LAI KIN WAH v. HIP HING CONSTRUCTION CO. LTD. and Another

1996, No. PI255

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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J U D G M E N T

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1. The Plaintiff, a married man, now 48years old, seeks damages against Defendants for injuries sustained by him on 1st September 1989, such injuries being occasioned during the course of his employment.

2. It is not disputed that on 1st September 1989 the 1st Defendant was the registered contractor for the construction of the new Hang Seng Bank Headquarters in Central and, as such, was the occupier of the building site. Nor is it disputed that at the material time the 2nd Defendant had been sub-contracted by the 1st Defendant to carry out certain "formwork construction" on that site. In simple terms, "formwork construction" is the building of wooden shuttering which, when completed, acts as a mould into which wet cement is poured.

3. Nor is it denied that at the material time the Plaintiff was an employee of the 2nd Defendant, his main duties being those of a formwork carpenter, and, as an employee, was a lawful visitor to the building site.

The manner in which the Plaintiff was injured.

4. It was the Plaintiff's evidence that on the morning of 1st September 1989 he was instructed to move a number of objects that he described as "threaded screws". These threaded screws, together with their bolts, were necessary components in the construction of formwork, presumably being used to hold the formwork securely in place. The screws that he was ordered to move, he said, varied in length from 1.5 to 2.0 metres and were each about as thick as a man's finger. He was unable to say how much each weighed. But he was able to say that the bundle of screws that he was carrying when he was injured weighed about 4 kilograms. According to the Plaintiff, the threaded screws were stored on a narrow platform which was attached to a wall of wooden formwork at approximately the level of where either the first or second floor of the building under construction was to be. He was instructed to move those threaded screws from that platform to a similar platform fifteen feet directly above on the same wall of formwork.

5. It was the Plaintiff's evidence that he received the instruction to move the threaded screws from a Mr Chan Lok who was a foreman employed also by the 2nd Defendant and who was the Plaintiff's superior. It was the Plaintiff's further evidence that a refusal to obey an order given by the foreman would have resulted in immediate dismissal. Plaintiff said that no hoist or mechanical lifting device was available to him to move the threaded screws. The platforms were too narrow to allow for the use of a ladder and, in any event, he had never seen a ladder on the site. Nor was he given the assistance of a work mate (or mates) so that they could have passed the threaded screws from one to the other by hand or devised a simple hoisting system with the use of a rope or something similar.

6. How then was he to carry out the operation alone?

7. It is not disputed that running horizontally across the wooden formwork wall were a series of 'H' shaped aluminum tracks. From a distance no doubt they appeared to run across the wall like horizontal stripes on a jersey. These tracks were used to support the formwork but were also used by the workers to climb up and down the wall.

8. In addition, said the Plaintiff, about half of the platforms on the formwork walls were connected to each other by a form of metal scaffolding that stood, as with normal bamboo scaffolding, about an arm's length out from the wall. This scaffolding not only protected the workers but, if they had to move objects up and down the formwork wall, provided them with a second framework upon which they could place a foot or grasp to make the moving safer and easier. That morning, however, he said, there was no such framework connecting the two platforms between which he had to move the threaded screws. It was his evidence that he was, therefore, denied that extra measure of safety and, of particular importance in this case, the availability of that extra framework to enable him to balance himself better : one foot, for example, being on the aluminum strand against the wall, the other foot being on the metal framework.

9. From what I could make of the Plaintiff's evidence, in the absence of any metal scaffolding, the only feasible option open to him was to place a bundle of the threaded screws on an aluminum track above him, climb up to the level of that track and, while holding on to a track with one hand, then move the threaded screws up to another, still higher, track and by this stop-start method eventually to come within touching distance of the platform above. Either that or just to place a bundle of the screws under one arm and clamber up the tracks as best he could until he came to within touching distance of the platform above. Whichever way, once he was in that position, while effectively flat against the formwork wall, his feet resting on one track and his one hand holding on to another at about head height, he then had to reach up and place the threaded screws onto the platform.

10. It was the Plaintiff's case that, while attempting to do just that; namely, to reach up and place some threaded screws onto the platform above him, in twisting his body, he felt a pain in his back. He was, of course, not in a position to drop the screws and let them fall. Despite the pain, therefore, he had to ensure that they were placed onto the platform above him before he could go down to the ground to advise his foreman that he had been injured.

The Plaintiff's claim against 2nd Defendant.

11. It is the Plaintiff's case that he was, at the time of his injury, an employee and therefore a servant of the 2nd Defendant. In common law, therefore, the 2nd Defendant had a duty to ensure that reasonable care was taken to provide the Plaintiff with a safe place of work and access to it, to provide also safe equipment and, where necessary, the assistance of other work mates. In summary, 2nd Defendant had a duty of care to provide Plaintiff with a safe system to move those threaded screws from the one platform to the other; if necessary too to provide effective supervision to ensure the work was done safely.

12. It is alleged that, in breach of that duty, the 2nd Defendant did not provide effective supervision. In this regard, it was the Plaintiff's unchallenged evidence that he was instructed by his foreman to do the work alone although he had never done it alone before and had only ever done it as a member of a team of workers. It was also the Plaintiff's unchallenged evidence that he had been moving the threaded screws in the manner described above for about three hours before he was injured. At no time during those three hours has there been a suggestion that the Plaintiff was told to adopt another, safer method or instructed to desist.

13. In breach of that duty too, it is Plaintiff's case that he was not provided with a safe system to move the threaded screws. He was provided with no mechanical lifting device or hoist, he was given no manual assistance nor even was there scaffolding in place to afford extra protection and balance. He was left to climb up the face of the formwork wall between the two platforms having only the horizontal aluminum tracks available to stand on or to hold which was not a safe and/or suitable means of access.

14. The pleadings further founded the 2nd Defendant's liability on breach of statutory duty; namely, Section 6A of the Factory and Industrial Undertakings Ordinance, Cap 59, which holds that the employer on any construction site has the duty to ensure, so far as is reasonably practicable, the health and safety of all its employees on that site, such duty to include the duty to provide a safe working environment. Breach of an implied term of employment was also pleaded. However, counsel for the Plaintiff accepted that these did not take the matter further and essentially based the Plaintiff's claim against 2nd Defendant on a breach of the common law duty of care.

2nd Defendant's defence.

15. Leaving aside for the moment the question of contributory negligence, the defence of the 2nd Defendant is contained in paragraphs 9 and 10 of the Plea. These paragraphs read as follows -

"9. Prior to the accident, since the month of August 1989 when the Second Defendant commenced work on the said site, the Plaintiff has observed the manner of lifting the metal frames adopted by the foreman Mr Chan by other workers on the site.

10. In the premises, the Plaintiff knew or ought to have known that it was not safe to lift metal frames or continue to lift them without having followed the appropriate steps and by so doing he impliedly consented to run the risk of injury arising therefrom."

16. No evidence, however, was called on behalf of the 2nd Defendant to state what "manner of lifting the metal frames" had been adopted by the foreman and/or other workers on site. Other than the Plaintiff's own evidence, therefore, that earlier he had witnessed and/or been part of teams of workers, working in co-operation with each other, manually moving the threaded screws from one level to another, there has been no evidence as to what "appropriate steps", if any, the foreman adopted for one person only to move those screws. There has been no evidence to suggest the availability of ladders, hoists, harnesses, cranes or other devices to enable the screws to be lifted without risk of injury. There has been no evidence to suggest that on the day in question 2nd Defendant provided other workers to assist Plaintiff or gave to Plaintiff specific instructions as to how the screws were to be moved. In short, there has been no evidence whatsoever as to the "appropriate steps" that Plaintiff should have followed.

17. With no evidence as to the alleged "appropriate steps" that Plaintiff should have taken, there can be no merit in the defence that his neglect to take such steps meant that he impliedly consented to run the risk of injury arising therefrom. The only evidence before this Court was that, essentially, Plaintiff was simply told to get on with it and left to his own devices. In any event, the maxim volenti non fit injuria, in the case of master and servant, is to be applied with extreme caution and, per Goddard L.J. in Bowater v. Rowley Regis [1944] KB 476, is hardly ever applicable where the act to which the servant is said to be volens arises out of his ordinary duties.

18. What then of the further and alternative defence that the accident was caused by Plaintiff's contributory negligence? Paragraph 11 of the Plea lists the particulars of the alleged contributory negligence.

19. Item (a) states that Plaintiff lifted an excessive number of threaded screws when he ought to have known that it was not safe to do so. The only evidence on this issue, however, came from Plaintiff himself who estimated that the load he carried weighed about 4 kilograms, hardly an onerous burden for a robust construction worker. There was no evidence that it was the excessive weight which caused or was a material factor in the injury. It was rather the awkward manner in which Plaintiff was forced to convey and put down his weight.

20. Item (b) states that Plaintiff lifted the screws to a level higher than 1.8 metres "as instructed". But, standing on its own, without amplification, this item is so vague as to be meaningless.

21. Item (c) states that Plaintiff failed to lift the screws with both hands. In the light of the evidence, however, if he had at the crucial time been using both hands, he would have lost his hold on the wall. The result would have been a fall and the probability of far graver injury.

22. Item (d) in the list states that Plaintiff failed to heed the manner of lifting the threaded screws adopted by the foreman. But, as I have said, there was no evidence as to what that manner was, if it existed at all.

23. Item (e) states that he failed to seek assistance from other workers when it became necessary to do so. But the only evidence placed before the Court was that Plaintiff was instructed to move the screws on his own; that a questioning of the command would have resulted in his dismissal and that, accordingly, he did his best to get the job done, devising his own system and, for fear of losing his job, not asking for assistance.

24. Generally, in respect of the items listed in the Plea, especially in light of the evidence that Plaintiff had been moving the threaded screws to the higher platform for some time before the moment of injury, I consider the words of Lord Oaksey in General Cleaning Contractors Ltd. v. Christmas [1953] AC 180 to be relevant :

"Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a boardroom with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition."

The liability of 2nd Defendant.

25. As to the work that he was instructed to carry out and the environment in which he was forced to undertake that work, I accept the Plaintiff's evidence. While clearly he was very emotional as to the state of his health, I had no reason to doubt the veracity and accuracy of his evidence as to how he sustained his injury. In the absence of proper instructions, mechanical aids, scaffolding and/or manual assistance, in my judgment it is clear that Plaintiff was provided with neither a safe place nor a safe means of work. The 2nd Defendant failed in its common law duty of care to him. Its negligence has been proved.

26. I do not find that there was any contributory negligence on the part of Plaintiff. While perhaps, with the benefit of hindsight, the Plaintiff may possibly have been more prudent to carry fewer threaded screws, it must be remembered that he was in a robust trade and, in light of the fact that he had been doing the work that day for some considerable time without interference from his employer, the dangers would have been blurred by repetition.

27. Against 2nd Defendant, I find fully for the Plaintiff.

The Plaintiff's claim against 1st Defendant.

28. As I have already said, it is not disputed that at the material time the 1st Defendant was the registered contractor for the building of the Hang Seng Bank headquarters and was, therefore, the occupier of the building site. Nor is it disputed that the Plaintiff, as an employee of a sub-contractor engaged by the 1st Defendant, was a lawful visitor to the site. Section 3 of the Occupier's Liability Ordinance, Cap 314, therefore, placed on 1st Defendant the duty to take such care as in all the circumstances of the case was reasonable to see that Plaintiff was able to carry out his work safely. Section 3(4)(b) is of particular relevance. It reads as follows -

"Where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done."

29. The probabilities point to 2nd Defendant being an independent contractor, that is -

"one who undertakes to produce a given result [form work], but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand."

Performing Right Society Ltd. v Mitchell & Booker Palais de Danse Ltd [1924] 1 KB 762 at 765.

30. No contractual documents were placed before the Court to show the relationship between the two Defendants and, therefore, what obligations were or were not specified beforehand is not known.

31. The Plaintiff accepts that his orders to move the threaded screws came from 2nd Defendant's foreman. He accepts that the formwork upon which the accident happened had been built by 2nd Defendant and that the screws were for that formwork. He further accepts that the platforms set against the formwork were built by 2nd Defendant's employees. However, it is the Plaintiff's case that 1st Defendant failed to take such steps as it reasonably ought in order to satisfy itself that 2nd Defendant was a competent contractor and that the work contracted to it was done properly, that is, done in a manner which reasonably ensured the safety of those lawfully on the site to do the contracted work. To this end, Plaintiff points to the evidence that no hoists, cranes or other lifting machinery was supplied by 1st Defendant to enable materials to be conveyed safely and that 1st Defendant did not ensure that at all times proper scaffolding was erected to ensure the safety of workers. It was the Plaintiff's evidence that only about 50% of the time was scaffolding provided on the formwork, a fact which must have been noticed by the servants of 1st Defendant, the main contractor. If there had been such scaffolding, it is Plaintiff's case that he would have been better able to balance himself and may, therefore, have avoided injury.

1st Defendant's defence.

32. In resisting Plaintiff's claim, 1st Defendant joined itself with 2nd Defendant. Its grounds are those of its co-defendant. No additional grounds of defence were pleaded. No evidence whatsoever was called on behalf of 1st Defendant to show that it met its duty of care.

The liability of 1st Defendant.

33. The issue to be decided is whether, in terms of Section 3, read with subsection (4) (b), of the Occupier's Liability Ordinance, the 1st Defendant discharged the duty to take such care as in all the circumstances of the case was reasonable to satisfy itself that, in providing a safe working place and method of work, 2nd Defendant was a competent contractor and was discharging its duties properly.

34. As I have said, no evidence was called by 1st Defendant. On plaintiff's evidence, I am satisfied that the provision of scaffolding on the formwork was at best haphazard. The lack of scaffolding would have been patent. The lack of lifting equipment would have been equally patent. Nothing has been placed before me to show that 1st Defendant took any steps to ensure that its sub-contractor was carrying out its work in a safe and reasonable manner. I am satisfied that 1st Defendant too is liable.

35. As with 2nd Defendant, I find no contributory negligence on the part of Plaintiff.

Plaintiff's injuries.

36. By the time Plaintiff had climbed down from the formwork, he found that his back pain was so severe that he had difficulty in moving. He went to the Casualty Department of the Tang Shiu Kin Hospital where he received treatment for what was diagnosed then to be a sprained back. The pain in the back remained and a few weeks later he was admitted to hospital so that a myelographic examination could be conducted. Regrettably, it was not successful. Thereafter, with a diagnosis of persistent low back pain, Plaintiff was seen on a regular basis for check-ups and for physiotherapy and hydrotherapy. Any improvement, however, appears to have been temporary.

37. Dr David Lee, an orthopedic surgeon and specialist in back and spinal injuries, first saw Plaintiff in October 1991. Thereafter, in March 1996, he conducted a detailed examination. It was Dr Lee's evidence that the Plaintiff's condition was similar on both occasions; that, in his professional opinion, there had not been any worsening of the condition physically although psychologically the same could not be said.

38. As to causation of the injuries, it was his opinion that they could well have occurred in the manner described by Plaintiff; that the injuries were compatible with the accident that Plaintiff related. Even though there may have been some premature degenerative changes in Plaintiff's back, this, he said, would have been "a-symptomatic" and Plaintiff could have worked well without noticing such changes. Dr Lee said that he had seen men over sixty who had such degenerative changes still working without realizing that there was any such degeneration. In short, it was his evidence that it was the accident that caused the injuries and any degeneration to the back would have done nothing more than make Plaintiff "slightly more" liable to the injury than would otherwise be the case.

39. In his report dated 19th March 1996, Dr Lee listed the Plaintiff's complaints as follows -

1. The low back pain is getting worse than 3-4 years ago, the pain is sharper and it lasts longer.

2. He has been on analgesics for [such] a long period of time that he is now suffering from stomach ache and constipation.

3. His left leg is very weak and on cold, damp days he would have pain in his left leg.

40. Dr Lee called for an MRI scan and from that scan was able to diagnose with certainty that Plaintiff had disc protrusions of L2-3 and L4-5 and that prolapsed disc material was impinging on the nerve roots. As he put it in his report -

"There is no doubt he is suffering from the condition of slipped discs, especially at L4-5 level, there is evidence that the left side nerve roots were impinged by the prolapsed disc material."

41. In the course of his testimony, Dr Lee accepted that Plaintiff suffered a fairly high degree of pain. There would be, he said, good days and bad days and periods of time when there would be exacerbation of his condition. He said that Plaintiff had to be on painkillers on a regular basis. These analgesics lessened the pain but did not remove it entirely. Just as Plaintiff had complained, the analgesics would have caused stomach problems.

42. On examination, Dr Lee noted that Plaintiff walked with both knees bending to 20-30. He walked very slowly and deliberately and had difficulty getting up on the examination couch. He also had difficulty lying flat on his back. When the Plaintiff stood, Dr Lee was able to note that he had a mild lumbar scoliosis convexed to the right with some spasm of the sacro spinalis muscle. He was also able to note that his lumbar movements, because of the pain involved, were highly restricted.

43. Part of Dr Lee's examination consisted of asking Plaintiff, when seated on the couch, to keep his legs straight and lift them. In this regard, he noted as follows -

"Right side is 30; starts to shake and holding his both feet seems he is suffering from very severe pain;

Left side is 20; starts to have the same appearance, he made a very strong resistance to let me to lift the leg further up."

In respect of muscle power, he reported -

"He could not cock up the left great toe and the left forefoot that the left extensor hallucis longus and dorsiflexors of ankle are very weak."

44. As I have said, it was Dr Lee's firm diagnosis that Plaintiff was suffering from slipped discs, especially at L4-5 level and that there was evidence that the prolapsed disc material was impinging on nerve roots. However, he had no doubt that Plaintiff's purely organic symptoms were not as bad as he made out and that, after living with the discomfort of his condition for over six years, his symptoms were worsened by a 'psychological overlay'; that is, a weakness of mind which made Plaintiff believe his condition was worse than it really was. This, he said, was not uncommon. In this regard, he reported as follows -

"Nevertheless, on the clinical appearance I have no doubt that Mr Lai [Plaintiff] is exaggerating his symptoms. His gait, his difficulty on climbing onto the examination couch and the strong reaction on straight leg lifting, even on examining his muscle power he was trying to pretend the amount of muscle spasm over his low back and there is no marked muscle wasting can be detected over his left lower limb and by the MRI study, there is only very mild protrusion of L4-5 with the suspicion of impingement of the nerve root, therefore his clinical appearance does not have a strong organic basis. This is very common to happen in people suffered from a lumbar injury due to an industrial accident, especially after 5-6 years, they tend to develop to have some psychological condition and the symptoms are worsened by the psychological overlay."

45. Although Dr Lee was of the opinion that Plaintiff was physically capable of undertaking sedentary work such as a "watchman or information officer", he did accept that from time to time Plaintiff would suffer exacerbation of his symptoms which could not necessarily always be controlled. When this occurred, it would result in Plaintiff having to take time off work which could, of course, place that work in jeopardy.

The possibility of a spinal fusion operation.

46. During the course of his testimony, Dr Lee indicated that, back in 1991 when he first examined Plaintiff for the purposes of his court action, he believed him then to be a good candidate for a spinal fusion operation; he was that much younger and he was fit. If such major surgery had taken place, it was his opinion that Plaintiff would have stood an excellent chance of making a near full recovery, certainly sufficient for him to return to work on a building site. However, he went on to say that today, with Plaintiff approaching his 48th birthday and after so many years of discomfort, whether he remained a good candidate for such an operation was problematical and he would have to conduct a further full examination and also assess the Plaintiff's willingness to undergo the surgery before he could make any recommendation. The success of such surgery depended to a material degree on the patient's willingness to undergo the procedure linked with the required determination to endure the rehabilitation.

47. From this, the argument arose that Plaintiff had failed to mitigate his damages; that a spinal fusion operation was an obvious choice and that it could have healed him. In my judgment, however, having had the benefit of further submissions from both counsel, I find no force in the argument. I say so for the following reasons -

a. While Dr Lee may have believed Plaintiff to be a good candidate for the operation back in 1991 and believes he must have told Plaintiff this, Dr Lee was not Plaintiff's doctor. At that time Plaintiff was seeing doctors at the Queen Elizabeth Hospital and there is no suggestion that any doctor there (or any other doctor who attempted to assist Plaintiff in his recovery) recommended the surgery. Indeed, the only evidence on that subject came from Dr Lee who stated that, to his knowledge, the Government hospitals did not normally recommend the procedure, especially having regard to the high cost involved and the lengthy period of rehabilitation. In such circumstances, in my judgment, Plaintiff himself could not be expected to actively pursue the option. As was said in Marcroft v. Scruttons Ltd [1954] Lloyd's List Law reports CA 395 :

"A man who is in an anxiety state may have difficulty in making up his mind, but on a question as to the treatment which he should have his mind is, or ought to be, made up for him by his own medical advisers. That is one of the purposes of having medical advisers. The patient would not know what he ought to do; the patient takes medical advice, and the patient ought to be guided by his medical advisers."

b. There is no suggestion that, in the absence of a Government doctor's recommendation, even if he wished to do so, Plaintiff had the financial means to seek out the services of a private surgeon. He had no savings of note, he was a working man who, because of his injuries, was unemployed.

c. The alleged failure of the Plaintiff to act reasonably to mitigate his damages was never pleaded by the Defendants. If it had been so pleaded, the case may well have proceeded on a different basis; for example, there would have been nothing to prevent the Defendants having their own medical expert examine Plaintiff with a view to assessing the feasibility of an operation. This was not done.

48. In the circumstances, I do not intend to make any reduction in the damages due to Plaintiff by reason of any failure to act reasonably to mitigate his loss.

Pain, suffering and loss of amenities.

49. Plaintiff appeared to me to be utterly defeated by his injuries : downcast, miserable, fragile. If one accepts his evidence, he is now a near cripple. I do not ignore Dr Lee's evidence that Plaintiff's physical injuries have now become psychologically overlaid so that the extent of his disability has become exaggerated in his own mind. Even so, in giving evidence, I am satisfied that he painted as bleak a picture as possible; in short, that there was a degree of knowing exaggeration.

50. However, I do accept that Plaintiff's injuries are composite, both physical and psychological and that, together, they have materially reduced his mode of life. As I have said in more detail earlier, he has slipped discs with the disc material impinging on his nerve roots. He has chronic lower back pain, sciatica, weakness in one leg and his lumbar movements are materially restricted.

51. I accept that he is unable to be as active as a father and husband as he has been before the injury. He used to like to take the family out at weekends, he said, but, because of his pain, he no longer has the desire to do so. His sexual relations with his wife have suffered; he can no longer enjoy outdoor activities such as swimming or basketball. His general mobility is materially reduced and, if he tries to live anywhere near a normal life, he must expect periodic exacerbation of his condition which may even force him to bed for periods of time.

52. In 1989 Plaintiff had to spend approximately two weeks in hospital. He has had prolonged physiotherapy and hydrotherapy. Since the date of his injury he has had to take painkillers on a regular basis and these have complicated his ill-health. At best, in the absence of major surgery which is itself problematical, he must expect to live with a chronic condition of lower back pain.

53. In my judgment, Plaintiff's disability falls into the bottom end of a "serious injury" as that term is described in Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657. I assess his damage under the heading of pain, suffering and loss of amenities at $400,000.

Past loss of earnings.

54. It is not disputed that prior to his accident on 1st September 1989, Plaintiff was earning $350 per day as a formwork carpenter. While Plaintiff's specific trade is not listed in the statistics given to me by counsel, as at September 1996, the average daily wage of a carpenter engaged on Government construction contracts was $809 while that of a concretor was $741. I am satisfied that Plaintiff's work was more skilled than that of a concretor but less than that of a carpenter and joiner. It would be fair to set his daily wage as the difference between the two, that is $775. The median income would, therefore, be $562 per day or, on a 26 day working month, $14,612.

55. The period of loss (calculated from 1st October 1989 to 31st January 1997) is 88 months which makes for a past loss of $1,285,856. From this must be deducted an amount of $1,500 actually earned which leaves a figure of $1,284,356.

56. It has been argued by the Defendants that Plaintiff was, from September 1991, capable of working in the more sedentary field of a watchman or similar and that an appropriate deduction should be made in this regard. I do not intend to do so. Plaintiff testified that he attempted on a couple of occasions to go back to work in the construction field but each time, after just a few hours, he realized he could not cope physically with the work. He then attempted to get work as a watchman but, with an obvious disability which he had to disclose, he was denied employment in that field on 4 or 5 occasions. I have no cause to disbelieve his evidence in this regard. I am satisfied that he made genuine attempts to find work. Of course, with the concerns of this case (hopefully) behind him and subject to reasonable perseverance, I do not say that he should not be able to find some form of sedentary work in the future and I intend to calculate that factor into Plaintiff's compensation for future loss.

Future loss of earnings.

57. Plaintiff was born on 29th July 1948 which makes him at this time 48 years of age. Assuming a retirement age of 60, which I consider reasonable for somebody in the construction industry, this would, except for his disability, have given him an anticipated working life of another 12 years. Dr Lee assessed his permanent disability to be in the region of 25% while he estimated his loss of earning capacity to be approximately 50%. Even taking into account his psychological problems, as I have just said, with this case behind him and with some reasonable perseverance, I am satisfied that Plaintiff can seek out and find some form of sedentary occupation even if, because of Plaintiff's lack of education, it is menial in nature. In my judgment, it would be fair to assess the remuneration for such work at $5,000 per month.

58. The multiplicand, therefore, would be his present notional income, working 26 days per month, a figure of $20,150, less $5,000 : a sum of $15,150. Assessing the multiplier is, of course, very much a matter of intuition based on past cases and all the circumstances of the matter. I consider 8 to be appropriate. The award, therefore, works as follows : $15,150 X 12 X 8 = $1,454,400.

Risk on the labour market.

59. In assessing compensation for future loss of earnings, I cannot ignore Dr Lee's uncontested evidence that the Plaintiff will, from time to time, if he attempts to lead anything like a normal life, suffer exacerbation of his condition. This exacerbation may well mean time off work and bed rest. This in turn could well lead to loss of employment and delay in finding a new job. I will therefore award one years salary at what I have assessed Plaintiff is capable of earning in his future employment : namely 12 X$5,000 = $60,000.

Special damages.

60. These have been agreed at $26,934.

Employees compensation.

61. Plaintiff has received employees compensation in the sum of $335,490 which must be deducted from the sum awarded.

Summary.

62. There will, therefore, be judgment for the Plaintiff against both Defendants jointly and severally, together with interest detailed below, as follows :

PSLA Pre-trial loss of earnings for 88 months Loss of future earnings Provision for unemployment risk Special damages Sub-total Less employees compensation of $335,490 Total:

$400,000 $1,284,356 $1,454,400 $60,000 $26,934 $3,225,690 $2,890,200

Interest.

63. Interest at 2% per annum for pain, suffering and loss of amenities is awarded from the date of the writ until the date of this judgment.

64. Interest at 5.75% on agreed special damages and pre-trial loss of earnings is awarded from the date of Plaintiff's injury to the date of this judgment.

Costs.

65. There shall be a costs order nisi in favour of the Plaintiff against both Defendants.

Liberty to apply.

66. There shall be liberty to apply.