Donald Dean Bozarth v. Yuen Ping Chor

HCA005814/1993

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Master Jones in Court

Date of Hearing: 15 January 1997 - 30 January 1997

Date of Judgment: 11 March 1997

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JUDGMENT

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1. This is an assessment of damages following interlocutory judgment entered by consent of the parties on 18th January 1995, when liability was agreed at 75% of the damages to be assessed. I shall therefore reach findings on the basis of 100% liability for the individual heads of claim before reducing the awards accordingly.

2. The plaintiff, Mr. Bozarth, was involved in a traffic accident on 22nd April 1992 when he collided with a minibus whilst riding his bicycle during a training session. He suffered multiple injuries and was taken to the United Christian Hospital in Kwun Tong. Shortly thereafter he was moved to the Adventist Hospital.

3. At the time of the accident Mr. Bozarth was Director of Tennis and Head Professional at the Aberdeen Marina Club. He had a distinguished record as a triathlete competing in international events, and also as a tennis player, representing Hong Kong on several occasions, and being over-35 doubles champion for the three years preceeding the accident. Despite his age of 45 at the time of the accident, Mr. Bozarth's commitment to and success in these athletic fields were, from his evidence, a continuing and fundamental part of his life and happiness. He was due to compete in a professional tennis event shortly after the date of the accident, and was training for the world triathlon championship in his age group later that year.

4. It has been established that Mr. Bozarth was an unusually fit man, both in absolute terms, and particularly for his age. His commitment to physical fitness is illustrated by his customary early morning cycle training when the accident occurred. At the age of 43 he was found by the Adventist Hospital health evaluation programme to have the heart condition of a man ten years younger. He is now aged 50, and was 45 when the accident occurred.

5. The plaintiff spoke of his lifetime involvement in tennis; from early success, to a tennis scholarship at Pasadena College, to becoming Head Professional and Tennis Director at a club in San Jose, and later owning his own club with his parents in Oregon. There he apparently developed a reputed coaching programme and achieved the top ranking awarded by the U.S. Professional Tennis Association. His experience also includes organizing professional and junior tennis tournaments.

6. Because of his experience and reputation, he was offered attractive terms in 1986 to become Tennis and Squash Director at the Taipa Island Resort, run by the Hyatt Hotel group in Macau. In February 1987, shortly after starting there, he was appointed Manager of the Resort with a staff of 40 under him. Mr. Bozarth had been recruited by one John Holsinger, who became a business associate when Mr. Holsinger appointed him a director of his company, Tennis Concepts, in which capacity the plaintiff was involved in organising tennis tournaments. In 1988 Mr. Bozarth decided to move to Hong Kong and obtained a position as Director of Tennis and Head Tennis Professional at the Aberdeen Marina Club. The appointment was on a renewable one year contract, and on the renewed terms the plaintiff held this position at the time of the accident in April 1992, and indeed for some time thereafter.

7. At the time of the accident Mr. Bozarth was active in triathlon competition, and was in training for the World Championship in the veterans group of ages 45-49. He had hopes of winning this as he was achieving competitive times and had just moved in to a new age division on reaching 45. In 1990 he had come 22nd in the World Championship for the age group 40-44, and in 1992 he was Asian Champion triathlete. Mr. Bozarth was active at the same time in tennis competitions and won doubles titles at the age of 43. He also represented Hong Kong in the over-35 World Tennis Championships in 1991, when Hong Kong came 8th out of 17 entries. He spoke of being in peak physical condition, with intensive training every day from 4 am, together with his coaching and administrative activities at the Club. His reputation and achievements in local tennis are supported by a letter from the Executive Officer of the Hong Kong Tennis Association, which appears at page 156 of the agreed bundle.

8. Speaking of the accident, Mr. Bozarth said he did not remember hitting the bus. He thought he was in a dream and woke up feeling completely helpless. He was in and out of consciousness when he was taken by ambulance to the United Christian Hospital, where he remembers seeing his family. Shortly thereafter he was transferred to the Adventist. On admission, the plaintiff was noted to have multiple injuries, which are decribed in the initial admission report of the Orthopaedic Surgeon Dr. Daniel Wu; dated on the day of the accident, and in the report of Ms. Nalini Advani, a physiotherapist and Director of Rehabilitation at the Adventist, dated 23rd February 1993. These reports appear respectively at pages 42 and 122 of the agreed bundle, and the injuries they describe are:

1. comminuted fracture of the distal shaft of the radius of the left arm,

2. ulna styloid fracture of the left arm,

3. left index finger fracture of the neck of the metacarpal bone,

4. undisplaced fracture of the posterior segment of the left 5th rib,

5. minor degree of left lung contusion,

6. exploded fracture of the body of T5 vertebra,

7. minimal undisplaced fracture of the body of T12 vertebra,

8. paraspinal hematoma of T5 vertebra,

9. multiple skin lacerations of left arm, hand, and both shins,

10. cerebral concussion.

9. On the plaintiff's admission Dr Wu carried out emergency surgery, which he describes as:

10. Subsequent rehabilitation treatment was intense and continued over a period of many months. It is described in detail in Ms. Advani's report of 23rd February 1993, at page 122 of the agreed bundle.

11. After the operation the plaintiff was put on an intravenous drip and given pain killers, although these were later stopped at his request as he believed pain to be part of the healing process and preferable to drugs. He said that Dr. Wu visited him the day after the operation and advised him that there was a good chance he would not walk again due to the exploded fracture of the T5 vertebra. The plaintiff described his reaction to this, saying that he told the doctor he would not only walk, but would even compete in triathlon again.

12. The plaintiff claims to have lacked sensation in his feet at this time, and he was treated by a physiotherapist. He managed to move his toes on his own after about the fifth day, and after about 10 days he said he could move his knees. During this period he described the pain as excruciating. He also described a lack of sensation from the nipple line downwards and was unable to feel the needle during pinprick tests. Later he started to feel the pressure, but still not like a pinprick. This lack of sensation he described as lasting for about 5 days or so, followed by slow but steady improvement.

13. About the end of the third week the plaintiff was told by the doctor that he could try sitting, and he was put in a thoracic brace for this purpose, as he was unable to use his abdominal muscles. He was assisted to a sitting position but was able to continue only for a few seconds even with help, whereafter he felt nauseous and was forced to lie down. Whenever he felt strong enough, the plaintiff said he would call for help and try the sitting exercise again. A few days after the first attempt to sit, he was allowed to stand by the bed and to bend his knees slightly. He felt very weak and had to use a walking frame with a nurse on either side. About the end of the fourth week he was allowed to walk around the bed in this manner.

14. It was about this time that the plaintiff discovered that the medical insurance package with the Aberdeen Marina Club covered hospital in-patient treatment for 30 days only. For this reason he asked Dr. Wu if he could be discharged earlier than originally expected - which he said the doctor had initially indicated to be about three months. Dr. Wu apparently said that he would discharge him only if he could walk without the walking frame, which the plaintiff managed on the last day of the insurance cover. He had an uncomfortable drive home and needed considerable help up the two flights of stairs to his apartment.

15. Once at home the plaintiff had great difficulty sleeping. He found the bed very uncomfortable after the hospital bed, and was having to get up 3-5 times in the night to urinate. His wife was unable to sleep in the same bed for some months as he was constantly thrashing around trying to get comfortable. There was also the problem known medically as bilateral spasticity, which the plaintiff described as causing spontaneous jerking movements of his legs. This he said happened even in his sleep, and was a further factor leading to his wife's sleeping separately. Bilateral spasticity is claimed as a residual disability from the accident.

16. This difficult period was described by the plaintiff as lasting about three months until after the thoracic brace was removed, when he had greater strength in his abdominal muscles and could move more freely. During this time he described intense pain, mainly in his back and his neck. On the 31st July 1992 the spinal brace was removed, whereafter the plaintiff started to feel stronger in the abdominal muscles and to walk a little. He said however that he always felt ill and was afraid of falling. He also complained of what is known as hyperaesthesia, speaking of a feeling akin to a band round his chest giving electric shocks in the area below the nipple and severe pain across his back, as well as feelings of extreme cold in his legs and feet. This is also claimed as a residual disability.

17. The plaintiff described difficulty in August 1992 in distinguishing between hot and cold, which caused a risk of scalding in the shower. He also found difficulty moving around and fell down stairs more than once. Even today he claims to need to use railings going up and down stairs. The metal plate in his forearm was removed in September 1992, but unfortunately the bone re-broke the next day in a domestic incident, when he tried to restrain a cat from scratching his wife. This caused considerable pain and he returned to the Adventist Hospital where he was again treated by Dr Daniel Wu. He was however dissatisfied with the treatment and consulted the orthopaedic surgeon Dr. York Chow at Queen Elizabeth Hospital.

18. Dr. Chow said in his evidence that the implanted plate on the fractured forearm had been removed too early because one of the screws had been too long at the time of insertion, and this early removal was the cause of the re-fracture. He said however that there was no significant effect from this on the present condition of the forearm. I am advised by Mr. Pirie for the plaintiff that Dr. Wu has declined to make himself available for testimony on the ground that he has no recollection of this case. This has caused difficulty, as his treatment notes have had to be interpreted by other medical witnesses. Moreover the interpretations have differed, and the adequacy of the notes themselves has been called into question.

19. The plaintiff started rehabilitation exercises at home in late August 1992, using his exercise bike and doing some jogging. In December 1992 he entered a triathlon in Thailand and started riding a bicycle on the road again, although mounting was difficult as he had a fear of falling. He competed in Thailand and completed the course, but achieved what was for him a very poor time compared to his pre-accident capability. He slowly built up his strength with exercise, but described repeated shock-like sensations in his legs which sometimes caused him to feel they were collapsing.

20. The plaintiff also described a continuing partial loss of control over his urinary and bowel functions, although not amounting to complete incontinence. So far as urination is concerned, his difficulty comprises an inability to last long without a visit to the lavatory, coupled with a short warning time. It has been noticeable in court that Mr. Bozarth would excuse himself from the witness stand perhaps three times in a morning. So far as his bowel functions are concerned he claimed that his body would give him very little warning of the need to defecate, a problem which was aggravated by any physical activity. This has apparently resulted in a number of embarrassing incidents, and he has learned that he has to empty his bowels before taking any form of exercise such as jogging.

21. The plaintiff also complained of less use of his left hand than before the accident. Apparently the ulnar bone had moved up into the area of the hand and had to be winched back. He therefore finds difficulty using his left wrist if strength is needed. Moreover his degree of rotation of the left wrist is less than it was prior to the accident. Fortunately he is right-handed.

22. The plaintiff recommenced teaching at the Aberdeen Marina Club at the end of May 1992, although he was wearing a thoracic brace at the time. For the early post-accident period Mr. Bozarth would use his son to hit the ball to the students on the tennis court, whilst he himself conducted the lesson from the sidelines. This however ceased when one of the assistant coaches complained of the arrangement to the management. The plaintiff was then obliged to take a more active part, and adapted his teaching activities to his diminished physical condition. He described himself as having less mobility and being unable to run backwards or to change direction. Hitting the ball frequently caused pain, and he described a sensation of complete numbness in one of his legs which was like an electric shock and which would occur two or three times a week. He was however concerned about his finances and the need to keep his job, and tried to hide his pyhsical difficulties from his students by being creative in his teaching techniques. His urinary problems were also a constant embarrassment, as he said he would often be obliged to leave his lessons at short notice, and even sometimes wet himself.

23. At the end of 1993 the plaintiff's contract was due for renewal, and he testified that he had a discussion with the Recreation Manager, David Pilbeam, and the general Manager of the Club, Bernhard Haechler. Mr. Haechler disagrees that he attended such a meeting, but the outcome anyway was that the plaintiff's position as Director of Tennis was removed with consequent loss of the retainer of $8,000 per month. He was however renewed as Head Professional, although on reduced terms as to the percentage of coaching fees he retained.

24. The plaintiff continued teaching at the Club until late 1994. He described it as no longer the fun that it had been before the accident. It was hard work, and his mobility and concentration were diminished. Organising a club tournament at the weekend after a week of teaching was a particular strain. At other times Mr. Bozarth conducted the lesson with the ball machine. He said he found he could not do long hours on successive days and would feel the strain if he did more than 5 hours on a particular day. This contrasted with his pre-accident ability to do 60 hours a week without feeling the strain.

25. Speaking of his triathlon capability, the plaintiff described his swimming performance as the same as before the accident, but his cycling was about 20% less and his running about 30% less. He entered a triathlon in Borneo in May 1994 and achieved what was for him a very poor time compared to his pre-accident capabilities. He was about 14 minutes behind one Chan Chee Seng whom he had habitually beaten, pointing to a 1991 result when he was some two minutes faster. These figures appear at pages 572 and 573 of the supplemental agreed bundle.

26. Other triathlon results in 1994 and 1995 confirmed the decline in Mr. Bozarth's performance (pages 574 and 575). He said he always struggled to finish and took 2-3 days to recover as opposed to the quick recovery he would make before the accident. He also pointed out that he had been training for the 1992 Borneo triathlon at the time of the accident, for which the 1st prize money was $11,000, and the eventual winner was someone whom he had previously beaten by ten minutes. He claims this as a probable loss arising from the accident.

27. It will be helpful at this stage to summarise the residual disability claimed by the plaintiff:

1. Hyperaesthesia or paraesthesia - what the plaintiff describes as a band round his chest below the nipple line giving sensations akin to electric shocks, which are more or less continuous but vary in strength. It is also manifested as feelings of unusual heat and cold in the feet and legs which vary randomly and are unconnected with the ambient temperature. These indications also contribute to his poor sleeping habits. I understand from the medical witnesses that hyperaesthesia is the more severe form of paraesthesia and they are essentially the same phenomenon.

2. Loss of sensation - this was described by Dr. Yu Yuk Ling as a negative symptom arising from spinal injury as opposed to a positive symptom such as hyperaesthesia. In the plaintiff's case it appears as a partial loss of sensation over the skin surface from the nipple line downwards to the feet.

3. Bilateral spasticity - the spontaneous jerking of the knees which the plaintiff claims to suffer even in his sleep, in which respect he is supported by his wife's evidence. It also occurs at times of physical activity, such as jogging or even walking or climbing stairs if he trips or twists his ankle or treads on an uneven surface. The result is an uncontrollable and sometimes violent spasm in a leg muscle or joint. If this occurs in a joint it causes a feeling of collapse in the leg lasting a few seconds, if it occurs elsewhere it is merely uncomfortable. The spasms have apparently increased in both intensity and frequency since the plaintiff has become more active. Spasticity is evidenced by clonus, which I understand to be a spontaneous muscle contraction in the affected area following a sudden stimulus such as treading on an uneven surface or tripping. Clonus may also be deliberately triggered by a doctor as a test for spasticity, and such test on the plaintiff proved positive. The medical evidence is that clonus cannot be simulated by the patient.

4. Urinary problems - these relate to the plaintiff's need to urinate at more frequent intervals than normal, as well as to the sudden onset of the urge to do so. It is connected with his lack of a normal sleeping pattern insofar as his frequent urination is claimed to cause him to waken 3-5 times during the night. It has caused him embarrassment when he has to stop what he is doing at short notice, for example during tennis coaching, and he has on occasions wet himself.

5. Diminished bowel control - the urge to defecate overtakes the plaintiff unexpectedly and gives him no more than a few seconds warning before he is obliged to do so. On his evidence, this is particularly so when he is involved in physical activity of even a mild nature, such as jogging, when he has to look for example for a convenient bush to relieve himself. This problem has caused him embarrassment whilst running in a triathlon, when he soiled himself on several occasions, and recently in a club in Hong Kong when he was unable to reach the lavatory in time even though he was already in the bathroom. The plaintiff now adopts the precautionary practice of emptying his bowels before undertaking any physical activity.

6. Diminished sexual interest and activity - the plaintiff complains of a diminished interest in sex coupled with a loss of sensation through the numbness he has experienced since the accident. He says that he finds it difficult to maintain his interest during the act, and sometimes does not want sex at all. Prior to the accident he was apparently very active. This change in Mr. Bozarth has resulted in what he describes as severely reduced marital relations with his wife, coupled with a consequent strain on the relationship.

7. Left hand and arm - due to the injuries to the radius and ulnar bone, the plaintiff has reduced rotational ability in the left forearm and hand and reduced twisting strength in the hand and wrist. He also has numbness down the outside of his left index finger.

28. There are unusual difficulties in assessing the plaintiff's loss in this case. The first is what Mr. Pirie argues to be the inadequacy of Dr. Daniel Wu's treatment notes at the Adventist Hospital. Dr. York Chow, who gave evidence for the plaintiff, is the Chief Executive of the Queen Elizabeth Hospital and a leading orthopaedic surgeon. In addressing the treatment notes, as well as the system and format within which the entries were made, Dr. Chow commented that he would not accept it in his own hospital. The fact that Dr. Wu has not given evidence compounds the difficulty of interpreting precisely what treatment the plaintiff received and what was his condition from time to time whilst in the Adventist.

29. The second unusual difficulty arises from the plaintiff's fitness at the time of the accident, his determination, and his apparently "miraculous" recovery. It is argued that, paradoxically, the plaintiff's determination to overcome his injuries, and to play them down because of the physical nature of his employment and his fear of losing it, has led to his being "underdiagnosed" in the early stages. This is also advanced as the reason for his failure to obtain a full medical report at the time of discharge, the report of the physiotherapist Ms. Advani of 23rd February 1993 (P.122 of the agreed bundle) being the first detailed treatment raport.

30. The third difficulty arises from the other two. The plaintiff's progress as documented gives an impression of deterioration from roughly mid-1993 to mid-1995 from the status of an apparently fair recovery to one of considerable neurological deficit. Medical opinion differs, firstly as to whether or not there was in fact a deterioration, and secondly, if there was, as to the probable reason for it.

31. The plaintiff's own medical witnesses describe his present condition as directly attributable to the accident. Either his condition has existed since then, and was only later revealed by increased physical activity and more detailed examination, or alternatively, if there has indeed been a deterioration, then it amounts to a rare process of natural deterioration following the injuries. By contrast, the defendant's medical evidence accepts the possibility of natural deterioration, but emphasises its rarity, and postulates an intervening cause unconnected with the accident itself as the probable reason for the plaintiff's decline from his earlier "recovery". An attack of myelitis (inflammation of the spinal cord) is advanced as a candidate for this role, as well as the possibility of a second trauma.

32. It is therefore initially necessary to decide from the medical evidence the extent to which the plaintiff's present condition is directly attributable to the accident. It is not suggested that Mr. Bozarth is simulating or exaggerating his current symptoms and residual disabilities, indeed all the medical evidence is to the contrary. This accords moreover with my own impression of the plaintiff over four days of testimony as a totally honest and straighforward witness. From what I understand, most of his present condition is anyway impossible to fake.

33. Dr. York Chow examined the plaintiff on 28th September 1992, after the re-fracture of the injury to his forearm, and operated on the injury on 6th October 1993, when the break was re-plated. He prepared a report dated 16th September 1993, which appears at page 136 of the agreed bundle. Dr. Chow examined the plaintiff again on 23rd July 1993 and found almost normal function of the forearm, save for deformity of the index finger and pain from the area of the injury when force was attempted. The doctor describes hyper-sensitivity of the skin area supplied by the T5 vertebra and hyper-sensitivity and pain after about 6 hours of tennis coaching. He also mentions frequency of urination and diminished bowel control with episodes of incontinence, but concludes that the plaintiff has regained his functions "miraculously well" and assesses permanent impairment at 4% with a possibility of slight improvement.

34. Dr. Chow operated to remove the plate in the plaintiff's left forearm on 15th June 1995 and gave him a general examination during follow-up treatment. The doctor's second report covers this period of his treatment and is dated 8th August 1995 (page 153 of the bundle). The roughly 2-year period between the examinations detailed in Dr. Chow's two reports is of particular significance because it covers the major part of the apparent deterioration in the plaintiff's condition.

35. In his second report Dr. Chow notes from the plaintiff's own indications progressive incoordination of the lower limbs, easy fatigability, more frequent bowel and bladder incontinence and decreased sexual potency. The plaintiff also told him that he had been obliged to give up triathlon competition and had stopped working as a tennis coach. Physical examination revealed -

"---- bilateral spasticity of lower limbs associated with knee and ankle clonus. Sensation is intact. These indicated an upper motor neurone lesion of the spinal cord, probably at his old injury site of T5".

36. Dr. Chow ordered an MRI scan (magnetic resonance imaging) which showed that the compression fracture of the T5 vertebra was deformed, but had healed without structural instability. He commented in his report -

"His clinical status has obviously deteriorated since his last report despite the healing of his fracture and almost normal upper limb functions. Without any clear sign of structural change in the thoracic spinal cord or cord compression in MRI, it is difficult to ascertain the pathological diagnosis. The symptoms and signs do localize the neurological lesion to the mid-thoracic region and therefore the most likely clinical diagnosis is a slow cord demyelination which rarely follows spinal cord injury".

37. Slow cord demyelination is a relatively rare cause of natural post-trauma deterioration which I understand to be part of the condition known as arachnoiditis. Demyelination is described by Dr. Chow as the inflammation and destruction of the protective wall round the nerve cells, causing obstruction to the passage of nerve impulses. As a natural deterioration following the injuries, it is one possibility favouring the plaintiff's claim that the defendant is legally liable for his present condition. The other such possibility, favoured by his second medical witness Dr. Yu Yuk Ling, is that the plaintiff's condition was present from the beginning, but was underdiagnosed and only revealed fully when the plaintiff increased his physical activity. Dr. Chow concluded his report by finding it difficult to reach a prognosis, and suggested a 15% impairment with a best estimate of improvement at 20%. He said in evidence that he had not taken into account incontinence and diminished sexual potency in reaching his figure of 15%.

38. There is no factual dispute about the plaintiff's present medical condition. The defence concentrates its arguments on a lack of causal connection between that condition and the initial trauma. Its position may be summarised in an exchange between Mr. Leong, counsel for the defence, and Dr. Edmund Woo, a consultant neurologist and defence witness. Mr. Leong postulated three possible scenarios as explaining the present medical condition of the plaintiff, and I accept from the evidence that neither side has canvassed any other explanation. These alternatives are -

39. Offered these alternatives, Dr. Edmund Woo chose the third scenario, the intervening cause, as the most probable. Explaining his reasons Dr. Woo said, and I quote from my own notes, so there may be slight but not material differences from his precise words -

"I say this because after any trauma, whatever injury there is has to recover. And evidence points to this being a mild injury and one would expect the injury to recover. The course from trauma to mid-1993 is consistent with a recovery. Functionally the plaintiff has returned to competitive sports; this requires an intact nervous system - no deficits. There was later worsening in his functional status, confirmed by my examination, and with those deficits he could not possibly compete in triathlon in December 1995. Therefore I ask myself why he cannot then, but could in 1993 - the signs of clonus and spasticity would stop him doing it now. To be able to do it only in 1993 implies that these signs could not have existed at that time, therefore something must have happened between those two periods, and we are balancing between a superseding spontaneous event unrelated to the event of the trauma, or a late deterioration. There is no evidence of the two natural forms of deterioration mentioned in my report, so we are left with a supervening event consistent with the clinical factors".

40. The report mentioned by Dr. Woo is his report to the defendant's solicitors of 15th March 1996, which covers his examination of the plaintiff on 29th December 1995 as well as his consideration of the reports of other medical witnesses in this case. Dr. Woo's report appears at page 406 of the agreed bundle, and his comments on the two natural forms of deterioration commence at paragraph 9. It is the second of the two alternatives at page 421 which has been suggested by Dr, Chow and described as slow cord demyelination. Dr. Woo addresses this at paragraphs 12 and 13, when he appears to accord the possibility of a spontaneous intervening event no more than equal status with that of natural deterioration. His precise words at paragraph 13 are -

"It is conceivable that a spontaneous neurological event (such as a myelitis) independent of the original trauma might have occurred between 1993 and 1995, resulting in a worsening of his neurological status. But the delayed neurological deterioration can also be explained by a spinal arachnoiditis causing either a central syringomyelia or a demyelination. The current clinical and radiological evidence does not permit a clear and unequivocal distinction between an independent spontaneous event and a delayed posttraumatic deterioration".

41. It is clear that Dr. Woo does not at this point consider, as he did in his oral evidence, the independent intervening event to be the more probable explanation for the plaintiff's present medical condition. He descibes such an explation as merely "conceivable", which is hardly the language of probability, and gives no less weight to the possibility of a natural deterioration. It is to be noted that the first of the two natural causes of deterioration - syringomyelia - has been rejected by all three medical witnesses as being contra-indicated by the plaintiff's symptoms, leaving only demyelination as a possibility.

42. In his oral testimony, Dr. Woo emphasised the lack of indication in Dr. Daniel Wu's treatment notes of serious spinal cord injury during the plaintiff's in-patient treatment at the Adventist Hospital. He found it significant that there was little recorded from which he could infer the liklhood of the plaintiff's present condition developing as a natural consequence of the accident. Specifically, Dr. Woo described his impression from Dr. Daniel Wu's notes from the day after the accident to the plaintiff's discharge as showing sensory disturbance to the spinal cord, but no indication of motor dysfunction, and with the sensory abnormalities themselves receeding.

43. Dr. Woo therefore concluded that the plaintiff could not have severe damage to the spinal cord, although there was damage to the bones. He contrasted this with his findings on examining the plaintiff in December 1995 when he said he found spasticity and ankle clonus, which he would have expected to be mentioned in the treatment notes if present when the plaintiff was in the Adventist. Dr. Woo did however agree with Dr. Yu Yuk Ling - a fellow neurologist and a witness for the plaintiff - that clonus could remain unrevealed when the plaintiff was trying to re-acquire walking skills.

44. Clonus is apparently not triggered unless adequate force is applied and is therefore more likely with increased activity. Walking, which does not involve using much force on the sole of the foot, may not elicit clonus, and Dr. Woo accordingly agreed that it could be absent in the early stages of the plaintiff's efforts to walk. He added that he would have expected it during physiotherapy and it was not mentioned in the physiotherapist's notes. Dr. Yu Yuk Ling however questioned if it was the function of a physiotherapist, rather than the doctor, to record clonus. Dr. York Chow also said that it was possible the plaintiff had residual spasticity after the accident in 1992, but not serious enough to manifest in the symptoms until he took strenuous exercise. He said in cross-examination that muscle tone testing for spasticity should have been done, as initial efforts to resume walking would not reveal it.

45. Dr. Woo said that he partly based his conclusion of the plaintiff's near recovery from the original trauma on his competing in triathlon events up to mid-1993. Correspondingly, his conclusion of a later deterioration was partly based on his understanding that the plaintiff had not competed after that time, as well as on his firm opinion that the plaintiff would be unable to compete in his condition on his examination in December 1995. Dr. Woo expressed surprise when evidence was adduced that the plaintiff had competed in a triathlon event in 1995 and in another in 1996, although he had not completed the second of these.

46. Dr. York Chow said that he has long been interested in sports medicine, has been a member of the Sports Development Board and of the olympic and paralympic movements, and concerned in an organisation for the disabled. With this background, he said that the plaintiff could, as a previously outstanding athlete who still trained hard, compete with normal people in a triathlon in May 1993 whilst suffering spinal cord injury involving spasticity and clonus, although he would not expect the same level of results. Given that the plaintiff's triathlon times had dropped by about 20 minutes from previous times of about 2 1/4 hours, Dr. Chow said that this could be achieved with spinal cord injury provided the level of training was high.

47. There is accordingly a radically different understanding between Dr. Chow on the one hand and Dr. Edmund Woo on the other as to the likely effect of spinal cord injury on athletic potential, in particular as to triathlon competion. Dr. Woo expected that the plaintiff's condition in December 1995 would disable him from triathlon competition, and he said that his conclusion of near complete recovery by mid-1993 was partly based on the triathlon performance until then. His opinion of the greater liklhood of a supervening and unconnected cause for the later deterioration similarly relied to some extent on his finding in December 1995 that the plaintiff could not any longer compete in triathlon.

48. On the other hand Dr. Chow's evidence shows that such injuries are by no means totally disabling at the level at which he now places the plaintiff's condition. Despite Dr. Woo's considerable eminence as a neurologist, I must prefer Dr. Chow's evidence in this area as deriving from greater practical expertise in the precise field of the athletic capabilities of those with spinal cord injuries. Dr. Yu Yuk Ling also accepted that an athlete could have spasticity and still cycle and run, although with diminished performance.

49. Dr. Edmund Woo's apparent misunderstanding of the physical effects of spasticity on athletic performance is particulary illustrated by the example of the cycling portion of the triathlon event. Dr. Woo said that cycling involves pressing on the pedal, which would elicit clonus and make it difficult for the rider to stay on the bicycle; if he fell, he could get back on but would fall off again at the next clonus. However Dr. Chow, when asked in cross-examination the question -

"If he is cycling and clonus occurs, can he continue?"

replied that clonus would not normally arise in cycling unless the rider for example hit a pot-hole, because the action is all controlled and there is no sudden stretching.

50. The two doctors showed similar divergence of opinion on the plaintiff's ability to participate in the running section of the triathlon. Dr. Woo said that the plaintiff's spasticity and the clonus he observed in December 1995 would leave him with insufficient co-ordination for running in a triathlon. From this he inferred a severe deterioration from what he then assumed (reasonably on the available information) to be the plaintiff's last triathlon in mid-1993. Dr. Chow had earlier been asked in cross-examination if the athlete who sustains clonus in the course of running can carry on thereafter. He replied that spasticity was always present and the athlete would be at risk of falling over if he were to hit something uneven and sustain clonus. Having done so however he could then get up and carry on. Dr. Chow added that in triathlon the movement is even and controlled and clonus is therefore unlikely; the athlete could therefore participate although with a greater risk of falling than a normal person.

51. In addition to his perception that the plaintiff's athletic ability had grossly deteriorated from mid-1993 to late 1995, Dr. Woo's opinion appears to rely heavily on his observation that spinal cord damage and consequent spasticity were not evidenced in the Adventist treatment notes. From this he concluded that if there had been spasticity at that early stage it would have appeared in the notes, and consequently that spasticity was a later phenomenon, induced in Dr. Woo's opinion probably either by the intervening and unconnected onset of myelitis or by a second trauma. The treatment notes as to tests, the plaintiff's condition, and his day to day response to treatment are therefore important in evaluating Dr. Woo's opinion as against the plaintiff's contention that his present undisputed symptoms were in fact with him from the start.

52. Dr. York Chow's overall opinion of the treatment notes was that he would not tolerate them in his own hospital. Dr. Woo appeared reluctant to criticise the Adventist treatment notes, which, apart from the admission notes, were all made by Dr. Daniel Wu. This emerged from a series of questions in cross-examination about the quality of the notes, when Dr. Woo at first replied that they were the best you could get in either the private or the public sectors. A few questions later he remarked that the notes were not that bad, but you could expect a lot better. Shortly thereafter, when it was pointed out that there was no detailed analysis in the notes, Dr. Woo said that medical records were always a shambles and that he could not comment on Dr. Wu. Further questions on the same lines brought the comment that he could not answer.

53. Dr. Chow was asked in his evidence to consider the report of Dr. Woo at page 417 of the bundle. The first paragraph under the heading "comment" encapsulates Dr. Woo's reliance on the treatment notes in concluding that the plaintiff did not have spinal cord damage or motor dysfunction at that stage. Dr. Woo's expressed reasons for this finding were that Dr. Daniel Wu had found that -

"---muscle power and proprioceptive sensation were normal. The exteroceptive sensory impairment also receded rapidly, leaving only a band of hyperaesthesia at the T5 level, thus allowing Dr. Wu to infer that it was nerve root contusion rather than cord contusion."

54. Dr. Chow's comment on this was -

"I think the records did show weakness and sensory shock and cord contusion, but it may not be severe. I do not think the hospital notes are clear and detailed, but it does show sensory loss, weakness and paralysis of the bladder. The recording is a matter of different doctors' practice. We (Q.E.Hospital) have a table and chart for spinal cord injuries and would have a much more detailed description of his injuries and progress. We have a form designed to check everything for spinal cord injury, and doctors and nurses fill it all in the same day. Integrated doctor and nurse records. I would not accept the Adventist records in my hospital."

55. At a later stage in his evidence Dr. Chow clarified his criticism of the notes in saying -

"The main thing lacking is a description of muscle tone examination over the whole hospitalisation period and there is no record of recording muscle power and sensory abnormality on an anatomical diagram, - only a description, and no test of reflexes. Quite a lot is not recorded which should have been done".

56. Despite the inadequacy of the Adventist notes, Dr. Chow is able to find in them recorded evidence of spinal cord injury. He cites for example the notes on the plaintiff's discharge (p.314). At item (4) under "Final Diagnosis" is recorded "spinal cord contusion", and under the summary below is recorded "gradual progress limited by his back injury and neurological injury". Dr. Chow said that this showed a record of spinal cord injury. He drew the same conclusion from the treatment record for 23rd April 1992 (p.324), which includes the entry "decreased pain sensation from waist down to his toes bilaterally".

57. Dr. Chow not only disagrees with Dr. Woo's interpretation of Dr. Daniel Wu's notes, but his comments illustrate the danger of relying on notes which may inadequately reflect a complex medical condition and the ensuing progress. The standard of treatment notes described by Dr. Chow as obtaining in his hospital shows that not all medical records are a shambles. The lack of detail in the Adventist notes also raises the possibility that Dr. Woo's interpretation of them may necessarily have been more subjective than would otherwise have been possible.

58. Dr. Chow had himself concluded in his second report of 8th August 1995 that the plaintiff's clinical status had obviously deteriorated since his earlier report. Dr. Woo had considered this in preparing his own report, and naturally bore Dr. Chow's conclusion in mind in reaching his own conclusion of an intervening deterioration. He noted in particular that Dr. Chow was the only doctor to have examined the plaintiff both in 1993 and in 1995 and therefore was in the best position to draw comparisons.

59. In his oral evidence also Dr. Chow said that there had been a deterioration. Commenting on paragraph 7 of Dr. Woo's report he agreed that there had been a deterioration between the dates mentioned, but disagreed with Dr. Woo's conclusion that a comparison between his (Dr. Chow's) 1993 and 1995 findings -

"----indicated that Mr. Bozarth could not have sustained any major damage to the spinal cord -------- and must have made a complete (or near complete) recovery from it"

60. Dr. Chow said that the plaintiff in his opinion has a significant spinal cord injury and made a very good recovery, but not a near complete recovery. He said there was some adaptation on the plaintiff's part.

61. So Dr. Chow's own conclusion of an intervening deterioration between the two dates mentioned agrees with that of Dr. Woo, and indeed contributed to it. In discussing the apparent deterioration in evidence Dr. Chow said that the plaintiff may have had residual spasticity after the injury but not serious enough to manifest in the symptoms until he took strenuous exercise. In cross-examination he also said that he assumed some spasticity in the plaintiff at an early stage from the symptoms (such as frequent falls) which the plaintiff reported to him. More particularly the doctor accepted explicitly that the plaintiff's condition had been underdiagnosed. In answer to the suggestion in cross-examination that trauma patients may show symptoms of a spinal cord injury, but these may go in a few days time, Dr. Chow replied -

"The history of cord injury starts with spinal shock and function is affected for a short time and then function comes back. The plaintiff had spinal shock and came back with a lot of recovery, but spasticity and increased reflexes were not given due weight by doctors, including me. He had multiple injuries and attention was drawn to them. Even on discharge he had some sensory numbness of the lower limbs and increase in reflexes - indicating well past the spinal shock stage there was some spinal damage".

62. On analysis of his evidence, Dr. Chow has not resiled from his conclusion in his second report that there was a deterioration. He has in fact affirmed that opinion. He nonetheless believes that the plaintiff had initial spasticity from the early stages. His overall conclusion therefore seems to be a combination of initial underdiagnosis coupled with natural deterioration due to demyelination. He ruled out Dr. Woo's conclusion of an intervening independent cause, whether it be myelitis or a second trauma, a subject addressed at greater length below. He said that he believed the plaintiff's complaints to be genuine and to have arisen from the 1992 accident.

63. Dr. Yu Yuk Ling, like Dr. Edmund Woo also an eminent neurologist, gave evidence for the plaintiff. He initially commented on what he perceived as the shortcomings of the hospital treatment notes, describing them as incomplete and representing only generalised statements rather than reflecting a precise monitoring of progress. He said it would have been desirable to use a protocol allowing the plaintiff's condition to be charted as a precise progress measurement. He also recommended a body chart and a record indicating the patient's response to the four neurological tests as to motor functions, sensory functions, tendon reflexes, and positional sense. In evaluating the plaintiff's present condition in relation to the accident Dr. Yu said that we were seriously hampered by the under-recording in the treatment notes.

64. In his report of 10th January 1997, Dr. Yu notes the discrepancy between the Adventist treatment records and the plaintiff's symptoms as reported to him. He finds it impossible to say from either the nursing or the physiotherapy notes if paralysis to the legs - indicative of severe spinal cord injury - was sustained, but notes that assisted and active exercises were given to the legs and feet by the physiotherapists. In his oral evidence on this point he confirmed that there would have to be problems before these exercises would be given, and that although they would trigger clonus he did not consider it the physiotherapist's job to record that. In his report he concludes from the hospital notes of the exploded fracture to the T5 vertebra, coupled with paraspinal haematoma, that there had been substantial impact in that region and that it was -

65. Dr. Yu was equally firm in giving his evidence in court. Commenting on Dr. O'Donovan's report of 11th December 1995 where Dr. O'Donovan said (page 171-2) he was unconvinced of spinal cord damage and that the plaintiff's physical activities after discharge were inconsistent with that condition, Dr. Yu said -

"I find it totally wrong. People with spinal cord damage can do a lot of sport. It depends on the severity of the damage. I believe that all the symptoms can be explained by segmental damage to the spinal column at the mid-thoracic level. I do not agree to a non-spinal cord trauma as the explanation".

66. Dr. O'Donovan's two reports on behalf of the defendant are in evidence in the agreed bundle. However I do not propose to discuss them in further detail. Not only do both Dr. Chow and Dr. Yu repeatedly and radically disagree with Dr. O'Donovan's comments and conclusions, but his examination of the plaintiff in December 1995 elicited an opinion of the plaintiff's present symptoms at variance with that of Dr. Woo. Dr. O'Donovan was not called by the defence, neither were his reports referred to in closing argument. In all these circumstances I find I am justified in placing little weight on his comments.

67. Dr. O'Donovan did however recommend that the plaintiff have a cystometry check to ascertain the status of his bladder function. I understand that such an examination was in fact done by Dr. Peter Chan, an urologist at the Prince of Wales Hospital, but the defence has chosen not to disclose the ensuing report. The defence is not obliged to reveal the results of Dr. Chan's examination, however I am able to infer from that decision that those results were not adverse to the plaintiff's case.

68. As I understand the medical evidence from both sides, nerve root damage at the T5 level would result in localized sensory disturbance restricted to that level, and there should be no resulting motor dysfunction. Spinal cord damage is considerably more serious and results in sensory disturbance unconfined to the T5 level of the original injury, coupled with motor dysfunction - all of which are evidenced by Mr. Bozarth's reported symptoms and confirmed by medical examination.

69. It is the apparent deterioration from the original injury, as it was discussed in the treatment notes, which has driven Dr. Edmund Woo to his explanation of intervening myelitis or new trauma. Dr. Yu Yuk Ling places the probable cause of the present symptoms firmly on the side of considerable injury to the spinal cord at the time of the accident, with demyelination as a secondary possibility. Dr. York Chow picks a middle road between initial underdiagnosis and his explanation of a natural deterioration through demyelination. I accept that all the doctors have been hampered in reaching their conclusions by the inadequacy of the Adventist treatment notes, but importantly, Dr. Chow and Dr. Yu both rule out Dr. Woo's explanation of intervening myelitis or trauma.

70. Dr. Yu admitted that he had initially assumed a deterioration in the plaintiff's condition from his reading of Dr. Chow's first report of September 1993. He had apparently understood Dr. Chow's indications of the plaintiff's symptoms to have been based on a full neurological examination, rather than being, as Dr. Chow said in evidence, a record of the plaintiff's description of them to him. This was no doubt also a contributing factor to Dr. Woo's conclusion that there had been a deterioration between the times of Dr. Chow's two examinations. Dr. Yu however said he found the plaintiff's attitude to be positive and the plaintiff himself relable and concluded that there was an element of under-reporting.

71. Under-reporting of course refers to symptoms subjectively described by the plaintiff himself and relates to his positive attitude, which I accept from observing him. Coupled with his positive attitude, I also accept as reasonable that the plaintiff should play down adverse symptoms because of the physical nature of his job and his fear of losing it if a bad physical condition became known. Dr. Chow moreover commented on the lack of due weight given by doctors, including himself, to the plaintiff's spasticity and increased reflexes.

72. In addition to these factors there is the mutually corroborative evidence of the plaintiff and his wife as to the plaintiff's physical condition at home after discharge. The jerking knees and foot movements in bed forcing them to sleep apart for three months, the frequent tripping and the falls, the sudden urgency of urination, the hot and cold feelings in the legs, are all accepted by the medical witnesses to be consistent with spasticity and sensory disturbance from spinal cord injury. In addition to observing the plaintiff over four days and finding him a reliable and honest witness, I have observed Mrs. Bozarth during her testimony over a period of some 2-3 hours. I found her also to be a reliable and truthful witness in describing her husband's condition at home after the accident. Given all these factors I make no adverse finding in respect of what is apparently an under-reporting of symptoms which contributed to an initial underdiagnosis.

73. In evidence, Dr. Yu disagreed with paragraph 7 of Dr. Woo's report which recorded a conclusion that the plaintiff had not sustained major damage to the spinal cord, had made a (near) complete recovery, and had suffered a change in neurological status between July 1993 and May 1995. Dr. Yu concluded that the signs and symptoms presently exhibited by the plaintiff have been there since the accident and attributed the plaintiff's present condition to the accident. He did however acknowledge that there may have been a slight deterioration of function, and if this were the case, he accepted that demyelination arising from arachnoiditis could be the reason. This is the second of the two natural forms of post-trauma deterioration discussed by Dr. Edmund Woo at paragraphs 9-13 of his report; the first, syringomyelia, has been excluded as a cause of deterioration by all three of the doctors who gave oral evidence.

74. Dr. Chow and Dr. Yu each examined Dr. Edmund Woo's acceptance of an intervening cause - myelitis or a second trauma - as a probable reason for his finding of a deterioration in the plaintiff's condition. A second trauma as a cause of the plaintiff's present condition was not discussed at length by Dr. Woo, he merely advanced it as a possibility without attempting to relate it to any particular trauma subsequent to the initial accident. Nonetheless, there is evidence that the plaintiff suffered two falls from his bicycle in training after the accident, in one of which he broke his collar bone and subsequently made a satisfactory recovery. He has also fallen during triathlon competition. In discounting these incidents as to the present symptoms, Dr. Chow said -

"The falls from his bicycle and in triathlons could not have caused (the present) injuries. Spinal cord damage needs a very serious injury, particularly when in the thoracic spine which is well protected by the spinal column. Without structural damage to the spinal column it is almost impossible to have spinal cord injury. I do not think he had any additional spinal cord injury after ----- the 1992 accident".

75. Dr. Chow's evidence to this effect is consistent with his comments in his latest report dated 15th January 1997 (p.580 of the bundle). Dr. Yu also dismissed the possibility of the plaintiff's later accidents causing further injury at the T5 level, pointing out that the spinal canal enjoyed considerable protection at that point. I find I have no difficulty in rejecting a second trauma as a likely intervening cause of the plaintiff's present symptoms.

76. Dr. Yu Yuk Ling addressed the report of Dr. Edmund Woo at paragraph 13 (p.423-4) where he (Dr. Woo) discusses the intervention of "an independent spontaneous event" such as a myelitis. Dr. Yu commented -

"My view is that if one postulates a second event accounting for the deterioration of the spinal cord trauma, then there has to be such an event. For example myelitis must demand an indication of it, and there is none".

77. The doctor went on to describe the symptoms of myelitis as sensory disturbance of the trunk and limbs below the lesion, motor weakness, and disturbance of the bladder and bowel functions. He said that the symptoms come on either acutely within a day, or sub-acutely within a week. There may be fever but not necessarily so.

78. In cross-examination, Mr. Leong directed Dr. Yu to these symptoms and postulated a scenario which I perceive as fundamental to the defence argument of intervening cause. Counsel suggested that the plaintiff may have been on the way to recovery from the T5 injury, with subsiding symptoms, when he was attacked by myelitis; the plaintiff was then unaware of the myelitis attack as the symptoms were essentially the same as he was already suffering. Addressing this suggestion, Dr. Yu answered -

"It is not possible. When a myelitis occurs there will be dramatic changes, legs weak, dramatic increase of sensory disturbance, and sphincter dysfunction. It is not gradual; he could not fail to notice the change. It would be a very unfortunate co-incidence that he were attacked by the myelitis at the same level as the lesion".

79. Asked further if a sub-acute onset of myelitis would produce less dramatic results, the doctor replied that the patient would still notice the deterioration within a week and seek help.

80. Dr. York Chow was also cross-examined on the myelitis argument and ruled it out, saying that the plaintiff had no relevant history of systemic disorder. He said that it was very unlikely that such an attack could be suffered without the subject being aware of it. In evaluating the competing possibilities there is also the evidence of the plaintiff and Mrs. Bozarth that they were unaware of the onset of any symptom normally associated with an attack of myelitis.

81. Conflicting medical conclusions from eminent practitioners are not easy to resolve, particularly in the absence of direct evidence from the doctor who initially treated the condition in issue. I find however the weight of the evidence to be firmly against an intervening myelitis. Fortunately I do not have to decide the reason for the plaintiff's disabilities between natural post-traumatic deterioration and a static but underdiagnosed condition, for the legal implications of either, or of a combination of the two, are the same. In discussing demyelination, Dr. Chow accepted deterioration and reached his conclusion of demyelination by what he described as logic and not speculation, because there was no indication of any other cause. Dr. Yu admits some deterioration and consequently the possibility of demyelination, but favours a fundamentally static and underdiagnosed condition. Whatever the precise answer may be, I find the probability to be a combination of these two factors and the defendant accordingly liable for the plaintiff's injuries and disabilities as a result of the accident.

82. On the finding that I have now reached, the defendant contends that an award of $500,000 would be appropriate for pain, suffering and loss of amenities. The plaintiff seeks an award of $800,000, and Mr. Pirie argues that he should be placed in the "substantial injury" category of the Lee Ting Lam guidelines. I remind myself of the extent of this category, which covers -

"------ injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life".

83. This category of injury is to be contrasted for present purposes with that of "serious injury", the lowest category, which is expressed to cover -

"------ those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility and enjoyment to the victim, for example the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain".

84. In categorising injuries and bracketing appropriate levels of general damages to each category, judges of appeal properly emphasise the function of these principles as guidelines rather than strait-jackets. The plaintiff's situation does not easily fit into the guidelines, let alone a strait-jacket. The Lee Ting Lam categories emphasise mobility as a major criterion in the ascending order of gravity, and there is no doubt that loss of mobility makes enormous inroads into the daily enjoyment of life's amenities. The plaintiff however retains most of his mobility for everyday purposes, but has substantially lost it for the very recreational pursuits which formed a fundamental part of his pre-accident life, - tennis, triathlon, as well as his training and love of physical sport generally.

85. Again, the category of "substantial injury" proposes the example of multiple injuries requiring regular treatment for the remainder of life. How is this to be compared with the plaintiff's diminished sexual potency and bladder and bowel incontinence, for which there has been little suggestion of a likely improvement. There may not be any regular treatment throughout his life for these afflictions, but they and their attendant humiliations will remain with him for that long. In using guidelines and drawing comparison with other decided cases the inevitable difficulty is that we are never comparing like with like. I draw comfort in this context from the comments of Mr. Justice Litton V-P giving the judgment in the Chan Pui Ki appeal (Civil Appeal No. 263 of 1995 at page 8) -

"There are cases, such as the present one, where the injuries are composite: physical, mental and psychological. It is the total effectof the injuries which must be assessed rather than the artificial "category" into which they fit most comfortably".

86. As to wholeman impairment, Dr. Yu has proposed a level of 37%, which he divided into -

5% for motor function impairment

15% for sensory impairment

15% for bladder and bowel impairment

8% for sexual impairment

87. Dr. Chow in his second report cited 15% as his estimate, but said in court that he did not include in this calculation the factors of incontinence or sexual impairment. If these are included at the rating reached by Dr. Yu, the total impairment would be 38%.

88. Dr. Edmund Woo reached a figure of 31%, having apportioned only 5% for bowel dysfunction. The doctor initially said he was unconvinced of impairment in this area but then had second thoughts. From the plaintiff's description of his incontinence, and from Dr. Yu's assessment, I consider that Dr. Woo has underestimated this factor. He has also awarded only 5% for sexual impairment, as his practice is to estimate individual areas of impairment in multiples of five. Balancing all these factors, I accept Dr. Yu's assessment of 37% wholeman impairment.

89. I am obliged to counsel who have each provided me with an extensive analysis of authorities. Chun Yat Nam v AG (Civil Appeal No.92 of 1994) provides a useful example of a flexible approach to the guidelines, insofar as Penlington JA found serious loss of amenities in a man no longer able to enjoy an intensely physical style of life in both work and recreation. This lifestyle had meant a lot to him, as indeed a lifestyle of similar quality has done to the present plaintiff. The Court of Appeal upgraded the category of suffering from "serious injury" to "gross disability", despite noting that the plaintiff had retained a high degree of mobility. Commenting at page 25, Penlington JA said -

"I am also satisfied that the loss of a meaningful career ------------ is, as regards this plaintiff in particular, a very substantial loss of the enjoyment of life, which is what the category of "loss of amenities" is to cover. It would seem he will never be able to engage in the physical activities he so much enjoyed both at work and at leisure; ----".

90. I find clear analogies with the present case, both in the loss of the enjoyment of physical activity despite the substantial retention of everyday mobility, as well as in the need for flexibility in categorising suffering which does not readily fall within the guidelines.

91. The plaintiff in Dominga Lakhan v Wu Wing Tat & Tang Wing Choy (No.3641 of 1983) also suffered multiple injuries in a road accident. Her injuries, although of a different nature to those of the present plaintiff, also left her with what Nazareth J found to be "reasonable mobility". Again, like the plaintiff, she enjoyed a life of physical activity beyond the normal, which she was unable to pursue after the accident. Nazareth J found the injuries and disability to fit clearly within the "serious injury" category - the lowest, but upgraded it to the middle of the "substantial injury" category because of additional factors not expressly within the guidelines. One of these was -

"The shattering of her active life, body and career".

92. Applying a similar flexible approach to the injuries and residual disabilities of Mr. Bozarth in the present case, and considering those factors along with his well documented loss of amenities, I have no difficulty in placing him at the middle of the "substantial injury" category.

93. The Court of Appeal in Chan Pui Ki confirmed the range of damages within the category of "substantial injury" to be $540,000 - $660,000. Mr. Pirie suggests an uplift of 15% on those figures to comprehend the time since the start of the hearing of the case in the court below. The new guidelines were however expressly applied by the Court of Appeal as at the date of its judgment - 19th July 1996, and any uplift for inflation would be correspondingly smaller. I find anyway that the level of compensation for pain, suffering and loss of amenities should be $650,000, and an award is duly made in that figure, reduced to $487,500 to reflect the agreed liability of 75%.

94. The plaintiff claims pre-trial loss of earnings and loss of future earnings from his removal as Director of Tennis, and from his later dismissal from his remaining job as Head Professional. He argues that these were the consequences of his injuries suffered in the accident. With qualifications, the defendant accepts liability for loss of earnings attributable to the plaintiff's diminished coaching activities whilst he was recovering, but disputes liability for loss arising from his dismissal or earlier demotion. The defendant's position is that these events arose from internal politics amongst the tennis coaches at the Club, coupled with a change in the Club's policy as to management and administration. These two factors are pleaded as not reasonably foreseeable by the defendant and therefore beyond his responsibility.

95. The plaintiff spoke of his diminished ability as a tennis coach after the accident, although he said he was doing his best to adapt his teaching techniques to accomodate this. He said he was less mobile, his concentration was diminished, and he could not run backwards or change direction suddenly. His unexpected urges to urinate and his incontinence caused him to leave the court whilst he was teaching, and he sometimes wet himself. He could not do long hours on successive days, coaching more than 5 hours in a day was difficult, and doing a weekend tournament after a week's work was particularly tough. It was hard work and not enjoyable, contrary to his wholehearted enjoyment of his work before the accident. He sometimes had to tell the receptionist not to book some days when he was feeling unwell, as well as to cancel some bookings for the same reason. These were general comments covering the period until he left the Aberdeen Marina Club at the end of 1994, and were not confined to the early post-accident period. This evidence of his diminished capacity for tennis coaching was not disputed.

96. Prior to the accident the plaintiff said that there had been about a 20 hours coaching under-capacity for those members wanting lessons. For this reason he had brought in as an assistant coach one Tim O'Neal, who was already known to him. During the plaintiff's absence he said that O'Neal replaced him as Head Professional and on his return, together with another assistant, Frederick Henning, started a movement to oust him from the Club. The two assistants were apparently encouraging members to complain about the plaintiff, and O'Neal objected to the management about the use of his son to hit balls to students in the early post-accident period.

97. This friction naturally created an unpleasant atmosphere and members became less interested in the tennis coaching programmes. According to the evidence the coaching dropped by around 15-20% overall from July 1992 to July 1993. This scenario, which is undisputed, became known during the trial as the "politics" at the Club, and may have contributed to the plaintiff's eventual dismissal. It is however considered by the defence as an unforeseeable and intervening cause of the loss of the plaintiff's jobs.

98. The plaintiff said that he wote to O'Neal seeking his co-operation (Exhibit P.42), and that he mentioned the situation several times to Mr. Bernhard Haechler, General Manager of the Club from April 1993 to April 1994. He suggested that the solution to the low tennis turnout was to dimiss O'Neal, but Haechler apparently refused, saying that some members liked O'Neal, and Bozarth as Director should sort it out himself. Haechler later denied in cross-examination being asked to dismiss O'Neal, and was unable to remember telling the plaintiff to sort it out. The plaintiff also said he had interviews with Haechler who told him that members were unhappy with the tennis programme and that complaints were directed at him personally, which the plaintiff said had never happened before. O'Neal left in July 1993, but the tennis coaching was still down on income, which the plaintiff attributed to continuing problems with the other assistant coach, Frederick Henning.

99. The plaintiff was not expecting his contract to be renewed for 1994 and had been warned by the Director of Recreation, David Pilbeam, that he was at risk. His contract was later renewed, but as Head Professional only and with a reduction in the commission percentage payable from coaching fees. He said he had a discussion with Pilbeam and the General Manager, Mr. Haechler, who both said that he was unable to handle the jobs of Head Professional and Director of Tennis together.

100. In his witness statement, as well as in his oral evidence, Haechler denied that his decision to eliminate the job of Director of Tennis was connected with any physical disabilities suffered by the plaintiff. He said it was a business decision in order to give more responsibility to Pilbeam, whom he rated as a better administrator than the plaintiff, as well as to avoid duplication between the positions held by the two men. Haechler's statement did however acknowledge his awareness of the drop in tennis income, and he said that this may have been one of many factors prompting him to reduce the plaintiff's income and commission. He also agreed in evidence that he would not have altered the commission if the plaintiff had been more successful.

101. Haechler agreed that he saw the plaintiff with Pilbeam in December 1993, when the plaintiff was advised of the renewal for 1994 on the reduced basis as to both commission and position. However he denied telling the plaintiff that his decision was due to a decline in performance, as he (Haechler) was aware neither of a performance problem nor of the level of the plaintiff's performance prior to the accident. I find this evidence disingenuous. Haechler admitted that he knew the tennis income was down and that this may have affected his decision to reduce the plaintiff's income. He also knew that the plaintiff had been involved in a serious accident prior to his own arrival at the Club. To be aware that the tennis income is down and not to be aware of a performance problem in the Director of Tennis and Head Professional, who has recently had a serious accident, is illogical and unacceptable. A competent general manager aware of the drop in income since the accident would acquaint himself with the plaintiff's performance in all aspects of his duties both prior and subsequent to the accident. Despite Haechler's arrival as General Manager only in April 1993, this would easily be done by checking records, discussion with Pilbeam, and contact with members.

102. Haechler furthermore said in cross-examination that he was aware of arguments amongst the tennis coaches. He would naturally have been concerned about repercussions from this amongst the members - which apparently eventuated and were reflected in the diminished coaching figures. I would not expect him to regard it, as he said in evidence, as a matter to be passed on to Pilbeam as Director of Recreation. Haechler's admission of awareness of the discord amongst the coaches also contrasts with his comment in paragraph 10 of his statement that he was not aware when making his decision that the plaintiff had any problems in handling administrative matters.

103. My concern about Haechler's expressed reasons for demoting the plaintiff and reducing his commission are confirmed by the letter from David Pilbeam written on 7th April 1994, when he was apparently still employed by the Club. Pilbeam is no longer in Hong Kong and this letter appears at page 143 of the agreed bundle. After reciting his 5 1/2 years working with the plaintiff when the latter was Director of Tennis and Head Tennis Professional, Pilbeam continues -

104. Pilbeam's understanding of the reasons for the decision was therefore that they related directly to the deterioration in the plaintiff's performance of his duties. His reference to "the present administration" cannot refer solely to himself, as the decision was made and put into effect by Haechler as General Manager. Haechler moreover has said at paragraph 8 of his statement that Pilbeam had no influence on his decision concerning the plaintiff.

105. The plaintiff's evidence of the reasons for his reduction in both position and income is supported by the evidence from Pilbeam, as well as by my own acceptance of the plaintiff as a truthful and reliable witness. I also bear in mind the unsatisfactory aspects of Haechler's evidence, and my appreciation of the compelling logic of the circumstances as a whole. I have no doubt that Haechler is correct when he says that the decision to eliminate the Director of Tennis position was a business decision. It was however a business decision which I find to have been prompted by the deterioration in the plaintiff's performance since his accident.

106. The plaintiff's position as Head Professional under the new contract from the start of 1994 was terminated in September of that year by the new General Manager, Mr. Gary Adkisson, who gave him one month's notice pursuant to the contractual terms. He was shortly afterwards extended on a temporary basis until December because Adkisson had difficulty finding a replacement. The relationship with the Club finally ended on 17th December when Adkisson summarily terminated the temporary extension because of letters the plaintiff gave to his students offering his services as a coach after leaving the Club. The temporary extension does not have any bearing on my findings, as it left unaffected the earlier termination of the formal contract, the reasons for which are another aspect of this dispute.

107. According to the plaintiff Adkisson gave as his reasons for terminating the contract that there was too much politics amongst the coaches, and that he wanted to put the two jobs of Director of Tennis and Head Professional back in the same hands. At paragraph 8 of his statement, admitted in his absence, Adkisson briefly mentions the reasons for the termination in these words -

"------to the best of my knowledge the decision to contract with another company for tennis services had nothing to do with Mr. Bozarth's physical disabilities or limitations".

108. The plaintiff was employed at the time through his service company, Silvereign Ltd.

109. The relevance of the politics amongst the tennis coaches is supported by the evidence of another assistant coach, Mely Hui Shuk Lin. She spoke of the serious effect on the coaching with a diminished interest amongst the members, and suggested that this may have accounted for the termination of the plaintiff's employment.

110. We therefore have two radically contrasting scenarios at the Aberdeen Marina Club. Before the accident there is a successful plaintiff in charge of the tennis, and apparently no discord. Mely Hui, a defence witness, mentions the coaches working well together, the coaching running smoothly, and everyone including the members being happy. John Holsinger, who employed the plaintiff for the Taipa Resort position and later for the Aberdeen Marina Club through his company Tennis Concepts, also spoke highly of his performance in both positions. At the Taipa Resort the plaintiff had rapidly been promoted to General Manager of the Resort and Holsinger had received very good comments from both students and management. At the Aberdeen Marina Club he said that the plaintiff was initially Head Professional and later also Tennis Director. As the owned the service company, Holsinger said he received feedback from the students about the plaintiff's performance, which was very positive. The plaintiff apparently worked very long hours and had the respect and liking of the management and the tennis playing members alike.

111. Holsinger, himself a former tennis professional, described the plaintiff as a top national tennis professional capable of coaching at national level. He was, said Holsinger, definitely not a mere recreational coach but a full-time highly qualified professional, which was why he had hired him. This estimate is born out by the plaintiff's evidence that he received informal approaches before the accident to coach at national level in both Taiwan and Singapore. I readily accept that before the accident the plaintiff was a tennis coach of the highest quality, as well as a competent tennis administrator, and well able to handle his dual position at the Club. This conclusion is supported by the evidence from David Pilbeam, who had direct responsibility for the plaintiff's performance at the time.

112. This picture of a man enjoying his work and well able to handle all its aspects contrasts with the post-accident situation of a struggle to recover from serious and physically limiting injuries in a job demanding a large amount of physical activity. Holsinger spoke of the plaintiff's dedication to a come-back, but also of his having a difficult time; of his trying to put in the hours but being under medical difficulties in doing so. The plaintiff's evidence of his post-accident coaching difficulties is not disputed, and the medical evidence also illustrates the physical problems to be expected from tennis coaching in the plaintiff's condition.

113. In his statement Adkisson gives scant explanation of the reasons for terminating the plaintiff's contract. He does not give positive reasons at all, but merely describes the decision as unrelated to the plaintiff's physical disabilities or limitations. It is anyway unlikely that the former General Manager of a prominent social and recreation club will expressly state that a long serving and respected senior employee was dismissed because of physical disabilities sustained in a vehicle accident. Such men are diplomats and they do not put things so crudely. I find little to be gleaned from Adkisson's statement, however I am satisfied from the evidence overall that the plaintiff's dismissal resulted from the deterioration in his performance precipitated by the accident and the ensuing disabilities. Given the contrast between the pre-accident and post-accident circumstances at the Club, any other conclusion would be unlikely.

114. In making this finding I do not regard as significant the time lag from April 1992 to September 1994 between accident and termination. I would have been surprised if it were otherwise, bearing in mind the plaintiff's pre-accident good performance, the time inevitably needed for such decisions to mature, and the fact that there were three general managers over the period in question. I accept however that the plaintiff's deterioration in performance is interwoven with the post-accident politics amongst the coaches. This factor of the politics is pleaded by the defence as unforeseeable at the time of the accident, with a consequent absence of legal responsibility on the defendant for the loss of either of the plaintiff's jobs.

115. The politics amongst the tennis coaches is pleaded as the first reason for the loss of the plaintiff's jobs. The second reason is the change in Club policy as to management and administration, which I have already dismissed in finding a probability that the loss of both jobs was due to the deterioration in the plaintiff's overall performance. Mr. Leong however argues that the deterioration in performance itself was the result of the politics and not of the injuries. As such the politics is the proximate cause of the loss of the jobs and represents a circumstance unforeseeable by the defendant at the time of the accident. Although the politics may have been a consequence of the accident, if Mr. Leong's argument is correct, they were intervening and unforeseeable and thereby excluded the defendant's responsibility for the loss of the plaintiff's positions at the Club.

116. Mr. Leong illustrates his argument by the contrasting leading cases known as Polemis and Wagon Mound(No.1). The test of liability for negligence based on the directness of consequences, as established in Polemis, was replaced in Wagon Mound by the concept of foreseeability. The effect of this was to limit the responsibility of a negligent defendant to compensating the injured plaintiff only for those consequences of the negligent act which were reasonably foreseeable at the time of the negligence. Thus the efforts of the assistant coaches to oust the plaintiff, the ensuing rows and unpleasant atmosphere, and the declining interest of members and loss of income, would all be totally unforeseeable consequences according to the defence. The deterioration in the plaintiff's performance, which I have found to be the cause of his losing both jobs, would itself be caused by the politics and not by the injuries.

117. It has been said in Wagon Mound (by Viscount Simonds at page 141) that it is not the negligent act but its consequences on which tortious liability is founded. The learned judge was at pains to show that only foreseeable consequences would attract compensation for negligence. The same test of reasonable foreseeability is to be applied in determining both the initial liability in law and the extent of that liability as to compensation.

118. If I am to look to the foreseeability or otherwise of the particular consequences in determining the extent of liability, then the consequences presently relevant are the termination of the plaintiff's employment, and his earlier loss of the post of Director of Tennis. The test to apply to the minibus driver at the accident, taking his plaintiff as he finds him, is the foreseeability that the plaintiff's ensuing injuries would lead to the loss of these two positions. Applying this test, I find the physical nature of the job of a head tennis coach to be such that its loss as a result of the plaintiff's injuries would be entirely foreseeable. It is likely to have happened without the politics, given the plaintiff's physical deterioration and difficulties with the job; given also the apparently unsentimental approach of the management and an understandable need to keep members happy. The loss of the head coach job may or may not have taken longer without the politics, but it was always foreseeable as a consequence of the defendant's negligence.

119. I find it anyway impossible to dissociate the politics from the injuries themselves as a separate and independent cause of the plaintiff's deterioration in performance. The one caused the other and they have interacted in producing the deterioration. To that extent the politics are not a genuine intervening and unconnected factor. It is the consequences of the defendant's negligence which must be foreseeable - the loss of the jobs, rather than the precise interaction of the contributing factors which have arisen from his injuries.

120. The loss of the position of Director of Tennis is less clearcut insofar as it is an administrative position. If the plaintiff had held only that position as an administrator, with no physical involvement with the game of tennis itself, I may well have concluded that its loss was not foreseeable. The plaintiff however held the positions of Director and Head Professional at the same time, and it would be artificial to suppose that they could be divided in terms of the management's appreciation of his performance. The deterioration in performance was overall, and reflected on the plaintiff in both his capacities.

121. Bernhard Haechler, as General Manager, did of course divorce the two jobs one from the other when he eliminated the Director's position but retained the plaintiff as Head Professional on reduced terms. However the plaintiff was not expecting to be renewed at all for 1994 and David Pilbeam had warned him of this possibility. I find that Haechler's decision amounted to a compromise between complete termination and retention of the status quo, and was triggered by the overall deterioration in the plaintiff's performance.

122. I note in reaching this conclusion that the plaintiff only lasted eight more months in his reduced position before the renewed contract was itself teminated. I note also that Pilbeam refers to the plaintiff's ability to handle his job having decreased, without differentiating between the two aspects of that job. Finally and importantly, I note that the plaintiff's contract for 1993, when he last held both positions, refers to his appointment as that of Tennis Director and goes on to describe the various duties including coaching, but without specific reference to the position of Head Professional. I am therefore satisfied that prior to the accident the two jobs were closely interrelated and the one would stand or fall with the other. In the circumstances I find that the loss of the Director's job was also foreseeable. The plaintiff's loss of his positions as Director of Tennis and Head Professional is accordingly attributable to the defendant's negligence, and the plaintiff is entitled to compensation for the ensuing loss of earnings.

123. The defendant agrees liability for special damages in respect of the loss of the bicycle, travelling expenses, Mrs. Bozarth's loss of earnings, medical expenses, and lost income from triathlons and tennis matches. These items will be awarded after adjustment for 75% liability. There is also substantial agreement on pre-trial loss of earnings for the remainder of 1992 following the accident, and for the calendar year 1993. The defence accepts in principle the plaintiff's figures for these periods but submits that they should be reduced by 10% in recognition of the downturn in tennis at the Club due to the politics. I have found it impossible to consider the politics and the injuries as separate and independent factors contributing to the deterioration in the plaintiff's performance. Awards will accordingly be made for the amounts claimed for loss of earnings for post-accident 1992 and for 1993, again reduced for 75% liability.

124. The plaintiff claims the surprisingly precise figure of $293,940 for future medical expenses. It is surprising because it is proposed in the written part only of Mr. Pirie's opening address, and is unsupported by evidence. The figure is apparently reached by an arbitrary assumption of $18,000 medical expenditure per year over a period of 16.33 years. I have no difficulty inferring from the evidence of the injuries that the plaintiff will probably have future medical expenses as a result. In the absence of medical evidence on the subject I cannot however accept the figure advanced. On the basis of the probability of unspecified future medical expenses I assess an award of $75,000, less the usual reduction for 75% liability. This finding itself contains an element of the arbitrary, however it is low enough to be probable in the light of the plaintiff's injuries and his likely lifespan.

125. The plaintiff claims loss of earnings for the calendar year 1994 in the sum of $440,437.26. The terms of his contract for the previous year had included the folowing financial provisions -

1. $8,000 per month as a retainer, expressed to be "in lieu of administrative work and functions". This was effectively the salary for the post of Director of Tennis;

2. 80% of the income generated from the plaintiff's own coaching;;

3. 5% of the income generated from the coaching by the assistant professionals.

126. Under the revised contractual terms for 1994 the plaintiff lost the adinistrative retainer in respect of the Director's job, his income from his own coaching was reduced to 75% of the fees generated, and his income from the assistants' coaching was reduced to 3% of the fees generated.

127. Mrs. Bozarth said in evidence that she was the book-keeper for Silvereign Ltd., the service company through which her husband was employed by the Aberdeen Marina Club. In that capacity she described in detail the process by which she extracted figures from available documents in computing her husband's claim. For pre-trial loss of income her conclusions are in the documents marked "summary" at pages 1-4 of Exhibit P.50A. The same documents also appear at pages 6A - 7B of Exhibit P.49, which is produced as a comprehensive analysis of the plaintiff's income and pre-and post-trial losses. Using the documents in Exhibit P.49, I note that the charts on pages 6B and 7B represent extensions from those on pages 6A and 7A respectively, with the total loss claimed for each year appearing in the far right column of pages 6B and 7B.

128. Mrs. Bozarth described how she calculated the plaintiff's receipts and hours worked from the Club records of payments, from the Club's tennis coaching summary sheets (page 49 of the bundle), and from his appointment diary. When coaching summaries were unavailable for a particular month, she would average the whole year and divide by 12. From this she produced the income analysis sheets for the years 1990-1994 at pages 1-5 of Exhibit P.49, and calculated the details of losses pre-trial at pages 6A - 7B of that exhibit. Future losses are broken down as projections from pre-trial losses, appearing at pages 8A - 9 of Exhibit P.49. Mrs. Bozarth has also produced a formula showing the basis of her calculations, which is at page C of Exhibit P.50.

129. The defence does not dispute in principle the calculations for lost income net of tax for the years 1992 - 94, appearing at column H on page 6A of Exhibit P.49. The deduction claimed by the defence of 10% for the loss of coaching income from internal politics has already been dissallowed, and accordingly the sum of $318,037.27 for net loss of coaching income at column H for 1994 is accepted.

130. The other items at columns J and L represent the respective sums net of tax claimed for the Director of Tennis retainer, and the 2% loss on assistant coaches' fees. The latter is included at $2,000 per month and, according to the plaintiff's statement, is extracted from the Club's tennis coaching sheets (p. 126-135 of the bundle). I accept this figure, however the loss of the retainer as Director of Tennis at $10,000 per month I am unable to accept. It is apparently based on a $2,000 per month notional increase from the 1993 figure of $8,000. The 1993 figure itself represented a $1,000 per month increase from the 1992 figure of $7,000, and I accept a similar increase to $9,000 per month for 1994 as a probability. This will produce a reduction after tax of $10,200 on the plaintiff's claim for 1994 of $440,437.27, giving a total of $430,237.27. There will be an award in that sum as reduced for 75% liability.

131. The plaintiff's claim for loss of earnings for 1995 includes a number of items which bear examination. In Mrs. Bozarth's calculations, the notional hourly rate of tennis coaching chargeable by the plaintiff has been upgraded by 6% annually to 1997 from the base of $583.81 per hour in 1994. This latter rate Mrs Bozarth described as an actual avarage for 1994, taking into account group lessons. Its provenance may be seen from the monthly analysis sheet for 1994, appearing at page 5 of Exhibit P.49, in which the income per month is divided by the hours worked to give a monthly average charging rate. The monthly average figures are then totalled and divided by 12 to give the average rate for the year of $583.81.

132. The reason the average rate for the year exceeds the group rate (to be seen at the top of page 5 of Exhibit P.49) is that group rates are on an ascending scale depending on the numbers in each hourly lesson. The group hourly fee of $480 for 1994 (top of page 5 of Exhibit P.49) would be the charge for basic group numbers, but once the numbers increased from the basic level the hourly charge would escalate. The plaintiff said that he did a lot of group lessons at the higher earning levels and I accept that an average hourly rate, as Mrs. Bozarth has produced in her summaries from 1990 to 1994, is a reasonable approach in the circumstances. As to the annual 6% increase, Mrs. Bozarth pointed out in cross-examination that the 6% annually applied after 1994 is less than the actual average increase in hourly rates for the preceeding years. I therefore accept 6% annual increase as a conservative probability.

133. The total claim for 1995 loss of earnings, net of tax and after deduction of actual earnings, appears in the summary at page 6B of Exhibit P.49 as $2,539,902.29. However the amount claimed in the re-amended list of special damages is $2,207,422.29. The reason for this discrepancy is unexplained, and the plaintiff is anyway bound by the lower figure in the re-amended list. For convenience I shall nonetheless consider the detailed figures itemised in the summary chart at pages 6A and 6B of Exhibit P.49.

134. The 1995 figures for hours lost and weeks worked in respect of tennis coaching, at columns D and F of page 6A of the summary, are explained by Mrs. Bozarth as based on averages of previous years. I accept their validity for calculating lost income. The hourly rate of $618.83 represents the accepted 6% uplift from 1994, and I therefore find a probable net loss of income from coaching for 1995 in the figure of $735,566.09 at column H of the summary. This figure reflects the deduction from the gross fees of the amount of the Club's 20% cut and the application to the balance of a further 15% deduction for income tax.

135. The amounts claimed for 1995 at columns I and J of the summary represent the amount of the Director of Tennis retainer before and after tax, uplifted by 6% from the 1994 figure. Mrs. Bozarth has applied this annual percentage increase throughout her post-1994 calculations, and I accept it as a reasonable allowance for annual increases. In the case of the retainer her figures are however related to her 1994 retainer figure of $10,000 per month, which I have rejected in finding a probable increase for 1994 to only $9,000 per month. Under this head I accept a 6% increase on the 1994 figure after tax, which will produce $97,308 for 1995 net loss.

136. Under column K of the summary, the 1995 loss of the plaintiff's share of assistant coaches' fees is based on a total loss of 5% of those fees, whereas the loss for 1994 had been based on the 2% reduction imposed in the plaintiff's terms for the contract renewed at the start of 1994. The gross claim for 1995 therefore represents the previous year's amount ($24,000) multiplied by 5/2 to reflect the increase in percentage loss, with the resulting figure uplifted by 6% for the next year. I accept this calculation, which results in the after tax loss of $20,400 appearing at column L on page 6B of the summary.

137. Column M of the summary lists the benefits other than cash received by the plaintiff as part of his terms of employment with the Aberdeen Marina Club. At column N a value is placed on those benefits for purposes of establishing loss of earnings. The terms of the plaintiff's contract for 1994 provide that he is entitled to dine at certain outlets with limits of $60 for breakfast and $125 for lunch or dinner. I do not know from this whether lunch and dinner are alternative or cumulative, and evidence has not been forthcoming on the point. I will however assume in the plaintiff's favour that he was entitled to all three meals at the stated expenditure limits, which would give a daily expenditure of $310. If that figure is applied for 6 days a week over the 46 notional weeks in the year which the plaintiff claims as working weeks, the expenditure for 1994 would be $85,560. I have no direct evidence as to how the claim for $74,800 is constituted, but I accept it as likely considering that the plaintiff would not have had three meals a day at the Club every day of the working week.

138. The claim for laundry in the sum of $7,200 relates to the provision in the contract for "free laundry for tennis attire worn during working hours". It is a small item calculated over a year and would only give rise to compensation for its loss if the plaintiff were to continue tennis coaching during that period after leaving the Club. However the plaintiff has testified that he did give some coaching for a substantial part of 1995, which will be taken into account in determining his loss for that year. I therefore accept the $7,200 for laundry in computing his loss for 1995.

139. The claim for $1.8 million in column N purports to represent the cost of the debenture payable by a member on joining the Aberdeen Marina Club and refundable on his leaving it. I gather from the evidence that its true cost is $1.18 million, but it is anyway vigorously disputed by the defence as an allowable item in computing loss of earnings. In argument Mr. Pirie appeared to revise his position to claim it not as a refundable capital sum on the analogy of membership of the Club, but as a perquisite discounted at 2% per annum of its capital value over the likely period of the plaintiff's tenure of his position. This concept derives from an analogy with the approach adopted in evaluating housing benefits. I do not however consider that this item should be allowed in either capacity.

140. The defendant's claim to the capital value of a membership debenture as part of his loss of earnings on losing his job cannot be sustained. The defendant's position was not analogous to that of a member of the Club. He was a senior employee permitted limited use of some, but not all, of the Club's facilities. Such benefits as he received additional to his financial remuneration may be susceptible to quantification in terms of cash values, but that is the limit of his entitlement to compensation. The same applies to Mr. Pirie's argument for 2% per annum of the capital value of the debenture. To grant that as compensation for the loss of the equivalent to membership would be to accept that the plaintiff was de facto a member, which he was not. He received certain extra benefits which can be quantified, and no more. The claim related to the debenture is therefore rejected.

141. Similar considerations arise as to the claim for $15,000, representing the annual value of members' monthly dues of $1,250. This could be awarded as compensation only if, in practical terms, the plaintiff had enjoyed all the privileges of membership, which he did not. In terms of the contract, he and his family members were entitled only to the use of the sports and recreation facilities, with some limitations. The plaintiff therefore enjoyed part of the benefits of membership and it would be correct to quantify this to establish compensation for its loss. Such an exercise is necessarily imprecise, but I accept a valuation of the plaintiff's benefits from use of the Club at 50% of the monthly members dues, or $625 per month. This produces a loss for 1995 in the sum of $7,500.

142. The plaintiff also claims $24,000 as the annual value of the use of the car park at the Aberdeen Marina Club. This is a facility freely available to members, but is charged at commercial rates to the general public. I do not accept the argument that this facility represents a separate perquisite attracting compensation as an aspect of lost earnings. The parking was provided as an incident of the plaintiff's employment and as an integral part of it, in much the same way as for example bathroom facilities are provided. It is not mentioned separately in the contract and I do not find it to be a separately identifiable item in establishing loss of earnings.

143. The plaintiff's contract provides him with two further benefits which have been mentioned neither in oral evidence nor in argument. These are firstly medical coverage and hospitalisation, and secondly employees compensation and term life insurance cover. These benefits have a quantifiable value for purposes of establishing lost earnings, and despite their not being expressly raised they are in evidence as part of the 1994 contract (page 139 of the bundle). The terms of the 1993 contract are identical in this respect, although earlier contracts differ slightly. In the absence of evidence of the annual value of these benefits, which would be the value of the respective annual premiums, I rely on my experience in according annual values of $20,000 to the medical cover and $10,000 to the employees compensation and term life insurance. The additional sum of $30,000 is therefore recoverable as lost earnings for 1995.

144. The claim for racquet stringing charges net of tax in column P at page 6B of the summary reflects an average of the previous years' charges for that item. I accept this as an aspect of the plaintiff's loss of earnings for 1995 in the sum claimed of $5,076.20. The total of the plaintiff's lost earnings for 1995, after tax but before deducting in mitigation his earnings during that year, is therefore -

145. From 1st June 1995 and through the intervention of John Holsinger, the plaintiff obtained an appointment as General Manager of a sports goods manufacturing company called Fin Worldwide Inc. (Fin). After about four months the plaintiff resigned as he knew he was not a success and anticipated he would be dismissed anyway. I accept the plaintiff's conclusion that his dismissal was imminent as the evidence shows a declining relationship with his employer. The reasons appear to relate to the plaintiff's lack of energy and concentration after the accident, although personality clashes may have contributed. It is noteworthy that John Holsinger, himself a successful businessman in the same field, thought that the plaintiff could handle the job - no doubt based on his pre-accident estimation of the plaintiff's ability and energy. On termination of his position with Fin, and including his notice period, the plaintiff was paid up to almost the end of 1995 and the sum of $283,920.00 at column Q represents his earnings to be set off against his losses. This figure has not been disputed.

146. In addition to his income from Fin the plaintiff testified that he had given private tennis lessons from February to May 1995 inclusive, earning about $11,000 per month for that period. He did not work in January, and spoke of the difficulty of finding tennis courts and of obtaining permits fom the management companies of apartment blocks to teach on their courts. I accept that in the first month of his leaving the Aberdeen Marina Club the plaintiff would have difficulty establishing a private coaching circuit, and I therefore accept that a further sum of $44,000 for private lessons from February to May should be set off against his lost earnings for 1995. The net loss of earnings for 1995 will therefore be $(1,011,510.29 - 283,920 - 44,000) = $683,590.29.

147. For 1996 the plaintiff's claim, net of tax but before deduction by way of mitigation, is set out in the various columns of the summary at pages 6A and 6B of Exhibit P.49. I accept the 6% upgrading of the coaching fees, and accept the resulting net loss of coaching income at column H in the sum of $779,700.29. The Director of Tennis retainer will reflect the lower figure accepted for 1995, realising $103,146.48, net of tax after the 6% increase, as the adjusted sum at column J. The loss on assistant coaches' fees, again increased by 6% on 1995, is also accepted at the figure of $57,303.60 appearing at column L. For the cost of Club benefits I accept the items as allowed for 1995, plus a 6% increase. The meals item is the largest of the benefits and I note that the maximum allowance rose substantially more than 6% for the 1994 contract. Insurance premiums are also likely to rise. The increased amount allowed for 1996 benefits at column N of the summary will therefore be $126,670.00. Racquet stringing is also accepted at the figure of $5,076.20 appearing at column P. The total amount accepted for 1996, net of tax but gross of any earnings, is therefore -

148. From this point the issue of mitigation of the plaintiff's loss of earnings becomes contentious. The plaintiff said that he was, and continues to be, casually employed in television broadcasting for sporting events at the rate of $2,200 an appearance, bringing in a steady $35,000 - 50,000 per year. He did however also say that this was with the full approval of the Aberdeen Marina Club during his time there, as they welcomed the attendant publicity. He said he would sometimes do late television slots and then complete his normal coaching routine the next day. He was very fit, and he would snatch some sleep in the break for lunch. The plaintiff's evidence on this was not disputed and it appears that his earnings from these activities were on top of his earnings from his position at the Club, and with the approval of the management. These earnings, at their present level, should not therefore be counted in mitigation of his losses following his departure from the Club. However the possibility of an increase in earnings from this source, given the change in circumstances, should be considered in addressing the plaintiff's overall earning capacity.

149. The service company which the plaintiff used as a vehicle for his employment by the Aberdeen Marina Club, Silvereign Ltd., was also involved in other sports related business, such as laying tennis courts. The plaintiff spoke of the difficulties of this line of business and said that the company ceased to operate in 1996. He doubted if he had made any profit, and the accounts for 1994 (page 292) bear this out. I do not therefore find the activities of Silvereign Ltd. to be a factor in mitigation of the plaintiff's loss of earnings. The defence has not argued otherwise.

150. I do not find the plaintiff's earnings with Fin Worldwide Inc to be relevant in establishing his present earning capacity. Although he earned $78,000 a month for a short time, he obtained the job through the kind intervention of John Holsinger and not on the open market. No doubt Holsinger's recommendation was based on his pre-accident appreciation of the plaintiff's abilities, and the plaintiff has since shown his inability to handle the job, for reasons I have already canvassed. The chances of a similar job with such a salary are slim.

151. After leaving Fin the plaintiff said he was devastated as he had lost three jobs within a few months. He also felt that he needed flexible hours because of his inability to apply sustained concentration and energy over an uninterrupted period. In addition to this, he found it physically difficult to remain seated for any length of time, such as in directors' meetings, and would have to stand and stretch to ease his discomfort. This sometimes occurred in court when the plaintiff was giving evidence.

152. In his search for a job which would allow him flexibility the plaintiff adopted a suggestion from his brother of going into network marketing with a company called Amway. Network marketing apparently involves being appointed agent of a company and earning commission from sale of the company's products, but without a salary. Commission is also earned from sales by other distributors introduced to the company by the appointed agent. The plaintiff said it was very hard work, requiring 3-5 years to make the business profitable, although with no certainty of that. He described networking as a highly competitive field, involving competition not only against similar products of other companies, but also against other distributors of the same products. The plaintiff started this operation in October 1995 and to date has not made a profit.

153. In July 1996 the plaintiff said he was introduced to another network marketing opportunity with a company called NSA, or National Safety Associates. He is more optimistic with this company as it sells health related products, which the plaintiff, as a fitness fanatic and former athlete, said he was in a good position to explain and promote to potential customers. Since he started with NSA the plaintiff has therefore devoted most of his time to building up this area and has recently spent time in the Philippines and Taiwan for this purpose at his own expense. He says that there have been more sales, but not so far a net profit. It is an ongoing situation, to which his wife also contributes, but the plaintiff finds it difficult to say how successfully it will eventuate.

154. It is unusually difficult to evaluate mitigation in the circumstances of this case. I have observed the plaintiff over several days of testimony, I have heard and read the opinions of others about him, and I am well acquainted with the medical evidence, which contains comments on his approach to his injuries. In his circumstances of seriously reduced physical capacity in a man who was an athlete and devoted to the physical enjoyment of life, the plaintiff has impressed me with his positive approach. I find no suspicion that he is malingering. The plaintiff's pursuit of his network marketing business I find to exemplify his determination to rebuild his life into the position of self-reliance to which he had been accustomed.

155. The plaintiff has tried the world of corporate business in his employment with Fin, and for reasons I have already discussed he was not a success. He has also done private coaching for several months and earned a modest income doing so. I can well appreciate that this holds little attraction for him, neither financially nor in terms of the physical strain and the life style. He has spoken of the difficulty of getting courts, of the impossibility of teaching privately at clubs who employ resident professionals, of the travelling, of cancellations, and of the physical problems. Andy Brothers, a professional coach and a witness for the defence, described such coaching as a last resort in order to pay the rent - and this would be for a man who is fully fit. There is in addition the universal medical opinion as to the plaintiff's limitations as a tennis coach in his present condition. Dr. Woo's comments (page 424) are relevant -

"If such deficits were present in a clerical worker or an administrative staff who spends his time (at) the office desk, the disability would have had no effect on the earning capacity. However, in a professional tennis coach and player who is required to move around the tennis court, the stiffness poses a significant limitation on the functional status and hence on the earning capacity".

156. The plaintiff is therefore seriously incapacitated in terms of what he is otherwise best able to do, and his efforts to develop a totally new lifestyle in the field of network marketing are to be understood in that context. The difficulty in considering mitigation however is that the defendant is entitled to have weighed in the balance in assessing compensation not only what the plaintiff earns, but also what he reasonably could earn if he applied himself to do so. The network marketing operation is currently not producing income, and its future prospects are impossible to calculate even in round terms of success or failure, let alone in financial terms.

157. In addressing mitigation, Mr. Leong for the defence adduced a number of employment possibilities and discussed figures from the 1996 Report of Salaries and Employee Benefits Statistics. Mr. Leong argued that these figures disclosed a monthly average income in middle ranking managerial positions of around $40,000. He pointed out that the plaintiff's performance in court indicated that he was mentally alert and suggested that he would be well able to handle a middle ranking managerial position.

158. Whilst agreeing with Mr. Leong's central argument that a value for mitigation must be placed on the plaintiff's capabilities, I am not satisfied that he could obtain the sort of employment Mr. Leong contemplates. Men in their fifties without relevant experience are not readily able to find middle-ranking managerial positions in the $40,000 a month range, even discounting the plaintiff's linguistic limitations. I note anyway that the more appropriate type of employment listed was attracting salaries in the range of $25,000 - 30,000, but even they may be difficult to secure given the limitations of age and language. The statistics discussed by Mr. Leong offer a useful insight into salary levels in general in considering Mr. Bozarth's market value, but I cannot infer a more precise indication of the employment he may reasonably be expected to find.

159. Other employment possibilities were raised by Mr. Leong, mostly connected with the sporting world, either actively or in an administrative capacity. I am satisfied from the evidence of the plaintiff and of John Holsinger that tournament promotion is not a realistic possibility; it requires heavy investment, and the limited Hong Kong market has already been cornered. Similar considerations apply to the possibility of a tennis coaching business employing professionals for hire to clubs, as Mr. Holsinger's company Tennis Concepts had done with the plaintiff. Andy Brothers, who is in that field of business, said there was a lot of competition, and breaking in would be difficult. John Holsinger said much the same, and I am satisfied that this is not a realistic option for the plaintiff.

160. Given the plaintiff's injuries, which must be well known in the professional coaching world in Hong Kong, I also find it unlikely that he would obtain a job at one of the major clubs. He said that he had not formally applied for any, but had indicated his interest in a vacancy at the Hong Kong Football Club in an interview with the sports manager, but without success. He said he had also put out feelers with influential people in other clubs, but again without results. The bare possibility of employment with a minor club was raised in his statement by Andy Brothers, who suggested that it may realise $25,000 - 30,000 a month. However this was not developed in his oral evidence and I remain uncertain both as to the basis of the assertion, and as to the availability of such jobs and the suitability of an expatriate if there were any.

161. Whatever the jobs canvassed as earning opportunities in mitigation of the plaintiff's losses from the accident, the fundamental consideration is his market value. He appears to be looking towards the network marketing with NSA for his future livlihood, and although uncertain of his prospects he is optimistic. The difficulties in evaluating this opportunity are that it will grow only slowly and that it presently does not generate net income. The defendant cannot however be prejudiced by the plaintiff's pinning his hopes for the future on an uncertain prospect which does not currently produce income. The defendant is entitled to have the plaintiff's earning capacity valued by the court and placed in the balance in mitigation of his loss. Considering all the evidence, the statistics, the plaintiff's physical condition, and his efforts for the future, I accept that a reasonable valuation of the plaintiff's earning capacity would be $20,000 per month. If that figure may not at first seem to cover the uncertainties of his present occupation, then equally it may not accomodate the chance of his making a success of the NSA venture and earning more than that. The estimate necessarily reflects a compromise in attempting to balance justice between the two parties.

162. The figure of $20,000 will be applied in calculating the multiplicand to reach the plaintiff's future losses. I will not however apply it to the pre-trial loss of earnings in reduction of the 1996 award. The plaintiff has not received any actual earnings from his network marketing venture. Moreover he is effectively mitigating future loss by foregoing the possibility of a relatively small income from private coaching in favour of earning more if and when the network marketing develops. The chance of success in the network marketing is a factor in valuing earning capacity. It would therefore be unjust to relate that valuation back to 1996 when he was laying the groundwork for that possible success later.

163. There is very little evidence of the plaintiff's coaching earnings for 1996, and I accept that if he is trying to build up the network marketing he would have less time to give tennis lessons. He has said in his statement that he earned about $4,000 in the course of the year, and I accept that an allowance of $500 a month should be made against loss of earnings. This will mean a deduction of $6,000 from the gross amount calculated, giving a balance of $1,065,896.57 before the 75% adjustment.

164. The pre-trial period of the plaintiff's claim for loss of earnings ends with the month of Januaury 1997, the figures for which appear at pages 7A and 7B of the summary at Exhibit P.49. Mrs. Bozarth appears to have adopted the simple procedure of applying one twelfth of the previous year's receipts, after tax and after an adjustment for a further 6% increase. I accept this method of calculation, although the resulting figures are in some cases adjusted to reflect my own findings for 1996 rather than those of Mrs. Bozarth.

165. The figures for January 1997, net of tax but gross of allowances for earnings, will therefore be -

166. From this figure the sum of $500 is deducted for an assumed one month's coaching income on the analogy of 1996, leaving net lost earnings for January 1997 of $95,027.63.

167. In establishing the multiplicand for calculating the plaintiff's post-trial loss of earnings I shall take the 1996 figures upgraded by the annual 6% factor. This produces the hourly coaching rate of $695.32 which Mrs. Bozarth has applied in quantifying the January 1997 loss of earnings. The reason for this relatively high rate for coaching has already been canvassed at an earlier stage in this judgment. To that rate will be applied the factors accepted for 1995 and 1996 of 38 hours work per week and 46 working weeks per year, giving a total gross annual loss of fees from the plaintiff's own coaching at the time of trial of $1,215,419.36. Eighty percent of this figure will allow for the deduction of the Club's share of the fees, after which there is a further deduction of 15% for the plaintiff's income tax. For the purpose of calculating the multiplicand, the net figure of lost earnings from the plaintiff's own coaching is therefore $826,485.16.

168. Also contributing to the multiplicand are the Director of Tennis retainer, the 5% loss on lessons by assistant coaches, the Club benefits, and the racquet stringing fees. From the Club benefits will however be deducted the laundry allowance of $7,632 (1995 figure of $7,200 uplifted by 6% for 1996), as the evidence of the plaintiff's activities indicates that this allowance is no longer relevant after January 1997. Increasing the after tax findings for 1996 in respect of these items by the usual 6% factor produces figures of $109,335.27, $60,741.82, $126,180.28, and $5,380.77 respectively. Including the plaintiff's coaching fees, the loss net of tax but gross of the valuation of the plaintiff's earning capacity will be $1,128,123.30. From this will be deducted the sum of $240,000 representing the annual figure for the plaintiff's estimated monthly earning capacity of $20,000. The multiplicand will therefore be $888,123.30.

169. The multiplier is another aspect of this case where the parties are far apart. The plaintiff contends that he would have continued as a professional tennis coach until well into his seventies. Mr. Pirie therefore suggests that losses from the Aberdeen Marina Club be calculated to age 65, but also argues for additional losses covering a period of private coaching thereafter at reduced hours until age 75. From this he suggests an award of a split multiplier to accomodate these two aspects of the plaintiff's notional future activities. The plaintiff spoke of his love of tennis and his wish, romantically expressed, to "die on the tennis court". He adduced evidence from two prominent members of the tennis community in America (pages 148 and 149) that it was common for tennis professionals to continue full time teaching well into their sixties and beyond.

170. John Holsinger, who has played Davis Cup tennis for Hong Kong, confirmed that fit professionals can go on teaching into their seventies, especially those who are experienced and successful. He said that experience and fitness were the important factors. He also believed that the plaintiff would continue coaching longer than most considering his fitness and his temperament, which he described as concerned and interested. He said that he was speaking in the context of Hong Kong in making these obsevations. Speaking of the local scene in general, Holsinger had himself been 10 years at the Hong Kong Country Club as Director of Tennis and Head Professional before moving into business. He also knew that the father of the international player Patricia Hy had coached for over 10 years at the Ladies Recreation Club.

171. Evidence on the same subject was given by Andy Brothers, Mely Hui, and the former Hong Kong Davis Cup player Randall King. Mr. King shared the plaintiff's ambition to play tennis until old age, and said he was aware of many professionals coaching full time into their sixties. Mely Hui wanted to continue as long as she could and said that her husband was still coaching in his late fifties. Andy Brothers on the other hand was uninterested in dying on the tennis court and wanted to move into administration when he reached middle age. He thought life as a coach over 50 would be tough and said that most coaches were in the range of 25 - 35. He did however agree that a successful coach could go on longer subject to the requirements of his employer.

172. This evidence is directed to the plaintiff's contention that, but for the accident, he would have continued at the Aberdeen Marina Club to age 65, and thereafter coached privately to age 75. The plaintiff's unusual fitness prior to the accident is established on the evidence and is not anyway disputed. I also accept that prior to the accident he was a successful Director of Tennis and Head Professional at the Club, facing no apparent obstacle to his continuing as such for some years to come. It is probable that the plaintiff would have wanted to stay for many years in a job which, in his field, was well rewarded. On the evidence of his pre-accident performance at the Club, I also think it unlikely that the management would have wanted to terminate his employment for a considerable time, but for the accident. It is a testimony to his earlier success that they took so long to do so even after the accident, despite the various problems which arose.

173. The difficulty is not therefore in finding a broad probability that a harmonious relationship would have continued beyond the end of 1994 if the accident had not intervened. The difficulty lies in deciding how long that probability may be assumed to continue, bearing in mind all the uncertainties of the situation. The plaintiff was a little over 50 at the date of trial. He had been on an annual contract with the Aberdeen Marina Club, and it is a safe assumption that this arrangement would have continued as the basis of his employment. The plaintiff is arguing a probability that he would continue for another 15 years in the same position, given his past success and his physical fitness.

174. In discussing the multiplier, Mr. Leong argues for a liklihood that the plaintiff would have remained employed at the Club for no more than 10 years from the start of his first contract. That is to say until about 1998. He points to that period as being about the maximum disclosed by the evidence for a tennis professional to remain at a club in Hong Kong. With the exception of Mr. Hy at the Ladies Recreation Club that may be so, but as a generalisation it ignores the probabilities emerging from the evidence about the plaintiff in particular. It is not the mere length of pre-accident service which governs its probable duration, but rather the well-being of the employer/employee relationship and the inferences therefrom as to the parties' intentions.

175. From the plaintiff's fitness and his apparent success in all aspects of his position at the Club prior to the accident, I find it likely that he would have remained there at least a further 10 years. However I find difficulty with the age of 65 which the plaintiff advances as the probable date to which his service would have extended. It is not only many years in the future, with the increasing uncertainties of the passage of time, but the plaintiff's occupation is not one to which the conventional ideas of retirement ages apply. Retirement for a full time tennis coach will be the result of a gradual decline in physical ability, but there would be no particular significance in the age of 65, which is a commonly accepted male retirement age in sedentary occupations. There is also the uncertainty of the plaintiff's annual renewal of his contract in a position in which he is dependent on good relations not only with his direct employer, but with club members also. It is possible that the management may have decided that a director and head coach over 60, however competent, was simply too old. It is also possible that members may eventually have wanted a younger head coach and lobbied management accordingly. The management of the Aberdeen Marina Club does not seem over-burdened with sentimentality towards its employees.

176. There are many possibilities, and the court must distinguish the genuine from the merely speculative and then reach its conclusion on overall probability. Balancing the evidence, I find it likely that the plaintiff would have continued in employment as Director of Tennis and Head Professional at the Aberdeen Marina Club for a period of 10 years plus from the date of trial. Mr. Leong has helpfully provided a schedule of multipliers used in personal injuries cases over recent years and suggests a multiplier of 8. Mr. Pirie argues for a multiplier of 10.66 on his assumption that the plaintiff would have stayed at the Club to age 65. I find a multiplier of 9 appropriate to my findings and that is awarded. It will be noted that I have declined Mr. Pirie's invitation to indulge in actuarial gymnastics.

177. There remains the argument as to the plaintiff's working life as a tennis coach beyond his employment with the Aberdeen Marina Club, which is claimed to extend to age 75. On this basis an additional multiplier is sought, together with a further multiplicand calculated on reduced coaching of 4 hours a day over the same 46-week period and at the same post-trial coaching rate. The further multiplier claimed is 6.66 for the 10 year period from 65 - 75, although this would presumably be upgraded as I have declined to accept 65 as the probable time of leaving the Aberdeen Marina Club. The total claim under this head amounts to some $4.7 million.

178. Mr. Pirie's argument for a split multiplier is resisted by Mr. Leong, who argues that it should not be used merely to boost the conventional multiplier. To the extent that the figures used under this head (page C of Exhibit P.50A) bear a direct relationship to those used to calculate losses from employment at the Club, I agree with Mr. Leong. The 46-week year, the 80% retention of fees, and the rate per hour of $695.32, all derive directly from the plaintiff's circumstances at the Aberdeen Marina Club. I find any such connection as a basis for calculation to be unlikely.

179. I am able to find a probability from the evidence of his fitness and love of tennis that the plaintiff would have continued coaching at reduced hours after he left his full time coaching position. However, as we are considering a starting point (on my own findings) of perhaps 11 or 12 years in the future, I find it speculative to calculate loss so far distant on the basis of precise figures. With the passage of time, the unforeseen is an increasing factor, including of course the premature fulfillment of the plaintiff's wish to die on the tennis court. Another possibility, relating to quantum, is that the plaintiff may have actual earnings during this later period, perhaps from his network marketing venture.

180. I am therefore unable to find it probable that the plaintiff would have coached part time to age 75, but I do find that he would have done so for a considerable but unquantifiable period after ceasing full time employment. With all the uncertainties I find a global award, rather than a second multiplier, the appropriate measure to compensate the plaintiff for the loss of part time coaching after leaving the Aberdeen Marina Club. With due regard to the many indeterminate factors I award under this head a further $750,000 gross of the 75% adjustment.

181. The final issue is the claim for loss of earning capacity, which Mr. Pirie quantifies at $900,000, representing 18 months at $50,000 a month. Mr. Leong disputes this claim on the basis that the plaintiff is already adequately compensated by the award for loss of future earnings. An award under this head would relate to the first of the two periods of lost earnings, namely the post-trial period up to the notional termination of the plaintiff's full time employment. This is the period for which I have attributed to the plaintiff an earning capacity of $20,000 a month in reduction of the gross multiplicand of lost earnings. The second period, after retirement from full time coaching, has already attracted a global award for loss of future earnings, which of its nature also comprehends an element of compensation for loss of earning capacity.

182. An award for loss of earning capacity represents -

183. The award for loss of future earnings reflects the difference between putative earnings and actual earnings. If a plaintiff then loses the job from which he derives his actual earnings, his true loss for the out of work period will be 100% of the putative earnings, rather than that amount reduced by the actual earnings accounted for in mitigation. Additionally, the disabled plaintiff who is then out of work may find it more difficult than an able-bodied person to find alternative employment. He will therefore have a diminished value in the labour market by reason of the accident, which may attract a further award for loss of earning capacity.

184. The judgment cited continues -

"-----Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost indefinitely, depending on, inter alia, the claimant's age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant's earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant".

185. Of the argument that an award for loss of future earnings already includes and compensates for any loss of earning capacity, Cons Acting CJ had this to say on appeal in Lau Che Ping v Hoi Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR at p.656 -

"Mr. Chan argues that this has already been taken care of in the calculation for loss of future earnings, and while that would not necessarily be so in every case, I do agree that in the circumstances of this case such an award is inappropriate".

186. Relating these principles to the plaintiff's situation, we find that he does not have a job at all in the sense of gainful employment. He is working on a venure with future prospects but without current profits. That of course is his choice, and he must nonetheless submit to an assessment of his earning capacity by reason of the defendant's entitlement that he mitigate his loss. However the risk in the cases cited that the particular plaintiff may lose his job and then find unusual difficulty in obtaining re-employment becomes, in this plaintiff's case, the risk that his venture may be unsuccessful despite his best efforts. That this is a real and substantial risk is obvious, and he would then be forced back on the labour market.

187. Evidence has been accepted as to the plaintiff's difficulty in obtaining employment, and this must apply at least equally to re-employment on any future failure of his present venture. He has been found to be a 37% disabled professional tennis coach. That in itself is sufficient to establish his substantial disadvantage in the labour market in the event that he were obliged to seek re-employment.

188. I therefore find it appropriate to make an award to cover the plaintiff's loss of earning capacity reflected by his diminished value in the labour market by reason of his injuries. The risk of his being forced to seek re-employment I assess as considerable, and he suffers from a disability which, in his particular occupation, is also highly significant. At his age, with his disability, and with his lack of experience elsewhere, I accept that he would have difficulty in obtaining employment. The award should be commensurate to these factors, and I find the correct figure before adjustment for 75% liability to be $750,000.

189. The total award, summarised and adjusted for 75% liability, is therefore -

SPECIAL DAMAGES

GENERAL DAMAGES

The award for general damages attracts interest at 2% per annum from the date of the writ. Interest on the special damages will be at 5.5% from the date of the accident. I will hear the parties as to costs. I am grateful to counsel for their courtesy throughout the hearing.

Representation:

Mr. N. Pirie instructed by Munro & Claypole for Plaintiff

Mr. A. Leong instructed by Hastings & Co. for Defendant

Registrar Decision File