Ken John Geissler and Another v. Chan Kim-chung and Another
Read the full judgment text of HCPI 1/2000 on BabelCite. This High Court CFI judgment was delivered on 28 March 2002.
1. This is an action for personal injuries damages. Liability for the injury is not at issue. At issue are all questions of damages including the extent of the injury.
Cited by 6 cases · Cites 13 cases
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HCPI000001/2000 HCPI 1/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES NO. 1 OF 2000 _________________
________________ Coram: Deputy High Court Judge Saunders in Court Dates of Hearing: 4-8, 11-12 & 14 March 2002 Date of Judgment: 28 March 2002 _________________ JUDGMENT _________________ Introduction: 1.This is an action for personal injuries damages. Liability for the injury is not at issue. At issue are all questions of damages including the extent of the injury. The Accident: 2.The 1st plaintiff (Mr Geissler) was aged 34 at the time of the accident. On the afternoon of 6 January 1998 he was driving a Mercedes Benz W 123 saloon car, owned by the 2nd plaintiff, (Troika), east on Concord Road, from the old Kai Tak Airport towards Kowloon Bay. Mr Geissler had just dropped his business partner, Bob Wasyliw, at the airport to catch a flight. The car was struck from behind by a lorry owned by the 2nd defendant and driven by the 1st defendant. Mr Geissler was wearing an inertia seat belt and so he was restrained and his head did not hit the steering wheel. The impact was such, however, that the instrument panel of the vehicle was dislodged. 3.Mr Geissler suffered no obvious injury, although he had immediate pain in his neck. Some weeks later he was diagnosed to have suffered Late Whiplash Syndrome (LWS), a common injury in such an accident. The car was a write-off. 4.The writ was issued in January 2000 and interlocutory judgement was entered on 7 March 2001 in favour of the plaintiffs. The assessment of damages was heard in March 2002. Mr Geissler's Injuries: 5.Mr Geissler was taken, by ambulance to Queen Elizabeth Hospital. Plain x-rays were taken and no apparent injury was disclosed. He was treated conservatively and discharged. The next day he began to suffer moderate neck pain which increased in intensity over the next few days. On medical advice he began physiotherapy. For a period it was necessary for him to wear a neck brace. In May 1998 he suffered an incident when in the shower and was referred to Dr Andrew Wong, a neurosurgeon. Dr Wong's report was agreed. An MRI taken at Dr Wong's request on 27 May 1998 revealed a posterior central C5-6 herniation. Mr Geissler has also been examined by Dr Fali Shroff. Dr Shroff's diagnosis, agreed by Dr Yu for the defendants, is that Mr Geissler has suffered LWS. 6.There is no doubt at all that the C5-6 herniation was as a result of the accident suffered on 6 January 1998. The absence of signs in the plain x-rays taken on the day of the accident is entirely consistent with a whip-lash injury. Such an injury often goes undetected by emergency medical practitioners because there is no gross sign in plain x-rays immediately after an incident. 7.A further MRI taken on 4 July 2000 describes the injury as a minor postero-central disc protrusion at C5-6 with minimal compression of the thecal sac anteriorly. This has become less prominent and obvious since the 1998 examination. The evidence of Dr Shroff was that this is because of dehydration of the prolapse. 8.The symptoms now suffered by Mr Geissler are primarily those of pain, both in his neck and by way of headaches. He suffers daily stiffness of the neck especially after sleeping with incorrect posture, or after a long international flight. He has had two incidents in the shower which have resulted in increased pain, but each has subsided after 4-5 days. He suffers headaches every ten days or so, an experience he never had prior to the accident. In order to ensure good posture he usually wears a lumbar roll, which helps to keep him erect when sitting. He must work with his head erect, and needs regular breaks to avoid pain. Activities such as cooking or ironing are made difficult by pain as a result of bending. He finds reading, his favourite form of relaxation, difficult if his head is bent for long periods. 9.In terms of the impairment of the whole person I find that Mr Geissler has suffered a 5% disability. The condition he describes accords precisely with the description for a category II impairment as set out in Table 73 of the AMA Guide to the Evaluation of Permanent Impairment (4th Ed). Dr Shroff appeared to say that in his view the whole person impairment was 25%-30%, but I am satisfied that he was making that assessment in what he later described as "holistic" terms rather than in the traditional concept of "impairment of the whole person". 10.In his report in September 1998 (Bundle 1 p 58) Dr Wong said that while Mr Geissler's condition was stable and stationary at that time there was a 50% chance that the condition will recur over the next two years. If there was a recurrence there was a prospect that if conservative treatment failed surgical intervention by way of spinal fusion (a laminectomy) may be required. This prospect is of great concern to Mr Geissler. However, those two years and more have now passed. There has been no recurrence of the injury. This is in no small part due to the care with which Mr Geissler takes of his body. 11.The passage of time and the reduction in size of the herniation mean that the prospect of spinal fusion is now very remote. Both Dr Shroff and Dr Yu put the risk of recurrence of the injury, without a further accident, at about 5%. Of those who suffered a recurrence, about 20% would require spinal fusion. So the future prospect of spinal fusion may be put at around 1%. That is a very low risk. The Video Tape: 12.A surveillance video tape was taken of Mr Geissler, without his knowledge, over four days, 20, 21, 22 and 23 November 2000. In the tape he is seen moving about the streets of Hong Kong and driving his car. He is wearing the lumbar roll throughout his time in the streets. He is seen to move briskly and freely, but is seen on 3 occasions to rub the back of his neck as though relieving discomfort. He was not cross-examined on these incidents. He appears to drive without difficulty although the video does not capture any detail of his driving actions. It is not possible to see if, as he said in evidence, he has difficulty turning his head to see traffic, or if he does not turn, but prefers to rely on mirrors. 13.He is shown stretching before a squash game and playing squash. He appears to play with ease and to a good standard. He does not appear to be troubled by his neck during the squash game. Prior to the accident he played squash to a very high level. He was in the 1st Division of the Hong Kong Winter League, said to be the largest squash league in the world. His standard bordered on that of international players. In January 1999, when he felt able to go back to playing squash he found that he could not move with his previous speed and that his standard had dropped. He suffered a sore neck the day after playing squash. He did not stop playing but persisted at least until November 2000. If he plays at all now it is purely recreational squash to maintain his fitness. Although in the video he is seen to move freely about the squash court and not to suffer any apparent difficulty in playing he says that he has now stopped playing squash. He has been advised by his doctors that he should not play squash or soccer, which he also enjoyed. Provisional Damages Or A Final Award: 14.Mr Pirie abandoned the claim for provisional damages in his final speech. The award I make is an award of final damages. Pain Suffering And Loss Of Amenities: 15.The inability to play squash at his previous level is a serious blow to Mr Geissler. He played squash at a very high level and cannot now reach that level. I am satisfied, from having seen him play on the video, that he could continue squash but it would be at a much lower level. He need not play competition squash, and could restrict himself to recreational games for fitness. But that would be of little comfort to him. The disappointment and frustration that he will feel playing competitively at a lower level, or only recreationally, is much greater for him than for a person who played prior to an accident at a lower level. 16.I am satisfied from the medical evidence that he will suffer discomfort on long haul international flights and on long or bumpy car journeys. This will require him, from time to time to add time to a trip to allow for his discomfort to ease. I shall refer to this also when dealing with loss of earning capacity. He is now unable to ride a motorcycle, nor practise yoga. He has difficulty in lifting heavy weights such as a suitcase. Constant turning of his head when at a trade fair causes pain. 17.A number of cases were cited by counsel as comparables. These included Anderson v Wui Yip Company Limited HCPI 244/1998; Boivin v Wong King Yin & Ors HCPI 195/2000; Courbet v Mandarin Divers Marine Services Limited HCPI 677/2000; and Collins v Star Ferry Company Ltd HCPI 491/2000 Phillips v Initial Environmental Services Limited & Ors HCPI 580/1996, and Bozarth v Yuen Ping Chor HCA 5814/ 1993, by Mr Pirie for Mr Geissler. For the defendant Ms Lee relied upon Lee Yuen Ngan v Lau Wing Hop [2001] HKCU 464, Chiu Wing Sze Karby v Chan Ying Wai & Anor [2001[ HKCU 291, Chan Siu Youn v Ng Kam Man & ors [2000] HKCU 589, Chan Tak Chi v Wong Siu Tao [1998] 4 HKC 16, Tong Lin Keung v Wong Chi Leung HCPI 789/1996, and Lee Miu Ling v Wong Nim Chee HCA 1947/1984. I have had regard to the awards in all of these cases. 18.I have concluded on the evidence that Mr Geissler's injuries reach the first level of severity as described in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 CA. I accept that Mr Geissler has a residual disability which mars his general enjoyment of life and his general activities. At the same time he has, as is demonstrated by the video, reasonable mobility. I accept that as he played squash to a very high standard the loss of enjoyment of life for him will be greater than for one who played at a much lower level. Weighing all the relevant matters I award the sum of $450,000 under this head. The Motor Vehicle: 19.The pre-accident value of the vehicle, which was written-off, has been agreed at $35,000 and the loss of use at $4,000. The whole of the 2nd Plaintiff's claim is therefore agreed. Other Special Damages: 20.Pre-trial medical expenses are agreed at $52,095 for the period 6 January 1998 to 3 May 2001 and $7,880 for the period 4 May 2001 to 4 March 2002, a total of $59,975. Traveling expenses are agreed at $9,778. Laundry: 21.A specific claim has been made in respect of laundry. The evidence was that prior to the accident Mr Geissler did his own laundry, including ironing. The act of bending, to sort clothes prior to, or after washing, and over an ironing board now creates pain and discomfort. As a result he now has all his laundry done outside home for which a claim for $400 a month is made. 22.Of these tasks, sorting clothes is not something that takes long. However ironing does take time. It was the evidence of Dr Shroff that by adjusting the height of the ironing board, either by raising the board, or sitting to iron, the bending action would be greatly reduced and the discomfort relieved somewhat. I accept that, but there should still be an allowance made under this heading. I find a sum of $250 a month, using a multiplier of 25 years to be appropriate. The sum awarded is $75,000. Pre-trial business losses: (i) The business background: 23.Mr Geissler is a partner in a trading/export company called Troika International Limited (Troika). His partners are Mr Bob Wasyliw and Mr Paul Lam Wood-yik. The firm began as a partnership and is now a limited liability company under Hong Kong law. The three shareholders have equal holdings. The company has offices in Hong Kong, Guangzhou and Shanghai. Its primary function is to source goods in China for sale to Europe and North America. 24.Both Mr Geissler and Mr Wasyliw work from the Troika office in Kowloon Bay. Mr Wasyliw attends to financial and office matters and Mr Geissler is responsible for marketing. Mr Lam is often in China. Mr Geissler is fluent in English, German, French and Spanish and also speaks Cantonese and some Mandarin. His language skills are essential to the business. 25.There is one substantial customer, a Mr Imwalle, who, with his brother, trades as Imwalle GmbH and Eifa Warenhandels GmbH in Germany. Mr Imwalle accounts for as much as 98% of the business of Troika. Mr Imwalle comes to Hong Kong about twice a year to visit factories in China. He is always accompanied by Mr Geissler on these buying trips. About twice a year Mr Geissler goes to Europe and always spends time with Mr Imwalle while there. Troika charge Mr Imwalle a commission of 5% on his purchases and in addition Mr Imwalle pays the cost of freight, insurance and inspection of the goods. 26.In 1994 one Alain Chapelle, then trading as Dolphin France AS (Dolphin 1), wanted to purchase scooters, sourced from Taiwan Golden Bee, (TGB), a part of the Taiwan Vespa Group, for sale in France. Mr Geissler introduced him to TGB but no transaction was forthcoming immediately as TGB did not want to sell to someone they did not know well. However by November 1995 Dolphin 1 acquired marketing rights from TGB, and appropriate permission from the French Government to import the scooters was obtained. In January 1996 Chapelle and Dolphin 1 became insolvent. The partners of Troika, recognizing the risk associated with a limited client base, sought to expand vertically. They formed a French company, called in the proceedings "Dolphin 2", which acquired from Dolphin 1 the official French authorizations to import the scooters. Troika then formed Troika Global SARL in France and then sought to sell scooters to car centers and hypermarkets in France. 27.In this they said they sought to enter a previously untapped market. Both the car centers and hypermarkets have facilities which allow customers to leave a car for service while they do other shopping. The small scooters are very popular in France but were not sold at either car centers or hypermarkets. Troika sought to fill this gap by offering scooters for sale through these outlets and training car center staff in scooter repair. It was said that on a 50 cc scooter a profit of FF750 would be made and that over a 3-5 year period the value of the scooter (around FF6,000) would be spent by the owner on spare parts. Of this there would be a profit of FF3,000 to Troika. 28.The chain of the financial transaction was that TGB sold to Troika, who sold to Dolphin 2 (the accredited importer) who sold to Troika Global who sold to the retailer in France. By using a legitimate system of transfer pricing, the profits on the transaction are made in Hong Kong by Troika, for taxation and other reasons. Spare parts were sold directly to Troika Global by Troika as the intervention of an accredited importer was not required. (ii) The Imwalle account: 29.The unchallenged evidence of Mr Imwalle was that as a result of Mr Geissler's accident and consequent inability to travel to China, he made purchases totaling DM4.75 million elsewhere. Mr Geissler's claim is for 33% of the 5% commission on this sum less tax of 16%, calculated at DM66,500. Mr Imwalle did not provide detailed documentation to support his figures, citing commercial confidentiality, but in the absence of any direct challenge to his evidence I accept his figures at face value. 30.Ms Lee mounted two attacks on this claim. First she said that Mr Geissler's travel records showed that, from the rate of his previous departures from Hong Kong, either Mr Imwalle may well not have been in Hong Kong, nor may Mr Geissler have been in Europe, during the relevant period. Further she said that there was a conflict in the evidence of Mr Geissler and Mr Wasyliw as to the manner of buying by Mr Imwalle. Second she said that as the accounts of Troika showed that the net profit after deduction of operating expenses in 1999 was only 2.02%, if any sum was to be allowed, it should be that lower sum and not the full commission of 5% which included operating expenses. 31.While Mr Imwalle may not have come to Hong Kong and Mr Geissler not gone to Europe, the points made did not detract from the clear statement of Mr Imwalle that he put business elsewhere because he had not been able to have personal contact with Mr Geissler. I am satisfied that, as a result of the accident business was lost. It is right that operating costs are not taken into account in the claim based upon a straight 5% commission. But Mr Wasyilw's response was that the additional orders would not have involved any overhead and the extra orders would have been "pure profit". That may not be entirely correct as the additional business would involve some extra work and some extra overhead. 32.Weighing all these matters I allow a sum of DM45,000 for Mr Geissler's 1/3rd share of the lost Imwalle business. Rather than attempt to calculate exchange rates prevailing at the time I adopt the exchange rates suggested by Ms Lee and make the conversion at the date of the judgment. Applying an exchange rate of DM1 = HK$3.39 I award $152,550 on this head. (iii) The scooter business: (a) The entitlement to damages: 33.Mr Geissler's case is that, but for the accident, he would have been able to secure for Troika orders for the sale of more scooters and that from that business the spare part sales would have inevitably followed. It is acknowledged that the future business was dependant upon decisions by buyers in France to purchase and that the highest that the case can be put is that there was a chance of that business. There were no orders in hand which were not fulfilled by reason of the accident. It is accordingly necessary to consider the law as to the loss of a chance. 34.I begin with the following citation from McGregor on Damages 16 ed, para 357:
And from para 358:
35.That damages may be awarded where a plaintiff shows that he has lost a chance has been established since Richardson v Mellish (1824) 2 Bing 229, 103 ER 294. There the right of the plaintiff to command a ship on a second voyage was dependant on the discretion of the East India Company. But the evidence showed that the renewal of an appointment was generally permitted. To adopt the words used in McGregor para 376:
In the same way, whether Troika would have sold more scooters to France depended upon the discretion of third parties, in this case the buyers for the various retailers. Chaplin v Hicks is another example of damages being awarded for the loss of a chance. 36.As well as the issue of uncertainty the plaintiff must overcome the problem of remoteness of damage, in the Wagon Mound [1961] AC 388 PC, sense. McGregor at para 385 notes that it was on this ground that the plaintiff failed in Hoey v Felton (1861) 11 CB (NS) 142, but comments that "on this it is now questionable." As will be seen from the facts, the business of selling scooters to France was established by Troika in 1996 with 1,411 scooters sold in that year and 1997 to Autoservice and 1,341 to L'Auto in 1998. In the light of the established nature of the business I am satisfied that the claimed damage is not so remote as to be excluded from consideration. In so holding I note that in Mulvaine v Joseph (1968) 112 SJ 927, a professional golfer was awarded damages for "loss of opportunity of competing in tournaments", the prospect of winnings apparently being found not to be too remote. 37.The best modern example of damages being awarded for the loss of a chance are those in Interstate Bank of California v Cohen Arnold, The Times 11 December 1996 (see McGregor para 384) and Allied Maples v Simmons & Simmons [1995] 1 WLR 1602 CA. The position is put in this way in the headnote to Allied Maples:
Applying that statement of the law to this case I hold that if Mr Geissler can establish on the balance of probability that there was a substantial and not speculative prospect of further scooter orders from buyers in France he is entitled to damages. Those damages will be more if the chance was a near certainty and less if the chance merely qualifies as "real or substantial". It will be necessary to look at each of the prospective purchasers to determine that chance. (b) The specific customers: (i) Casino Car Centers t/a Autoservice: 38.The business with Autoservice began in April 1996 with the shipment of 324 scooters. By October 1997 a total of 1,411 scooters had been delivered to Autoservice. But then a new factor entered into the calculation. The Casino group began merger talks with a group called Feu Vert. The buyer for Casino, Mr Gilles Rochon, was called as a witness for the plaintiff. His evidence was that he was very satisfied with the scooter sales and that he wanted to continue the line in the Casino Group hypermarkets after the merger. But the merger proposals meant that buying patterns were suspended in late 1997 until the middle of 1998. In the middle of 1998, with the merger details being resolved, salesmen were invited to make presentations to the combined group. It was Mr Rochon's evidence that he contacted Troika's French representative, but it appears that Mr Geissler was not told of this opportunity, and so no presentation was made. 39.In the event scooters were not continued by the merged group. Mr Rochon went to Argentina to work for Casino there and ceased to be a European buyer for the merged group. That scooters sales were discontinued by the merged group is a weighty factor. There is no evidence that any other salesman made a presentation of scooters and failed, but no more scooters were acquired. This may in part be due to the relatively high cost nature of the item, which, as I understood Mr Rochon's evidence, made them less attractive to the Feu Vert owners. But that is speculation. 40.Weighing the fact that no further sales were made I find that there cannot be said to have been a real or substantial chance that scooter sales to the merged group would have continued. This part of the claim must fail. (ii) Leclerc Car Centres t/a L'Auto: 41.Sales to L'Auto began in October 1997 and, with orders placed in late 1997 continued through 1998. Between October 1997 and July 1998 a total of 1,286 scooters were sold, which, with a final shipment of 55 in July 1999 brought the total number of scooters sold to L'Auto to 1,341. Mr Geissler was unable to travel to France until October 1998 and so lost the opportunity to follow up on these sales with further attempts to get repeat orders. Having regard to the sales that had been made and the evidence as to his ability as a salesman I am satisfied that the prospect of future sales was not merely speculative but was a real and substantial chance that repeat orders could have been obtained. Equally had the sales been made spare parts business would have followed. 42.Mr Pirie based the claim on sales to L'Auto of 1,200 scooters for each year for 3.5 years. Weighing the chance at the lower level of "real and substantial", and reflecting contingencies, including the prospect of sales of the more profitable 125 cc machine, I propose to base the award on sales of 1,000 scooters a year for 2.5 years, a total of 2,500 scooters. (iii) Carrefour: 43.Prior to the accident there had been no sales of scooters to the Carrefour group. But as a major hypermarket chain in France they had been targeted by Troika and Mr Geissler would have approached them during 1998 to market the product. It was part of Mr Chapelle's brief to try to get sales to Carrefour. But Chapelle apparently deceived Troika and took the opportunity to restore to himself the business that he had lost when he went bankrupt. The evidence established that Chapelle, working apparently for himself, and with another scooter manufacturer, Mors, succeeded in selling scooters to Carrefour for placement in hypermarkets. 44.That Chapelle succeeded is the best evidence there could be that Carrefour was open to Troika as a marketing opportunity. Troika was established in the market and with a proven and popular scooter. Had Mr Geissler been able to travel to France and had not, by reason of his accident, been required to leave matters in Chapelle's hands, I am satisfied that there was a real and substantial chance that sales would have been made to Carrefour. 45.Chapelle was able to sell 3,000 scooters in 1999 to Carrefour. That is the number for which Mr Geissler claims. In this case I am satisfied that the chance was sufficiently substantial that the award to compensate for the loss should be based upon 3,000 scooters. No claim was made for spare parts in relation to these scooters. (iv) Shell 46.Troika had entered into a contract with the Shell Group to have Shell decals placed on scooters and Shell products recommended in the manuals accompanying the new scooters. With the failure of the business and the withdrawal from the market by Troika the contract with Shell was terminated. Shell made a payment to Troika of FF50,000. I have found that the sale of scooters to Carrefour was a substantial chance and with that would have gone continued involvement with, and profits from Shell for Troika. An allowance must be made, which I fix at $75,000, of which Mr Geissler's 1/3rd share is $25,000. (c) The extent of the scooter losses claimed: 47.Mr Geissler based his claim for losses on the sale of scooters at the rate of FF750 for each new scooter and FF3,000 net profit from spare parts for each scooter sold. I am satisfied from the evidence of the plaintiff's witnesses that new scooter figures are in fact a gross sum and that no allowance has been made in them for the cost of running the French office. It is right that, at the end of the day, a total sum of over $1,500,000 was written off by Troika, by way of losses on the scooter business. But that to a large extent reflects the fact that the business closed down. Had the business continued it is more likely than not that those losses would not have occurred and I am satisfied that the business would have operated at a profit. 48.But that said, some adjustment to the profit figure must be made for the cost of running the French office. On the evidence I find that the French office would have cost in the order of FF1,000,000 a year to operate. I shall assume, for the purpose of estimating a net profit, sales of 3,500 scooters a year at a gross profit of FF750. I have taken this larger number of sales to reflect a going concern, rather than the losses figure upon which the damages will be based. On this basis the net profit per scooter is FF464. For the purpose of fixing damages, and to further reflect contingencies, I adopt a sum of FF450 per scooter as the net profit figure. 49.Mr Pirie based the claim for loss of profits on the sale of spare parts at FF3,000 per scooter over a 3.5 year period. As the trial proceeded this period seemed to lengthen to about 5 years. There was no evidence at all upon which the figure was based. No comparable or historical figures from other retailers were produced. There was no expert evidence. The best that can be said was that it was merely Troika's hope that parts to that value would be sold. The figures for spare part sales to the close of the business did not support the sum of FF3,000, but it must be said that those figures relate to the early life of the machines when there may be much lower demand for parts. While I am satisfied that consequential spare parts business has been lost the evidence simply does not justify a sum of FF3,000 per machine. 50.Weighing the evidence as best I can, and allowing for contingencies, I propose to allow a net sum of $1,000 per scooter by way of lost spare parts sales. (d) The quantification of the scooter losses: 51.I have assessed the lost sales of scooters at FF450 net for 5,500 scooters, a total of FF2,475,000. Tax at 16% must be deducted, reducing the sum to FF2,079,000 of which Mr Geissler's 1/3rd is FF693,000. I have assessed the lost spare parts business at FF1,000 per scooter net for 5,500 scooters, a total of FF5,500,000. Again tax at 16% must be deducted reducing the sum to FF4,620,000 of which Mr Geissler's 1/3rd share is FF1,540,000. The scooter losses total as follows:
Applying an exchange rate of FF1.00 = HK$1.01 I fix the scooter damages at the rounded figure of $2,280,000. (e) Cost of employing Alain Chapelle: 52.Both Mr Geissler's and the Defendants' doctors agree that an appropriate period of sick leave for the injury suffered by Mr Geissler would be 6 months. In fact he resumed work very soon after the accident, preferring to work within the limitations that his injury then allowed him. It had been his practice to travel to France on the scooter and Imwalle business about twice a year. As result of the accident Mr Geissler was unable to travel immediately, and so Alain Chapelle was employed on a full time basis. It is right that Mr Geissler had been only in France part time, but I accept that it was simply impracticable to employ someone on a part time basis for work of the nature that was required. In the circumstances it was reasonable to find a full time employee. Mr Chapelle remained so employed until May 1999, although the later part of the period he was simply serving termination notice as required by French law. I am satisfied that it was reasonable to employ Mr Chapelle, on this basis, for a period of 6 months, the time that Mr Geissler could have been off work. However, in September 1998 he traveled to France thereby demonstrating his ability to attend to the work if he wished. If Mr Chapelle was required after that, it was because of the needs of the business, not because of the accident that Mr Geissler had suffered. 53.Mr Geissler claims 1/3 of the cost of employing Mr Chapelle. I allow 6 months at FF25,785.04, a total of FF154,710.24, of which 1/3 is FF51,570.08. I award the sum of $52,000 on this head of damages. Future medical expenses: 54.Mr Geissler claims $420,000 for future medical expenses. This sum is based upon an annual claim of $16,800 over a 25 year period. He continues to attend the Canadian Asian Back Institute (CANBI), for exercises, a step accepted by Dr Shroff as reasonable. The agreed medical expenses from May 2001 to February 2002, a period of 10 months which may reasonably be said to reflect his future requirements for medical attention average $788 a month. Mr Geissler takes good care of himself and that will reduce the need to attend either doctors or CANBI in future. I propose to allow the sum of $100,000 to cover future medical expenses, based upon a sum of $830 a month using a multiplier of 10 years. Future loss of earnings/ loss of earning capacity: 55.The claim made is for $975,000. This claim is based upon the extra costs he will incur using public transport instead of driving when in Europe, and the consequent time lost, making him less productive. The sum is arrived at by taking a multiplier of 13 years and a multiplicand of $75,000 per annum. 56.This is not a case for an award for loss of earning capacity in the manner of the award in Moeliker v Reyrolle & Co [1997] 1 All ER 9, as applied in Hong Kong in Yu Kok Wing v Lee Tim Loi [2001] 3 HKC 314. It cannot be said that Mr Geissler faces a "substantial or real risk that he will lose his job at some time before the end of his working life". However he will, by reason of the matters I have described, be somewhat less productive, especially when on long trips. He is entitled to be compensated for that loss of productivity. The amount awarded is necessarily an arbitrary sum and is not arrived at by the adoption of a multiplier and multiplicand. Doing the best I can I fix a sum of $300,000.
Judgment: 57.There will accordingly be judgement for the 1st Plaintiff, Mr Geissler, for the sum of $3,479,303, and for the 2nd Plaintiff, Troika International Limited, for the sum of $39,000.00. There will be interest on the claim for PSLA and interest on special damages and loss of pre-trial earnings at the appropriate rates to be calculated in accordance with the usual principles. The calculations can be left to be agreed by the solicitors for both parties. Leave is reserved to apply if agreement cannot be reached. Costs: 58.There will be an order nisi that the 1st and 2nd Plaintiffs shall have their costs on the sums awarded.
Representation: Mr Nicholas Pirie instructed by Munro Claypole & Reeves for the 1st & 2nd plaintiffs Ms Christina Lee instructed by Tsang, Chan & Wong for the 1st & 2nd defendants |
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