Cheng Sam Pak v. The Attorney General for Hong Kong and Another

HCPI001184/1996

1996, No. P.I. 1184

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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Coram: Master Chung in Court

Date(s) of hearing: 3, 4 and 5 September 1997

Date of judgment: 26 September 1997

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ASSESSMENT OF DAMAGES

REASONS FOR JUDGMENT

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Introduction

1. This action arose out of an accident dating back to December, 1984 which resulted in injuries to the Plaintiff (when he was 13 years old). Legal proceedings were commenced in October, 1990 (when the Plaintiff was 19 years old). On 22 June, 1994, interlocutory judgment was entered by consent for the Plaintiff against the Defendants on the basis of 80% liability with damages to be assessed. This is the Judgment on assessment of damages.

2. In the afternoon of 10 December, 1984, the Plaintiff was playing with other children in an open area which was the site for fireworks display the day before. One of the children picked up an unexploded firework. This was ultimately passed to the Plaintiff. He held it in his right hand and lit the fuse of the firework, intending to throw it away before it exploded. However, the firework exploded before he could do so. As a result, injuries were caused to his right hand, in particular the tips of the first to the fourth fingers, including the loss of finger nails.

3. At the hearing, the following bundles were produced to the Court and referred to by the parties and the Court:-

(a) Bundle of Pleadings, or Bundle 1 ("B1");

(b) Agreed Bundle, or Bundle 2 ("B2");

(c) Plaintiff's Bundle of Documents ("B3");

(d) Plaintiff's Bundle of Expert Reports, or Bundle 4 ("B4");

(e) Defendants' Bundle of Expert Reports, or Bundle 5 ("B5").

4. In addition to the said documents, the following witnesses were called:-

(a) by the Plaintiff's side, the Plaintiff himself, Senior Inspector of Police Leung King-hung, Dr. Peter Lee Wing-ho (Clinical Psychologist) and Mrs. Alice Tsang (Occupational Therapist);

(b) by the Defendant's side, Mrs. Shelly Merril Wright-Chow (Occupational Therapist) and Mr. Wong Chee-wing (Clinical Psychologist).

5. A summary of the damages claimed by the Plaintiff has been set out in the Amended Schedule of Damages (pp. 49-59, B1) and can be summarised as follows:-

(a) damages for pain and suffering and loss of amenities ("PSLA"), $600,000;

(b) pre-trial loss of earnings, $475,432.10;

(c) loss of future earnings, $2,389,068;

(d) loss of pension, amount to be assessed;

(e) loss of earning capacity, $200,000;

(f) miscellaneous damages, $2,904;

(g) interest on the sums awarded.

6. The Defendants dispute the quantum set out above and stated in their Reply to the Amended Schedule of Damages (pp. 60-65, B1) that the damages should be as follows:-

(a) PSLA, $500,000;

(b) pre-trial loss of earnings, nil;

(c) loss of future earnings, nil;

(d) loss of pension, nil;

(e) loss of earning capacity, $90,000;

(f) miscellaneous damages, agreed;

(g) interest on the sums awarded, agreed.

7. I propose to deal with the quantum of damages under the headings set out in the paragraphs below.

PSLA

8. It seems that the Defendants do not dispute the extent of physical injuries or physical disabilities suffered by the Plaintiff. The issues between the parties relate more to the extent, if any, of the psychological and/or personality disabilities of the Plaintiff.

(1) Physical Disabilities

9. The Plaintiff's case is that the Plaintiff has suffered physical injuries to his right hand. The details of these physical injuries have been referred to in the medical reports adduced by the Plaintiff as well as the Plaintiff's testimony, and will be summarised below. It is also the Plaintiff's case that by reason of these physical injuries, he has suffered and is still suffering from physical (both functional and cosmetic) and psychological disability.

10. The Plaintiff's physical injuries can be summarised as follows:-

(a) loss of finger tips of the first to fourth fingers including nails of the right hand, with protrusion of the finger tip bones;

(b) actively bleeding and dirty wounds;

(c) superficial laceration over the right palm and the third web

(see the medical reports of Dr. Tsang Hon-keung dated 19 December, 1984 and 28 January, 1985: pp. 1-2 and 3, B4).

The following treatment was performed shortly after the accident:-

(a) revision amputations of the second to fourth fingers;

(b) debridement of the right thumb;

(c) suturing of the lacerations of the right palm and third web;

(d) stitches were taken off the day after the operation;

(e) post-operation course was uneventful and the Plaintiff was discharged on the 23^rd day after operation, with most wounds healed up except a small wound over the right thumb

(see the medical reports of Dr. Tsang Hon-keung above);

(f) the Plaintiff was re-admitted to hospital on 9 July, 1985 for the removal of a foreign body nodule formed between the web the 4^th and 5^th fingers;

(g) the Plaintiff underwent physiotherapy

(see the medical report of Dr. Philip Mao dated 1 December, 1988: pp. 4-6, B4).

11. The physical disabilities suffered by the Plaintiff are as follows:-

(a) numbness of the tips of the 4 injured fingers;

(b) reduced strength in the grip of the right hand;

(c) reduced length of the right thumb and right index, middle and ring fingers;

(d) scars at the sites of the injuries (which are at the tips of the said fingers);

(e) no abnormality in the movements of the injured fingers but the right hand would feel cold if temperature is low;

(f) when the weather changes, the stump of the thumb and the fingers would be painful and swollen.

(see the reports of (a) Dr. Philip W.C. Mao dated 1 December, 1988, 31 March, 1995 and 22 November, 1996 and (b) Dr. David T. Lee dated 1 February, 1994: pp. 4-6, 22-23, 24-26 and 78-79, B4).

(2) Psychological/Personality Effects

12. The Plaintiff also complained of the following psychological disabilities:-

(a) problems immediately after the injuries included pain, anguish, fearfulness, nightmares and disturbed sleep;

(b) long-term adverse effects on his socialisation skills and self-esteem due to his awareness of the cosmesis of the injured hand;

(c) mildly depressive;

(d) socially withdrawn and became more housebound.

(see the report of Dr. Peter W.H. Lee dated 13 September, 1995 and his 2 reports both dated 23 August, 1997: pp. 70-77, 79a-79b and 79c-79k, B4). These complaints were also made in the Plaintiff's testimony and witness statement.

13. When he was cross-examined, Dr. Peter Lee said inter alia that the Plaintiff told him there were 2 unsuccessful courtships because he was sometimes explosive in his temper which was caused by his disabilities. Dr. Lee also testified that the improvements in the personality effects are fragile and he is not sure how permanent these can be. In his re-examination, Dr. Lee said the Plaintiff will have to rely on having a supportive environment.

14. The Defendants dispute the Plaintiff's contention that the injuries caused him any psychological disabilities. They adduced evidence on this aspect through their psychologist, Mr. C.W. Wong (see the report of Mr. C.W. Wong dated 13 August, 1996 (pp. 1-10, B5)). It is important to note the following in his report:-

(a) the Plaintiff showed a strong will to thrive from the trauma of the accident (p. 4, B5);

(b) as he grew older, the Plaintiff began to regret at the accident, with a lot of self-reproach for the unfortunate event which had far-reaching effects on his physical competence (p. 4, B5);

(c) in his report, Mr. Wong doubted the conclusion of Dr. Peter Lee that the Plaintiff underwent an "insidious but significant change" in personality and opined that it was too early to conclude definitively one way or another (p. 5, B5). In his cross-examination, however, Mr. Wong agreed that there was some personality change in the Plaintiff;

(d) Mr. Wong reported that the Plaintiff was aware of his deformities and regarded it as a social handicap, especially when new acquaintances tried to shake hands with him. The Plaintiff also told Mr. Wong that there were 2 unsuccessful courtships but denied that these had anything to do with his physical disabilities (p. 5, B5);

(e) It is evident that the Plaintiff still has a moderate degree of anxiety problems and some mild depressive symptoms (p. 6, B5).

15. Mrs. Kaplan, in her cross-examination and final submissions, criticised Mr. Wong for not addressing the emotional aspect of the Plaintiff's psychology, but merely concentrating his assessment on the academic and employment performance aspects.

(3) Findings in Relation to PSLA

16. I find that as a result of the accident, the Plaintiff suffered and still suffers from physical disabilities as set out under the sub-heading "Physical Disabilities".

17. I also find that there are negative psychological and personality effects caused to the Plaintiff by the accident as set out in the 1st paragraph under the sub-heading "Psychological/Personality Effects". However, having considered the testimony of the Plaintiff's witnesses,

(a) I do not find any concrete evidence that the Plaintiff's academic performance had been adversely affected by the accident. In this respect, I note that his school performances in Primary 6 (and in Form 1) pointed against any adverse effect. I also do not find that the findings of Dr. Lee can be safely relied upon over this aspect. This is because his assessment was made quite some time after the incident. His assessment was also derived from information provided to them through interviews with the Plaintiff. By then, the Plaintiff was of course much more acutely aware of the effect of the accident. As regards the part of the Plaintiff's testimony that his studies suffered as a result of the accident, I also do not find that to be reliable;

(b) I also do not find any satisfactory evidence that the 2 unsuccessful courtships had been the direct result of the Plaintiff's depressive state. The Plaintiff denied that this was so when he saw Mr. Wong (p. 5, B5). With the present signs of improvement in his personality, I also do not find that it has been established that the Plaintiff will have major difficulties in courtship or marriage in future although it is conceivable that some female may initially find his right hand to be unpleasant to look at.

To sum up, I find that:-

(a) the Plaintiff suffered the physical disabilities as set out under the sub-heading "Physical Disabilities". I also find that there are cosmetic disfigurement but conclude that this should be included in the overall assessment for PSLA;

(b) the Plaintiff suffered and still suffers from a mild degree of depression and a mild degree of social withdrawal. He also has an awareness of his injured hand and a low self-esteem;

(c) these psychological effects are, however, general and mild in nature, and are to be taken into account when assessing the award on PSLA, rather than warrant an independent award on their own.

(4) Award on PSLA

18. Both parties submitted that I should bear in mind the categorisation in Lee Ting-lam [1980] H.K.L.R. 657 as updated in Chan Pui-ki [1996] 2 H.K.L.R. 401 but reminded me that the categories set out therein are not strait-jackets. I entirely agree with these submissions.

19. The Plaintiff submitted that $600,000 should be awarded for PSLA because the Plaintiff's injuries and present physical and psychological conditions fall within the lower end of the "substantial injury" category: see p. 50, B1. Mrs. Kaplan drew my attention to 2 cases: Chan Pui-ki, above, and Lai Tim-fai, unrep., (1996) P.I. No. 762, p. 6. She submitted that the Plaintiff's personal life and working life have both been affected by the accident. As a result of the injured hand, he became timid and quiet, has a low self-esteem and lacks confidence.

20. On the other hand, Mr. Westbrook submitted that the Plaintiff falls more within the middle of the "serious injury" category (see p. 60, B1) and $500,000 should be awarded. He relied on the cases set out in his List of Authorities including the following:-

* Lee Ting-lam, above;

* Kong Sze-chung v. Sundo Garments Fty. Ltd., unrep., HCA 2734 of 1984, 7 October, 1987;

* Lo Wai-keung v. King's Industrial Ltd., unrep., Civ. App. No. 80 of 1992, 21 December, 1992;

* Ho Ping-shu v. Ho Kwai-lin, unrep., HCA1547 of 1985, 10 October, 1986;

* Kong Tak-on v. Lau, unrep., HCA6337 of 1987, 28 June, 1989;

* Lai Yee-kin v. Top Crown Electroplating Fty Ltd., unrep., HCA628 of 1986.

The "serious injury" category was said to be:-

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

The "substantial injury" category was said to be :-

"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 any artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life .... ".

21. In Ho Ping-shui, above, where the plaintiff 's right hand was crushed in a power press and 3 of his fingers were amputated, Master Jones observed that "I accept that considerable cosmetic disability will be a permanent effect of the injuries" and further that "I also bear in mind the likelihood of plaintiff's diminished marriage prospects, both from the cosmetic view point and from the economic inferences likely to be drawn .... " (see pp. 4-5 of the transcript). An award of $100,000 was made for PSLA in October, 1986.

22. In Kong Tak-on, above, where Master Perrior considered the injuries suffered as being relatively minor and did not substantially affect the plaintiff (see pp. 3-5 of the transcript), an award of $100,000 was made in June, 1989 (injuries not found to be within the "serious injury" category).

23. In Lai Yee-kin, above, Master Jones found the injuries (amputation of 4 fingers) resulted in recurrent pain, changed lifestyle (stopped playing table tennis and badminton) and deterioration of social relationship and made an award of $130,000 in October, 1987.

24. In other cases referred to in the Defendants' List of Authorities, awards ranging from $70,000 (in December, 1989) to $135,000 (in October, 1987) were made for similar injuries to fingers.

25. Taking all matters into account including the physical condition of the Plaintiff's right hand (functional and cosmetic), his psychological and emotional depression, the change in his lifestyle, diminished marriage prospects and so on, I agree with Mr. Westbrook and am of the view that the injuries suffered by the Plaintiff falls within the middle range of the "serious injury" category. However, I consider that some slight upward adjustment need to be made to take into account the fact that the Plaintiff suffered the injuries at, and has been suffering the disabilities since, a much younger age than the plaintiffs in the other cases. For these reasons, I make an award of $500,000 under this head.

Loss of Earnings

26. The Plaintiff complained of the following handicaps in relation to his employment:-

(a) reduced sensitivity of the tips of the 4 injured fingers leading to easily wounding his hand without realising it;

(b) hypersensitivity at the scars, especially for the middle and ring fingers;

(c) poor circulation at the finger tips after spending a long time in air-conditioning or during cold weather;

(d) strength of the injured hand is less than the left hand and shows easy fatigue;

(e) problems with social interaction with other people, especially strangers, because of his awareness of the cosmesis of the injured hand.

(see the reports of Mrs. Alice Tsang dated 14 August, 1992 and 16 August, 1995: pp. 7-21 and 27-69, B4).

27. As a result, the Plaintiff is regarded by his occupational therapist as being unable to manipulate fine objects and poor in lifting, carrying, pulling or pushing heavy objects. Further, the occupational therapist was of the view that had it not been for the injuries, the Plaintiff would have had a more diverse choice of work with his academic qualifications and work aptitude, e.g. a technician of various kinds and physical mechanics. The Plaintiff stated to the therapist that he consider himself unsuitable and would not be accepted for jobs which require personal appearance, like waiter and salesman. The occupational therapist opined that the Plaintiff would be suitable for jobs like packaging, quality control (which has been the Plaintiff's main job), security guard, clerical assistant/messenger, courier or delivery work, general grade civil servant (see the said reports of Mrs. Tsang, above).

(1) Loss of Earnings Up to the Hearing

28. The basis of this part of the Plaintiff's claim is set out under item B2 of the "Amended Schedule of Damages" (pp. 50-52, B1) and can be summarised as follows:-

(a) the Plaintiff intended to become a policeman after his graduation from school but was unable to do so because of the injuries to his right hand. The loss of earnings arose from the difference between the Plaintiff's actual income and the income of a police constable during the period from his graduation to the date of judgment;

(b) further or alternatively, the Plaintiff was unemployed from July, 1991 to February, 1992 (school graduation to garment course at the Clothing Industry Training Authority) and again from the end of July, 1995 to the end of June, 1996 (resignation from Mondial Services (Hong Kong) Limited to employment with Nifco (HK) Limited).

Mr. Westbrook submitted that:-

(a) the Plaintiff's contention that pre-trial loss of earnings should be calculated with reference to the income of a policeman is nothing more than inviting the court to speculate because the Plaintiff has never worked as a policeman, and it is unknown if he would be recruited to be, and if recruited whether he would stay as, a policeman;

(b) the 2 periods of unemployment did not arise out of the Plaintiff's injuries at all. In relation to the 1st period of unemployment, there is no evidence to show that an able-bodied person in the Plaintiff's position would have been able to obtain employment during that period. In relation to the 2nd period of unemployment, the loss of work was a result of the Plaintiff's own resignation. The failure of the Plaintiff to obtain re-employment appeared to be more related to the generally poor employment market then prevailing in Hong Kong. Similarly, there is no evidence that any able-bodied employee in the Plaintiff's position would have been able to obtain employment earlier.

There were 3 periods during which the Plaintiff was out of work:-

(a) July, 1991 to February, 1992. According to the Plaintiff's testimony, he applied to become a police constable but was refused immediately. He then tried to find other jobs but was unsuccessful. He testified that it might be because he was a fresh graduate and competition for work was keen. Later on, he spent the New Year holiday in China and contracted hepatitis. He needed to be hospitalised. After discharge, he followed doctor's advice and refrained from work for half a year. By the end of February, 1992, he registered with a course in the Clothing Industry Training Authority;

(b) August, 1992 to 1^st September, 1992. When the Plaintiff was about to complete his course, he was interviewed by Mondial Services (Hong Kong ) Limited and was employed by Mondial. He worked for this company from September, 1992 to the end of July, 1995;

(c) End of July, 1995 to 23 June, 1996. The Plaintiff resigned from Mondial and remained unemployed until he was employed by Nifco (HK) Limited. He gave the reasons for the resignation in his witness statement (pp. 6-7) and his testimony. In summary, the reasons were that Mondial started to relocate its operation to China and its work-force in Hong Kong gradually decreased. The Plaintiff was then transferred to another job. He did not enjoy the new job, felt that there was not much future in Mondial and he wanted to test out his skill elsewhere. However, after he left, he found that it was very difficult to find a new job. Despite repeated and persistent attempts to find a job, he remained out of work until his present employment. During his testimony, the Plaintiff attributed part of the reason for his resignation to his difficulties in adjusting to the transferred post due to his injured hand.

29. I agree with the defence submissions and do not find any of the said periods of unemployment to have been caused by the Plaintiff's injured hand. As regards the 1st period, I find the unemployment to be the result of his being a fresh school graduate who faced keen competition in the labour market, and who was further interrupted by his sickness during that period. As regards the 2nd period, I regard it as a normal period of transition from school to work. As regards the 3rd period, I rather prefer the reasons the Plaintiff gave in his witness statement as the real reasons for his resignation. I find that the Plaintiff's resignation has nothing to do with his injured hand. The Plaintiff did not claim that his failure to find a new job has anything to do with his injuries and I find that to be the case.

30. The Plaintiff called Senior Inspector of Police Mr. Leung King-hung to testify as to the entry requirements of a police constable. I accept his testimony that the Plaintiff possessed more than the minimum academic requirements for a police constable. I also accept the Plaintiff's testimony that it was his wish to become a policeman, or a member of a disciplinary force. However, I find that there is insufficient evidence that the Plaintiff can or will work as a police constable (or in any disciplinary force). The reasons why I make this finding are:-

(a) according to SIP Leung, the recruitment rate (between the number of applicants and number of recruits) for the period from 1989 to 1996 ranged from 8% to 21%. Most of the time, the rates ranged from 12% to 18%. Further, there was an average dropout rate of about 10% after the new recruits entered the Police Training School. I find that these rates render the question of whether the Plaintiff can become a police constable (even if he were fully able-bodied) to be too uncertain;

(b) it is common for people to think that they are interested in a certain job before having been actually employed in such job. Sometimes, after they are employed, they find that the job is in fact not interesting or suitable. Sometimes, their employers find that the recruit is not suitable for the job. It is common ground that the Plaintiff has never worked as a policeman. I also find that these factors render the question of whether the Plaintiff will stay as a police constable (if he was recruited) to be too uncertain;

(c) It was also contended that the Plaintiff was interested in other jobs. The occupational therapist assessed him to be suitable for these jobs if not injured. For the reasons stated earlier, I do not attach much weight to the assessment of the occupational therapist as to what alternative employments the Plaintiff would be capable of if he were able-bodied. Further, the assessment was based on the Plaintiff's indication that he would be interested in these jobs.

(see similar remarks by Master Jones in Ho Ping-shui, above, at p. 7)

31. There is no evidence that the Plaintiff earned less than his other able-bodied colleagues in either Mondial or Nifco. It seems that the Plaintiff was pleased with his job in Mondial until he was transferred to a new job. The Plaintiff said expressly that he was pleased with his present employment at Nifco. I infer from these that the Plaintiff has probably been earning the same income as his other colleagues holding the same or a similar post in these 2 companies.

32. Further, I do not consider that it is meaningful to compare the Plaintiff's actual income at Mondial or Nifco against the "relevant" average income set out in the statistical reports on wages complied by the Census and Statistics Department. Firstly, the categories considered (by the occupational therapists) to be applicable to the Plaintiff are too general and may include a wide spectrum of posts. More importantly, I do not consider that merely because an employee happens to be employed at the lower end of the range of income for that post (by itself) should entitle the employee to levy a claim. Even able-bodied employees are paid differently by different employers for performing the same kind of work. There must be evidence that the lower income was the result of the employee not being able to find a higher pay job because of his disabilities.

33. The Plaintiff also claimed that he was interested in other jobs, such as becoming a restaurant waiter or a salesman. I consider that the reasons I gave in relation to the post of a police constable also apply here and do not propose to repeat them here again. For the same reasons, I do not find that it has been proven that the Plaintiff can or will work in these other jobs.

34. For these reasons, I find that the Plaintiff has suffered no loss of earnings up to the date of hearing.

(2) Loss of Future Earnings/Loss of Pension

35. This part of the Plaintiff's claim is set out in item B3 of the "Amended Schedule of Damages" (pp. 52-53, B4) and can be summarised as follows:-

(a) the Plaintiff will continue to suffer a loss of income (including pension) because of his inability to become a policeman. The loss of future earnings will therefore be the difference between the income of a police constable and the Plaintiff's actual income;

(b) further or alternatively, the Plaintiff is interested in other work, such as a salesman but will not be able to obtain such work because of his injured hand. In any event, the Plaintiff should have been able to work in jobs like a technician, a professional driver and so on, but again will not be able to do so because of his injured hand. The loss of future earnings will therefore be the difference between the average income of such jobs and the Plaintiff's actual income;

(c) the multiplier for the Plaintiff should be 17.

36. On the other hand, the Defendants submitted that no such loss has been or will be suffered by the Plaintiff because:-

(a) as a general proposition, there is no or insufficient evidence that the Plaintiff will suffer any loss of future earnings;

(b) more particularly, the claim based on the Plaintiff becoming a policeman is highly speculative, as the Defendants submitted in relation to the claim for loss of pre-trial earnings;

(c) the claim based on alleged alternative employments is similarly speculative because the Plaintiff has not been so employed in the past, does not possess any skill or experience to enable him to do so and it is unknown if he would be employed in such jobs even if he had been able-bodied;

(d) the Plaintiff's loss, if any, falls more properly under the heading "Loss of Earning Capacity" rather than "Loss of Future Earnings";

(e) in any event, the multiplier to be adopted should be 15 and not 17.

37. I have already made a number of findings in relation to the Plaintiff's claim for loss of income up to the date of hearing. I consider that these findings equally apply to this part of the Plaintiff's claim. For these reasons, I find that this part of the Plaintiff's claim is also either not proven by satisfactory evidence or too uncertain.

38. Mr. Westbrook urged me to consider what he would call the more pragmatic approach of allowing a global sum to cater for the loss of opportunity of the Plaintiff to advance further in his employment because of his physical disabilities as well as his low self-esteem, and for future risk in the labour market. He referred me to the cases of Ho Ping-shui, above, and Lai Yee-kin? above, where Master Jones approached the matter in this way (at p. 9):-

"The Plaintiff now has a steady job which has some promise of better things to come. He has shown himself to be resourceful and I find it likely that he will gradually improve himself .... In plaintiff's case any distinction between loss of future earnings and loss of future earning capacity would be artificial. What matters is the probability that he will earn less than a man with two normal hands. This applies when he is in employment and it applies all the more when he is competing for employment. Not only has he less to offer in a job he can do, but there must be many jobs he is unable even to consider through lack of strength and dexterity in his injured hand. He is a young man and these disadvantages will be with him for a likely working life of over 30 years .... In all the circumstances I propose to award a global sum .... $60,000 .... ".

39. The above remarks were made in relation to a 24-year old young man who

"has led .... a chequered career. He has worked for a further 7 employers ending at his present position .... He [was] employed as the driver's mate .... and is hoping to get his licence as a heavy goods vehicle driver .... He also intends to do night work as a taxi driver .... ".

I consider that the approach adopted by Master Jones should apply with greater force to this Plaintiff whose employment record so far does not establish any pattern of a genuine desire at present to change to other jobs. However, considering his young age, the possibility of further advancements in his work (whether he stays as a quality controller or change to some other jobs) is real if he were able-bodied. With his physical disabilities, it is probable he will suffer some disadvantage in the employment market if he contemplates such advancements.

40. Mr. Westbrook proposed an award of $200,000 (inclusive of an award for "Loss of earning capacity"). I do not consider that to be a sufficient compensation. I consider that taking all things into account, including the vicissitudes in life, an overall loss of $2,000 per month should be adopted as the multiplicand. After having considered the cases cited by the Plaintiff and the Defendants on the question of the multiplier to be adopted, I agree with Mr. Westbrook that a multiplier of 15 is the appropriate one.

41. The global award which I will make is $360,000 which is calculated from $2,000 x 12 months x 15.

(3) Loss of Earning Capacity/Handicap in the Labour Market

42. Mr. Westbrook submitted that while he accepts that there is evidence for such a claim to be made, the award under this head should be approached in the following manner:-

(a) if the court should find that an award ought to be made for "Loss of Future Earnings", the award under this head should not be anything more than the conventional sum which is $90,000;

(b) if the court should find that no award ought to be made for "Loss of Future Earnings", the award under this head should be $200,000.

43. Mrs. Kaplan disagreed and submitted that the circumstances of this case warrant an award of $200,000 on top of an award for the Plaintiff's loss of future earnings.

44. With respect to counsel, I do not consider either approach to be appropriate. As was set out above, I consider that an overall global award should be $360,000 (and not $200,000 as Mr. Westbrook proposed). I agree with Mr. Westbrook that the approach adopted in Ho Ping-shui, above, and Lai Yee-kin, above, should be adopted here. There is therefore (despite Mrs. Kaplan's submissions to the contrary) no further award made under this head.

Miscellaneous Losses

45. As stated earlier, these have been agreed by the Defendants (pp. 54-56 and 64, B1). I therefore make an overall award of $2,904 under this head.

Summary of the Awards

46. The awards I make in favour of the Plaintiff before adjustments are made in accordance with the Interlocutory Judgement are:-

(a) PSLA: $500,000;

(b) Loss of pre-trial earnings: nil;

(c) Loss of future earnings: $360,000;

(d) Loss of Earning Capacity: nil;

(e) Special damages: $2,904.

Conclusion

47. As stated above, damages are to be assessed against the Defendants on the basis of 80% liability. The aforesaid sums are therefore reduced by 20% and are as follows:-

(a) PSLA: $400,000;

(b) Loss of pre-trial earnings: nil;

(c) Loss of future earnings: 288,000;

(d) Loss of Earning Capacity: nil;

(e) Special damages: $2,323.

48. As stated earlier, interest has been agreed between the parties (see pp. 57 and 64, B1). For the avoidance of doubt, the interest on the awards is as follows:-

(a) at 2% per annum for PSLA from the date of Writ (11 October, 1990) to date of judgment (22 June, 1994);

(b) at 5.75% per annum for pre-trial loss of earnings (for which no award has been made) and agreed "Special Damages" items from the date of accident (10 December, 1984) to date of judgment.

49. Both parties agreed that this is a proper case for a costs order nisi to be made pursuant to O. 42 r. 5B(6). The usual rule is that costs are to follow the event. There is no material before me for the usual rule to be departed from. I therefore make a costs order nisi that the costs of the assessment be paid by the Defendants to the Plaintiff to be taxed if not agreed.

Representation:

Appearances: Mrs. B. Kaplan i/s by D.L.A. for the Plaintiff

Mr. S. Westbrook i/s by the Department of Justice and M/s Fairbairn, Catley, Low & Kong for the Defendants