Lam Shu Tak Thomas v. Ling Shum Ha and Another

HCA000937/1980

The "lost years" principle applied - quantum of damages.

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Coram: Liu, J. in Court.

Date of Judgment: 16th April, 1981

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JUDGMENT

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1. At about 9 a.m. on the 22nd July, 1979 at the North Point Ferry Pier Bus Terminus, a double-decker jumbo bus driven by the 1st defendant ploughed into a queue of prospective passengers standing on and around a platform for route 62 for Chung Hom Kok. The plaintiff was a member of the queue injured in the accident. At the material time, the 1st defendant was the driver in the employ of the 2nd defendant bus company.

2. On that fateful day, the 1st defendant reported for morning duty at 7.10 a.m. He was the scheduled driver of another double-decker jumbo bus for route 82. The bus involved in the accident (hereinafter referred to as "the accident bus") had throughout been parked near the entrance to the bay for route 82. On his first round trip back to the North Point Ferry Pier Terminus, the 1st defendant managed to steer his bus into the bay for route 82 despite some obstruction created by the accident bus. On his second round trip back to the North Point Ferry Pier Terminus, buses for route 2.38 were found parked also near the entrance to the bay for route 82 but slightly to the left, and the added obstruction caused by these route 238 buses was such that sufficient space had to be cleared for maneuvering the 1st defendant's bus into its bay. The 1st defendant decided on moving the accident bus as there was hardly room to spare for shifting the obstructing 238 buses. Thereupon the 1st defendant emptied his bus-load of passengers and climbed into the driver's cab of the accident bus where he noticed a piece of paper with Chinese characters, the certified translation of which reads: "Noise at differential gear (,) vehicle not to be driven". Evidentially, the true construction of the certified translation must be only secondary to the general understanding of this type of notice by the staffs of China Motor Bus. As elaborated by the 1st defendant, this paper notice allegedly conveyed a warning merely against using the bus for passenger service.

3. It is necessary to go back to the previous evening for explaining how the accident bus came to be in the Ferry Pier Terminus. At about 8 p.m. the night before, a driver Mr. LAM Yick heard unusual noise coming from beneath the accident bus in the rear. He was concerned enough to discharge all his passengers and communicated with the Engineering Department of the China Motor Bus. The Engineer Vehicle Driver Mr. Lo soon arrived at the scene and on testing suspected malfunction in the rear gear. In addition to the noise, the accident bus had earlier failed to roll in first gear at starting acceleration, but once the accelerator was further depressed, it darted forward two feet. No evidence was given that the driver LAM Yick ever briefed the Engineer Vehicle Driver, Mr. Lo, on this odd behaviour of the accident bus. On the diagnosis of Mr. Lo, Mr. LAM Yick drove the accident bus back to the depot for repair. On arrival, Mr. LAM Yick parked the accident bus inside its compound and made a report to the Foreman/Supervisor, Mr. Chiu.

4. At about 9.15 p.m. on the 21st July, the Assistant Foreman of the Repairs Section Mr. Au road-tested the accident bus for some 15 minutes reaching a speed of 30 to 35 m.p.h. According to Mr. Au, the accident bus was taken out for test of noise from the rear gear on a written order of Mr. Chiu. The steering of the accident bus was found to be normal; so were the hand-brake and foot-brake. Thereafter, on his return to the depot he reported the accident bus as suffering from minor defect. He advised that its repair might be stood over until the morning but that the bus was "not to go" which he claimed to mean not for use in service. However, he maintained that it could be moved. Mr. Au was unaware of the vehicle's darting forward motion earlier in the afternoon. If he had been so told, he would have been of the opinion that its condition was more serious and carried out more tests. According to Mr. Au, buses with dangerous defects were to be kept in the depot in a covered bay with a red cardboard notice similar to that of "D5" which reads: "This vehicle (is under) repairs. Driving vehicle is dangerous.".

5. The court was faced with the discrepancies between the 1st defendant's understanding of the paper warning found in the driver's cab and Mr. Au's explanation on the different forms of notices for defective buses on the one hand and the evidence of the shunters or parking drivers on the other. Mr. Sin, one of the parking drivers disclosed in his statement to the police that ordinary drivers of China Motor Bus would usually not drive a bus with a warning notice of defect and that only the instructors and the technicians would usually move and drive defective buses. Mr. Sin further stated that the parking drivers would not drive buses with such a notice. Corroboration came from Mr. Poon, another parking driver, that he would not drive a bus with a note reading: "Defective vehicle, no go vehicle." Mr. Mak, another parking driver, explained in his statement that the Foreman/Supervisor Mr. Chiu would exhibit a cardboard notice inside a defective bus. Mr. Mak made no reference to any paper notice, but he was recorded to have said that he had never taken any bus under repair to the North Point Ferry Pier Bus Terminus. Another parking driver Mr. Leung merely recounted that on the 21st of July up to about 3 a.m. of the 22nd of July, he drove about 15 buses from the depot to the terminus. None of the four parking drivers had any recollection of having taken the accident bus from the depot to the North Point Ferry Pier Bus Terminus. From the totality of their statements, their chores were to top up the fuel and take the buses to the North Point Ferry Pier ready for service early the next morning. No mention was made by any of these parking drivers in their statements that buses, let alone defective buses, had to be taken from the depot to the North Point Ferry Pier Terminus for overnight parking in the event of congestion.

6. None of these parking drivers of China Motor Bus was called on behalf of the defence, and it fell upon Mr. Rees of the China Motor Bus to inform the court that overnight parking of buses at the North Point Ferry Pier Terminus had received governmental approval. Mr. Rees emphasized that the North Point Depot was not sufficiently spacious to accommodate all the buses and overnight parking facilities were taken advantage of. Mr. Au, the assistant foreman of the Repairs Section went so far as to assert that buses with minor defects might be driven to the Ferry Pier Terminus for parking if maximum capacity of the depot was reached. I cannot accept such an incredible assertion.

7. No explanation was offered, however, as to whether the buses inside the North Point Depot in the night between the 21st and 22nd of July were all defective and, if not, why the accident bus with defects was shifted to the Ferry Pier Terminus in preference to buses in good running order. Moreover, we had yet to be told that the depot was conoested or full at the material time.

8. The accident bus must have been driven to the Ferry Pier Terminus some time after the road-testing of Mr. Au's. According to Mr. LEUNG Kwong, an odd job worker of China Motor Bus, he was detailed by Mr. Chiu to put up a piece of paper in the driver's cab at gear level early in the morning on the 22nd. He found the accident bus parked near the path of route 10 buses at the North Point Ferry Pier Terminus, and he discharged his duty as instructed at about 00.45 a.m.

9. I find that the accident bus must have been removed from the depot to the Ferry Pier Terminus for early morning service next day by one of the parking drivers in ignorance of its defects as indeed the warning notice observed by the 1st defendant at the time when he climbed into the driver's cab was only hung at the gear level with a rubber band by Mr. LEUNG Kwong after the accident bus had been taken to the Ferry Pier Terminus. I further find that no one in China Motor Bus would have taken the accident bus to the Ferry Pier Terminus for either temporary overnight parking or service early next morning had the necessity for repair been known or made obvious.

10. It is evident that after 00.45 a.m. on the 22nd of July the accident bus must have been shifted from somewhere near the path of route 10 to where it was found by the 1st defendant at the North Point Ferry Pier Terminus. The platform for route 62 was next to the bay for route 82 which was in fact flanked by a platform on each side, one for route 62 and another for route 82. The plaintiff had been waiting with his wife and young son for about 20/30 minutes before the accident. The plaintiff and his family were on the platform, somewhere before the U-turn of the queue in front, three or four near its end. The queue concentrated on the platform of route 62 with a few spilling over onto the adjacent roadway. The crowd formed by the queue was milling around 4 to 5 feet in front of the accident bus. At one time, the 1st defendant driver estimated the distance to be as close as 2 feet.

11. After having seen the paper notice, the 1st defendant driver turned on the ignition. According to the 1st defendant, he observed the pressure gauge to be 70 odd lbs. A pressure of 110 odd lbs. would be required for rendering the brakes effective and safe operation of the accident bus. The 1st defendant claimed that he revved up the engine for 3 to 4 seconds with the intent of increasing the pressure. Under cross-examination, the 1st defendant cut a poor figure in his description of the sequence of his manipulation of control before the accident. He prevaricated in the timing of the release of the hand-brake. He also sought to retract his earlier version that he had pulled up the hand-brake. Ultimately, he claimed that up to the moving of the accident bus, never once had he touched the hand-brake. He showed little cooperation in the invited identification of the tyre marks left on the road surface. He was at least evasive in his cross-examination on the application of the foot-brake, but he maintained that he applied the hand-brake and foot-brake hard after the accident bus had surged forward. He violently denied what was in his earlier evidence that he intended to move the accident bus slightly to the right. He was devious in the cross-examination on his statement to the police that he had intended to move the bus 8/9 feet forward into the crowd. I do not accept his alleged understanding of the paper warning. He ought to have known as in the case of the parking drivers, that the defective bus should not have been left there and that he was not to drive it. I find that having ignored the written warning and paid no regard to the close proximity of the accident bus to the waiting queue, he turned on the ignition, revved up the engine for some seconds, engaged the first gear and stepped on the brake with his right foot at or about the same time, released the hand-brake, sounded his horn a few times, waited 2/3 minutes and when the crowd failed to respond or disperse, with the intention of edging forward 8/9 feet into the crowd but bearing slightly to the right, he lifted his right foot off the brake pedal and depressed the accelerator. I further find that the plaintiff was too heavy-footed that the accident bus surged forward at much more than normal starting speed and ploughed into the queue.

12. The front of the accident bus had been, for about 4 feet, jutting out of the safety-island which was some 60 feet away from the platform. From the position of the accident bus after the accident, it can be seen that it had travelled over at least 50 feet. If in fact the 1st defendant had not been heavy-footed on the accelerator, the surging forward motion of the accident bus would never have been as quick or as forceful and could have been put under control at a considerably less distance than over 50 feet. The accident bus had travelled over 50 feet leaving a tyre mark of 18 feet in length before it stopped, and only because of the two stationary buses blocking its path.

13. According to the technical evidence, the maximum speed in first gear for the accident bus is 12 m.p.h. and the normal starting running speed in first gear is 2 m.p.h. The possibilities of mechanical defects would only slightly increase the starting speed of the accident bus by the sudden engagement of the first gear drum which drives the vehicle. Mr. Au estimated that the accident bus could at best lurge forward at 8 m.p.h. If the 1st defendant had pressed the accelerator normally, no sudden engagement of the first gear brought about by any mechanical defect, in one possibility or another, could have likely taken the accident bus over such a distance.

14. With the 1st defendant being heavy-footed on the accelerator thus possibly bringing the speed of the accident bus very quickly up to about 7½ m.p.h., i.e. 11 feet per second, at that speed, it would take the accident bus 5 seconds to travel 55 feet. Even on that hypothesis, there could have been no conceivably sound reason for the 1st defendant not to be able to stop the accident bus earlier. After all, the brakes were tested and found to be in order both prior to and soon after the accident.

15. The plaintiff and his family were on the platform immediately before the accident. From the bare fact that the plaintiff's injuries were caused by the accident bus ploughing into the queue on the platform, the only proper inference to be drawn on the balance of probability is that there was negligence on the part of the 1st defendant driver as servant and agent of China Motor Bus. The circumstances invoke what has been described as the doctrine of res ipsa loquitur.

16. It was submitted on behalf of the defendants that for the then known or suspected nature of defect, there was no reason why the accident bus should not have been parked in the North Point Ferry Pier Terminus. The general tenor of the parking drivers' evidence was that buses taken to the Ferry Pier Terminus were those in good running order ready for service early next morning. Two of the parking drivers categorically maintained that they would not drive any bus with a paper warning. The third parking driver stated that he had taken no bus under repair to the Terminus. The remaining parking driver was not questioned on this aspect by the police. The evening before the accident bus was taken by Mr. LAM Yick under specific instructions to the depot for repair. I cannot accept and, if it is truly a serious suggestion, do not believe that China Motor Bus has been in the habit of or would consider it safe, parking or allowing to be parked defective buses in the North Point Ferry Pier Terminus.

17. In my view, the 1st defendant should not have operated the accident bus known to be defective, particularly being unaware of the precise nature of the rear gear defect, with low pressure suggesting leakage and in close proximity with the waiting queue. Less would the 1st defendant be justified, in the circumstances, in attempting to edge his way 8/9 feet into where the queue was. In addition, he ought to have anticipated as a professional driver that one of the possible reactions of rear gear defect was unpredictable motion of the accident bus.

18. The 1st defendant had intended to force his way well into the waiting queue. He endeavoured to do so without seeking assistance of any of the queue controllers. From the distance which the accident bus had travelled until its rampage was checked by the stationary buses, the 1st defendant must have been too heavy-footed on the accelerator bringing about too quick and too fast a pick-up speed.

19. With such lack of care on the part of both defendants, we need not really consider "the dowels theory" advanced by counsel for the defendants in support of an allegation of latent defect. However, I would deal with it simply for the sake of completeness. "The dowels theory can briefly be summarized as follows: The accident bus operates on an electro-pneumatic system. This description is self-explanatory. After selection of the gear, it would become engaged progressively by the combined effect of electric and pressure controls in the gear mechanism. For the first speed gear, there are a circular outer band and an inner band within the gear box casing. The inside surface of the inner band provides half of the friction for gripping the gear drum which drives the accident bus. When the first gear is selected, the electro-pneumatic system would gradually tighten the circular outer and inner bands thus reducing the diameter of its internal cavity for ultimately gripping the gear drum for drive. Between the outer band and the inner band, a certain degree of rotation is permitted presumably, to assist in the gradual gripping of the gear drum by friction thus engaging the first gear and driving the bus steadily. The small degree of rotation is regulated by a triangular piece of metal called the flange. If the flange breaks and gives way the inner band would be completely free to rotate inside the outer band except for two metalic protuberances from the inside surface of the outer band called the dowels which fit into and glide along two grooves of a limited length in the outside surface of the inner band. This device also assists to check the limited degree of rotation of the inner band inside the outer band. When the flange breaks and gives way, the ends of the grooves on the outside surface of the inner band might shear off these protuberances, the dowels. When the dowels are sheared, their remnants may be caught or lodge in between the inside surface of the outer band and the outside surface of the inner band thus causing a sudden jamming of the inner band which would result in a sudden gripping of the gear drum and jerking forward motion of the accident bus. The jamming of the inner band by the broken dowels would follow soon after the flange gives way. This theory does not seem to be reasonable if only for the fact that the jerk should not have generated any great speed in normal operation. The considerable distance into the crowd before the accident bus was stopped by the two stationary vehicles could not have been accounted for unless of course the 1st defendant had failed to apply any brake in time or at all or unless the brakes failed. We have the tyre marks on the surface as long as 18 feet in length, and when the accident bus was tested and again officially examined after the accident the brakes were found to be in good working condition.

20. Even if such mechanical analysis is wholly erroneous, the alleged latent defect can be of no assistance to the defendants unless it has been shown that reasonable care had been taken in maintenance. No evidence was adduced of maintenance or any system of maintenance of buses. We know not its history: its model, year of manufacture, age, mileage, capacity, known or likely faults, service records (if any) and general maintenance. No mention was made of any written records kept of reported defects. The accident bus was on the same day examined by Mr. Gourlay together with Mr. Blay a part-time consultant of China Motor Bus. Suspected malfunction in the gear box was or should have been known to these gentlemen, but Mr. Blay was not asked to have it stripped or examined until March, 1980 and he was not requested to give any written report until December, 1980.

21. Mr. Blay described another possibility of abrupt stoppage of the inner gear band having the effect of suddenly gripping the gear drum for drive. This other possibility may occur in the seizure or welding of the two bands after the breaking of the flange and the dowels when the inner band becomes free to revolve inside the outer band thus creating metalic friction between the inside surface of the outer band and the outside surface of the inner band and generating heat. Heated metal expands, and the two bands would become seized or welded by the expansion. This possibility may arise only after a comparatively long lapse of time allowing for free revolution of the inner band inside the outer band to generate heat of great intensity. But the 1st defendant driver denied any protracted period of revving up the engine. Paragraph 3 of the Re-amended Amended Defence of the defendants seems to point to this other possibility rather than to "the dowels theory".

22. Pleadings aside, in the absence of evidence of reasonable care in the maintenance of the accident bus, "the dowels theory" can be of no avail to the defendants. See CHAN Sau-kuen v. WOO Fan⁽¹⁾.

23. The 1st defendant was an experienced driver and, throughout his years of service with China Motor Bus since 1962, had only one minor offence in 1959 for which he was fined $20. The accident was tragic. In my view, the 1st defendant was in the circumstances negligent. He was negligent in driving the accident bus in the face of the paper warning, being uncertain of the nature of its defect and/or in view of suspected pressure leakage. He was further negligent in moving the bus next to the queue, with an intention of taking the motor bus "foot by foot" into the queue and/or without the assistance of any queue controller. The 1st defendant was also negligent in driving too fast in the circumstances by being too heavy-footed on the accelerator and/or failing to stop or steer the motor bus so as to avoid the collision with the plaintiff. In addition, the China Motor Bus was itself negligent in parking or permitting to be parked the accident bus in the North Point Ferry Pier Terminus. The accident bus would not have been taken out of the depot if Mr. Chiu had immediately caused to be put up a warning note.

24. In conclusion, the negligence presumed by the doctrine of res ipsa loquitur has not been rebutted by any reasonable explanation. Yet there is ample evidence of negligence on the part of the 1st defendant as servant and agent of China Motor Bus and the 2nd defendant.

25. The plaintiff was injured and received extensive vascular and muscular damage. He sustained various bone fractures. His two major operations left him with divers surgical scars. The scars on his face brought him disfigurement principally due to the right nostril and upper lip wounds. The scars and fractures are secondary compared to his muscular and vascular damage.

26. His aortic arch was ruptured or torn. His left carotid artery was avulsed or completely ripped off. His left subclavian artery was thrombosed or blocked. In his first operation by Dr. Nandi on the 7th August 1979 soon after the accident, the ruptured aortic arch was repaired by a dacron patch. The ripped off left carotid artery was beyond repair and left as severed. Nothing remedial could properly be done to his left subclavian artery at the material time. Before this first major operation, the plaintiff had been treated in the University Surgical Unit and in the University Orthopaedic Unit. The first operation was successful at least in the sense that the plaintiff survived his vascular injuries. He was discharged on the 14th September, 1979 after 54 days.

27. Thereafter, the plaintiff complained of, inter alia, numbness in his left arm and other symptomatic discomforts. He was given an aortogram which confirmed the blockage of his left subclavian artery causing diminution of blood supply to the brain in a symptom called a "subclavian steal syndrome". A second major operation was performed by Dr. Dandi on the 10th April, 1980 whereby a dacron bypass was constructed for this subclavian artery.

28. Among his many complaints, it was found necessary to readmit the plaintiff to the Grantham Hospital on the 6th August, 1980 for treatment of dizzy spells, particularly when he turned his head to the right. He was given a cervical collar for a fortnight in hospital, and he wore it for a further two weeks thereafter.

29. In February, 1981, the plaintiff suffered two fainting spells and he was readmitted into hospital. He was discharged at his own request for attending these proceedings which commenced on the 9th of March 1981, and on the 11th March at the commencement of his cross-examination, the plaintiff fainted in court.

30. There was a considerable divergence in medical opinions as to the residual effects of the plaintiff's vascular damage. I will first deal with his other injuries not in dispute. The plaintiff had suffered a variety of scars many of which have caused psychological anxieties. Limited plastic surgery was advised by Dr. Nicholson to the right nostril area and the right knee for approximately $8,200. What was not also disputed was the injury to his right shoulder and arm. There were bone fractures and imperfect unions, but the most damaging injury to the right shoulder is the severance of the axillary nerve leading to partial paralysis of the the deltoid muscle. There is atrophy or wasting of the deltoid muscle, the nerve supply to which is damaged to an extent of 70%. He can raise his right arm almost to shoulder level instead of straight up. He can turn his right arm outwards only half-way and inwards only three-quarters of the way. Because of the fracture dislocation of the elbow in the accident, he can only bend it 110^o instead of 160^o. The plaintiff has lost also some grip in his right hand. The plaintiff lost five teeth and had his jaw bone fractured in the accident. His voice has been affected. Its volume is weaker and tone coarser. There have been more than one assessment of disabilities. Dr. Wedderburn is a familiar "running-down" expert in these courts. This gentleman surgeon has devoted much of his time to needy accident victims. I find Dr. Wedderburn's assessment of 17% impairment of the whole man because of the condition of the plaintiff's right arm more in line with my own understanding of the evidence. I also find the doctor's estimate of one-quarter loss of expectation of life realistic. His evidence was not challenged. Dr. Nandi was, however, less optimistic. He testified that sudden death was unpredictable for a man with the plaintiff's damaged vascular system, but Dr. Nandi has kindly refrained from speculating on any mortality rate.

31. As for the left arm of the plaintiff's, there seems to be little dispute that he cannot exert himself for any great length of time. Dr. Tsui examined the plaintiff on the 10th March, 1981. He found the plaintiff suffering from vertigo and nausea after having raised his left arm against resistance for about ten times.

32. I turn next to the vascular damage. Dr. Nandi, who operated on the plaintiff in both major operations has since August, 1979 been and is still to-day attending him. Dr. Nandi was soft-spoken, undogmatic and was an impressive witness. He has had the closest and longest association with the plaintiff. From the investigations in March, 1980 prior to the second operation, the fainting spells in February, 1981, the further clinical corroboration in the plaintiff's court fainting episode in March, 1981 and Dr. Tsui's recent opinion on the exercise of the plaintiff's left arm, Dr. Nandi put in the forefront, as the first probability of the plaintiff's condition, the subclavian steal syndrome. That means blood supply to the brain through the vertebral artery was stolen or taken through the subclavian artery by the arm. It was said that the second major operation had probably not been very successful in removing this subclavian steal syndrome. Dr. Nandi also recognized what he described as the other but more theoretical probabilities from the clinical symptoms of the plaintiff's, namely either blood clots being thrown off from the injured arterial system as emboli or in a more sinister theory the narrowing of the innominate artery. It is common ground that the subclavian steal syndrome can only be verified by an aortogram which is a painful operation by cutting open an artery in the groin and inserting a catheter all the way to the aorta for the injection of radio contrast material for examination and analysis. Dr. Nandi advised against it, and Professor Mok agreed that the plaintiff could not be criticized for being apprehensive. Without a further aortogram, prognosis was difficult and inconclusive. However, Professor Mok agreed that with all the information including the examination by Dr. Tsui in March, 1981, subclavian steal syndrome and throwing off of emboli were probabilities of equal prominence. Professor Mok further agreed that remedial steps taken to remove or alleviate any of these three possibilities would involve considerable risk in a damaged circulatory system of the plaintiff's. Professor Mok put throwing off of emboli as the most probable because of the small calibre arterial graft and the clinical symptoms untypical of a subclavian steal syndrome. The professor spoke of an instantaneous collateral supply to the brain but agreed that he would not be surprised to see the plaintiff, with damage to his three arteries, suffering from a degree of brain damage and mental impairment. Dr. Nandi was assisted in the first major operation by Professor Mok.

33. Dr. Nandi was in court observing the plaintiff's fainting episode in March. He attended to the plaintiff immediately and found him unconscious with no muscular tone. With background information of the plaintiff, he gave an opinion that it was not a vaso-vagal attack.

34. The combined evidence of neuro-surgeon and psychiatrist called on behalf of the plaintiff supported his complaints of impaired memory, lack of concentration and increased irritability. The plaintiff remained fairly articulate, but the strain accompanied his extra effort in giving evidence was clearly visible. Doctors from both sides had never doubted the integrity of the plaintiff. I have had opportunities of observing his general demeanour and his performance in the witness-stand. I have come to the conclusion that the plaintiff was open, cooperative and sincere. Signs of relief and satisfaction were occasionally shown by the plaintiff when he happened to encounter genuine difficulties as if he had been virtually pleased by the spontaneous display of his disabilities.

35. I form the opinion that the plaintiff is no longer managerial material but that he can still cope with junior clerical work. Whatever may be the improvement, if any, of the residual adverse effects of the plaintiff's brain damage, the physical limitations caused by nerve and vascular injuries would not restore much his pre-accident capabilities.

36. I come to deal with the medical evidence. Basically, the doctors agreed on the known functions of various portions of the brain, but there were isolated criticisms levelled at specifications and descriptions attempted in less precise terms. The defendants called a neuro-surgeon and a psychiatrist who had both one interview with the plaintiff lasting approximately an hour and a half. The neuro-surgeon called by the defendants, Dr. So did not deal with the prospect of a left subclavian steal syndrome. He had no opportunity of examining the plaintiff at the time of any of his fainting spells. He dealt with the plaintiff's alleged compensation neurosis peripherally. He seemed to rely significantly on the plaintiff's expectation of a large sum of compensation. Compensation neurosis is admittedly a controversial topic and most commonly found in trivial injuries amongst the low social class or the elderly. Dr. So conceded that his one-interview examination did not and could not exclude possible brain damage.

37. The neuro-surgeon called by the plaintiff, Dr. Cheung was positive that a hypodense area over the left parietal region measured 3 c.m. by 8 m.m. and shown in one slide of a Computerized Axle Tomogram called, for short, "C.A.T. Scan" was evidence of brain damage. Dr. Cheung expressed the opinion that detection in one slide was sufficient and that such hypodense appearance was often observed in area of the brain receiving diminished blood supply. Dr. Cheung also noticed some enlargement in one ventricle and the slightly more prominent brain furrows or sulci on the left, possibly due to anatomical variations.

38. Dr. So challenged the true value of one single slide in the C.A.T. Scan but agreed that since microscopic brain damage might not be revealed in a C.A.T. Scan, clinical evidence would be more informative. Dr. So also explained the possible causes for the difference of the brain hemispheres shown on the plates but agreed that widened furrows or grooves called "sulci" in the brain might not be present in microscopic brain damage. Dr. So also acknowledged that several time-consuming sessions would be desirable and necessary for delineating subtle abnormalities in various parts of the human brain.

39. Two observations were made by Dr. So on interruption of blood supply to the brain and possible consequential damage caused. Firstly, it was said that collateral blood supply could instantaneously be drawn from a reservoir in the brain called the "Circle of Willis". Secondly, it was postulated from experiments conducted on animals that the brain had been shown to be able to function with one-third blood supply for quite some time, provided that the diminished circulation be even. Dr. Nandi described the conditions of the plaintiff's blood vessels as: one completely ripped off, one torn and one blocked. Dr. So was not prepared to rule out possible microscopic brain damage in the case of the plaintiff with one major artery supplying the brain abruptly cut off. He agreed that in a case of such damage, more would be caused to the most distal portion of the brain fed by the severed major vessel. It was accepted by Dr. So that in clinical shock, many small or capillary arteries might collapse and that loss of memory was a possible sign of minor brain damage.

40. Dr. Nandi, the neuro-surgeon, Dr. Cheung and the psychiatrist, Dr. Cantlay called by the plaintiff were all of one voice that there was no compensation neurosis. Dr. Cantlay initially placed much emphasis on the absence of any complaint of headache, but with the added information of complaints of headache, diminished concentrstlan and postural giddiness, he nevertheless maintained his opinion as having been correctly reached at the time of the interview. Apart from the impression I have formed of the plaintiff during his court attendance, I find Dr. Nandi's observations on this and other aspects within his field most helpful and least embellished. I am persuaded by the medical evidence I accept that there is no compensation neurosis. Independently, I find that the plaintiff was decidedly not malingering.

41. The neuro-surgeon called by the defendants, Dr. So was supplied with a psychologist's report. Reference made to its contents is no evidence as to the proof of their truth, but it explained why consultation with a psychiatrist was advised. According to Dr. So, he understood the lady psychologist, Dr. Mao, to have opined that there was no evidence of impaired memory or lack of concentration but that there was a mild degree of dysgraphia (impaired ability to write complicated pictures or words) and dyscalculia (impaired ability to calculate). According to this neuro-surgeon, diagnosis of a mild degree of dysgraphia and dyscalculia rendered the whole interpretation of the psychological tests difficult and for that reason he advised the defendants to consult a psychiatrist.

42. The psychiatrist called by the defendants, Dr. Green had only one interview with the plaintiff. He conducted no neurological test. He focussed on the psychiatric aspect. He was competent to carry out psychological tests. In view of the reason for advising a consultation with a psychiatrist, it is difficult to understand why Dr. Green was not specifically invited to repeat the same Adult Weschler Intelligence Score test. Dr. Green also observed that report of a psychologist, if available, should have been placed before him. That was not done; nor did he see a copy of Dr. Tsui's report. Dr. Green criticized the opinion reached by Dr. Cantlay on, inter alia, his tests with "simple sentences". It was assumed that such testing was in fact performed with "Babcock sentences" which are demonstrably far from being simple. Dr. Cantlay testified that the plaintiff was unable to repeat simple sentences even after seven attempts, while a man of his age and presumed ability should be ready and able to perform the same test successfully at most after four attempts. The plaintiff was also said to be unable to repeat a series of number four forwards and three backwards, whilst a normal individual of his age and presumed ability should be capable of doing seven to nine forwards and six to eight backwards. Dr. Green himself embarked ...(illegible) no such tests but was content to confine himself to criticisms. Dr. Green agreed that dysgraphia and dyscalculia were symptoms of minimal parietal lobe damage. He was driven to concede that he posed no direct questions on some significant aspects. However, he claimed to have no reservation that the plaintiff sustained no frontal lobe damage without dysphasia (impaired power of speech) whilst retaining some control of his irritability.

43. For all these reasons, I prefer and accept the medical evidence adduced on behalf of the plaintiff.

44. There can be no doubt that but for this accident, the plaintiff could have looked forward to a normal period of employment up to retirement, which is by no means an inflexible term in his case. He is left with an impaired memory. He is often forgetful as to Chinese characters, English words and telephone numbers. The plaintiff also suffers from lack of concentration and some degree of increased irritability. In attempted concentration, he invariably experiences headaches. There is constant pain in his right arm, the movement of which is extensively limited. His right palm trembles and the grip weak. He has difficulty in holding a pen or a pair of chopsticks. His right arm will not improve significantly. His left arm cannot cope with sustained physical work.

45. Apart from physical and mental disabilities, he appears to be sluggish without much stamina or drive. His unsuccessful post-accident attempt at the same office work, as corroborated by his brother, has confirmed that he falls far short of performance demanded of a man in a supervisory capacity, let alone the post of a manager. At the time of the accident, he was a healthy young man of 29, alert, able, responsible, hardworking and ambitious. He has a university degree with a diploma of education. In 1977, the plaintiff was one year from the reality of a promotion to Senior Graduate Master with a present pay of $8,965. With his educational background and determination, he would certainly not have been content with and would never have stopped at the income level of or comparable to that of a Senior Graduate Master. He had good prospects of and the aspiration for attaining a much higher social standing with corresponding much better financial reward. He had all the attributes of a young man who could confidently look forward to an income of well over $10,000 in any field in the near future.

46. I am not satisfied that the company of his brother would not be in a financial position to pay him as a General Manager between $7,000 and $8,000 a month. The company's textile trading was not yielding any profit, but the volume of sales was on the increase with the usual goodwill for a good future. The directors' salaries to the brother and his wife was $98,000 for the last year, making an income to the brother's family of over $8,000 a month. The brother and his family were also enjoying rent free accommodation. The plaintiff was expected to be responsible for one half side of the business activities. There was no reason why the plaintiff would not soon have made a General Manager and ...(illegible) $7,000/$8,000 a month by way of pay and fringe benefits. There was also the expected bonus.

47. The plaintiff had an offer from his former principal of the St. Joan of Arc School. If the brother's company should fail to meet his expectations, there was no known obstacle to his returning to teaching with the secured pay of a Senior Graduate Master in another year's time.

48. Uncertainties, probabilities and hypotheses enter into most assessments which involve a highly speculative exercise. With excellent prospects of earning well over $10,000 a month in any field in the near future, in the plaintiff's present reduced capacity for only a junior clerical post at about $2,000 per month, loss of future income would be in the region of $8,000 per month. Even if we were merely to take his managerial post from the company at some $8,000 per month, his net loss would be in the region of $6,000 per month. An average loss of $7,000 per month, though still within the inevitable realm of hard speculation, would seem to yield the golden mean. Just as the plaintiff's potentials, regard must be had to the qradual betterment of his income over a fair period of time. In all the circumstances, balancing both sets of figures and also taking into account future contingencies and vicissitudes of life, I would forgo another $500 and set the average loss of income at $6,500 per month. It is hoped that this assessment would not appear to be too arbitrary. In the awareness that any selected figure must be susceptible to censure or sanction by more inexact criteria than one, I have pondered long over this average loss of monthly income of $6,500 objectively in the light of all the known circumstances but still found it appropriate.

49. There will be 25% loss of expectation of life. Expenses for self-maintenance in the lost years should be deducted, but the plaintiff would not then be available for earning the estimated $2,000 in a junior clerical post. I would assess self-maintenance at about $2,000 per month, and that is equivalent to the reduced earning capacity which the plaintiff would no longer enjoy in the lost years. For this reason, I make no deduction for self-maintenance in the lost years. See Pickett v. British Rail Engineering Ltd.⁽²⁾ and the "lost year" principle as extended in the case of Gammell v. Wilson and Another⁽³⁾; Furness and Another v. B. & S. Massey Ltd.⁽⁴⁾

50. As for pain and suffering and loss of amenities, this is a case which has decidedly reached the top bracket of the level range suggested for substantial injury in LEE Ting-lam v. LEUNG Kam-ming⁽⁵⁾, the judgment of which was delivered on the 30th May, 1980. I would allow $100,000 despite the fact that the plaintiff's pastimes were exclusively indoors.

51. In all the circumstances, I propose to adopt a 15 years' purchase from the date of the accident. The plaintiff was expected to progress on an ascending salary scale. I would put it at $4,500 for the 14 months next following his loss of income as pleaded. He has of course stood to lose the entire income for this period as he remains justifiably unemployed to-day. The calculations are, therefore, set out below:

52. The plaintiff will probably have one more child. With a joint income of $11,500 per month for a family with three children (i.e. the plaintiff's monthly $8,500 and his wife $3,000), it is $138,000 per year which would attract slightly over 10% in taxation with allowable deductions on a personal assessment basis. I would deduct an overall $109,650, being 10% for items (2)(a) and (2)(b). I have ignored the small tax advantage gained by the $5,000 actual monthly joint income of the plaintiff's and his wife's (i.e. the plaintiff's estimated $2,000 and his wife's $3,000). Therefore, the final sum to be awarded is ($1,246,767.00 less $109,650.00) $1,137,117.00.

53. It is obvious that even at 10% net bank interest, the general damages of $930,150, i.e. 90% of 2(b), would provide about $7,500 per month, but at least a fair portion of it represents capital appreciation to offset the probable rise in the cost of living, serving as a hedge against inflation. Further, the present high rate of interest is not expected to be permanent. Independently, I find the award of general damages proper for and commensurate with what income, in a conjectural projection, the plaintiff will lose in his working life.

54. I would allow interest on items (1) and (2)(a) at 5% per annum from the date of injury to the date of judgment and 10% per annum on the item (4) $100,000 from the date of service of the writ to the date of judgment.

55. The plaintiff is to have costs against both defendants.

Representation:

Mr. Dennis Chang, Q.C. with Mr. J. Bleach instructed by D.L.A. for plaintiff.

Mr. Wright and Mr. Mumford instructed by Ngan & Co. for defendants.

(1975) H.K.L.R. 210

(2) [1978] 3 W.L.R. 955 at p.963

(3) The Times dated 6.2.81

(4) The Times dated 6.2.81

(5) H.C. Action No. 11 of 1980

Action No: 937 of 1980

Date of Trial: 9.3.81 - 1.4.81

Date when Judgement was delivered: 16.4.81.

Cases cited by Plaintiff's leading counsel in submission:

(1) Chan Sau Kuen v. Woo Fan (1975) H.K.L.R. 210

(2) Pearce v. Round Oak Steel Warks (1969) 3 A.E.R. 680

(3) Chan Sau Kuen (1975) H.K.L.R. 226

(4) Parkway v. South Wales Transport Co. Ltd. (1948) 2 A.E.R. 460 at 471

(5) Tan Chye Choo & Others v. Chong Kew Moi (1970) 1 A.E.R. 226

(6) Lee Woo Sun v. Wong Kin Keung (1976) H.K.L.R. 296

(7) Basil Peter Barnett v. Chan Ting Chung (1975) H.K.L.R. 482

(8) Lee Ting Lam Judgment C.A. 11/80

(9) Chan Yi Keung (1979) H.K.L.J. 96

(10) Pickett (1978) 3 W.L.R. 955 at 959

Cases cited by counsel for the Defendants in submission:

(1) Henderson v. Jenkins (1970) A.C. 282

(2) Tan Chye Choo & Others v. Chong Kew Moi (1970) 1 A.E.R. 266

(3) Barnett v. Chan (1975) H.K.L.R. 482

(4) Gordon Taylor Grahan v. P.J. Mansell (1977) H.K.L.J. 145

(5) Irene Mary Piper (1977) H.K.L.J. 143

(6) Lee Woon Sun (1977) H.K.L.J. 140

(7) Cheung Kam Cheung (1979) H.K.L.J. 101

(8) Lau Kai Tai (1979) H.K.L.J. 195

(9) Chow Keung Kwong (1980) H.K.L.J. 104

(10) Man Chuen (1980) H.K.L.J. 115

(11) Liu Sin Fung (1980) H.K.L.J. 116

(12) Lam Mei Lan (1980) H.K.L.J. 224

(13) Cho Suk Ying (1980) H.K.L.J. 225

(14) Lam Tin Chor (1980) H.K.L.J. 228

(15) Li Ting Chun (1981) H.K.L.J. 120

Actual Cases cited in the Judgment:

(1) Chan Sau Kuen v. Woo Fan (1975) H.K.L.R. 210

(2) Pickett v. British Rail Engineering Ltd. (1978) 3 W.L.R. 955 at 963

(3 & 4) Furness & Another v. B. & S. Massey Ltd. The Times dated 6.2.81.

(5) Lee Ting Lam v. Leung Kam Ming H.C.Action No. 11 of 1980

Representation:

Mr. Dennis Chang, Q.C. with Mr. J. Bleach instructed by D.L.A. for plaintiff.

Mr. Wright and Mr. Mumford instructed by Ngan & Co. for defendants.