SAN-TO, PO YUK HITLER v. WING KWONG PAINTING CO LTD

HCPI 387/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.387 OF 2002

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J U D G M E N T

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1. The plaintiff claims against the defendant, being his former employer, damages for personal injuries sustained by him as a result of falling down from a ladder during work on 2 June 1999.

2. The plaintiff was a painting worker employed by the defendant. On the day of the accident, the plaintiff was asked to paint a wall at a residential unit being staff quarters inside Stanley Prison. He had to paint a stretch of wall being the four sides encircling a newly installed window which was about two to three metres wide and some six feet high. To do so, in particular painting the upper parts around the window, he had to use a wooden folding ladder of the "A" type which was provided by the defendant. From time to time he had to come down from the ladder so as to shift the entire ladder to the next part of the wall in order to continue the painting.

3. On one such occasion as he was descending from the ladder, he missed his footing on the third rung of the ladder from the bottom and fell onto the floor, a height of some four to five feet, landing on his buttocks. As a result of this fall, he sustained a back injury which I shall deal with in more detail when dealing with the question of quantum.

4. The basis of the plaintiff's claim against the defendant was that the ladder provided to him by the defendant was defective in that the rung in respect of which he missed his footing was a replacement nailed on after the original rung had broke. The replacement rung was fixed at a level lower than the original rung such that the gap between that replacement rung and the rung above it was larger than normal and because of that the plaintiff had missed his footing when descending from the ladder resulting in his fall.

LIABILITY

The plaintiff's evidence

5. The plaintiff was the only witness who gave direct evidence as to the occurrence of the accident.

6. On the morning of 2 June 1999, he arrived at the site on time and started work at 8:30 a.m. He was given the task of painting the walls around a number of windows. Some of the windows were bigger and some smaller. All of them were newly installed and he had to paint the strip of wall surrounding the newly installed windows.

7. He started the actual painting at shortly before 9 a.m. When the accident happened at about 9:30 a.m. he had already completed the painting of the wall surrounding one large window and two smaller ones. He was in the process of painting the wall surrounding the fourth window that morning when the accident happened. That fourth window was a larger window.

8. His evidence was that to paint the wall surrounding one of the larger windows, he had to paint one side first, then descend from the ladder, shift the ladder to the other side, and to remount the ladder in order to complete the painting of the other side. However, for the smaller windows, he could do so in one go without having to shift the ladder so that he would only need to mount and descend from the ladder once for each of the smaller window.

9. The plaintiff gave evidence that there were three wooden ladders utilized by him and his co-workers at the unit where he worked. On the morning of the day in question, two of the ladders had already been taken by other workers so that when he started work, he was left with only the third ladder to use himself.

10. He agreed that when he was painting the first three windows, he had mounted and descended from that very ladder on four separate occasions. Apart from the first of these four occasions when he could remember that he mounted and descended from the ladder on its right side because there was a wall on the left side of the ladder, the plaintiff was not able to recall which side of the ladder he mounted or descended from on the other occasions. He could only say that it was purely a matter of convenience which side of the ladder he would mount and/or descend from.

11. At about 9:30 a.m. when he was in the process of painting the wall surrounding the fourth window, the plaintiff said that he went up one side of the ladder. The ladder had five rungs, the fifth being the very top of the ladder. When he reached the fourth rung of the ladder, he then staddled the top part of the ladder with both his feet keeping the right foot on the fourth rung of the right side of the ladder while his left foot rested on the fourth rung on the left side of the ladder. He stood in that position to paint the top part of the wall surrounding the window. When he had finished painting that part, he had to descend from the ladder in order to shift the position of the ladder.

12. According to the plaintiff, in descending from the ladder, he used his two hands to hold the paint brush and bucket. Therefore he had no hands to hold on to the ladder. He had intended to lower his left leg to the third rung on the left side of the ladder. At the same time he also swung his right leg over to where his left leg was. However, because the third rung on the left side of the ladder was, as he came to realize after the accident a replacement rung which was about two inches lower than the original rung, his left leg missed his footing on the third rung. When his left leg missed his footing, his right foot had already been taken off the fourth rung on the right side of the ladder and was on its way over to the left side of the ladder. As a result, both his feet was not resting on any of the rungs on the ladder. This resulted in his falling from the ladder.

13. The plaintiff also said in evidence that he did not wait for his left leg to have rested on the third rung on the left side of the ladder before taking his right foot off the fourth rung on the right side of the ladder because from experience if the third rung had been in its normal position, his left foot would have reached it as he took his right foot off the fourth rung on the right side of the ladder.

14. The plaintiff further admitted that when he was attempting to reach the third rung with his left foot, he did not look down to see where the third rung was.

15. After falling from the ladder and landing on his buttocks on the floor, the plaintiff then looked to see and notice for the first time that the third rung on the left side of the ladder was a replacement rung. He explained that the original rung had been attached to the vertical legs of the ladder on the inside by a joint. The lines of the joint could still be seen although the original rung had broke off. The replacement rung was nailed into the vertical legs of the ladder on the outside and was about two inches lower than the level of the lines showing where the original joint was.

16. The plaintiff also said that before the accident, he did not even notice that the replacement joint was nailed onto the outside part of the legs of the ladder which was quite obvious since it would have stood out from the other rungs of the ladder. Moreover he did not notice, prior to the accident, that the replacement rung was lower than the corresponding rung on the other side of the ladder even though the ladder, when it was first collected by him, was folded up and would have been quite apparent to the naked eye.

17. After the accident, the plaintiff said that he felt painful and therefore could not continue to work. He merely squatted there and stopped work until lunchtime when he went down to the site, found the foreman one Mr Choi Kim Chung, told the foreman of his fall and informed him that he had to seek medical treatment after which he left the site and made his own way to the Tang Shui Kin Hospital to seek medical treatment.

The defendant's evidence

18. The defendant denies the accident and denies that it happened in the way as alleged by the plaintiff.

19. Moreover, the defendant denies that there was any ladder used or provided by it to the workers at the site in Stanley Prison which had a replacement rung as described by the plaintiff or in any other way defective.

20. In the alternative the defendant relies on contributory negligence of the plaintiff himself in failing to take proper care of his own safety.

21. Evidence was given in this respect by the director of the defendant, Chan Kim Kwong. Briefly his evidence can be summarized to be that the equipment including ladders were always inspected by the foreman before work started each day and his instructions to the foreman is that any defective ladders are to be thrown away and not to be used but will be replaced by new ones since a ladder cost less than $100. Those were also his instructions to the workers if they came across any defective ladders. Moreover, when he saw any defective ladders or other equipment when he did his rounds of the various sites in which the defendant company was engaged with any projects, he would throw away any defective ladder which he came across and would not permit his workers to use such defective ladder.

22. Similar evidence was also given by the foreman, Choi Kim Chung who was in charge of the site at Stanley Prison at the material time.

23. The foreman also gave evidence that after the plaintiff had started work on the morning of 2 June 1999, he had not seen the plaintiff again that day. It was only after lunchtime that day, when he was carrying on his work during the afternoon session that the plaintiff phoned him and told him that the plaintiff was in hospital seeking medical attention because he had fallen from a ladder during work. He further said that the plaintiff did not inform him during or before lunchtime that the plaintiff would be leaving the site to seek medical attention and that he did not even see the plaintiff during lunchtime.

24. However, at a late stage of his evidence, during cross-examination, he said that when he made enquiries from one of the master painter named Cheung Ying Ming who was working with the plaintiff that morning, he was told by Cheung that the ladder on which the plaintiff was working that morning and from which the plaintiff fell had been thrown away because it was defective. Choi did not further ask Cheung Ying Ming how the ladder was defective.

25. When asked why that piece of evidence was not in his witness statement and therefore was not part of his evidence-in-chief, Choi said that it was not in his witness statement because the defendant's solicitor had not asked him about it.

Assessment of the evidence

26. Having seen and heard from all the witnesses in this case, I have no hesitation in accepting as true the evidence given by the plaintiff as to the occurrence of the accident.

27. I found the plaintiff to be an honest and truthful witness. He gave his evidence in a straightforward manner and no doubt intended to tell the court the truth as much as he was able to. His answers were given spontaneously and very often those answers were given irregardless whether the substance in his answer were in his favour or not in so far as the issues in the case were concerned. As a result his answers were mostly logical and reasonable and were not contrived.

28. On the other hand, I was not impressed at all by the two witnesses called by the defendant to deal with the issue of liability.

29. Neither of them were present when the accident happened. Their evidence were general and were intended to suggest that there could not have been such a ladder being used by the plaintiff as alleged by him.

30. That defence was clearly shown to be untrue when finally Choi Kim Chung admitted that he was told by Cheung Ying Ming that the ladder from which the plaintiff fell had been thrown away because it was defective.

31. Even so, I believe that Choi knew much more of the accident and the ladder than he cared to admit.

32. I therefore find that there was a ladder with a replaced third rung which was nailed on but was slightly lower than the level where the original third rung would have been and such a ladder was supplied by the defendant and was used by the plaintiff at the time when he met with his accident on 2 June 1999. I also find that the accident happened in the manner as described by the plaintiff.

Liability of the defendant

33. Upon the finding as made by me, I hold that the ladder with such a replaced rung was defective by reason of the fact that the replaced rung was nailed on at a level which was lower than the level of the original rung.

34. As such it was incumbent upon the defendant to have warned the plaintiff of the defect in that ladder. That was a non-delegable duty of the defendant as an employer. As such it was a duty which the defendant could not avoid by saying since such a defect was readily appreciable by the naked eye on any reasonable examination, the plaintiff ought to have seen and appreciated it himself.

35. In the present case, the defendant had failed to give such a warning to the plaintiff in using the defective ladder and must therefore be liable to the plaintiff for negligence.

Contributory negligence of the Plaintiff

36. Even on the plaintiff's own version of how the accident happened, there are a number of admissions by him which would point to his own negligence in the matter.

37. Firstly, although the plaintiff's failure to notice the replaced rung and the fact that it was lower than would have been the original rung, cannot be relied upon by the defendant to be a complete defence since the defendant had a non-delegable duty to warn the plaintiff of the defect and/or the risk of using such a defective ladder, that failure to notice those matters which ought to be plain to the naked eye is a factor to be considered when it comes to contributory negligence on the part of the plaintiff himself.

38. Moreover, on the plaintiff's version of events, his failure to wait until his left foot had reached or was resting on the third rung of the ladder before swinging his right foot over to the left side of the ladder is again evidence of carelessness on his part.

39. Similarly, his failure to look down when he was trying to reach the third rung with his left leg further attest to his negligence in the matter.

40. Lastly all the above which should not have been done by a careful workman was done by the plaintiff when he did not use either of his two hands to hold onto any part of the ladder when descending.

41. It may well be that he was young and agile. It may also be because he thought he had enough experience in descending ladders that he adopted such a course. His evidence that he had always descended in this way with nothing untoward happening to him previously does not exonerate him from being careless.

42. Taking into account all the matters referred to I find that the plaintiff failed to take proper and sufficient care of his own safety and was himself 50% to blame for the accident.

QUANTUM

Injuries and Treatment

43. After the accident, the plaintiff made his own way to the Accident and Emergency Department of Ruttonjee and Tang Shiu Kin Hospital. The report from there showed that he was found to have tenderness over the low back. He was treated and discharged and given sick leave for one week.

44. When the pain in his low back persisted, the plaintiff sought further medical treatment from United Christian Hospital and attended there as an outpatient between 10 September 1999 to 21 March 2001.

45. The plaintiff was referred to physiotherapy from 22 February to 19 June 2000 and again from 9 November to 3 December 2000.

46. A Magnetic Resonance Imaging (MRI) carried out on 15 August 2000 showed significant disc extrusion at L4/5 causing severe spinal canal narrowing. Hypertrophic changes of the apophyseal joints and ligamentum flava contributed to the degree of spinal canal narrowing. There was also mild postero-central disc bulge at L5/S1 level that caused moderate spinal canal stenosis.

47. The plaintiff was examined by Dr Lam Kwong Chin on 1 February 2002. At that time the plaintiff was still complaining of low back pain aggravated by strain, prolonged weight bearing or sitting; left lower limb pin and needle sensation from buttocks to thigh; not being able to stand or sit for over 25 minutes without change in posture.

48. Dr Lam was of the view that significant prolapsed intervertebral disc was shown on the MRI taken on 15 August 2000 and concluded that the changes in the disc were caused by the accident on 2 June 1999 since the plaintiff was so young and was symptom free before the accident.

49. Examination by Dr Lam revealed that the plaintiff had satisfactory weight bearing capacity; local tenderness at the midline and left side associated with left side paraspinal muscle spasm; back motion range limited by pain at end-range; reduced straight leg raising test and complaint of numbness over the outer side but no notable muscle wasting or weakness.

50. Dr Lam therefore concluded that the plaintiff had suffered a back injury with residual back pain and left sciatica but the area of numbness did not correlate with the L4/5 disc lesion. He assessed the plaintiff to have 10% to 13% impairment of the whole person.

51. At the time of Dr Lam's report, a second MRI to be taken from the plaintiff was pending. Dr Lam considered that the plaintiff's back condition was not a static one and if it was confirmed that the pain arose from the injured L4/5, he would recommend a spinal fusion operation to be done.

52. When the further MRI was performed on 29 June 2002 it showed posterior disc protrusion at L4/5 and mild left posterolateral disc protrusion at L5/S1

53. Upon comparison of the two MRI scans, Dr Lam commented that the changes at L4/5 discs were similar but the L5/S1 disc pathology became more severe.

54. On 7 December 2002, the plaintiff was examined by Dr Danny Tsoi. Dr Tsoi was also of the view that the herniated disc and associated degenerative changes shown on the MRI should have been caused by the accident given the plaintiff's young age and absence of symptoms before the accident. Like Dr Lam, Dr Tsoi also recommended surgical treatment.

55. Examination by Dr Tsoi showed local tenderness of left sided praraspinal muscles. The range of motion of the back was basically preserved and no more objective neurological deficit over both lower limbs were noticed. As the plaintiff was unwilling to receive surgery by reason of the risk as explained to him by his treating doctor, no other treatment was suggested by Dr Tsoi and he considered that the plaintiff's back condition should have reached a static stage by two years after the accident. Dr Tsoi assessed the plaintiff to have suffered a 10% impairment of the whole person.

Pain Suffering and Loss of Amenities

56. The plaintiff claims $500,000 under this head of damage while the defendant contends that $200,000 is a reasonable sum.

57. I have been referred to the awards given in the following cases :

Lai Kin Wah v. Hip Hing Construction Ltd, HCPI 255 of 1996;

Law King Sang v. Law Yin Sang, HCPI 923 of 1995;

Lai Ching v. Wong Chiu Kwai t/a Wing Lai Arts Jewellery (a firm), HCPI 1192 of 1996;

Li Fat Tsang v. Shun Tat Engineering Co., HCPI 558 of 2000.

58. The injuries suffered by the plaintiffs in the cited cases are basically all relating to low back pain and/or prolapsed disc injury. In some of them there is the further complications of those plaintiffs suffering psychological condition as a result of the injury which is not the case with the present plaintiff.

59. In all the cited cases, the awards for pain suffering and loss of amenities ranged from between $300,000 and $400,000 which can and should only be used as a guideline as to awards involving injuries of that nature since in no two cases would the injuries and disabilities be exactly the same.

60. I also take note of the fact that the judgments in those cited cases were given between January 1997 (Lai Kin Wah's case) and July 2002 (Li Fat Tsang's case).

61. In September 2002, the Court of Appeal in the case of Lawati Bhawani Bikram v. Ting Kau Contractors Joint Venture (CACV No.3 of 2002) stated that the starting figure for "Serious Injury" as categorized in the case of Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 should not go beyond $460,000.

62. Applying that to the present case, and putting the injuries and disabilities of the present plaintiff within its proper range using the cited cases as a guideline, I have come to the conclusion that the proper award for pain suffering and loss of amenities in the present case is an amount of $350,000.

Loss of Earnings

63. It is common ground that the plaintiff was paid $400 per day as a painting worker by the defendant. He only started working for this defendant as of 1 April 1999.

64. It is also common ground that he was given a free lift by the foreman in the company van of the defendant to the site at Stanley Prison each day. The plaintiff accepts that the free lift was a favour given to him and other workers. It is his evidence that by agreement among all the workers who were given free lift, it was agreed between them that the plaintiff, because his wage was the lowest amongst all the workers, would be given a lift every day while the other workers had to take turns for their lift since there was only limited space in the company van.

65. Despite that evidence, it was argued by counsel for the plaintiff that I should take into consideration the value of the free lift given to the plaintiff in assessing his pre-accident wages. In so suggesting counsel relies on the fact that the lift was given in the company van and that the evidence from the foreman was that the plaintiff was told of the free lift when he was engaged for the job.

66. I do not agree with that submission. The fact that the plaintiff was told of such an arrangement does not make it an entitlement or a benefit to which he was entitled. Indeed the plaintiff conceded as much when he agreed that if he had to make his own way to the site for work for whatever reason, he would not be entitled to claim for the travelling expenses from the defendant.

67. There was also dispute between the parties as to the number of days in a month when the plaintiff would work. In the Form 2 to the Labour Department (which was signed and chopped not by the defendant but by the defendant's principal contractor) it was stated that the plaintiff worked 26 days a month. The plaintiff in evidence said that he would work on average 22 days a month. However the work record relating to the plaintiff was produced into evidence by the defendant which showed that the plaintiff had in fact worked for 18 days in April 1999 and 13.5 days in May but that for the month of May the plaintiff was also given four days of sick leave as a result of an injury to his hand sustained by him in the course of his work which is unrelated to this accident.

68. The plaintiff agreed to the accuracy of that work record. The reason given by the plaintiff for working only those days as shown in his work record was that he was newly married at that time and there would be times when he would go over to Shenzen in Mainland China where his wife resided to visit her and in so doing would skip work for the day. At other times if he was late to catch the lift in the company van, he would choose not to go to work for the day.

69. I have no hesitation in accepting the work record of the defendant and find that the plaintiff in fact worked on average 18 days per month for April and May 1999 before his accident not because there was no work for him but mainly because of his own personal reasons.

70. It was also urged upon me on behalf of the plaintiff that had it not been for the accident, the plaintiff would have continued to be a painting worker and likely to have attained the status of a master painter by now.

71. On the other hand there is direct evidence from the defendant that there are painters in its employ today who have had five or even seven years experience but who are not employed as master painter nor paid at the rate of a master painter. These painters who have had a number of years experience are currently being paid $620 per day by the defendant. The reason given for this is that the wage rate has been dropping over the last few years because of the economic situation prevailing. There is also evidence that as at December 2002, a painting worker is working on average 21 to 22 days per month. I accept that evidence from the defendant.

72. The plaintiff also called his brother to give evidence as to the current earnings of a painting worker. His brother has been working as a painting worker since 1991 and has reached the grade of a master painter since 1995. Since 1997 he has also become a contractor employing other painting worker.

73. His evidence was that if the plaintiff had continued in the painting trade, he would have become at least a middle worker (i.e. in between an apprentice and a master) by now and possibly a master painter as well. Today the wages for a master painter is $700 per day and a painting worker can expect to work for 15 to 16 days in a month. However, at present, he says he is out of work.

74. I have no hesitation in accepting the evidence adduced by the defendant as to current wages for a painting worker since that evidence relates to actual instances of persons being employed and the actual wages paid to such persons.

75. On the other hand, I do not find the evidence of the plaintiff brother reliable since he is himself out of work and his evidence is given generally without relating to any actual cases of employment or wages.

76. Moreover, I find that there is no sufficient evidence to suggest that the plaintiff would have become a master painter by reason only of his number of years experience in the trade. I do accept however that it would have been long past his apprenticeship years and he would likely be paid around $620 per day just as the painting workers employed by the defendant are being paid if he had continued in the trade.

77. I further find that the plaintiff would likely continue to work around 18 days per month by choice, taking the odd days off from work to go over to Shenzen to visit his wife (and any additions there may be to his family). The evidence before me is that the plaintiff's wife is now still residing in Shenzen.

Pre-trial loss

78. Based on the above therefore I find that the pre-accident monthly earnings of the plaintiff to be $400 x 18 = $7,200. I further find that had the plaintiff not met with the accident, he would likely have continued as a painting worker in the trade and would today be earning $620 x 18 = $11,160 per month.

79. This gives an average monthly earning for the pre-trial period of $9,180.

80. I accept the evidence given by both medical experts in this case that two years sick leave would have been reasonable for this plaintiff. I do not accept the statement by Dr Lam that it would be reasonable to have given further sick leave to the plaintiff for the period while he was waiting for the second MRI to be performed.

81. Having said that I am prepared to allow for a six months period as a buffer for the plaintiff to obtain alternative employment in after the sick leave.

82. Accordingly the plaintiff will be allowed full loss of earnings for 30 months from the date of accident. This translates to $9180 x 30 = $275,400.00.

83. After that initial period of 30 months from the accident, I would have expected the plaintiff to have secured some form of alternative employment as recommended by both the experts. That would be jobs involving lighter duties such as a messenger, or cleaner etc.

84. In fact the plaintiff did obtain part time employment at Oliver's in March 2003 but resigned from it after about six weeks because it was too far from his home in Tseung Kwan O. There he was paid $1,100 per week.

85. There is evidence before me of the wage statistics for the possible jobs which the plaintiff can undertake by way of alternative employment. From these statistics I am of the view that it would have been reasonable to expect the plaintiff, given his disabilities, to have found some form of alternative employment from which he would have been able to earn in the region of $5,000 per month.

86. Therefore, for the balance of the pre-trial period of 27 months, I assess the plaintiff's loss of earnings to be ($9,180 - $5,000) x 27 months which gives $112,860.00.

Future Loss

87. As for future loss of earnings, the main dispute between the parties relates to the multiplier. The plaintiff says 16 is reasonable. The defendant argues that it should be 15.

88. Considering that the plaintiff was 25 at the time of the accident and 29 at trial, I have no hesitation in adopting 16 to be the multiplier in this case.

89. The loss of future earnings is therefore assessed at ($11,160 - $5,000) x 12 x 16 which gives $1,182,720.00.

Loss of MPF

90. MPF came into force in December 2000.

91. Of the first 30 months after the accident, the plaintiff would have suffered loss for the last 11 months since MPF came into force in Hong Kong only in December 2000. That loss being 5% of the loss of earnings in those 11 months comes to $5,503. The loss of MPF for the balance 27 months till trial comes to $5,643. That gives a total of $11,151 being loss of MPF for the pre-trial period.

92. The future loss of MPF is assessed as 5% of the future loss of earnings which comes to $59,136.

93. The total loss of MPF therefore comes to $70,287.00

Loss of Earnings Capacity

94. There is a claim for loss of earnings capacity.

95. With his present disabilities which both medical experts have opined to be permanent, I am satisfied that the plaintiff will suffer a real risk in the labour market.

96. Taking into account the fact that the plaintiff is now 29 years old and has therefore another 30 years or thereabouts of his working life left, I am of the view that a reasonable sum to compensate him under this head of damage will be $100,000.00. Although this translate to being $3,333 per year for the remainder of his working life, which is less than one month of his wages in his alternative employment, taking into account the accelerated receipt of this sum in advance of the remainder of his working life, that amount in my view is not unreasonable.

97. That is the amount I shall award under this head of claim.

Other Special Damages

98. Medical expenses have been claimed for out-patient treatments ($2,200) and for physiotherapy ($1,232).

99. Travelling expenses have also been claimed for attending out-patient treatments ($718.20) and for attending physiotherapy ($352.80).

100. Surprisingly the defendant did not see fit to agree to these claims which to me appear eminently reasonable. The attendances for outpatient treatments and physiotherapy were fully documented and the travelling expenses were on the basis of travelling by bus and PLB. They will be allowed in full.

101. Tonic food was claimed at $4,000.00. Considering the length of time the low back pain had persisted in the case of the plaintiff and his evidence that his mother had been feeding him with fish maw to assist his recovery, the amount claimed seems reasonable and will be allowed.

102. There is also a claim of $14,000 for acupuncture and massage treatment. The evidence from the plaintiff is that he had attended massage and acupuncture treatment which he found beneficial to alleviate the pain in his back. He would feel more comfortable after each treatment. However this claim is not supported by any receipt because when he went for such treatment, he had no idea that he could claim it back in these proceedings and so he did not keep the receipts. According to the plaintiff, each time he paid several hundred dollars. There is no evidence as to the number of times he had attended massages or acupunctures.

103. In the circumstances, I accept that the plaintiff had received massage and acupuncture to help relieve the pain in his back and that he had found those treatment beneficial. However, in the absence of any evidence as to the total number of visits, I am only prepared to allow a sum of $5,000.00 for such treatments.

104. Accordingly, the total amount of the special damages assessed comes to $13,503.00

INTEREST

105. Interest on the award for pain suffering and loss of amenities will be awarded at the rate of 2% p.a. from the date of the Writ (9 May 2002).

106. Interest on pre-trial loss of earnings and other special damages will be awarded at 4%, being half judgment rate, from the date of the accident.

SUMMARY OF AWARDS

PSLA	$350,000.00
Pre-trial loss of earnings	$388,260.00
Future loss of earnings	$1,182,720.00
Loss of MPF	$70,287.00
Loss of earnings capacity	$100,000.00
Other special damages	$13,503.00
Interest on PSLA	$12,250.00
Interest on all pre-trial special damage	$76,335.00
Sub-total:	$2,193,355.00

CONCLUSION

107. This sub-total of $2,193,355.00 will have to be reduced by 50% to take account the contributory negligence of the plaintiff. That will give the figure of $1,096,677.50. From that figure it has been agreed by the parties that the sum of $168,618.61 being the periodic payment already received by the plaintiff from the Insurance company in respect of this accident will have to be deducted. This, I am told, is because the EC compensation claim in respect of this accident has not been concluded yet in the District Court.

108. After the conclusion of the hearing in court, I was informed by the parties by a joint letter dated 4 February 2004 that a further sum of $19,021.15 (being periodic payment made to the plaintiff by the defendant on 19 July 2001) should also be given credit to which is over and above the sum of $168,618.61 told to me in court.

109. The final figure thus arrived at is $909,037.74.

110. Accordingly, there will be judgment to the plaintiff for the sum of $909,037.74.

COSTS

111. There will be a cost order nisi that the defendant pays the plaintiff his costs of this action to be taxed on the High Court scale if not agreed and that the plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.