Chan Chi Nun and Another v. Cheung Wai Chung and Another

HCA003839/1981

Action No. 3839 of 1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Deputy Judge Mr. Denis Chang, Q.C.

Date: 17th September 1983

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JUDGMENT

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1. On 29th February 1980, the Plaintiffs were injured when they Fell off a moving bus driven by the 1st and owned by the 2nd Defendants. Liability is admitted by the bus company, with contributory negligence agreed at 7 & ½%. Shortly after the hearing began, the 2nd Plaintiff's claim was settled out of court and I need concern myself now only with the claim of the 1st Plaintiff Mr. Chan Chi Nun ("Mr. Chan") a sub-manager of the China State Bank employed at one of its local branch offices.

Injuries and Treatment

2. Mr. Chan, aged 30 at the time, was as a result of the accident badly concussed and suffered a linear fracture Of the skull, subdural and intracerbral heamatoma and vitreous haemorrhage in his right eye.

3. He was admitted to Princess Margaret hospital in a drowsy state immediately following the accident but a few hours later lapsed into a coma. Small (blurr) holes were made in his skull and fluid blood was evacuated from the subdural space on both sides: this space lies outside the brain, between it and the inside of the skull.

4. On the next day i.e. 1st March 1980, Mr. Chan was transferred, still unconscious, to St. Paul's Hospital. His four limbs, however, did respond appropriately when stimulated although there was weakness present in his left limbs ("mild left-sided hemiparesis"). The pupils were unequal, the right one being larger than the left and in addition to the vitreous haemorrhage in his right eye there was also, at that time, a complete paralysis of the third nerve linked with a proper functioning of that eye. Skull X-ray showed a linear fracture on the right side extending from the occipital bone across the inferior parietal bone to the posterior temporal bone.

5. Tracheostomy (an opening in the front of the neck to facilitate respiration) was carried out immediately. On the next day, computerised axial scanning of the brain revealed a large collection of blood in the substance of the brain in the right posterior temporal region and craniotomy and evacuation of this intracerebral haematoma was urgently done. The craniotomy bone flap was removed and stored to be replaced later. The patient recovered full consciousness on the second day after the operation and by the time he was discharged on 17th March 1980 strength had returned to his limbs.

6. He was re-admitted to St. Paul's Hospital on 14th April 1980 for replacement of the bone flap and this was done on the next day. He was discharged from hospital on the 22nd April 1980.

7. None of the facts I have so far set but is in dispute and I find them established on the agreed medical reports produced  in a bundle marked "M.R." (pages 1-12).

8. It is, however, a matter of some contention as to what effect the injuries have had and or will continue to have on Mr. Chan who complains not only of the eye injury but also of poor concentration, loss of memory, frequent headaches, tiredness and lack of drive, impairment of sexual relations and irritability.

The Eve Injury

9. Mr. Chan is a little short-sighted and has for many years been wearing glasses but apart from that there was nothing wrong with his eyes before the accident. I find that as a result of the accident he has suffered a permanent impairment of vision in the right eye despite a remarkable recovery in visual acuity from 6/24 (when he was examined by Dr. Victor Woo, an opthalmologis on 30th July 1980) to 6/12 (when he was examined by Dr. Heffernan, another opthalmologist, in August-September 1982). His best corrected visual acuity in the right eye has remained, and will stay, at 6/12 i.e. a loss of 40% of central vision. This is due to damage to the macula, a nerve centre at the back of the eye. His left eye is normal (V.A. 6/5) and can see farther than his right. I accept that if Mr. Chan uses both eves to look straight ahead he should not experience any blockage of vision although there will be some blurring, whereas if he uses only his right eye to look straight ahead he will notice the blurring more.

10. I find that the third nerve paralysis has gone. It was still present when Mr. Chan was discharged from Sr. Paul's Hospital in April 1980 but by the time he was examined by Dr. So Sing Cho on 17th May the same year the third nerve had attained about 80% recovery. When Dr. Heffernan saw him in August-September 1982 it had completely disappeared along with the drooping (or "ptosis") of the right upper eye-lid. The pupils have also regained the their normal size.  Both eyes are now straight and the coular motility is full. I also find that the diplopia which Mr. Chan says still troubles him(although, he admits not as badly as before) has in fact virtually though not completely disappeared.

11. There is, however, a 90% permanent loss of peripheral vision of the right eye. This is due to the vitreous haemorrhage, which has organised into a blood clot comprising an extensive mass of glial or scar tissue in the lower half of the vitreous of the right eyeball. The position of the glial tissue (which has a thread-or-strand-like appearance) is such as to cause an obstruction of vision on upgaze, though not on downgaze. Binocular reading vision has been found by Dr. Heffernan to be normal (N5).

12. There is, here, an apparent contradiction between Dr. Heffernan's findings and Mr. Chan's evidence Mr. Chan has said that he is still having difficulties in reading documents particularly small print and in doing such things as comparing signatures. I have recorded him as saying: "I have to keep blinking my eyes so that the blood clot can be moved aside to give a better view. " In my judgment, the contradiction is more apparent than real. Dr. Heffernan, called on behalf of the defence, has said in evidence, and I have no difficulty in accepting (a) that because Mr. Chan knows of his injuries it heightens his awareness of the impairment of vision (b) that if he does a lot of reading and becomes tired he is more likely to notice his troubles although, by the same token, he is more likely to monitor his own performance and pause in his work to ease the strain and (c) a person concerned about a high performance record and obsessed with it would be bothered by the thought of the injury.

13. Mr Chan, I find, is concerned about a high performance record. He has shown a keen awareness of and is rather sensitive about the less of efficiency following the accident. When queried about how his work has been affected by the headaches he replied: "It is a sense of responsibility: when the pain occurs I have to stop work and massage my head: workers or some new-comers may not understand, may wonder why the sub-manager does that, may create a bad image. " Again, when cross-examined as to whether he has taken any sick-leave he was at pains to point out that he has very seldom done so, that he does not in fact do so even if he is feeling unwell unless he is so ill as to be literally unable to get out of bed.

14. I shall in a moment deal with the headaches and other complaints but as far as the eye injury is concerned I find that Mr. Chan is still genuinely bothered by and rather obsessed with the impairment of vision to such an extent that his work is apt to suffer and has in fact suffered thereby. This is so despite the fact that insofar as it is measurable the impairment is not by itself a major one always assuming (as it is indeed expected) that the vision in the left eye will remain substantially intact.

Pre-accident

15. Mr. Chan lives with his wife and seven-year old son in Tze Wan San, Kowloon. Born in Hong Kong, he attended an English primary and later a Chinese middle school here. He joined the Chinese State Bank at 18 years of age in July 1967 i.e. the same year that he finished Middle 5 although thereafter he attended English evening school for about a year. For 15 years now he has been with the bank: he has known no other employer and Hong Kong has always been his home and place of work.

16. He was the sub-manager of the Shatin Branch Office at time of the accident, having been promoted to that post in April 1979 and sent from San Po Kong Branch Office to Sha Tin to assist in the preparatory work for the opening of the Branch Office there. The Sha Tin -Branch Office opened in May 1979.  Mr. than was the only sub-manager there, looking after what he described in his evidence in chief as "the internal accounts"   of that branch. He explained that he was in fact the No. 2 man in charge of the office, the Manager being a grade above him but within the same overall administrative rank. -He would stand in for the Manager when the latter was out or on leave but ordinarily would concern himself with the internal management of the office while the Manager would look after external matters. Mr. Chan's job included interviewing customers whenever necessary, monitoring overdraft facilities and processing loan applications and reporting thereon to the Manager regularly.

17. Mr. Chan, I find, had a good pre-accident record with the bank. This is borne out by the evidence of Mr. Ho Chi Fei (P.W.2) under whom Mr. Chan has been working for many years. Mr. Ho who is now the Manager at Tze Wan San Branch Office was previously a sub-manager at the San Po Kong Branch Office. Mr. Chan was at that time "an authorised officer" under him i.e. an officer empowered to sign certain types of documents such as bank drafts of a certain limit, time deposits receipts, savings pass-books and cheque pay-in slips (although all but the last category would require a counter signature). His duty then was primarily that of a cashier, dealing mainly with cheques and controlling the cash-flow and payments-out. Mr. Ho said, and I find, that prior to the accident Mr. Chan was a hard-working man with a quick grasp of things, that he was polite to people and got along well with his colleagues both at work and at play.  I also accept that Mr. Chan was good at sports, particulary table tennis, a game at which he was proud at: he participated in tournaments and was, some  years ago, selected by the China State Bank group of companies to be a member of a delegation part in regional com petitions in Macau and Mainland China. He has never, however, participated in national competitions. The Personnel Manager Mr. Lam King Wing [P.W.3] also had a good impression of Mr. Chan's abilities before the accident.  He has known Mr.Chan for 7 years. He said, and I find, that Mr. Chan was then in good health, able to cope with a heavy work-load and was an experienced and a good leader.

18. I find, on the evidence, that prior to the accident Mr. Chan had a reasonably promising career and stood a good chance of being promoted to the post of Manager.

Post-Accident

19. Following final discharge from hospital he resumed work, not at the Shatin Branch Office but at the Tseuk Luk Street Branch Office. He was put initially on half-day work by the bank. Because of his long years of service he was entitled to a lengthy period of sick leave and the bank paid him his full salary throughout. I have not been told the exact date when he returned to work part-time but Mr. Chan said, and I accept this, that it was in about June 1980 that he began working full-time from nine to five (the same working hours as before the accident). He worked at the Tseuk Luk street Branch Office for four months before he was transferred to Tze Wan San Branch Office which was closer to his home and where he is now. The Tze Wan San Branch Office is a smaller office than the Tseuk Luk St. Branch Office in terms of the range and volume of business handled. The evidence shows, and I accept, that compared with what he was doing before the accident Mr. Chan's work-load has been reduced because his ability to cope with the work has been reduced as a result of the injuries sustained. Though he is still a sub-manager his duties now ate principally those of a Loan Officer. There is another sub-manager in the Tze Wan San Branch Office, a younger man than Mr. Chan, who has been given a broader and heavier work-load. Mr. Chant said, and I accept this, "After the accident my duties were reduced, my importance was reduced."

20. As I have indicated, Mr. Chan complains of poor concentration, loss of memory, headaches, tiredness, lack of drive and irritability apart from the impairment of vision. He has to pause in his work quite frequently to a take a rest, to massage his head when he has a headache. When dealing with these complaints I remind myself of the need to be particularly cautious because of the subjective elements involved. However, the general picture given by Mr. Chan of his post-accident performance is, I find, corroborated by Mr.Ho Chi Fei and the Mr. Lam King Wing who gave specific examples of Mr. Chan's conduct. It is significant that Mr. Ho Chi Fei when giving evidence as to Mr. Chan's occasional failures to deal with loan applications felt constrained to say that he "could not accept" Mr. Chan's answer that he (Mr. Chan) had forgotten about the matter. I do not take Mr. Ho as saying he did not believe Mr. Chan but simply that a person occupying the position of a sub-manager could not acquit himself of responsibility merely by saying that he forgot. In fact a point has been reached where Mr. Ho has left standing instructions to Mr. Chan's sub-ordinates to remind Mr. Chan where necessary of such items of work that require his attention; in Mr. Ho's words, to "supervise" Mr. Chan.

21. The site of the injury involves the right temporal lobe and, according to Dr. So Ching Chu in his report dated 19th May 1980, the complaint of loss of memory is consistent with the type of head injury. He went on to - say  that this required time to recover and that a minimal period of two years should be allowed before final assessment could be made to determine whether it would be permanent. At the trial Counsel for Mr. Chan applied for leave to put in, without calling the maker, a further medical report of Dr. So dated 29th November 1982. This report apparently was among the documents discovered but was not among the medical reports agreed by both sides. Counsel for the defence objected to its production on the ground that their own medical expert Dr. Shroff (a consultatnt neurosurgean) was, at it happened, not in Hong Kong and that they would like to cross-examine Dr. So on one aspect of the report. In the circumstances I did not think it was fair to let the report in without giving the other side an opportunity to challenge its findings by cross-examination or contrary evidence. I said I was prepared to give leave only on condition that Dr. So be made available for cross-examination. Counsel for Mr. Chan did not pursue the matter further and he has not put in the report, presumably because Dr. So was also, I gathered, not in Hong Kong and an adjournment would have been necessitated.

22. On the evidence before me I am unable to say that Mr. Chan will suffer from a degree of impairment of memory permanently although I find his memory has to date shown signs of having been adversely affected as a result of the accident.

23. There is one aspect which has caused me some concern. Both Mr. Ho and Mr. Lam referred to "complaints" which they have received about Mr. Chan "messing things up" at the branch office as from the second half of 1982 because, for example, he forgot to process loan applications in time or properly monitor  overdraft limits and, at least on one occasion, caused the wrong information to be fed into the bank's computer. On the totality of the evidence, however, I have reached the conclusion that this does not show that his condition has deteriorated. The explanation probably Pies in the fact that Mr. Chan, despite his reduced work- load , had to be and was in fact well supported by a subordinate officer (a Mr. Won g) when Mr. Chan was first transferred to the Tze Wan San Branch Office. After Mr. Wong was sent to work in a different section, an authorised officer by the name of Mr. Ma took over the supportive role and assisted Mr. Chan until some time in 1982 when he (Mr. Ma) was transferred to Tsuen Wan. Neither Mr. Ho nor Mr. Lam could remember clearly when Mr. Ma was transferred except that it was in 1982. It is clear, however, that thereafter the Tze Wan San Branch Office has been short of an authorised officer and that Mr. Chan was given only a partial substitute in the person of an bank employee (not an authorised officer) who has been assigned to help Mr. Chan in the preparation of reports to the Loan Committee headed by the Manager and of which Mr. Chan is a member.

24. I should also say that I do not take the reference to "complaints" having been received since the second half of 1982 as implying that Mr. Chan was not having any problems prior to that. Mr. Lam made it clear that he did not classify reports(which he had been receiving ever since Mr. Chan resumed work)concerning the latter's health problems as "complaints" about Mr. Chan 's conduct or manner of performance of his duties.

25. I find that Mr. Chan does suffer from headaches and irritability and some loss of concentration and of drive as a result of the accident. I do not think, however, that his headaches, though quite frequent, are severe in intensity or duration because they seem to be alleviated with a little rest and massaging of the head and he has not sought medication. Dr. Shroff in his report dated 4th October 1982 (after examining Mr. Chan on 30th July 1982) said that complaints of headaches associated with irritability often follow upon a head injury but that these symtoms tend to disappear with the passage of time.

26. Mr. Chan seems to have lost his drive not only at work but also in other respects. For example realising that the impairment of vision will  probably have an adverse effect on his skill at table-tennis he appears to have lost his 'interest in  the game altogether, having tried his hand at it on no more than two occasions after the accident.

27. His family life, I find, has suffered as a result of his changed behaviour following the accident. He used to be very helpful to his wife in her domestic chores. after work he has now largely lost interest and his relationship with his wife has deteriorated. Mr. Chan also complains of "slow response to sexual advances". Dr. Shroff said in his report that since there is "some evidence that the temporal lobes are involved" there may well be some truth in this claim. I find that this is so, although Mr. Chan has tended not to stress this particular complaint and there is no evidence that this slowness of response is permanent. Impotence is not alleged.

Pain and Suffering and Loss of Amenities

28. I have been referred to a number of decided cases, including Lee Ting-lam .v. Leung Kam-ming (1980) H.K.L.R. 657 where the Court of Appeal gave various guidelines and divided disablement into four broad but not rigid categories of ascending order according to its severity, emphasing that in a particular case there may be factors not in themselves disabling which are sufficient to take the case from one category into another. The first category, that of serious injury, covers those cases where the injury leaves a disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim. The general range of awards for this category was, at the date of the Court of Appeal's decision in May 1980, from $60,000 to $80,000/-. The Court of Appeal recognised the need to update awards as best as one could in relation to the fall in value of money and in Wong Pak v. Ng Po-chui HCA 5463 of 1981; sct PI File No 7/82 Mr. Registrar Betts on May 7, 1982 added 20% to reflect the fall in value of money. Counsel for the Plaintiff has submitted that this case falls within category one i.e. that of serious injury. For the defence, however, it has been argued that this is not a disablement case as such falling within any of the categories referred to in Lee Tina-lam. There are cases dealing with traumatic damage to an eye following concussion, such as Yick Bing v. Sze Kwong-fai H.C.A. No. 132 of 1979, Sct Personal Injury File No. 23/80, a decision of Mr.Justice Power delivered on 11th April 1980 (i.e. just before the Court of Appeal's decision in Lee Ting-lam) which indicate a range of awards for this type of injury well below category one even where the impairment of vision is rather more serious than in the present case.

29. I think it would be wrong to assume that cases could be neatly slotted into the Lee Ting-lam categories. There are degrees of disablement and there are non-disabling factors which have to be catered for and which may bring the award within one category or the other even though the case does not fit neatly into that category.

30. In the light of all the facts and circumstances, I would award the sum of $65,000/- for pain and suffering and loss of amenities in the present case.

Loss of Earnings; promotion prospects

31. At the time of the accident Mr. Chan was paid a monthly salary of $2,200 per month (plus accommodation and medical benefits). He received two extra months' pay a year. His present salary is around $3,950.00 per month, again with 14 months' wages every year. Since 1980 there has been a general and pretty substantial upwards revision of salaries affecting all ranks, including the sub-manager and manager grades. The following increments are received by Mr. Chan as sub-manager:-

The increments given to a sub-manager are generally, though not invariably, smaller than those given to a Manager. Incidentally, the increment received by Mr. Chan as sub-manager in 1980 was no less than that received by miss Ng Ting Ting as she was not  appointed to the post of manager in the General Office (Accounts Department) of the bank until November 1980. Like every other officer of the bank who is promoted from the sub-manager to the manager grade, her salary was increased by $200 on promotion. This was also the increment received by Mr. Wong Hoi Wah, a Manager in the Business Promotion Section of the General Office. The increment received by Mr. Chan in 1980 was $40 less than that received by Mr. Yeung Joi Fol, a Manager in the Bills Department (Export Division). In 1982, however, we find Mr. Yeung and Mr. Wong each receiving an increment of $1000, whereas Miss Ng received an increment of $900. All three joined the bank in 1966 which was about the same time as Mr. Chan (1967) but the yearly increments can and do differ because they depend on a host of factors, including the performance of the "unit" in which the manager or sub-manager is assigned. Exh.2 shows that had Mr. Chan been promoted Manager say on November 1, 1980 he would by now other things being equal be receiving about S380 (+ $200 being the fixed promotion increment) per month more than what he is now receiving as sub-manager.

32. It s Mr. Lam's evidence that early in 1980 prior to the accident it was planned that five people would be promoted in the second half of 1980 to the post of Manager, and that Mr. Chan was among those to be promoted. He said that in September 1980 he brought Mr. Chan's case to Mr. Yu Yuk Kwong the Deputy General Manager of Personnel for consideration and that this resulted in Mr. Chan being eliminated from the list of nominees proposed for promotion on lst November 1980. Mr. Chan was regarded as not suitable because of his condition consequent upon the accident and so only four names were selected and put up by the Personnel Department (acting through Mr. Yu Yuk Kwong and Mr. Lam) to the General Manager's Office for final decision. All four who were nominated were appointed managers with effect from 1st November 1980. Indeed Mr. Lam has said that in the past 7 years he has not come across a case where a person so nominated has been rejected by the General Manager's Office. Mr. Lam also said that had Mr. Chan's name been put up, he (Mr. Chan) would have been appointed Manager of the Shatin Branch Office and the existing Manager of that office would have been transferred to Tsuen Wan.

33. In my judgment Mr. Lam is a truthful witness although his evidence was at times a little confusing and I suspect that the account he has given of the selection and appointment process is a somewhat simplified, though I believe not a misleading one. I find as a fact that Mr. Chan had a good chance of being promoted as Manager on lst November 1980 had he not been injured in the accident and, indeed, that he would in all probablility have been promoted as Manager as from that date but for the injuries sustained in the accident.

34. It is true that he had only been appointed a sub-Manager in April 1979 and that of our people whose names were put up for promotion to four of the available managerial posts two had been working as sub-managers for 2 years, one for 4 years and another for some 11 years. Mr. Lam, however, has pointed out, and I  find, that the bank was going through a period of rapid expansion in 1980 with 20 people appointed as sub-managers during that year alone and with new branches opening or planned. One branch office was opened in Kwun Tong in 1980, another in Tsuen Wan and yet another in Yuen Chau Street in 1981 and two others in 1982 in Tuen Mun and Central respect-ively. In 1980 there were 15 Managers and 16 Branch Offices and about 30 sub-Managers. By 1983 there were 23 Managers and some 54 sub-Managers. In 1983, however, there was a slowing down, at least of appointments to managerial and sub-managerial posts. In fact no manager or sub-manager had been appointed in 1983 as at the date of the hearing.

35. My attention was drawn in Counsel's final submissions to an apparent discrepancy between Mr. Lam's evidence and the further and better particulars filed on behalf of the Plaintiff on 20th July 1982 which did not specifically refer to the Shatin Branch managerial post but alleged that Mr. Chan's name was passed over in the promotion to the post of manager at the Yuen Chau Street Office opened in 1981. Mr. Lam has said in evidence that ever since Mr. Chan was passed over in 1980 he has not been re-considered for promotion.

36. The apparent discrepancy has not, in my judgment, affected Mr. Lam's credibility. I do not know what knowledge he had of the further and better particulars or what he would have said if asked about the apparent discrepancy. Mr. Chan himself did not in evidence say precisely when he expected to be promoted (and there is no evidence that nominees for promotion would be informed prior to the actual appointment). He did however state quite firmly that he thought his own chances of promotion were "very good" prior to the accident because of the rapid expansion of the bank in the past few years and colleagues in a similar position as he was before the accident had been promoted to the post of branch manager.  He disagreed with the suggestion that after his promotion to the post of sub-manager he should not expect another promotion for some years. He said, and I accept his evidence, that it all depended on the needs the bank and he could do nothing except "to work harder to show performance."

37. Having considered all the points raised in argument and the evidence, I find that the pre-trial loss of earnings should be assessed as from 1st November 1980 on the basis of 14 months' wages per year and in the light of the table of incremental differentials set out in Exh. 2. The sum claimed for this item of loss in the Amended Statement of Claim up to 19th July 1983 (the date of trial) is $17,172.25 but that is expressed to run from July 1980 whereas it should be adjusted to 1st November 1980, reducing it by four months or $800 ($200 x 4) and giving us the sum of $16,372.25 which I award under the head of pre-trial loss of earnings.

38. The question of future loss of earnings is a little problematic. There are imponderables involved. I note, for example, from Exh. 2 that in 1983 the increment for all the managers was very much less than in 1982 (in the case of Mr. Wong Hoi Wah it was $480 compared to $1000 in 1982 and in the case of Mr. Kong To it was only $430 compared with $900 the previous year). Mr. Kong To's increment in 1983 was actually less than Mr. Chan's increment ($450) for that year, an example of an instance where a sub-manager actually receives a higher increment for a particular year than the manager. I accept, however, Mr. Lam's explanation that this was because the increment was (and is) geared to such factors as the profits and performance of the unit and that in that the year a blunder was committed in relation to a transaction for which the manager was or was deemed responsible.

39. Nevertheless, if the differences in increment between the sub-managerial and managerial grades in 1983 as shown in Exh. 2 are any indication of what the position is likely to be at least inthe near future, the loss of increment over the next few years is not likely to increase very much i.e.over and above the $380 (+$200) loss of increment per month. It is clear, however, that even if Mr. Chan should be appointed manager, say, tomorrow, he would on promotion, assuming the bank followed its usual practice, be paid only $200 per month on top of his existing salary. His existing salary of course is about $380 per month less than what it would be had he been appointed manager in November 1980 (exclusive of the $200). This means that his loss would not altogether cease even if he should be appointed manager now or in the future except that upon such appointment the incremental differential would stop increasing further and the total loss per month would be reduced by $200.

40. I accept that the retirement age in the bank for managers(male) is 60. There are gratuities on retirement for all ranks calculated on the basis of one months' salary for every year of service of over 10 years, 1.25 months salary for every year of service of over 15 years and 2 months for every year for service of over 30 years. The salary taken is that obtaining on retirement.

41. I find that Mr. Chan's chances of promotion have been diminished but not destroyed. In reaching this conclusion I bear in mind particularly the following points (1) the headaches, irritability and loss of memory may continue for some time out cannot on the evidence before me be regarded as permanent (2) some of the difficulties experienced since the second half of 1982 and in recent months must be attributed, at least partly, to the fact that Mr. Chan was and is without the supportive help of an authorised officer and Mr. Lam admits that the Tze Wan San short of an authorised officer and (3) part of the difficulty he is still genuinely having with his right eye is due to his keen awareness of the injury and to that extent there is a subjective element which he may well learn to cope with over time.

42. Doing the best I can in all the circumstances, I award the sum of $98,000/- for future loss of earnings. That sum is equivalent to taking a multiplicand of $500 per month (14 months' pay per year) and a multiplier of 14. I have not used a multiplicand of $580 (i.e. 380+ 200) because should Mr. Chan be appointed manager the $200 differential will immediately be eliminated. I have not used $380 as the multiplicand either, because I do not believe Mr. Chan will be appointed manager immediately and the chances are that the incremental differential will slowly increase over the next few years. I have taken $500 to provide some room for an increase in the incremental differential but because of the imponderables involved I have decided to limit it to that sum and, after taking into account such things as the vicissitudes of life and the fact that Mr. Chan will be receiving a present lump sum, I have used a multiplier of 14. As I have explained, even if Mr. Chan is appointed manager the incremental differential (excluding the $200) will be carried over, affecting even the eventual calculation of gratuities.

Medical Expenses

43. Medical expenses are agreed at $86,317.00

Interest

44. Interest on specials is agreed at 7% p. a. from the date of the accident, i.e. 29th February 1980. In the light of the Court of Appeal decision in Ng Chai Wan 1983 C.A. No. 55 there will be an award of interest at the rate of 2% p. a on the sum of $65,000 awarded for pain and suffering and loss of amenities from the date of service of the writ until judgment.

45. All sums awarded will be reduced by 7 & 1/2%, as agreed, for contributory negligence and judgment for the sums awarded adjusted as aforesaid will be entered against the 2nd Defendant (the bus company) only, the parties having agreed to have the action against the 1st Defendant (the driver) dismissed, and I so order.

Representation:

Mr. Benjamin Yu instructed by (Wet & Co.) for Plaintiff

Mr. Francis Eddis instructed by (Munro & Co.) for 1st Defendant

Action No. 3839 of 1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Deputy Judge Mr. Denis Chang, Q.C.

Date: 17th September 1983

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Ruling on Costs

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After announcing the awards I was informed that an amount had been paid into court which fell a little short of the total amounts awarded. Mr. N. Pirie, Counsel for the 2nd Defendant nevertheless submitted that the normal order for costs should not follow, on the ground that it was only at the trial that Amendments were made to the pleadings giving particulars of a claim for loss of earnings on dimunition in promotion prospects. It is also said that the further and better particulars filed by the Plaintiff earlier on 20th July 1982 support a claim for loss of earnings capacity rather than loss of earnings as such. Mr. Yu, however, points out that although leave for the amendments was not asked for until the first day of trial, the defendants were given details of figures claimed for loss of earnings on 5th July 1983 and a copy of the proposed amendments to the Statement of Claim was given to the defendants' solicitors on 12th July 1983 and that in fact there was a meeting at the defendants' solicitors' office in relation to that claim and that Mr. Lam, the Personnel Manager of the Chinese State Bank, was present and available to answer questions. It was after that meeting, and as a result of the proposed amendments, that the defendants were advised by their legal advisers to, and they, did increase the payment into Court before the trial of the action.

In all the circumstances I am of the view that costs should follow the event and I so order. The position might be different if the increased payment in after knowledge of the proposed amendments was sufficient to bring the total amount paid in equal to or over the total sum awarded. Incidentally I disagree with the suggestion that the further and better particulars indicate only loss of earning capacity and not loss of earnings. There will be an order for costs against the 2nd defendant and in favour of the Plaintiff. I understand that there is no objection to the amounts paid into Court in respect of the Plaintiff's claims to be paid out to the Plaintiff's Solicitors and I so order.

Representation:

Mr. Benjamin Yu instructed by (Wet & Co.) for Plaintiff

Mr. Francis Eddis instructed by (Munro & Co.) for 1st Defendant