CHEUNG SAN CHUN v. GAMMON (HK) LTD. AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This is a case for damages for personal injuries. It arose as the result of an accident when the use of a drill interferred with and struck a live underground electric cable. The plaintiff substained injury. He now seeks damages from both defendants.

2. The defendants have the advantage of being represented by Mr. Pennicott. Although, so suggested in the course of these proceedings, the 2nd defendant company no longer subsists, I have had clear affirmation from counsel that he represents both defendants on instructions.

3. The 1st defendant was in a joint enterprise with a Japanese firm by the name of Nishimatsu in the Kornhill Development Hong Kong. It was a joint enterprise in Greig Road, but I was told that the 1st defendant was exclusively responsible for site-formation including the laying of water pipes. The 1st defendant had a long association with the 2nd defendant. The 2nd defendant was one of the 1st defendant's sub-contractors for this construction project at the Kornhill Development, Hong Kong Site in Greig Road, but only concerned with trench excavation for the purpose of laying the water pipe. It was apparently the practice to lay the water pipe following the same trench used by the Electric Company for its live cable. At times, the live cable could be conveniently turned off but at other times, it could not. The object of the exercise was to have the same trench re-excavated, presumably slightly enlarged, thus exposing in the process the live cable under which the water pipe was to be laid. The exposed live cable was to be suspended by nylon ropes. That, in essence, was part of the chores undertaken by the 2nd defendant as a sub-contractor for the lst defendant.

4. The plaintiff had been a trench excavator with live electric cable embedded for some 4 years before he applied for a position with the 2nd defendant company sometime in mid-May 1982. He was taken on by the 2nd defendant after a brief interview with its foreman Mr. Wong. On that morning of the 4th June 1982, together with a co-worker Mr. Lam, the plaintiff excavated a portion of ground in the Kornhill Development Hong Kong Site. Some hundreds of feet of live cable belonging to the Hong Kong Electric had already been exposed. Using a small drill, a pick, a spade or shovel taken from the supply hut in the presence of the foreman Mr. Wong, the plaintiff and his colleague excavated several feet of trench exposing a further length of the live cable. One live cable was involved, but three cables were seen. The modus operandi was: The plaintiff and his colleague would first break the concrete surface with the small drill. Thereupon, finding the top soil of the earth underneath hard, they continued to use the small drill for breaking the ground before using the pick and spade for removing the earth.

5. Mr. Wong, the foreman, cannot be found, but there were some proceedings before a magistrate in which one of the defendants faced a prosecution. Before the learned magistrate, Mr. Wong, the former foreman of the 2nd defendant, gave evidence that he had given warnings to his workers at the Kornhill Development Hong Kong Site. He warned them of the presence of a live cable, and he also warned them not to use any power drills before the live cable was exposed and properly suspended. In fact, so he told the learned magistrate and as it transpired in the notes of proceedings, a pick and spade should be used until the exposure of the live cable and its proper suspension. From the certified notes of the learned magistrate, which have been exhibited in these proceedings as "Bundle B" and a tidily paragraphed version of which exhibited as "Bundle B(1)", it would appear that Mr. Wong, the former foreman of the 2nd defendant, was at one time a detainee of the Drug Addiction Training Centre. But that is obviously no reason as to why Mr. Wong, the former foreman of the 2nd defendant, could not be relied upon to tell the truth. The nature of the charge is unknown to me. Assistance was attempted to be rendered to this Court, but I do not think I should, unless by consent, receive viva voce evidence from the Bar in relation to the criminal charge faced by one of the defendant companies. It was a criminal prosecution nevertheless. The plaintiff himself was involved as a prosecution witness. He now sues both defendants for damages in the present civil suit in these instant proceedings. His own legal interest was not brought into focus before the learned magistrate. He had no opportunity of cross-examining Mr. Wong, the ex-foreman of the 2nd defendant. However, one must not lose sight of the fact that the version of the ex-foreman of the 2nd defendant was given to a court and obviously had the sanction of an oath. His evidence was accepted by the learned magistrate, on which whatever the charge, the accused defendant company was acquitted.

6. Mr. Wong, the ex-foreman of the 2nd defendant, told the learned magistrate that not only had he so warned all his workmen, but every morning he repeated the same message. He further disclosed that trial pits were dug 50 meters apart. I shall return to these alleged warnings later, but it is evident that the plaintiff was not doing any trial pits at the time of the accident. Trial pits came out in one sentence of Mr. Wong's evidence before the learned magistrate, and in re-examination. We know not where these alleged trial pits were. I have not been told their shape or dimensions in area and depth; nor was I told whether any of these trial pits was left in the vicinity of the accident on the 4th June 1982. That is vagueness in the extreme. On the other hand, the plaintiff categorically testified before me that he saw none.

7. If there had been trial pits sufficiently exposing the live cable in that vicinity in the afternoon, the plaintiff would probably have been able to avoid the accident. According to the plaintiff, the trench to be dug was marked in white, and the markings were amended to curve away, so he said. He thought that the cable would be nearer to the side of the road next to the pavement on which trench work was to be carried out. He also thought, so he explained, that he was excavating from a spot away from the cable. It is fair to point out that he was driven to admit in cross-examination that he did not recall where he actually started to dig. He told the Court that he was guessing the position and alignment of the live cable. And if he had to guess as he claimed to have had to, clearly he had no information from any trial pit. As a matter of fact, I prefer and accept the plaintiff's evidence that there was no trial pit in the vicinity of his afternoon work area.

8. Mr. Yam, the Divisional Factory Inspector, criticized the distance of 50 meters between two trial pits as being too great to be effective. He advised, therefore, that for a curving cable, trial pits should be dug at a distance of 10 feet apart. Mr. Wong, the Factory Inspector Class I, gave evidence that on site inspection after the accident, he found the cable beginning to turn. Therefore, even if there had been any trial pits in the afternoon work area and well dug, the distance in between would still have been too great for safety.

9. Coming back to the evidence of Mr. Yam, he told the Court that from time to time, it would be possible for the live cable to have been disturbed in its alignment, depth as well as its protected tiles on top. He said that it would be foolish to use a pneumatic drill knowing the presence of a live cable somewhere in the vicinity of the work area. He suggested that it would be acceptable to drill on both sides of the live cable, presumably on the basis that its alignment was known. He estimated the concrete surface at the scene of the accident as being some 4 inches. Mr. Wong, (another Mr. Wong), the Manager of the Safety Department of the 1st defendant gave the thickness of the concrete surface as nearly 8 inches or 0.2 meters. It was the opinion of Mr. Wong, the Factory Inspector Class I, that the alignment as well as the depth of the live cable ought to have been properly ascertained before excavation and that without clear information of the alignment and depth of the live cable, even the workmen digging the trial pits would be endangered. He was implicitly suggesting that it would be all the more so for trench excavators.

10. I turn next to a slightly different subject-matter, the plan. There was one in the site office. As far as the foreman or ex-foreman of the 2nd defendant is concerned, he told the Court that he was not sure if it had been shown to the plaintiff. The plaintiff said that he had not seen one himself. Even if the plaintiff had had the opportunity of stumbling over a plan of this nature, giving no information in Chinese and architecturally drawn, he could not have been expected to make any sense out of it. It is not suggested that the plaintiff either can understand or read English.

11. The plaintiff gave evidence that he saw the position of the exposed cables in the morning. But when he was sent to another working area in the afternoon, some 40 odd feet away, this 40 odd feet in between were unexcavated, obscuring the direction of the cables.

12. The same tools were used in the afternoon as those in the morning with one exception. There was an introduction of a big pneumatic drill, brought to the afternoon work area by the plaintiff's co-worker, Mr. Lam. The plaintiff and his co-worker Mr. Lam worked in shift using the drills. The big pneumatic drill was used for breaking the concrete road surface. The plaintiff claimed that the small drill was used for breaking open the hard top of the earth underneath. His evidence seems to have been fully corroborated by the photograph showing the charred small drill after the accident. Whilst he was using the small drill for the breaking of the hard surface of the earth underneath, the accident occurred. There was an explosion, giving rise to all consequential injuries to the plaintiff. Apparently, from the tenor of the plaintiff's evidence, more or less of the same routine was being followed for the digging in the afternoon work area, from the concrete surface down.

13. I have found that there was no trial pit in the vicinity of the afternoon work area. The very fact that the plaintiff and his colleague were instructed to excavate in the circumstances then prevailing and not to dig trial pits in the afternoon work area is, in my view, evidence of negligence on the part of the 1st defendant through the 2nd defendant. It was also a breach of Regulation 47(1) of the Construction Sites (Safety) Regulations which reads as follows :-

"Where workmen employed at a construction site are liable to come into contact with any live electric cable or apparatus, the contractor responsible for the site shall, both at the commencement of the work at the site and during its progress, take such measures (whether by rendering the cable or apparatus electrically dead or otherwise) as will prevent them from being endangered by the cable or apparatus."

14. I return now to the alleged warnings. The ex-foreman of the 2nd defendant, Mr. Wong told the Court that he warned his workmen on site every morning, both of the presence of the live cable as well as the work procedure of using the pick and spade for exposing it, and that he so warned the plaintiff and his colleague on the morning of the 4th June 1982 - just pick and spade were to be used before exposing the cable, and power pneumatic drills should be used only thereafter. In the proceedings before the learned magistrate, it was put, apparently on instructions, to the plaintiff as a prosecution witness, that he was instructed specifically by the then foreman Mr. Wong of the 2nd defendant not to use the pneumatic drill except for breaking the concrete surface. That was certainly not consistent with Mr. Wong, the ex-foreman's evidence before the learned magistrate given later in the same case. Despite Mr. Wong's version before the learned Magistrate, in their Defence here the defendants adhered to their case of warning put to the plaintiff in the magistrates' Court. Could it be said that the defendants themselves have no confidence in the evidence of their former foreman, Mr. Wong, the court transcript of which they seek to support? No explanation was given, and the Court was left with this baffling aspect unresolved.

15. The trench digging for the laying of the water pipe beneath the exposed live cable commenced sometime in March 1982. It is difficult to accept that daily repetition of the warnings had continued to be given even after some 3 months up to the 4th June 1982, and to an experienced trench excavator like the plaintiff. The plaintiff himself had worked on the construction site for some 14 days. The exposed live cable was there in the morning for all to see without warning or the repetition of it. What called for these alleged warnings to be repeated?

16. If in fact the plaintiff and his colleague Mr. Lam had been told to use only pick and spade before reaching the cable - they might as well be asked to do the trial pits - they would have been better assigned to the more time-consuming task of digging trial pits instead of excavation, but both the plaintiff and his colleague were not. Their work was to excavate.

17. For all these reasons, I do not accept as probable that warning as to a live cable or warning/instructions as to the initial use of pick and spade were constantly or ever given to the plaintiff as alleged.

18. It would seem therefore that there were no trial pits. There was no plan known to the plaintiff, in any case none understood by him. There were no warnings. There were no instructions. The plaintiff himself saw several hundred feet of exposed cables including the live cable in the morning. He himself assisted in the excavation of several feet in that morning on the 4th June. And as I said, he had past experience of some 4 years of trench excavation with live cables. He was given, in the afternoon, a work area in which he had to speculate where the live cable could be or precisely was. He was not detailed to take any precautionary measures such as the digging of trial pits. It may be said that it was too much to expect the plaintiff to enquire from or consult with the ex-foreman of the 2nd defendant as to the true location of the live cable. Even if the plaintiff had sought information, probably little useful information could have been offered by Mr. Wong except for the alignment of the cable on the plan without its depth, which might have already been disturbed. The plaintiff was certainly not instructed to do any trial pits. In a nutshell, he was given a situation which he knew full well that he was expected to solve by himself. Any extra demand even for more information would not likely stand him in good stead or be conducive to his continued daily sign-on in the future. This is somewhat speculative, but that seems to be a matter of common sense reality. I find that the defendants failed to take any or any adequate precautions for the safety of the plaintiff in not ascertaining the exact location of the live cable in alignment and depth, and in not supplying information as to its exact location to the plaintiff. Consequently, I find that in these premises, the defendants negligently exposed the plaintiff to the risk of accident and injury. It was in these respects that the defendants, in breach of Regulation 47(1) of the Construction Sites (Safety) Regulations, took no such measures as would prevent the plaintiff from being endangered by that live cable. On the force of these same failures, I further find the 1st defendant admittedly an occupier negligent in not having discharged its common duty of care towards the plaintiff. No sufficient care was taken by the 1st defendant to see that the plaintiff would be reasonably safe. The 1st defendant had not taken such steps as it reasonably ought in order to satisfy itself that the 2nd defendant's work as its sub-contractor and servant was properly done in the afternoon work area.

19. In conclusion, the defendants were negligent in not having any or any proper trial pits dug in the vicinity of the afternoon work area or otherwise ascertained the alignment and depth o the live cable. The defendants were also negligent in not having briefed properly or at all the plaintiff on the alignment and depth of that live cable. All in all, in the premises the defendants failed to take any or any adequate precautions for the safety of the plaintiff.

20. The live cable was not rendered dead. The plaintiff has adduced no evidence that inaction, if any, on the part of the defendants was an act of negligence or a breach of the Statutory Regulation 47(1) of the Construction Sites (Safety) Regulations or a breach of the common duty of care. Indeed, circumstances could have made it impracticable, undesirable or unnecessary to have the live cable rendered dead for the execution of the trench work. The use of a cable locator was also much ventilated in the course of these proceedings. No cable locator has ever been found to be in use by any or any reputable contractor in Hong Kong. Though described as primitive, what has been accepted as a good substitute to the use of a cable locator is the preparation and digging of trial pits at reasonable intervals. Cable locator could suffer from an ineffective reading, when its use is affected by other materials that could cause magnetic or electric interference. It is also not an instrument for the detection of the depth of a live cable.

21. As counsel of perfection, it was suggested that the cable locator be used, the cable be then rendered dead and trial pits be dug at desirable intervals exposing the live cable for suspension before trench excavation. The Court was told that in reality the digging of trial pits has for years been taken as an acceptable alternative in the Hong Kong construction trade. I do not therefore find or infer negligence from the absence of any use of a cable locator.

22. There is no direct evidence of the plaintiff not exercising more care than that required of him in the morning. In the morning, he had a visual aid in the exposed cables including the live cable. In the afternoon, he had not. The afternoon situation demanded, in my view, more caution. The plaintiff followed the same routine in the afternoon from the general tenor of his evidence. Using the small drill for breaking the hard surface of the earth underneath may be said to be just as acceptable as what he did in the morning, even without the exposed position of the live cable for guidance, but the plaintiff should not have penetrated as far. In short, the punctured cable was indicative that the plaintiff had not taken sufficient care himself in breaking the earth surface underneath. He should have been slowly, more gently and not too far down. I accept the inference drawn by Mr. Wong, the Manager of the Safety Department of the 1st defendant, that the level or depth of the live cable at the point of explosion could not have been raised or significantly raised from that of the exposed live cable observed by the plaintiff in the morning.

23. Miss Ong, counsel for the plaintiff, drew my attention to various estimates from different witnesses of the depth into which the plaintiff had gone before the explosion. It would not be very telling, in my view, to compare or speak in terms of estimates from different men. It would be more appropriate to compare estimates from the same source. The plaintiff told the Court that in the morning, it seemed to him that he had to go down 4 feet before he could reach the live cable and that in the afternoon, he hit the live cable with the small drill just a foot and a half down. I do not accept that the depth of the cable had been raised. The plaintiff must have reached the same depth without realising it. He did not take sufficient care in gauging the depth and thus "failed to take adequate precautions for his own safety". In that respect, I found some contributory negligence on the part of the plaintiff. It is extremely difficult to assess the proper degree of contributory negligence, particularly in the circumstances of this case. Doing the best I could, it would appear to me that his contributory negligence should be more than 10 but much less than 30%. In the end, I find it proper and appropriate to adopt the percentage of 15. I, therefore, find, as against the plaintiff, that he had himself been negligent to the extent of 15%.

24. The plaintiff claimed to be working only for Madam Chung in Quarry Bay, and intermittently but obviously, he was working in Kwun Tung. I accept, without any reservation, the evidence of the two investigators and their identification of the plaintiff. I have, during the course of my deliberation, taken into consideration his false testimony relating to his employment, and the usual incentive to exaggerate in this type of cases. I rest content with, I hope, some consolation in the sense that the conclusions that I have reached were deliberately attempted on the basis of what appears to me to be a logical analysis. More emphasis was placed on circumstantial evidence. The poor impression I gained from the plaintiff's lie has become more peripheral and shed much of its significance in the approach I took.

25. I turn finally to quantum. The plaintiff stayed in hospital for some 84 days after the accident. He had skin graft operations. He is now left with unpleasant scars. He is very lucky to have suffered no disfigurement on his face except for the very sizeable scar under his chin, which is not too obvious. As a result of the burns for hitting the live cable with his drill and the subsequent skin graft operations, the plaintiff had been put on pressure garments up to about mid-1985. Dr. Nicolson explained to the Court that his pressure garments would be worn from upper arm right down to his hand and possibly in this type of cases, also over his chest and neck. He has a strong will to recover. He has now good muscles development. He has a good range of motion. He still has stiff joints because of the thick plex of scar tissues. He has a reasonable grip. He has lost power in some motions in his hand. Though reasonably firm, his grip is today weaker. He suffer from various scars. Apparently, he is a man of modesty. He explained to the Court that he would feel embarrassed appearing in public without his scars well concealed. In fact, one of the investigators, Mr. Wan, when he was keeping the plaintiff under surveillance, observed him working in a long-sleeved shirt while his co-workers were bared from the waist up.

26. Water, according to Dr. Nicolson, would have no dermatological ill effect. His right wrist, particularly the base of his thumb, has been affected due to the taut or tightness of skin caused by the scars. The keloidal scars could not be resolved satisfactorily in any operation; nor would they be amenable to any further skin graft.

27. The plaintiff's eyes could only open a week after the explosion. His vision is normal. He suffers from watering eyes, especially against the wind. He is sensitive to any long exposure to bright light. There is also sensitivity over his scarred skin under sunlight. From time to time, he would have uncontrollable tears. He has to read at close range, and his eyes constantly suffer from redness. There are growths in his eyes described by the doctor as invasive vascularized pterygia. There is some microscopic scarring in the right eye. These growths, pterygia seem to have stopped since December 1984. With a period of medical treatment prior to surgery, the chances of success in restoring full vision to his right eye are highly optimistic. Surgical excision of the growth from his left eye is also expected to be successful, but there would be a 20% chance of recurrence, which would possibly rob the plaintiff of his left eye vision. The plaintiff was seen by investigator Au Yeung to be counting his coins at close quarters with minute care after his morning tea. The plaintiff is understandably reluctant to undergo any operation, but with passage of time, a little encouragement from his doctors, friends and members of the family, I am left in little doubt that he would allow himself to be so guided by the medical expertise given in this Court. There can be little doubt that in time to come, he would adopt a more sensible attitude and find himself more susceptible to medical persuasion. I would allow the cost for the operation to the extent of $11,000 inclusive of the brief period of prior medical treatment as an out-patient. I have taken time during counsel's addresses to revise my preliminary conclusions as well as my tentative calculations with the assistance of very full and helpful submissions from both sides. Both Mr. Pennicott and Miss Ong have tendered their calculations in writing. I have adopted the basis of Mr. Pennicott's proposed calculations. I have compared them very carefully with the figures advanced by Miss Ong. I will try to give, I hope, a reasonably intelligible analysis of the figures that I have accepted as follows :-

28. The claimed medical expenses of $728 is allowed in full. That have been conceded by the defendants. The Chinese medicine is also conceded to attract $2,500. I would not have allowed any except for this concession, and so $2,500 stands. Nourishing food, as in the case of Chinese medicine for which no receipts had been produced and the alleged benefit of which not substantiated, or properly substantiated, for these the defendants are generous enough to allow $1,300. It is a reasonable concession for saving arguments, and I would adopt the proposed $1,300, saying no more. There is no evidence on travelling expenses. It is not a substantial item, but it has not been proved. Eye operation $11,000, I need say nothing further. Loss of wages, the difference of the on-going rates are not too far apart between counsel. Both seem to work from the same source. I adopt the following because the discrepancies are only trivial. 1982 to 1983 - a whole year I would take the mean or average as suggested by both between $153.40 and $172.90 per day, that is to say, these two figures added up and divided by two, then multiplied by 27 days in a month and multiplied by 12 months in a year. That would yield, if I am correct and counsel are correct, $52,860.60. For the year 83/84, $172.90 plus $163.70 divided by two giving the mean or the average of the daily wage throughout the year, times 27 days in a month, times 12 months in a year, that would give $54,529.20. For the year 84/85, again, $163.70 plus $175.50, the latter being the on-going rate for the 6th August 1985, divided by two giving the average daily wage, times 27 days in a month, times 12 months in a year, that would give $54,950.40. For the year 85/86, counsel for the defendants was certainly not amused by the evidence of employment given by the plaintiff. Counsel suggested by way of submission that the plaintiff should be deprived of his loss in earning capacity for 85/86 if only for the reason that there was no reliable evidence to gauge his claim, if genuine. Indignation is understandable, but despite the plaintiff's false evidence relating to his employment, I think his entitlement should be taken into consideration and properly assessed. It has been conceded quite fairly by counsel for the defendants that the plaintiff will, in years to come, suffer a loss in his earning capacity. Hence he must have similarly suffered a loss in his earning capacity from that early time in 85/86. I am prepared, to accept that he could make on more than, on the average, $500 a month at the inception soon after he had discarded his pressure garment, trying his very best to return to his normal life. He probably could not work full time, the whole day or as much in his initial rehabilitation. I think an average of $500 a month would not be unreasonable. I would take the same probable income in 84/85 for 85/86, ignoring the trivial discrepancy in the average daily wage adopted for calculation for 84/85 and the slightly increased daily wage for February 85 at $179.70. Therefore, taking the same figure for the previous year at $54,950.40 which has to be deducted $500 a month, i.e. $6,000 a year, would give $48,950.40 for 85/86. From the middle of 1986 to today February 1987, say, half a year, 6 months, I would follow the same reasoning and give an assessment of half, taking into consideration also an initial average monthly earning of only $500 for 6 months, i.e. $3,000. That would be $27,475.20 less $3,000 giving a net assessment of $24,475.20. Category I would comprise his claimed and conceded special damages:- $728, $2,500, $1,300, $11,000, giving a total of $15,528. Category II : Loss of income up to February 1987 would be in all $235,765.80. Category III : Damages for pain and suffering and loss of amenities, counsel for the defendants suggested a sum of $95,000. Counsel for the plaintiff sought a sum closer to $135,000. Individual cases have to be judged on its own merits against its particular background. I have the opportunity of seeing the plaintiff. Apart from scars and injuries to his eyes, except for his sense of modesty now constantly troubled, there is no reason why he should suffer from any appreciable loss of usual enjoyment in life. The burns sustained by the plaintiff came from an electrical explosion which must have been of a more transient nature, although the subsequent pain and operations are equally unwelcome. To do the best I could, I find the proposed sum of Mr. Pennicott fairly acceptable, but I would round it up for ease of calculation to a $100,000 instead of $95,000 reflecting also a slight inclination on my part towards the view that the case of the plaintiff may be said to be slightly more serious to a very small extent than what was suggested by counsel. Category IV : Loss of future income, counsel for the defendants suggested $1,600 a month with 13 as a multiplier. Counsel for the plaintiff implored the Court to take into its concerned consideration his submitted true loss to the plaintiff as a result of the accident. Counsel analysed with care the plaintiff's lass of income and suggested a figure of $2,500 - $2,800, say $3,000 per month. Counsel referred to the estimate of $2,000 income given by the Labour Department for an indoor factory worker in the waste paper business. At the rate of $195.40 a day, that would give a monthly income of somewhere near $5,270, ($195.40 x 27 = $5,275.80). Counsel contended that on such basis the actual loss should be in the region of $3,000, if not $3,200 odd per month. There is much to be said for the submission made on behalf of the defendants that the plaintiff would be able to, in time to come, secure slightly better employment than stacking up waste paper for pressing in a used paper factory. The plaintiff seems to be a man of strong will power from my observation, and he has demonstrated to this Court that he is not in lack of usual intelligence. There is no doubt that given time, his future employment would be more inspiring than stacking up cartons for pressing in a used paper factory. It is always a matter of difficulty when one comes to assess the real loss in future income of an injuried plaintiff. Doing the best I could, I find $1,600 a month as being low and I find $3,200 a month as being fairly high. In my view, a fair and probable loss in income per month should be $2,000. I would, in the circumstances, adopt a multiplier of 13. That would give a net loss of $312,000. That is the 4th Category. Adding all four categories together, the grand total, if my calculation is correct, would be $663,293.80. That grand total less 15% for contributory negligence would yield a final sum of $563,799.73 The $100,000 less 15% by way of pain and suffering and loss of amenities would attract interest at 2% per annum from the service of the writ of summons to to-day. The special damages in items in Categories I and II less 15% would attract interests at, in my opinion, 3½% per annum, being half the average short term interest rate from the date of the accident to to-day.

29. Before I end my oral judgment, I should indicate that the evidence of permanent incapacity assessed in Exhibit "D1" is, to say the least, vague and unreliable. The "D1" assessment reads :

I do not find the medical assessment in Exhibit "D1" very helpful. Dr. Nicolson has informed this Court that the plaintiff would not be in a position to take up outdoor strenuous exercise with any substained effort, for any prolonged duration. From the tenor of his evidence, the plaintiff's condition would not improve and his loss of earning capacity would thus be so permanently reduced. I accept his views. The calculations attempted during the course of counsel's submissions did, at one time, disturb me as being slightly high for a construction site worker. However, the plaintiff is now a man of only 35 and his former job was certainly a highly paid one working on pneumatic drills, even for construction site employment. He, according to Dr. Nicolson, will not be able to return to his highly paid stenuous work in future. The final award in the sum that I have just assessed was arrived at with these last observations very much in mind, and I hope it will truly compensate his real loss.