MO PO v. YAT FAI ENGINEERING LTD AND ANOTHER

HCPI 405/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 405 OF 2005

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J U D G M E N T

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Introduction

1.  On 14 May 2003, the Plaintiff was hammering a nail into a wooden batten, which was to be part of wooden formwork into which concrete was to be poured, when the nail bounced off the wood and entered his left eye causing severe injury to the eye.  It follows from this brief description that he was not wearing goggles at the time.  He has sued the 1^st Defendant, who employed him, and the 2^nd Defendant, the principal contractor at the building site who had employed the 1^st Defendant to build the timber formwork at the site which was at 25-29, Stanley Village Road, Stanley.

2.  Both defendants are sued in negligence and for breach of the Plaintiff’s contract of employment, which really adds nothing to his case on negligence.  As is usual, there are many particulars of negligence pleaded in the Statement of Claim at page 21 (Bundle A) but the matter has really distilled itself down to two allegations.  Firstly, the failure to provide goggles and secondly the alleged failure to select the wooden battens with sufficient care, the complaint being that the particular batten that he was nailing into must have had a hard “nodule” in it which caused the nail to bounce.  This particular allegation was not even pleaded but, on Miss Alice Tsang’s, the Plaintiff’s counsel, application to amend the Statement of Claim which I allowed, this issue is now before me.

3.  The trial itself has been a short one.  Only the Plaintiff has given evidence.  The Defendants having filed a witness statement have decided to call no evidence.

The Medical Evidence

4.  The medical evidence, although significantly divergent, has gone in by order of the Master on paper only.  The Plaintiff’s expert says that the injury to the eye is such that the Plaintiff cannot return to his
pre-accident employment and this now supports a substantial claim for future loss of earnings, whilst the Defendants’ expert says that he can return to his employment which, if accepted by me, would considerably reduce the amount damages.  It is extremely difficult for a trial judge to resolve issues of this sort on paper.  I would have wished to have had the opportunity to see and hear the medical experts examined in court and to have their divergent opinions tested in cross-examination.  One of the consequences of firm case management in the Master’s corridor has been that, in my experience at all events, parties are regularly required to go to trial with medical evidence that is quite irreconcilable on paper.  Joint medical reports are ordered, which is of course quite correct, where both sides experts will conduct a joint medical examination, which is what happened in this case, but then the experts will frequently set out divergent opinions.  It is quite possible for the trial judge to work around or through differences that are not especially divergent and come to a perfectly sensible conclusion.  Where these views are radically apart it does become extremely difficult for that to happen.  Counsel and solicitors should be very astute in pointing out to the Master cases where the medical evidence is simply too divergent for it to go to the trial judge on paper only.  The present culture is to restrict evidence to only what is absolutely essential and expert evidence, in particular, is kept to a minimum with much of it excluded as irrelevant or, at best, so marginal that it should not be led.  Much progress has been made in recent years to streamline evidence and therefore trials thereby saving valuable court time and costs.  Whilst this is to be supported as being in everybody’s interests, there is a danger that too rigorous policing of the expert evidence, particularly medical evidence, may produce difficulties for trial judges which can only be overcome by the judge having to adjourn the trial completely, if the experts cannot be brought to court at very short notice or, go part heard for appropriate arrangements to be made to have the experts called.  Given the crowded state of the lists, future dates tend to be a number of weeks or months later unless the parties are fortunate and proximate date can be provided at short notice. 

5.  Where the Master is not persuaded that the experts ought to be called so that their differing views can be tested by cross-examination before the judge, an appeal may have to be considered to the judge from the Master to test the correctness of the Master’s order, or alternatively, if there is to be a PTR before the trial judge, the matter can be raised then thereby avoiding the risk, in a genuinely difficult case, of the judge himself, at the trial, having to say that he cannot decide the matter without having the experts there.

6.  In this case, both counsel have expressed disquiet about the radically different opinions of their experts whose evidence I must try to work through without having had them appear before me and, it is for this reason, that I have decided to express my concerns about this.  In due course, when I turn to the medical evidence I will have to demonstrate how I have resolved the issues in a case where it would have been infinitely better to have had the experts called.

The Issues

7.  As I have already indicated, the case falls to be decided on whether the Plaintiff should have been provided with goggles and whether greater care should have been taken in the selection of wooden battens to ensure that persons like the Plaintiff would not have to hammer nails into a hard piece of wood, perhaps with nodules in it, which might cause nails to bounce off the surface of the wood.

Decided Cases

8.  I have had drawn to my attention two decisions which concerned workmen who sustained penetrating eye injuries whilst hammering nails, not having been provided with goggles by their employer.  Every case must, of course, turn on its own particular facts and so these two decisions can only provide general guidance.

9.  In Keung Wai Ming v Yew Chow & Anr (1987) A 3270, the trial judge Sears J, who has great experience of such cases both at the Bar and as a judge, dismissed the Plaintiff’s claim who, like the Plaintiff in this case, was an experienced board fixer.  On this occasion, he had been fixing planks of wood, 6 feet by 3 feet, onto a wooden formwork, which is what the Plaintiff before me had been doing.  He had been provided with a standard hammer and had to nail standard two inch nails into the planks so as to attach them to the wooden formwork into which the concrete would be poured.  The course of his injury bore remarkable similarities to what happened to this plaintiff.  He told the judge that he was squatting down to do the job and that his face was about two feet from the nail.  He had already nailed in about 7 or 8 nails into this particular plank.  His technique was to hold the nail and to hammer it in a short distance and then, removing his hand hit the bail a blow to drive it through the plank to attach it to the formwork.  On this occasion, “something went wrong”, to use the judge’s words, and the nail sprung out of the wood and the sharp end of the nail pierced the cornea of his left eye causing him to become blind in that eye.  The matter had been variously put on the Plaintiff’s behalf who, like here, had not been using goggles.  The Construction Site (Safety) Regulations had been prayed in aid, as has Miss Tsang in the matter before me.  Regulation 43 says this :

“The contractor responsible for any construction site, where there is carried on any process which results in particles of material or dust being produced in such a manner as to be likely to enter or damage the eyes of any workman engaged in the process, shall ensure that (a) suitable goggles, or effective screens are provided for the protection of the workman.”

Sears J held that this regulation did not apply to the type of work that the Plaintiff was engaged in.  He held that :

“Regulation 43 deals with a process where the process itself gives rise to material or dust being produced; there are many such processes carried out at construction sites.  Here, the Plaintiff is merely hammering a nail into a piece of wood.  This is one of the most common features of construction work both in the safeguard of this site and the variety of jobs where nails are put into wood.”

I propose to return to the proper construction of this regulation presently.

10.  The additional way in which it had been put to the judge was described by him as follows :

“… secondly, that the evidence suggested that there are occasions when nails are not hit properly and come out of the wood, … it is dangerous because it can cause damage and as it is a reasonably foreseeable danger, the Defendant (sic) [the judge must have meant the Plaintiff] should have been provided with goggles although there is no statutory requirement to provide them.”

Faced with that submission Sears J said the following :

“11. The evidence discloses that this gentleman was very experienced in his field of work - hammering in some 400 nails a day and I have no doubt that on occasions when he hammers those nails in, they do not go properly in.  It may be he might miss the nail, or hit it a glancing blow, or the nail itself is defective and it buckles, or the nail might even hit something within the wood which causes the nail not to go through the plank of wood.

12. It is not suggested here that the Plaintiff was guilty of contributory negligence, nor is it suggested by the Plaintiff that the wood which was provided was in any way defective.  I find as a fact that the plank of wood as provided was perfectly satisfactory; some seven to eight nails had already been hit into it by the Plaintiff, and I find as a fact that the hammer and the nails were also satisfactory.  Furthermore, this is an experienced workman, he did not require supervision or instruction; he knew exactly what he had to do.  So the plaintiff's case comes down to the fact that as he was badly injured, there must be some liability.  That in my judgment would make the Defendants insurers of the safety of their workmen which they are not.  They have to take all reasonable steps to protect their employees on the site and in my judgment I can see no evidence whatsoever that they have failed in that respect.

This was one of those unfortunate accidents which occur whether at work or in the home.  The injuries which the Plaintiff suffered are serious because the nail caused the puncture wound in the cornea.  It might only have caused a small injury to his cheek, but very unfortunately it caused an injury which has led to his blindness in that eye.  Whilst I therefore have sympathy for him, nevertheless, in order to find the Defendants liable, that must be in some way to blame for this accident.  How then did it occur.  Counsel have speculated on what might have happened.  The report which was made by the Plaintiff was a late report.  Mr. Poon has pointed out that the report was made a number of days after the event, so the wood has not been inspected nor has anything else; no one has come forward to say that any similar accident has ever occurred.  I have no doubt that nails do come out of wood, but there is no evidence that they have caused any injury.  The operation of hammering is more likely to cause injury to the hand holding the nail.

13. In my judgment on the very basic and rudimentary facts which I have been given, the probable cause of this accident was either that the nail was first inserted at a wrong angle and when hit, sprung out, or alternatively that the nail was not hit at a correct angle.  These workmen work, I am sure, very fast but they are very experienced.  I find on the facts that this accident was not the fault of the Defendants whether as a matter of negligence, or breach of the contract between the Plaintiff and the Defendant.  I am glad to see that the Plaintiff has obtained a substantial sum of money from a compensation fund for this injury.  The Plaintiff has not proved that the Defendants are liable and I dismiss his claim.”

11.  Unsurprisingly, Mr Sakhrani, who appears for the Defendants, has drawn this decision to my attention, he says, because of the striking factual similarity with the matter before me.  Subject to the question of whether the piece of wood was somehow defective or unfit for this purpose, which it was not in Sears J’s case, I am bound to say that, for all intents and purposes, these two cases are identical.

12.  Miss Tsang has referred me to the decision of the Court of Appeal in Chow Wai Hung v King Rise Engineering Ltd & Anr, CACV 213/2005 in which the Plaintiff had been employed as a carpenter, and was in the process of removing a false ceiling.  He was injured as he was in the process of removing a nail that had been embedded in a concrete wall.  It was 50 millimetres in length [about two inches] and it had been driven through a wooden panel into the wall behind.  He was standing on a ladder with the nail at eye level.  In order to remove it, he decided to loosen it by using a hammer to hit it to the left and then to the right.  As he did so the nail broke and a fragment flew off and injured his right eye.  The trial judge, Judge Wesley Wong held that the method used by the Plaintiff was the usual one employed by carpenters when doing this sort of task.  The Plaintiff himself had done it in this way on countless previous occasions.  He decided that the risk of injury was extremely remote.  He held that it was not reasonably foreseeable that the Plaintiff would be injured in this way when performing this task using this accepted method.  In the circumstances, it was not necessary for the employer to have provided him with goggles.

13.  The Court of Appeal reversed his judgment.  Cheung JA, with whom Rogers VP and Le Pichon JA agreed, said that :

“As a matter of commonsense, it is reasonably foreseeable that using the method adopted by the Plaintiff would break the nail, forcing it to fly off and injure someone close to the operation including himself … The fact that the Plaintiff himself had not been injured in the past (he had 15 years of work experience) does not mean that the damage was not foreseeable.”

Having held that such injury was foreseeable, the learned Justice of Appeal then went on to consider whether the Defendants were liable as employers in failing to provide a safe system of work by causing or permitting the Plaintiff to adopt :

“… the risky method of hammering the embedded nails in order to loosen them and in failing to provide suitable goggles for his use.”

Having posed that question he held that they were liable.

14.  Miss Tsang relies on this decision which she says supports her case that when employed to carry out the task of hammering nails into wood, the Defendants should have ensured that the Plaintiff was equipped with goggles.  I will return to an analysis of these two decisions having made the necessary findings of fact on the evidence.  I should observe at this stage that it is perhaps unfortunate that the Court of Appeal was not referred to Sears J’s judgment, with the result that I do not have the benefit of their view of it.

15.  I should also refer to two other authorities before I turn to the evidence.  Miss Tsang has drawn my attention to the current addition of Charlesworth & Percy on Negligence at 10-44, page 781.  It says this :

“Provision of protective device or clothing with or without advice, warnings or orders.  If the nature of the work is such that a reasonable employer would provide his workmen with some protective device or clothing while doing the work, there is a duty to provide it and to take reasonable care to see that it is used.  The extent of such a duty necessarily depends on a number of factors, which include: (i) the risk of injury; (ii) the gravity of potential injury; (iii) the difficulty of providing protection; (iv) the availability of protective clothing; (v) the distance which an employee may have to go to fetch such clothing; and (vi) the employee’s skill and experience.”

She submits that when one applies these considerations to what the Plaintiff was doing when he was injured then the answer must be that the Defendants could and should have supplied him with goggles.

16.  Finally, she referred me to the case of Wong Wai Ming v The Hospital Authority, CACV 86/2001 and to the judgment of Keith JA (as he then was) where at the para. 8 of his judgment he sought to set out the appropriate standard to be adopted in deciding whether to take steps to eliminate a risk.  In doing so, he recited from the classic statement of the relevant principles (as he described it) of Lord Reid in The Wagon Mound No. 2 :

“8.         An employer is under a duty to its workforce to take reasonable care for their safety.  Where one employment happens to be more dangerous than another, a greater degree of care must be taken, but where the employer cannot eliminate the risk of danger, it is required to take reasonable precautions to reduce the risk as far as possible: see Charlesworth & Percy on Negligence, 9th ed., para. 10-83.  However, an employer is not required to take reasonable precautions to remove every risk which might confront its workforce.  In a classic statement of the relevant principles, Lord Reid said in The Wagon Mound ( No. 2) [1967] AC 617 at pp. 642E-643A:

‘…. it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of …. a small magnitude.  A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk.  He would weigh the risk against the difficulty of eliminating it.  …. [T]he general principle [is] that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man.  ….  [I]t is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.’”

These two authorities sufficiently establish the standard that I need to apply in determining whether the Plaintiff will have proved his case and with this I must now turn to consider the Plaintiff’s evidence.

The Plaintiff’s Evidence

17.  I have to say, at the outset, that the Plaintiff was a bad witness in his cause particularly under cross-examination where almost as a matter of course, he refused to answer questions put to him and preferred to make statements which I assume he considered to advance his case, rather than engage the questions and provide answers which would not necessarily assist him.  This approach by him must of necessity adversely colour my opinion of him as a witness with whom I can feel comfortable and readily accept what he told me as accurate.  The full effect of this can only be captured from a sight of a full transcript of his evidence.

18.  Nevertheless, despite his obvious hostility towards the Defendants, which is understandable, a basic picture has emerged from his account of how he was injured which requires serious consideration.  Just because a Plaintiff is prepared to be thoroughly partisan to his own position and refuses to show any sense of objectivity, even to perfectly benign propositions put to him in cross-examination, does not disentitle him to having so much of his case, as can be accepted, properly weighed by the court.

What can be accepted?

19.  The following are the findings of fact that I am prepared to make, drawn from the Plaintiff’s evidence.  By the date of the accident, the Plaintiff had been doing this sort of work without mishap for eight years.  The accident happened at about 5 p.m.  The Plaintiff was at the bottom of a two-metre deep trench.  He had already fixed wooden planks 50mm high on both sides of the trench and he had fixed 10 horizontal battens which were to hold the wooden planks in place.  As he demonstrated in court he was in the course of hitting a two-inch nail into a batten from above.  He held the nail with his left hand and wielded the hammer with his right.  His face was about three feet for the nail.  As he struck it, instead of piercing the batten it bounced up and struck his left eye causing the injuries which are described in the medical evidence.  In all his eight years no such thing had happened to him.  By this I mean that he had never experienced a nail bounce up in this way.

Goggles

20.  He was not wearing any at the time.  The Defendants, by amendment at the trial have alleged that goggles were available inside a 40 foot container which was used as an office and to store equipment as well as a changing room for the workmen.  It is alleged that the Plaintiff knew or ought to have known that goggles were available.  As no evidence has been called by the Defendants in support of this allegation and the Plaintiff has denied this, I am disposed to find that no goggles were available for use by the Plaintiff, although they may have been available and used by other workmen on the site whose work obviously demanded the use of goggles by them.  The case falls to be determined on the basis that no goggles were available to the Plaintiff.

The nature of the Wooden Battens

21.  I am satisfied that these differ in hardness.  Some are older having been re-cycled after previous use and are relatively soft so that they are easily penetrated by a nail whilst others are new and can be harder requiring more force before the nail can be driven into them.  Workmen like the Plaintiff are familiar with these differences as was the Plaintiff.  He had encountered such harder battens before in the course of his work and had made use of them without mishap.

The cause of the Accident

22.  I am satisfied that as the Plaintiff struck the nail it bounced up and hit him in the eye as he has told me.  It is not possible to say to any satisfactory degree quite why or how this bounce occurred.  The Plaintiff says it is because the batten was a new and harder piece of wood and that he struck a nodule or knot in the wood which caused the nail to bounce upwards.

23.  The accident was investigated by the Labour Department by an Occupational Safety Officer [pages 42-43, Bundle D].  The investigation took place on 8 July, nearly two months after the accident and so it was not possible for the safety officer to examine the particular wooden batten.  He concluded having said that the exact cause of the accident could not be ascertained that :

“However, it might perhaps be possible that the nailing position of the involved wooden batten was very hard or some hard material was hidden inside the batten which had caused the nail to rebound upwards.”

That is as far as the safety officer was prepared to take it.

24.  At the trial, the Plaintiff was prepared to go much further than that.  He told me that the batten was new and a bit heavier and said that it was humid which added to its heaviness.  It is instructive to compare this to what he told the safety officer on 31 July 2003.

“Q.    Why did the nail rebound upwards?

A.      This would not happen in normal circumstances.  This was the first time I met this during my eight years working in this trade.  I believe that this is because the place where I hit the wood had a “wood eye”.  These wood eyes were very hard.  The involved wooden eye was a new one.  There should not be any hard object inside the wooden batten.”

25.  In his witness statement [para. 16] he was more circumspect :

“On the 31^st July 2003 [the safety officer] repeatedly asked me why the metal nail rebounded upward.  Just after the accident, I heard workers discuss on the matter.  They said that I might have hit a “wood eye”.  Therefore, I told the safety officer that I believed I might have hit the wood eye.  However, I in fact did not know why the metal nail re-bounded nor did I know whether or not I hit a “wood eye”.  I only knew that the wooden batten was so hard and it was not suitable for nails to be nailed into it.”

26.  What can reasonably be said is that the common theme in his evidence is that this batten was made of harder wood.  That is the extent of it.  That is as far as one can permissibly go.  It is not possible to say with any degree of assurance what the precise mechanics of the blow of the hammer was.  I am prepared to find, on a balance of probability, that the batten was harder than other battens that he had been hammering that day. 

Was this batten unsuitable?

27.  It is convenient to take this issue first.  In the absence of the particular batten which might have been subjected to some sort of comparative testing, it is not possible to say how much harder this piece of wood was compared to the sort of battens which apparently presented no difficulty.  It is therefore not possible to hold that this wood was so much harder than what would be considered broadly acceptable.  The selection of wooden battens is not capable of precise analysis.  These battens must be supplied by the thousands in the construction industry.  Given the evidence of the Plaintiff that this had never happened to him before the usual run of wooden battens are acceptable and that workmen like the Plaintiff do not give the matter a second thought.  Just because this nail bounced off this batten on this occasion with this workmen hammering a nail into it is not sufficient to condemn the Defendants to a finding of negligence in their selection of battens, some of which are new, some of which are old, some of which are soft, some of which are less soft and some of which may be of a harder variety.  This being my view this element of the Plaintiff’s claim must fail.

Should goggles have been supplied?

28.  I take the plea based on Regulation 43 of the Construction Site (Safety) Regulations first.  Miss Tsang correctly accepts that there is no specific regulation requiring the provision of goggles when nailing work is being done.  Regulation 43 requires goggles to be provided where a process is carried on which results in particles of material or dust being produced in such a manner as to be likely to enter or cause damage to the eyes.  Clearly, where part of this plaintiff’s job required him to saw planks of wood, if the evidence was that so much dust would be produced as to cause the likelihood of damage to the eyes, then goggles would have to be provided.  This is not to the case that the Defendants have to meet on this occasion.  In such circumstances, the Plaintiff can get no assistance from this Regulation.  I am in respectful agreement with what Sears J (supra) had observed about the applicability of this Regulation.

29.  This then only leaves the matter in the realm of negligence.  I take foreseeability first.  If the Plaintiff fails to show that the risk of this injury was reasonably foreseeable, in terms of the particular task that he was engaged in, then he must fail.

Foreseeability

30.  Miss Tsang quite rightly stresses the remarks of Cheung JA in Chow Wai Hung v King Rise Engineering Ltd supra.  Those remarks were made in relation to the workman’s task of removing nails.  The object being to loosen them by hammering them from side to side.  It seems to me that this activity is materially different from the insertion of nails.  One also needs to remember that there is no regulation that requires the provision of goggles when hammering nails into hard surfaces.  Whilst this is by no means a complete answer, considerable attention should be paid to these building site safety regulations which have been enacted over the years based on the day to day experience of the variety of tasks that need to be performed on such sites, always with the reasonable safety of the workman in mind.  In my judgment the absence of a requirement for goggles on these occasions is indicative of the fact that based on industry experience they are not considered necessary for a workman’s safety.  It does not surprise me to find therefore that the safety officer in this case concluded that the accident was unforeseeable.

31.  In my judgment, this most regrettable incident was completely unforeseeable.  It comes within the category expressed by Lord Reid in the Wagon Mound No. 2 (supra) as “a mere possibility which could never influence the mind of a reasonable man.” And not “a risk which he knows or ought to know is a real risk.”  It seems to me that this is precisely the situation which Sears J had in mind in Keung Wai Ming v Yew Chow & Anr.  In this case I am content to respectfully adopt, in its entirety, his reasoning in that case, because it seems to me to be entirely apposite to what the Plaintiff was doing when he was injured and his remarks also precisely describe the position of the Defendants in this case.

32.  May I say that had I considered that Cheung JA’s remarks were intended to cover the situation of every workman who is required to wield a hammer and direct it at a nail, I would have felt constrained respectfully, to follow his judgment.  I do not understand his judgment to be of such universal application, otherwise he would have expressed it differently.  He was on this occasion addressing the particular issues raised by the judgment of Judge Wesley Wong in the court below.

33.  Accordingly, where I am entirely satisfied that an incident and an injury such as this cannot be said to have been reasonably foreseeable the Defendants were not required to provide the Plaintiff with goggles.  The system of work established by them was perfectly adequate for the task at hand.  The Plaintiff has therefore failed to show that either defendant was negligent and so the claim must stand dismissed and there must be judgment for the Defendants.

Quantum

34.  In the event of an appeal, I propose to indicate the damages that I would have awarded the Plaintiff had he succeeded.

(a)   Pain, suffering and loss of amenity

(i) The Plaintiff has suffered a penetrating injury to the left eye-ball which required three operations under general anaesthetic with the prospect of a further operation to extract a cataract and implant an intra-ocular lens.  His best corrected visual acuity to his left eye is 6/12 [a 50% loss of central vision].  He has a traumatic cataract of the left eye.  The left pupil is abnormal.  It is slightly oval and slightly dilated with reaction to light being sluggish.  I will need to return to the central issue of photophobia, which is said to affect his ability to return to work in a moment, affecting as it does, the award for future loss of earnings in particular.

(ii) I have been referred to a number of comparables by both counsel.  Miss Tsang contends for an award of $400,000 really based on an award by Master Kwang in Sze Ping Chui v Lau Ching Wai, HCPI 1051/01.  In that case the Plaintiff had sustained a ruptured eye-ball and underwent an operation to repair the cornea, to remove the damaged lens and to implant an intra-ocular lens.  He was left with blurred vision, a corneal scar and photophobia.  Visual acuity was 35% of normal.  In Chan Kin Ka v Siu Tung Hun, HCPI 570/98, Sakhrani J awarded $350,000 for a plaintiff whose best corrected acuity was 44% of normal and who could not resume his pre-accident work.  Suffiad J in Kei Yu Fuk v Wong Ching Nam, HCPI 872/00 gave a plaintiff $280,000 for a penetrating injury caused by a metal fragment which resulted in central eye vision of 20/80.  He had difficulty in perception of depth and in judging distances.

In my judgment Sze Ping Chiu was a far more serious case and does not really assist for that reason.  I would have thought that the range of award would be between $300,000 and $350,000.  Given the number of operations that the Plaintiff has had and will undergo and the nature of his disabilities I would have awarded him $330,000.

(b) Loss of Earnings

It is here that the divergent medical evidence makes my task a very difficult one.

(i) Pre-trial Loss of Earnings

First, I need to decide what the Plaintiff’s pre-accident earnings were.  Miss Tsang says I should take these as being $19,200 being $800 per day and multiply that by 24 days a month.  Mr Sakhrani submits that the Plaintiff’s difficulty is that he has provided no hard evidence in support of his case.  In such circumstances, Mr Sakhrani has picked the figure of $17,600 being his earnings in April 2003 which he says is a realistic figure.  In May, he had earned $8,000 for the first half of the month.  Miss Tsang has calculated his earnings by taking away Sundays and public holidays and assuming that the Plaintiff would have worked on each remaining day of the month.  That is too generous an assumption.  I propose to make a downwards adjustment because realistically I do not believe that the reality of the situation is that someone like the Plaintiff would work every working day.  During my best, I will say that his average pre-accident earnings were $18,000 a month.  I accept that he would have been off work until the expiry of his sick leave on 26 November 2003 at the earliest.  His case is that due to his disability he has never been able to find work on anything like a permanent basis until November 2004, since when he has worked as a cleaner earning $5,800 a month — a very considerable drop from the pre-accident rate of $18,000.  I would have needed to try and resolve the fundamental issue of whether he could have gone back to his pre-accident employment after the completion of his sick leave.  This would have affected both pre-trial and future loss of earnings.  Taken at face value based on Dr Ng’s assessment (the Plaintiff’s expert who says that he cannot return to his pre-accident employment) the claim for pre-trial loss of earnings would be $800 per day x 24 days x 33.3 months less $5,800 x 10 months which comes to $581,360.

Mr Sakhrani’s assessment is to say that he might have needed some three months to find work after the expiry of sick leave on 26 November 2003, that is to say until March 2004 and to recognize his residual disability by suggesting that he should work four less days each month which would give him a monthly loss of $3,200 each month.  If that submission fails, he suggests that the Plaintiff is capable of casual construction work at $450 per day or at worst, interior decoration work at $300 per day which would earn him between $7,000 or $8,000 a month.

(i) Before I decide how I would have found it would have been necessary to come to a view on the divergent medical evidence.  The real issue is the effect of photophobia and tearing.  Mr Sakhrani complains that Dr Ng’s view is the result of his taking the Plaintiff’s subjective complaints without any critical analysis of them on his part.  Dr Ng has accepted the complaint of undue sensitivity to sunlight which he says causes pain and excessive tearing.  Nevertheless, Mr Sakhrani points out Dr Ng’s failure to deal with Dr Cheung’s (the Defendant’s expert) findings in his first report that there was no complaint to him by the Plaintiff of photophobia, pain and tearing.  It is this sort of difference which cannot easily be reconciled on paper.  I would have been much assisted by having the doctors cross-examined on this vital issue.  If Dr Ng is right then it would be difficult to subject the Plaintiff to outdoor work.  Nevertheless, if Dr Cheung is right — he has said that :

“The degree of abnormality of the left pupil was only very mild.  Also there was presence of papillary reaction to light although the reaction was slightly sluggish.  There should not be any significant degree of undue sensitivity of the eye to sunlight and there should not be any pain or excessive tearing as a result.  In fact, there was no excessive tearing from the eye during medical examination with the strong light of the slit lamp”.

These two opinions are so divergent that it is extremely difficult to reconcile them hence my earlier remarks about the need to bring these differences to the Master’s attention so as to prevent a direction that the experts need not be called to give evidence.

(ii) Had I been put to it, I would have favoured Dr Cheung’s more closely reasoned opinion, whilst bearing in mind the fact that the Plaintiff’s eye would react adversely to sunlight and I would have reflected this by saying that his ability to work a full month (24 or 25 days) would have been restricted by as much as 10 days each month.  I would have concluded therefore that he would have been able to resume his pre-accident employment but that he would have required more rest.  His working capacity would be 15 days each month giving him earnings of $800 x 15 days being $12,000 a month.  This would produce a monthly loss of $6,000 a month.  The computation for pre-trial loss would have been at the rate of $18,000 per month from the date of the accident until March 2004 and thereafter at the rate of $6,000 a month until trial. 

Future Loss of Earnings

As to future loss of earnings, the loss would be at the rate of $6,000 a month with a multiplier of six years having regard to his age.  He would also be entitled to the usual loss of MPF contributions.  As I have found against the Plaintiff on liability, I do not propose to establish precise figures.  I have set out the elements of the award from which totals can be arrived at in the event of a successful appeal, if that is thought to be helpful or necessary.

Loss of Earning Capacity

Given his reduced ability to work, I would have awarded an amount of $144,000 for loss of earning capacity being $12,000 x 12 months.  He is undoubtedly at a disadvantage in the labour market and this would have needed to have been recognized.

Special Damages

Miss Tsang has set out her special damages claim at $12,176 which is entirely reasonable and I would have awarded this amount. 

Future Medical Expenses

I would have awarded the amount of $29,000 under this head being the cost of the cataract operation at $25,000 and the balance for medication and post-operative consultations.

Costs

35.  The Defendants having succeeded, must have their costs of the action to be taxed on a party and party basis.  This will be an order nisi in the usual way.  The Plaintiff will have legal aid taxation of his costs if he is in receipt of a legal aid certificate.