HUANG CHUNG MOU v. CHAN KENG SHAM AND ANOTHER

HCPI 459/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 459 OF 2004

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J U D G M E N T

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1.  The Plaintiff used to work for a woollen factory called Goldfame Enterprises Ltd. (“Goldfame”).  On 26 May 2001, he travelled in a lorry to a carpark in Kwai Chung to take delivery of certain goods for Goldfame.  The goods were stored inside a container kept in the carpark.  The lorry he travelled in had been engaged by Goldfame to deliver the goods to the Mainland.  This was just a usual assignment for him.  He had worked with this driver on similar assignments previously.  However, this occasion turned out to be a disastrous one for him.  He was crushed between the back of the lorry and the back of the container and suffered serious injuries.

2.  The lorry was driven by the 1^st defendant.  It was owned by his wife, the 2^nd defendant, and he drove it for her business.

The accident

3.  On 26 May 2001, the lorry arrived at the carpark at about 1 p.m.  At that time, the rear doors of the container had been opened and the goods were ready to be taken from it.  The 1^st defendant then manoeuvred the lorry so that its rear would be across from the open end of the container.  His intention was to align the lorry and the container in a straight line and use the hydraulic metal platform at the back of the lorry to form a bridge over the gap between them.  In that arrangement, the goods could be taken directly from the container over the platform into the goods compartment of the lorry.

The plaintiff’s evidence

4.  The plaintiff said when the rear of the lorry was reversed to about one private car length from the open end of the container, the 1^st defendant came down from the driver’s seat and lowered the platform from the rear of the lorry.  The platform was originally in a vertical position guarding the two closed rear doors of the lorry.  When it was lowered, it became horizontal and was about one foot above the ground.  The 1^st defendant then went back to the driver’s seat. 

5.  In the normal course, before the lorry would be further reversed, the rear doors of the lorry had to be opened so that its goods compartment would face the open end of the container.  The plaintiff alighted at this time.  He saw a transportationworker surnamed Tse, who had arrived earlier, had stepped onto the platform and opened one rear door of the lorry, but Tse had difficulty in opening the other one.  The plaintiff then offered help.  However, as soon as he stepped onto the platform, the 1^st defendant started reversing the lorry.  He and Tse immediately shouted to the 1^st defendant to stop, but the 1^st defendant did not respond to them, and the lorry continued to reverse though at a low speed.  He became anxious and did not know how to escape from the situation.  In the end, he was crushed by the lorry and the container.  Tse escaped injury because he crouched down in time.

6.  The 1^st defendant was immediately alerted to this.  He forthwith drove the lorry forward for one foot and the plaintiff fell from the platform to the ground.  The plaintiff was rushed to Yan Chai Hospital for treatment. 

7.  The plaintiff had experience in taking goods from a container into a lorry.  His evidence on the usual procedure was that the driver would first align the lorry with the container in a straight line.  The driver would then alight and go to the rear of the lorry to lower the platform to about one foot above the ground (presumably to make way for the doors to be opened).  The rear doors would then be opened.  The driver would then raise the platform to a higher level (with a view to use it as the bridge over the gap between the lorry and the container).  A transportation worker would then go to the rear of the lorry to give signal to the driver.  The driver would then follow the signal to reverse the lorry until the platform was close enough to the rear of the container so that it could perform the function of a bridge between the container and the lorry. 

8.  On that day, the accident took place before the two doors were opened.  The procedure had not been carried out to the stage for the platform to be raised.  There was no signaller at the rear of the lorry to guide the 1^st defendant on how to reverse the lorry. 

9.  The plaintiff thought that the lorry had already been properly aligned.  I think he had grounds to form this belief, because the rear platform had been lowered and the other worker was trying to open the rear doors. 

10.  In the usual situation, the driver would not reverse the lorry further until after the doors had been opened and the platform raised to a higher level.  Furthermore, if the lorry was to take the final reverse, there would be a signaller to guide the driver.

The defendant’s evidence

11.  I do not think there is any real dispute between the plaintiff and the 1^st defendant on the procedure for aligning the vehicle with the container.  Though the 1^st defendant did not cover all the steps of the procedure, his evidence was consistent with that of the plaintiff.  He said he would align the lorry in a straight line with, but would stop it at about 10 feet away from the container.  He would then alight and go to the rear left to lower the platform.  He would then open the rear doors and fasten them to the sides.  He would then raise the platform to a higher level.  After completing all these steps, he would go back to the driving compartment to reverse the lorry so that the goods could be taken directly from the container into the goods compartment of the lorry.  I think in doing so, he would require the help of a signaller at the rear of the lorry though he did not say so, otherwise he might fail to reverse the lorry close enough to the container or he might bump the lorry into it.

12.  On this occasion, after he had aligned the lorry with the container, he alighted to lower the platform.  However, after the platform had been lowered, he found that the lorry was not in a proper alignment with the container.  He thus did not open the rear doors, but chose to go back to the driving compartment to realign the lorry.  He said in evidence that if he should open the rear doors, they would block his view when reversing the lorry.  However, before he went back to the driver’s seat, he did not tell anyone that he would manoeuvre the lorry again for a better alignment.  He also did not tell anyone not to open the rear doors until he had achieved the proper alignment.

13.  When he was back in the driving compartment, he reversed the lorry.  He intended to drive it forward again for better alignment, but the accident happened.

The 1^st defendant’s negligence

14.  When he was reversing the lorry, if he should have watched the rear mirrors, he should have been aware that the delivery worker Tse had opened one rear door.  He should then contemplate that there might be people on the platform at the rear trying to open the other rear door.  So he was careless in not looking at the rear mirrors when reversing.  Alternatively, if he did and was or should be aware that one rear door had been opened, then he was careless in not stopping the lorry as he should have contemplated that there might be people on the platform.  In either case, he reversed the lorry too far, otherwise it would not have crushed the plaintiff.  The undisputed evidence is that he only stopped when he heard somebody shouting loudly that there was a person at the back.  If he did not hear this shout of distress, he might have bumped the lorry into the container. 

15.  He admitted that his rear view mirrors could not show him the condition at the rear.  He should thus have asked a signaller to keep watch for him and to give him signal when he reversed.  I accept that there was a signaller in the usual course when he made the last reverse to engage with the rear of the container.  Unfortunately, he did not ask for the help of a signaller this time and thus caused the accident.

16.  However, he did not contest his negligence, he only contested that the plaintiff had contributory negligence.

Contributory negligence

17.  The plaintiff’s duty was just to check the goods as delivered.  He was performing the role of a tally clerk.  It was not his duty to take part in the physical removal of the goods from the container into the lorry.  It was also not his duty to be involved in the opening of the rear doors of the lorry.  However, he said he should help each other out in accomplishing the task.  He thus volunteered to help Tse to open the rear door.  I do not think I can hold that he was negligent because he offered a helping hand to others when he was not obliged to do so.  He also said that he had previously assisted in opening the rear doors.

18.  The 1^st defendant denied that the plaintiff had previously given such assistance.  He said in evidence that he himself would lower the platform, open the rear doors, tie up the doors and he always performed these tasks by himself.

19.  I can understand that the 1^st defendant would reserve to himself the task of operating the hydraulic metal platform because that was an expensive equipment and its operation required some technique and skill.  However, I see no reason why he would not allow other workers to open the rear doors for him.  It was a simple task of turning a few door handles and lifting some hooks.  The deliveryman would usually assist in such task as that would quicken the work overall.  I accept the plaintiff’s evidence that he had previously assisted in opening the rear doors of the lorry.  In the present case, Tse, the delivery worker, had in fact opened one of the doors.

20.  I also accept the plaintiff’s evidence that he thought the lorry had already been aligned properly as Tse had already opened one rear door.  In the normal course, the lorry would not be moved until both rear doors were opened and the platform raised to a higher level.  The 1^st defendant had not alerted the plaintiff and Tse that he would manoeuvre the lorry for a better alignment.  Since the plaintiff saw that the platform had been lowered and one rear door already opened, it was reasonable for him to expect no further movement of the lorry until the other door was opened, the platform raised higher and a signaller was in place to guide the driver in final reverse.  In any case, he would not have expected the 1^st defendant to reverse the lorry or to reverse it so close to the container when there was no one around to give him signal. 

21.  On how good or bad the alignment was before the 1^st defendant had manoeuvred the lorry, there was no independent evidence.  The photographs available only showed the alignment after the lorry had been reversed.  Since the 1^st defendant did not find the initial alignment acceptable, he must have swerved the lorry in this reversal.  I therefore cannot say that the misalignment was so apparent that the plaintiff must have been aware that the 1^st defendant would have to manoeuvre the lorry again for a better alignment.

22.  Mr Lim for the defendants posed the question of whether a reasonable man in the plaintiff’s position would anticipate further manoeuvring of the lorry by the 1^st defendant at that moment.  In the light of above analysis and in particular the absence of any signaller to guide the reverse, I would say that the reasonable man in that position would not so anticipate.  In any event, the reasonable man would not anticipate that the lorry would be reversed so close to the container that it would crush the plaintiff.  I therefore find that the plaintiff had no contributory negligence.

Quantum

23.  When the plaintiff was admitted to Yan Chai Hospital, he was fully conscious, but haemodynamically unstable.  There was paradoxical chest movement on the right side with decreased air entry.  Crepitation was detected in the right chest wall around the third to fifth ribs region.  In view of the potential risk of developing tension pneumothorax, chest drain was inserted in the right chest.  There were three depressed wounds of about 2 cm in diameter at the central chest wall and upper abdomen.  In addition, abdominal examination showed tenderness at central region.  Guarding of abdominal musculature was probably due to suspected intra abdominal breeding.  Ultrasonography of the abdomen showed free fluid in the peritoneal cavity.  

24.  He was transferred directly to the operating theatre where emergent laparotomy was carried out.  He sustained laceration of the liver and multiple tears of mesentery of the small bowel, the transverse colon was also avulsed at mid point.  The liver laceration was repaired and small bowel resection performed.  Transverse colostomy, which was the making of a temporary artificial opening for discharge, was also performed.  He was then sent to the ICU for two days.  His conditions became stable.

25.  On 26 June 2001, he underwent the surgery of closure of the colostomy.  However, he had fresh per rectal bleeding and went into shock on the next day.  On 28 June 2001, he underwent another urgent laparotomy for the re-fashioning of the anastomosis.  He had to be admitted to the ICU again for another two days.

26.  He developed afterwards complication of wound with infection and wound dressing was required for a long period even after discharge from the hospital on 17 August 2001. 

27.  He also developed by-lateral deafness while in hospital. 

28.  The medical assessment board in a review of assessment on 11 December 2003 certified that he should have sick leave from 26 May 2001 to 15 October 2003 and from 22 November 2003 to 27 November 2003 and that he had suffered 71.5% permanent loss of earning capacity.

Expert Evidence

29.  The parties had jointly engaged three medical experts.  They are ENT expert Dr Lo Siu Sing, internal medicine expert Dr Vincent K L Ip and orthopaedic expert Dr Lee Po Chin.

Auditory problem

30.  The parties accepted the findings of Dr Lo that the plaintiff had 82 dB on the right, and 73 dB on the left sensorineural hearing loss over the speech frequencies.  The parties also accepted Dr Lo’s finding that the hearing loss was related to the accident and it was expected to be permanent.  Dr Lo opined that with the help of hearing aids, the plaintiff should be able to hear another person talking to him if that person does not speak too fast.  Dr Lo also suggested that he should select jobs that does not rely too much on verbal communication like that of a courier.

31.  In the two hours of viva voce evidence which was conducted through a Minnan interpreter interpreting into the punti dialect, the plaintiff demonstrated that he had little or no difficulty in hearing the questions and engaging in a dialogue.  There was only one occasion when he asked for a question to be repeated because he said he could not hear it clearly.  There were a few other occasions when he asked for questions to be repeated, but his need appeared to have been generated by the importance of the questions rather than his inability to hear them clearly. 

32.  There was also a videotape taken of him by the defendants’ investigator.  It showed that he had a casual chat with a friend when they were strolling in a park and he appeared to engage in the dialogue in a normal manner.  The video also showed that he could communicate with a shopkeeper of a convenient store without difficulty.

Other problems

33.  Dr Vincent Ip examined the plaintiff on 24 January 2004.  His report recorded that the plaintiff was walking un-aided but was unstable with a shuffling gait and with a right-sided weakness.  The plaintiff complained to Dr Ip that he had a poor memory, right-sided weakness involving upper and lower extremities, intermittent palpitation, shortness of breath with exertion, persistent pain over the right side of his chest, hard of hearing, headache, insomnia and painful right knee.  He also complained of dysphasia.

34.  Dr Ip found wasting of quadriceps at right lower extremities, but he did not give any measurement for comparison with the left lower limb to show the extent of wasting.  A difference of 1 cm to 2 cm in the circumferences of the two limbs at the same points would normally not be regarded as muscle wasting.  On the right side weakness, Dr Ip suspected that it was because of injury to the nerve trunk plexus at the right thoracic outlet caused by the accident. 

35.  Dr Ip could not find any objective abnormality in the respiratory system to corroborate the complaint of shortness of breath and persistent chest pain.  Dr Ip tried to explain the cause of the chest pain by referring to the extensive pleural scaring which was consistent with the injuries.

36.  Dr Ip suggested that an MRI to see if the plaintiff had suffered any damage to his central nervous system as his complaints of headache and dysphasia could be because of problems in the CNS.  He also opined that because of the injuries to the bowels and mesenteries, there would be partial bowel obstruction that would certainly develop into complete obstruction requiring surgical intervention. 

37.  In a subsequent note of 6 December 2005, Dr Ip estimated that the surgery, if done by a private doctor, would cost $150,000.00 with associated laboratory expenses at $50,000.00 making a total of $200,000.00.

38.  Dr Ip finally said that with the right side weakness or hemiparesis, the plaintiff was not employable because working on any job would pose danger to him and result in further injuries.  He also suggested weekly physiotherapy for one year at the cost $300,000.00. 

39.  The plaintiff then underwent two MRI examinations on his cervical spine and brain.  But both examinations did not review anything abnormal which could relate to the injuries.

40.  Dr Lee Po Chin examined the plaintiff on 30 October 2003.  He recorded the plaintiff’s complaints of right chest pain on breathing, pain on exertion and numbness in the right shoulder.  There was a suspected incisional hernia.  Frequency of bowel movement was two to three times a day.  There were also complains of pain on the right knee, numbness of the right calf, and pain on walking up and down the stairs.  X-ray of the lumbar spine and chest showed no abnormality.  A review of the medical reports showed no injury to the knee or lumbar spine after the accident.  But Dr Lee did not rule out contusion injury to these areas.

41.  Nevertheless, the plaintiff complained of diffuse tenderness around the whole knee.  Every movement of the right knee was painful.  But there was no significant unilateral muscle atrophy of the thigh and calf that would suggest significant disuse of them due to severe pain in the knee.  Dr Lee suggested that a review of the medical notes of the hospital for more information on the right knee.  He also found that the musculoskeletal system had reached maximal medical recovery.  The contusion injury to the chest wall should have recovered within a few months though sometimes mild pain could last up to a year.  The objective findings could not adequately account for the severe right knee pain.  There was no evidence of ligaments or meniscal injury.  He suggested MRI examination on the right knee and lumbar spine.  As far as the chest and knee problems, he opined that the plaintiff could return to his pre-accident job of a tallyman.

42.  In a subsequent report dated 11 June 2004, Dr Lee reviewed the MRI examinations on the plaintiff’s right knee and lumbar spine and found no suggestion of meniscal tear or ligamentous injury to the knee.  The MRI examinations did not identify any pathology in the right knee that could account for the pain and numbness. 

43.  Dr Lee also reviewed the medical notes and found that the plaintiff complained on 12 October 2001 about weakness in the lower limb after 10 minutes of walking.  On 7 December 2001, he complained of right knee pain on climbing stairs.  But the assessment made in the orthopaedic department showed not much physical signs.  At the end, Dr Lee doubted the relationship of the alleged knee pain with the injury.  He also opined that the MRI on the lumbar spine did not support Dr Ip’s guess that there could be injury to the nerve plexus.  The absence of muscle wasting in the calf and thigh also did not support the alleged problems.

Video tape

44.  In November 2005, the defendants’ private investigator had followed the plaintiff for a few mornings and made a video recording of his activities.  I have already referred to the plaintiff’s chatting with a friend and communicating with a shopkeeper in a convenient store.  The videotape also showed that he could walk up and down concrete steps without exhibiting any difficulty.  Despite his claim of right-sided weakness, he did not choose to walk down on the side of the steps where his right hand could hold on to the rail.  He did not have to hold on to any rail whether on the way up or down.  He also travelled on escalators without holding on to the rubber rails.  There was one occasion when he was on the way down, he appeared to be staring into the infinity and not paying any attention to the steps.  There was also an occasion when he walked briskly and without showing any difficulty. 

45.  Despite his complaint of chest pain, he was able to walk up the concrete steps and at the same time repeatedly puffed from his cigarette.  When seated, he could take deep puffs from his cigarette.  Also when seated and reading a newspaper, he was able to cross his legs and rested his left leg on his right knee.

Findings

46.  Having reviewed all the evidence, I find that when the plaintiff was given the help of hearing aids, he had little difficulty in hearing and communicating with others.  I do not accept his wife’s evidence that he could not hear the ringing of the doorbell or the ringing of his mobile phone. 

47.  I also reject the evidence of Dr Ip to the extent that it differs from that of Dr Lee.  Dr Lee’s doubt about the relationship between the alleged knee pain and the injury is supported by the video which showed that the plaintiff was not affected by any knee problem at all. 

48.  I agree with Dr Lee’s approach of trying to verify the plaintiff’s complaint by looking at the objective evidence.  When he could not find any objective clue to support the complaint, he was reluctant to accept that it was genuine.  His doubt is now supported by the video.  The plaintiff’s viva voce evidence for about two hours also showed no sign of dysphasia.

49.  I agree with Dr Lee’s assessment that the plaintiff can return to his pre-accident job.  I also reject the evidence of the plaintiff’s wife which was full of exaggerations.  I have already referred to what she said about the plaintiff’s inability to hear the doorbell and the ringing of his mobile phone.  She also said that it was only in the last year that the plaintiff could walk by himself.  However, that was contrary to the medical notes and reports.  The medical notes showed that he could walk on 12 October 2001 and could climb stairs on 7 December 2001 though he complained of right knee pain.  When he went to Dr Lee’s clinic on 30 October 2003, he could walk unaided though with a clutching gait.  When he went to Dr Ip’s clinic on 24 January 2004, he also walked unaided but with a shuffling gait and right-sided weakness. 

PSLA

50.  The plaintiff claimed $1 million under this head.  The defendants suggested a maximum of $600,000.00.  Counsel for the defendants referred me to three previous decisions as guidance.

51.  In Kwong Yui Hung v. Wong Fat Kan [2002]1 HKLRD 725, the plaintiff suffered from tearing and bruising of the bowels with internal bleeding which required an emergent laparotomy and a temporary colostomy.  He also suffered fracture of right tibial plateau and facial laceration.  His disabilities were orthopaedic abdominal and loss of memory.  A sum of $ 400,000.00 was awarded for PSLA.

52.  In Yan Chui Sim v. Paul Y-ITC General Contracted Limited, HCPI No. 244 of 2003, the plaintiff suffered multiple injuries to her face and chest wall, a dislocated left hip and burn wounds to her left abdomen and thigh.  She suffered from depression and post-traumatic stress disorder.  She was awarded $540,000.00 under this head.

53.  In Lee Yuen Ngan v. Lau Wing Hop HCPI No. 233 of 1999, the plaintiff suffered a ruptured spleen with intra abdominal haemorrhage.  She also suffered from chronic whiplash injury to her neck which developed “pins” and “needle” in her left hand and arm.  There was also chest pain, stiffness, numbness and dull ache in the lumbar and thoracic regions and sacrum.  She was awarded $600,000.00 under this head. 

54.  The plaintiff here had three surgical operations and been to the ICU twice.  He was hospitalised for two months and 21 days.  He had complication of wound and inflection and required long period of wound dressing even after discharge from hospital.  He was given over 29 months sick leave.  He has a permanent hearing loss though the problem can be alleviated by hearing aids.  I am of the view that a fair sum for PSLA for him should be $750,000.00.

Monthly earnings

55.  The plaintiff had a monthly salary of $11,000.00 before the accident.  He had a 13th month year-end bonus.  There was some attendance bonus for the 12 months before the accident.  I also accept that he had a 14th months salary as extra bonus.  He was paid the extra bonus every year though sometimes the employer would pay him with his personal cheque rather than a company cheque.  It could be that the company in that year was not giving the extra bonus to all employees generally, and thus the employer gave him this bonus personally as he had been working for this employer for a long time.  But it is not really necessary for me to guess into this.  There is evidence that the company did not pay the 14 months’ salary to the employees at the end of 2003.  That was understandable because that was the year-end after SARS had affected Hong Kong. 

56.  I am satisfied that if the accident had not happened, the plaintiff would have received the 14th month salary as part of his normal annual income.  I therefore accept the plaintiff’s average monthly salary before the accident was:

[$11,000.00 x 14 + $660.00 x 12 (meal allowance) + $1,200.00 (attendance bonus)] x 1/12 = $13,593.00.

Pre-trial loss of earnings

57.  Dr Lee opined that the plaintiff had reached maximal medical recovery for his musculosketetal system by October 2003 and should be able to return his pre-accident job.  The medical assessment board also gave him 29 months and a week of sick leave.  He however adopts Dr Ip’s opinion that he is now unemployable.  He asks for a total loss of earnings up to trial.  The defendants rely on Dr Lee’s view and agree to total loss of earnings up to 25 October 2003 and partial loss of earnings from 26 October 2003 to the present.  The partial loss is based on an assumption that the plaintiff could be employed as a messenger at $7,000.00 per month after 25 October 2003.

58.  In the light of my acceptance of Dr Lee’s evidence, I think the defendants’ approach is fair and reasonable and I would accept it subject to giving the plaintiff three more months up to 25 January 2004 for him to look for a messengerial job.  His pre-trial loss would thus be:

$13,593.00 x 32 months = $434,976.00 and

($13,593.00 – $7,000.00) x 24 months = $158,232.00

Loss of MPF

59.  This should be 5% of the total pre-trial loss of earnings which is at $29,660.40.

Future loss of earnings

60.  The plaintiff says he is unemployable and seeks a multiplier and multiplicand approach.  The defendants say that he can go back to his pre-accident job since 26 October 2003 and should have no future loss.  Despite this, the defendants are willing to pay $100,000.00 for the plaintiff’s handicap in the labour market which he may suffer as a result of the accident. 

61.  I again regard this suggestion by the defendants as fair, reasonable and generous and would make an award on this basis.  I do not agree with the plaintiff’s contention that he is unemployable.  If he should have any problem on finding a new job, it is because of his personal circumstances rather than the accident.  I also do not think I need to provide for any income loss for a transition from a messengerial job to his pre-accident job as the messengerial job was the generous suggestion of the defendants.  If a transition was necessary, it should have taken place since 26 October 2003.  I therefore award $100,000.00 for the plaintiff’s handicap in the labour market.

Special damages

62.  There are three items that the defendants dispute, namely $268.00 for orthopaedic follow up, $310.00 for physiotherapy and $20,276.00 for tonic food.  I allow the two smaller items but not specifically for the alleged chest pain or right-sided weakness.  I allow them for the plaintiff’s general conditions.  On tonic food, the plaintiff says that $10,000.00 would be enough.  In view of the three operations, the two times to the ICU, the pro-longed wound infection and over 29 months of sick leave, I think tonic food would at least assist the plaintiff psychologically in his recovery.  Though there is no expert evidence on his need, I would allow $15,000.00 for it.  The total amount for special damages is thus at $34,568.00 as shown in the revised statement of damages.

Care and attentions

63.  I agree with the defendants that the wife had not given up any employment to take care of the plaintiff, she was not in any employment at the time of the accident.  The defendants suggest 8 months for the wife to look after the plaintiff.  I would take 9 months as the medical notes said that by 7 December 2001, the plaintiff’s wound was nearly healed up.  I suppose his wound should be completely healed up by late January 2002.  I do not accept the plaintiff’s contention that he has required his wife’s care and attention until now and will continue to require it.

64.  However, I do not think I should only give $4,000.00 per month as suggested by the defendants as such figure is only for domestic helpers coming from overseas.  I would use $6,000.00 per month as suggested by the plaintiff.  This award is at $6,000.00 x 9 = $54,000.00.

Future expenses

65.  There is no dispute on the $48,000.00 for hearing aids.  On the cost of $200,000.00 for the future surgery as suggested by Dr Ip, the defendants suggest $100,000.00 as a compromise because the fees charged by public hospitals are substantially lower.  I do no agree with this approach as the public should not subsidize the defendants.  The fact that the plaintiff may take this award and then utilize the public services in future is not enough as a reason for me to reduce this award.  I therefore allow $200,000.00 for the future surgery. 

66.  The total sum payable to the plaintiff is made up of the following:

PSLA :		$750,000.00
Pre-trial loss of earnings:		$593,208.00
Loss of MPF:		$29,660.40
Handicap in the labour market:		$100,000.00
Special damages:		$34,568.00
Care and attention:		$54,000.00
Hearing aids:		$48,000.00
Future surgery:		$200,000.00
Less ECC Award:	-	$921,362.36
Balance payable:		$888,074.04

I also award the plaintiff with interest at half of the judgment rate for the loss during his sick leave, the loss of MPF, the special damages and the damages for care and attention. I award 2% interest on the damagers for PSLA to accrue from the date of the writ.

67.  Finally, I make a cost order nisi that the defendants do pay the plaintiff the costs of this action and the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.