Chau Chak Hung v. Lok Kwok Sum and Another

HCA006355/1987

Headnote

Doctrine of res ipsa loquitur applied to a case of the unexplained descent of the blade of a paper cutting machine resulting in the amputation of 2 fingers of the operator.

Where, unknown to plaintiff, 2 businesses registered in the same name at the same address but with different proprietors, one proprietor of one such business held not liable to tic plaintiff as his employer.

Damages assessed.

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BETWEEN

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Coram: Deputy Judge Evans in Court

Dates of Hearing: 9, 10, 13 & 14 November 1989

Date of Delivery of Judgment: 7 December 1989

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J U D G M E N T

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1. The plaintiff sues both defendants for damages for personal injury arising from an accident at work which occasioned on the 30th October 1985 whilst in the employ of both defendants as a printing technician. He was then 24 years old. On that day he was on duty inside the defendants' workshop operating a guillotine for cutting paper for use in the printing process. As he was pulling a bundle of paper from the machine the guillotine knife descended through no cause of the plaintiff and cut through both his right index and middle fingers at the level of the middle phalanx. At Queen Mary Hospital, the middle finger was reimplanted whilst revision amputation to the right index finger was carried out through the middle phalanx. He was discharged from hospital after a week and after 6 Weeks the K wire that had been fitted in the right middle finger was removed and thereafter he had physiotherapy for approximately 9 months. He now uses an artificial finger extension on tike index finger.

2. The 1st defendant denies being the plaintiff's employer at all. The 2nd defendant admits that he is the plaintiff's employer but denies any breach of regulations or failure to guard, maintain, repair, inspect, instruct as alleged in the particulars of claim i.e. he denies that he failed to discharge a common law duty of care to the plaintiff or was in breach of statutory duty in his regard. He says that the plaintiff was a skilled technician with knowledge of the operation and safety features of the cutting machine. He contents the circumstances under which the plaintiff suffered the injury and expressly disputes that the knife suddenly descended of its own accord.

3. The machine on which the accident happened is a China made paper cutting machine. When tae paper is positioned a cutting knife descends at high speed and cuts the paper to the required size and then the blade returns to its original up position. The machine is turned on and off by two independent buttons of the left hand side of the machine. It is also fitted with a pair of lever type controls. When the machine is turned on the cutter will only descend if both levers are pressed fully downwards at the same time by the operator. It will not work if only one lever is depressed. A worker's two hands need be engaged on the two levers before the machine will operate.

4. On the 30th October 1985, on the plaintiff's account, he was alone in the shop premises during lunch time cutting paper on the paper cutter. He had worked the machine frequently in the past and was required to do so as part of his duties, inter alia, when not printing. He had become employed by Wai Hang Printing Co. as an offset printing machine operator in March 1983. It was a small firm and so when not enough work to engage him fully in printing he was required to do other things including making deliveries and cutting paper.

5. The plaintiff was working during lunch time as he intended; with the 2nd defendant's approval, to leave early that day. He had been instructed by the 2nd defendant to cut quite a large quantity of paper and he was about half way through the pile when the accident happened. He pressed the two levers down and the knife came down and cut the paper and retracted to the up position. He put his right hand into the machine to yet out the cut paper and at that time the cutter came down again and sliced his fingers. He had not pressed anything and the cutter should have remained locked in the up position until the levers were once again depressed for a cutting cycle. He got himself to hospital but he cannot remember now.

6. It was the plaintiff's evidence that some 2 - 3 months prior to the accident he had been operating the cutter and it had come down in the same way from the up position without the levers being pressed. He had reported this malfunction and the 2nd defendant got his brother and a Mr. Koo to inspect and repair it. The 2nd defendant's brother, on the 2nd defendant's account, is a mechanical engineer in business on his own who he employs from time to time to inspect and repair as necessary all the machines in the factory, Mr. Koo was apparently the main printing press operator. The plaintiff saw these men open up the machine and appear to repair it. He was himself operating a printing machine at the time so he did not pay particular attention to what they are actually doing.

7. The 2nd defendant genies that the plaintiff had told him of a fault or that he had caused it to be looked at. There was, according to him, no such incident. It is his evidence that on the day of the accident, on his instructions, at about 12.30 p.m. the plaintiff began cutting paper on the cutter. At 1.00 p.m. lie stopped with the other workers and they all left the factory. The 2nd defendant turned off the lights and locked up. He came back a few minutes before 2.00 p.m. and learnt from neighbours that there had been an accident. He entered the premises and found a worker, Ah Ming, inside (all employees had keys). This Ah Ming did not know anything about an accident but when the 2nd defendant looked around he found blood on the cutter. Soon after that the police contacted him and told him about the accident. It is the 2nd defendant's evidence that when he first got to the cutter after lunch it was off and in a normal state. The cutting assignment he had given the plaintiff had, he says, clearly been completed as the paper was all cut and stacked at the side of the cutter.

8. After the accident the machine was inspected by an officer from the Labour Department. He found nothing wrong with the cutter. Some 3 weeks later, Mr. Ng Yiu Kee a factory inspector from the sane department also visited the premises. He found that the speed of the cutting knife is high. The knife comes down in about l second and retracts in about 1 - 1 1/2 seconds. He ventured the opinion, which I accept, that it is unlikely an operator would have sufficient time after pressing the 2 hand control levers to reach into the trapping zone of the machine. He said that for the cutter to descend without pressing the levers would involve mechanical failure of the gear drive mechanism controlling the cutter and that in order to prevent such an accident there should he rountine inspection and maintenance. He did agree, however, that it was possible for the cutter to descend by gravity if the motor was cut off before the knife returned to the locked position.

9. I accept the plaintiff's version of events as to how the accident happened. I find honest. I also accept that there was an earlier incident involving malfunction of the cutting machine. Indeed he has told Mr. Ng of it when interviewed by him. It was also Mr. Ng's evidence that the 2nd defendant had told him in his interview that whilst the plaintiff was retracting paper the cutting knife suddenly decended. There was no evidence that he had told the inspector that the job had already been completed when he returned to the factory.

10. The 2nd defendant said that he had not previously ever turned off the machine before the knife had retracted. He had not seen others do it. His contention that that is what the plaintiff may have done is reduced in appeal by the way he says he found the cutter to be when he returned to the factory. There was blood on the cutter but he did not see any on the stacked paper. The machine was off and there were ho offcuts in the trapping zone. It seems to me to be unlikely indeed that the accident occasion just as the plaintiff had finished up, including removing waste, out before he withdrew his hand. If the motor was turned off before the blade had fully retracted then there would be quite insufficient time to recover the cut material, and whatever waste there was, prior to the cutter falling.

11. In finding that I accept the plaintiff's evidence I have had to decide matters of credit as the plaintiff and the 2nd defendant are opposed regarding the earlier failure of the cutter and indeed what the plaintiffs did at the time of the accident and as to whether the work had been completed or not. Apart from the matters to which I have referred, in a determination of here the truth is, I have had in mind that which I regard as the gery suspect account offered by the 2nd defendant - and indeed the 1st defendant - in relation to the businesses conducted at the address when the accident occasioned to which I small later turn.

12. There was therefore both an accident oh the 30th October 1985 and an earlier malfunction of the cutter a few months previous both as the plaintiff described. At trial the plaintiff abandoned the allegation of breach of statutory duty i.e. failing to guard dangerous parts of the machine and proceeded on the basis that the accident was caused by the defendants' negligence. To prove that negligence he relied on the doctrine of res ipsa loquitur.

13. It is submitted for the 2nd defendant that the doctrine of res ipsa loquitur does not apply because there are 3 possible causes of the accident. The doctrine Goes not of course apply if the cause of the accident is known. It is submitted that there eight have been negligence on the part of the 2nd defendant in failing to maintain and repair. There might have been negligence on the part of the plaintiff. There might have been a mechanical defect not discoverable on reasonable inspection.

14. Counsel for the 2nd defendant rightly concedes that mechanical defect is not truly an alterative as there is no evidence of a defect. If there was no defect discovered upon inspection after the accident, there is no evidence tire accident was in fact caused by mechanical defect discoverable or not. On the established facts, there is no evidence of negligence on the part of the plaintiff. I have accented his version of how the accident happened and so theorising on what could have happened if events were as the 2nd defendant doscribed takes the matter nowhere because the facts are not as he says There is evidence that the machine malfunction a few months before the accident. The plaintiff himself had said the 2nd defendant caused the cutter to be looked at by mechanic. Repairs may have been effected. If they were, there is no tangible evidence that those repairs were not carried out properly because no defect or evidence of failure to properly repair appeared upon inspection after the accident.

15. I find that the cause of the accident is not known and that therefore the plaintiff is entitled to rely on the doctrine res ispa loquitur in the proof of negligence against the 2nd defendant.

16. The onus of proof lying upon the plaintiff is that he should establish his case on the balance of probabilities. In that described as his "classic statement" Erle C.J & Scott v London St. Katherine Docks (1865) 3 HC 596 at page 601 said: "There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care". Here the machine was under the management of the 2nd defendant and I have no difficulty whatever in concluding that the descent of the cutter after it had retracted and failed to lock was an event which fulfilled the criteria expressed by Erle C.J. The doctrine applies notwithstanding that the plaintiff was personally engaged in the activity which caused the injury because, on the facts as I have found them to be, an act of negligence on his part has been excluded (Moore v R. Fox & Sons (1956) 1 QB 596). Counsel for the defendants had in any event and additionally abandoned any claim to contributory negligence by the plaintiff during trial.

17. There was evidence of regular maintenance and inspection of machinery by the 2nd defendant. The way the accident happened, however, raises a presumption of fact that the 2nd defendant has been negligent. The 2nd defendant has attempted to rebut by way of offering an alternate explanation for the happening of the event. He is of course entitled to do so. As Lord Dunedin said in Ballard v North British Rail Co. 1923 SC (H.C) 43 at 54. "If the defendants can show a way in which the accident may have occurred without negligence, the cogency of the fact of the accident by itself disappears and the pursuer is left as he begun, namely that he has to show negligence". The defendant may offer an alternate explanation of a way in which, equally probably, the accident could have happened without negligence on his part. The explanation advanced by the 2nd defendant is dependant upon facts as he claims them to be regarding the state of the machine when he found it and the completion of the assigned work by the plaintiff. I have rejected that factual foundation and so the explanation itself falls away as being nothing more than a hypothetical suggestion with no established fact to support it.

18. That then is the end of the matter but in passing I observe that even if the 2nd defendant had succeeded in showing a likely explanation - without necessary proving it - it must have been one which involved no negligence on his part (Colvilles Ltd v Devine (1969) 2 All E.R. 162). It seems to me that even without mechanical defect, if a situation could be that the machine could be switched off before the knife had fully retracted and become locked and the blade thereafter fall, there would still be a failure to provide a safe plant, system of work and place of work. There would therefore still be negligence on the part of the defendant and so any such explanation could not rebut the presumption.

19. The 2nd defendant has admitted that he is the plaintiff's employer. I have found him to be negligent. He is therefore liable to the plaintiff for damages sustained in the accident.

20. The 1st defendant denies being the plaintiff's employer.

21. The plaintiff was employed by the 2nd defendant in March 1983. He was told by the 2nd defendant that he was the proprietor of Wai Hang Printing Company. Thereafter he was instructed on the use of the machine by the 2nd defendant. The 2nd defendant assigned the plaintiff work and paid him twice monthly with cheques drawn on the Wai Hang Printing Company account signed by him. The plaintiff honestly said that he regarded the 2nd defendant as the "boss" and the 1st defendant as, a fellow "foki". The 1st defendant worked in the plaintiff's factory as a type setter and the only evidence was that when the 2nd defendant was absent from the factory then, on the instructions of the 2nd defendant, the plaintiff sought advice and instructions from the 1st defendant. Bearing in mind that the 1st defendant was then in his 50's, and experienced in the printing trade, this was a quite reasonable instruction from the 2nd defendant and on no account evidence that the 1st defendant was the plaintiff's employer. Indeed the plaintiff himself in evidence does not claim that he believed him to be.

22. There is therefore no evidence that the 1st defendant paid or supervised otherwise than in the nature of a temporary foreman. He had no right of hire and fire and there is no evidence of any contractual arrangement between him and the plaintiff. There is uncontradicted evidence that he was not even working at the premises after September 1984. If the matter stood that there would be no case at all against the 1st defendant. There is however an unusual twist in this case arising from various registrations regarding business names with respect to Wai Hang Printing Company.

23. On the 17th April 1981 the 2nd defendant became registered as sole proprietor of the firm Wai Hang Printing Company. In his application to the Business Registration Office he advised that he had commenced business on the 1st April 1981 at 943 King's Road, North Point. On the 18th October 1982, the 1st defendant registered precisely the same name (as surprisingly, I am led to believe, one can do). The business was said to have commenced on the 1st September 1982. Not only did the 1st defendant have the same name as that registered by the 2nd defendant, but the business, also in printing, was at the same address in King's Road. The application of the 1st defendant included a declaration that he had no partners.

24. The 2nd defendant moved his business address to 21 Hoi Hong Street, Quarry Bay and gave notice of that fact to the Registry on the 16th August 1983. The 1st defendant followed suit and gave his notification of the change of address on the 24th August 1983. To that point, as the records would have it, two independent sole proprietorship businesses, both with the same names, were engaged in broad parallel in the same business at the same address and that was the position as at the day of the accident on the 30th October 1985. After that date, on the 11th November 1987, the 1st defendant notified that he had changed his business address to his home at 19 Lyndhurst Terrace. The 2nd defendant changed his address on the 7th October 1987 to the shop next door i.e. 19 Hoi Hong Street, Quarry Bay. The writ in this case had been issued against the 1st defendant on the 23rd October 1987. The 2nd defendant was joined at a later time.

25. The 1st defendant began working for the 2nd defendant on a part-time basis in the middle of 1982. He worked then for another printing company in King's Road but went to the 2nd defendant from 6.30 - 9.30 p.m. In September 1983, he became a full-time employee of the 2nd defendant. He was paid a salary. In September 1984, he decided not to work for a time and then had seven months off. In March 1985, he began working for another company named Wai Fung Printing Company. He did not work for the plaintiff on any basis between September 1984 and the 30th October 1985, but after the plaintiff's accident, to cover the staff reduction, he returnee to work for the 2nd defendant on a part-time basis but retained his job during the day at Wai Fung Printing Company. That is the position to today.

26. The plaintiff does not substantially quarrel, as his recollection is, with the 1st defendant's comings and goings at Wai Hang Printing Company.

27. In relation to the business name registration the 1st defendant says that "about 3 months prior to his registration" of the name (which was on the 18th October 1982), he had decided to go into business on his own account doing printing work. At the same time, he needed a business registration certificate to show to the authorities in China to establish that he was in business on his own account. This apparently was a desirable feature in support of an application to get his son to Hong Kong from China. He discussed both matters with the 2nd defendant - with whom he had been friendly over a number of years - and he suggested that he use his tradename i.e. Wai Hang Printing Company. So he did. He commenced the processing of his son's application on the one hand and on the other operated a business. He took in finishing work from other printers. If a machine was required he did that at Wai Fung Printing Company on a sub-contract basis even though he worked there. If the work was handwork only, he did that at home. He says that none of his business was clone at Wai Hang, Printing Company where, at the time, he was working part-time.

28. The 2nd defendant supports his account. Both say they are not partners or share profits. Both file independant tax returns.

29. I do not believe either defendant as to how the name came to be jointly, but independently, used. I am not prepared to swollow a tale as to how, some 18 months only after commencement of business, for no apparent reward, the 2nd defendant actually offered the use of his tradename to a person, albeit an acquaintance, whom he had only just hired in a part-time capacity. If that were not enough, I am then expected to believe that he actually allowed the 1st defendant , trading under the same name, to take printing work elsewhere and subcontract some of it to a competitor.

30. The 1st defendant attempted to explain now it was that he came to use the 2nd defendant's tradename. He did not attempt an explanation as to why he adopted not only the name, but the actual business address of the 2nd defendant and followed him in a move to 19 Hoi Hong Street only to become rather rapidly "divorced" and adopt separate addresses around the time the writ was issued.

31. Whatever jiggery-pokery the two defendants were up to with their duality of names, businesses and addresses is not for me to determine save as to whether I can find it likely that they were partners in the same business enterprise as employed the plaintiff at the time of the accident.

32. There is no evidence in the nature of books, records or the like indicating that they were partners. There is no evidence from anybody, including the plaintiff himself, of any actions or words of either defendant to point to any business association at all. Indeed at the time of the accident the 1st defendant was not even working in the same premises, when he was there he was understood to be an employee. It is for the plaintiff to show it probable that the defendants were partners and as such the 1st defendant his employer.

33. Despite the obvious suspicion generated by the plurality of names and businesses, when that is balance against the other evidence to which I have earlier referred, I cannot find it likely that the 1st and 2nd defendants were partners in fact. Indeed on one view, perhaps, the existence of two independent business registrations could be said to point away from partnership. I, therefore, reluctantly, find that the 1st defendant is not the plaintiff's employer and so not liable to hire for the injury he has sustained.

34. The plaintiff is ambidextrous. He is naturally left-handed but has been trained since school to use his right hand. He complains of some pain in the fingers at times and a feeling of cold when the fingers have not been mobile. He has lost power of grip in both his index and middle finger. The right hand has a grip of 301bs whilst the left hand grip is 801bs. The right index finger is shorter than the left by 3/4". The proximal interphalangeal joint can flex up to 60^?/sup>. The metacarpophalangeal joint flexes normally to 90^?/sup>. There is some lessening of abduction and there is a mobile, slightly tender, scar at the stump of the finger which is 3/4" long and not ketoidal. He can pinch with both his index and thumb. He now uses an artificial finger extension to his present index. The middle finger is normal in length and there is a circular, 2 3/4" scar above the middle of the finger at the middle phalanx. From this scar is a 1 1/4" scar at the lateral aspect towards the lateral side of the tip of the finger. The distal interphalangeal joint is ankylosed at 50^?/sup>. The proximal interphalangeal joint and the metacarpophalanyeal joint move normally.

35. In the particulars of claim the plaintiff alleges that he has suffered a 10% loss of earning capacity. That is the figure assessed by the Employers Compensation Assessment Board on the 27th June 1986 and also the percentage permanent incapacity recorded in an agreement under the Employees Compensation Ordinance dated the 18th July 1986 when the compensation under that Ordinance was agreed between the plaintiff and Wai Hang Printing Co. (which the 2nd defendant signed on behalf of the firm).

36. Dr. Philip Mao reported on the plaintiff and assessed a 9% impairment of the whole person related to his index finger and a 4% impairment of the middle finger i.e. a total of 13% impairment of the whole person. This is 1% more than the figure he would have arrived at in . application of the strict mathematical approach of employing the figures in the 1st Schedule to the Employees Compensation Ordinance.

37. Dr. J O'Donovan examined the plaintiff on behalf of the 2nd defendant. He put impairment of the right hand at 15% and assessed the disability of the whole man at 10%. He then distinguished loss of earning capacity, as he interpreted the plaintiffs employment, and put that loss at 5%.

38. Insofar as the two doctors arrived at differing opinions regarding loss of earning capacity, I record that I preferred the opinion of Dr. Mao. In the event, however, I need not go into my reasons. I do consider, however, had a precise finding been necessary, the plaintiff ought be bound by his pleadings. His loss of earning capacity would therefore be limited to 10%.

39. It has been agreed by counsel that the plaintiff be awarded the sum of $80,000 for pain and suffering. Special Damages have been agreed at $1,600. He was off work from the accident to 30th June 1986 and it is accepted that he is entitled to a total of $39,283 as loss of earnings for that period and a period thereafter to the 1st December 1986 during which time he was employed as a clerk.

40. It is from resumption of employment that there is contest in relation to whether the plaintiff behaved reasonably. Insofar as he has been employed in the printing industry he has declined to operate any machinery save for one term of employment with the 2nd defendant during which time it was specifically agreed that he did not have to use the cutter. He has been and now is employed at a reduced salary in other endeavours other than printing. His attitude is that he does not want to have anything to do with printing machinery or cutters used in that trade.

41. There is no question that the plaintiff can go back to printing, albeit with a reduced sensitivity in relation to moving parts of machines and some difficulty with tightening screws and the like. Physically he can work, at some reduced ability, as a printer and he has in fact done so. Indeed, he said that he encountered little difficulty in operating a printing machine although he had to pay particular attention to keep his hands away from moving parts. The principal question, however, is is he behaving reasonably in not returning to the printing. industry as a printer and thereby suffering loss of earnings for which loss he seeks to hold the 2nd defendant liable.

42. Dr. Mao is of the opinion that it is "highly inadvisable" for him to resume his previous employment involving as it does working with moving parts of machines as if anything should happen to the other hand the results would be "disastrous". Dr. O'Donovan took the line that the injury of the plaintiff would not affect his ability to work as a printer. He did however accept that the reduced sensory capacity of the plaintiff would wake it more hazardous to work with moving machinery than would be the case without the incapacity. Indeed it was his evidence that there were significant risks in the printing industry. His approach was that physically the plaintiff can work in the industry and that whether the attitude of the plaintiff in not doing so because of a desire to not work with machinery was reasonable is for others to judge.

43. Reasonableness of the plaintiff's conduct is not an easy matter to resolve. It is for the 2nd defendant to show that he behaved unreasonably (Garnac Grain Co. v Faure & Fairclough (1968) AC 1130.) I can see merit in the approach that he is able to work in the trade even without working a cutter. He therefore could earn a salary equating with that earns previously and so it be wrong to judge the 2nd defendant liable for losses occasioned by a switch to other endeavours. To take that line, however, ignores the determination of the plaintiff not to work with machines which is a resolution he makes due to fear of further injury. Both doctors agree that his risks of further injury are enhanced by the existence of his present injury and whilst I may have some reservations that the consequences of any further injury would be necessarily "disastrous" as Dr. wag says I do, at the end of the day, find it reasonable for the plaintiff to not undertake risks which may well incapacitate him further.

44. The plaintiff was dismissed from the clerical job he had got after he resumed work and on the 1st December 1986. He returned to work for the 2nd defendant who, incidentally, was apparently operating under the name Ngai Hang Printing Co. Pre-accident he had been paid $3,500 per month for 13 months i.e. $3,791 per actual month. After resuming work he was paid $3,200. The evidence has satisfied me, however, that that is attributable to the plaintiff's request for reduced working hours and not to any reduction in hourly earning rate. He is not entitled to any pre-trial loss of earnings for that period.

45. The plaintiff then left the 2nd defendant and unsuccessfully attempted work as a salesman. In the end no claim is made for this short period. In March 1987 the plaintiff set up his own printing company contracting work to other printers. he had no machines himself or operated any. He earnt $1,500 per month in this venture.

46. It is my view that whilst the plaintiff is entitled to recover pre-trial loss of earnings that loss is unreasonable if it is incurred in, what turns out to be, an unsuccessful business venture. The same applies also to a claim of $469 loss of earnings for the month or May 1987 during which time the plaintiff had resumed work at Wai Hang Printing Co. He was not employed full time and was winding down his own printing business.

47. From June to October 1987, he remained employed on a part-time basis by the 2nd defendant operating a printing machine. He says that he could not work full-time because headaches brought on by concentration working at the machines did not allow to do so. He was, he said, afraid of hurting himself again and that that affected to his health. Whilst there is no direct medical evdience that the headaches were attributable to concentration at the press it seems to me to be reasonable that they were.

48. This was the principal reason, coupled with a belief that the 2nd defendant was unhappy with his work, that caused the plaintiff to leave the gnu defendants employ on the 5th October 1988. The plaintiff earned an average of $1,200 per month during this period of 4 months. His loss of earnings for that period is therefore $10,364.00.

49. He then ventured again into business. He took printing work and subcontracted to it out. During this period he earned $1,500 per month. Whilst the plaintiff can attempt to start a business, losses attributed to that attempt should not, as I have already said, be laid at the 2nd defendant's door.

50. When that venture failed, the plaintiff became a salesman with a jewellery company at a salary of $2,300 per month. By this time, I accept, on the basis of tables produced, that the plaintiff might reasonably have been earning $4,225 per month as a printing operator. He worked in a jewellery company for seven months to the 30th September 1988 at which time he was dismissed because he was not a good enough salesman. His loss of earnings for the period are therefore $13,475.

51. He then worked as a messenger for a printing company. He still would not work the printing machines. His salary was $2,400. His loss for this period of 3 months is $5,475. He then left that job for more money at another printing company. He worked as a general assistant organizing jobs and material supplies, He was paid $2,800 per month and he remained there for 3 months to March 1989. His loss of earnings is $4,275.

52. He resigned from that printing company as his employer was not happy with him and got a job as a waiter in a restaurant. His disabilities caused him to quit that job after 1 1/2 month. During that time his salary was $2,600. His loss of earnings is therefore $2,437.00.

53. Thereafter the plaintiff got a job with a Taiwanese footwear firm as a quality control officer. His salary was $3,500 but he was fired as he could not communicate properly in Madarin in which language the business was conducted. His loss for this two months is $1,450.

54. Since July this year, he had been employed as a general clerk. He earns $3,000 per month and, as he puts it, "so far so good". On the statistical evidence available, looked at in conjuction with the evidence of the 2nd defendant as to wages in the industry; the plaintiff may now have reasonably expected to be earning $5,000 per month as a printer. His loss for the period from July to November i.e. 4 months is $8,000.

55. In my judgment the plaintiff is entitled to be compensated for future loss of earnings. Accordingly the application of a multiplier/multiplicand is the correct approach to assess that compensation rather than to make a global award for handicap in the labour market.

56. The plaintiff, but for the accident, could have been earning $5,000 per month. He is now earning $3,000 per month (with an employment history prior to the present job of less than that). His loss of earnings is $2,000 per month. Upon a review of the authorities to which I have been referred, as related to the plaintiff, I apply a multiplier of 14. He is therefore entitled to $336,000 (($5,000 - 3,000) x 12 x 14} for future loss of earnings.

57. In summary therefore:-

58. Pre Trial Loss of Earnings:-

59. There will therefore be judgment for the plaintiff aginst the 2nd defendant in the sum of $455,709 with interest on pain and suffering at the rate of 2% from date of service of the writ to judgment and 4% on special damages from date of accident to judgment.

60. Judgment for the 1st defendant against the plaintiff.

61. By arrangement I will hear counsel on costs on a day to be appointed.

Representation:

Mr. Patrick Lim instructed by Kenneth C.C Man & Co. assigned by D.L.A. for Plaintiff.

Mr. Wong Po Wing instructed by Wong Shum & Co. for 1st Defendant.

Miss J. Pinto instructed by Tong & Tsoi for 2nd Defendant.