is no longer in a position to carry on with his former calling as a result of his injuries. He might have been able to preserve his connections and goodwill, but it was not unreasonable for him to dispose of his business while ha was under medical care and attention and when there was no telling as to when he would sufficiently recover and, if so, to what extent. The sale of his inn was reasonable. It was a family type of inn. The plaintiff would not have been prepared to part with it unless it was necessary. The accident was at the end of February 1987 and he disposed of his inn by contract some ten and a half months after in November 1987. He vacated in January 1988. According to the plaintiff, it was a sound and necessary decision to take. I accept it. Now that he has sold his inn, there was no evidence whether he could purchase a new inn or renew his connections and goodwill. In any case, I accept his evidence that for various reasons, he is no longer a man fit for a family inn business as he used to be. A twelve years' purchase was suggested, which I find appropriate. But, in his condition the plaintiff would certainly sustain more loss of earning capacity than 7%. A more conservative estimate is that a period be given to the plaintiff to acquire new skill for an alternative calling. I think a period of three years would not be unduly lengthy for the plaintiff to do so. For the three years in which the plaintiff takes to undergo vocational or educational training, his income loss would be at the full rate of 1,120,000 Won per month.

31. Therefore, for the first 15 months (l 1/4 years) loss of income would be at full rate of 1,120,000 Won per month; 3 more years for educational or vocational training would also absorb a full loss of 1,120,000 Won per month. For the balance of the twelve years purchase, i.e. 7 3/4 years, loss should be at 7% of 1,120,000 Won per month.

32. Hence, the total award is as follows : -

33. The 86,866,350 Won is to be reduced by 25%, i.e. a quarter. That would bring it down to 65,149,762.50 Won. There shall be 5%, being half of estimated short term interest rate, on special damages from the date of the accident to judgment. Interest on general damages should be 2% from the service of the writ to judgment. Judgment be granted in favour of the plaintiff against both defendants in that sum with costs.

Representation:

Mr Tom Cheng instructed by Messrs. Van Langenberg & Co. for plaintiff.

Mr Ruy Barretto instructed by Messrs. Stevenson Wong & Co. for 1st & 2nd defendants.