MAK KAM BO v. EVER GAIN ENGINEERING LTD AND ANOTHER

HCPI 37/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.37 OF 2004

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J U D G M E N T

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1. The plaintiff, Mr Mak, was a carpenter employed by the 1^st defendant (Ever Gain).  On 21 February 2001, he was working at a decoration site in a building of the Architectural Services Department in Hung Hom for which the 2^nd defendant (Hip Hing) was the main contractor.  He was cutting plywood into laths with a circular saw.  He got his right hand in the saw, and it was seriously injured, so that he can no longer work as a carpenter.  Now he claims damages against both defendants for negligence, breach of contract of employment, and breach of statutory duties.

2. Mr Mak’s pleaded case is that while he was pushing a plank of wood into the circular saw, his right foot stepped on to an iron pipe on the floor.  He fell to his left, towards a heap of carpets, but managed to move his body forwards to avoid falling and so lost his balance and fell forward so that the saw cut his hand.

3. He accordingly says that the defendants were negligent and in breach of implied terms of employment in that they failed to maintain clear spaces for operating the saw, failed to keep the floor clear and allowed too many people to work in a limited space.  They were also in breach of statutory duties.

4. He also pleads, as part of his particulars of negligence, failure to provide properly functioning equipment, namely the guard on the saw and failure to provide a push stick, though he does not specify how these failures caused the accident.

5. The defendants put Mr Mak to strict proof and plead contributory negligence.  They say that he failed to handle the saw safely, negligently stepped on the pipe and fell down carelessly, failed to keep the vicinity of his working area clear and clean, failed to attend to whether the area was free of obstacles and safe, and that when he fell, he failed to avoid moving towards the saw, as he should have known that it was safer to fall towards the carpets.

6. The only evidence as to how the accident came about comes from Mr Mak himself.  His two witnesses, Ever Gain’s carpentry supervisor, Mr Wong Kui Pong, and another carpenter, Mr Yung Man Hei, who took over the job after Mr Mak was injured, are concerned mainly with evidence of defects in the guard of the saw.  They were not present when the accident happened.

7. The defendant’s witness, Mr Tsang Chiu Ming, was Hip Hing’s safety officer.  He was not there either.  But the most important part of his evidence appears in his second witness statement.  He says that on the day after the accident, Mr Mak told him that the accident had happened when the piece of wood he was sawing jammed on a knot.  He pushed it too hard, and so his hand went into the saw.

Issues on Liability

8. Mr Mak says that he had to work in unsafe conditions, with rubbish on the floor, and so tripped on a piece of that rubbish, lost his balance and, in trying to avoid falling, put his hand into the saw.  If that is what happened, he was required to work in an unsafe environment, and the defendants cannot escape liability but there may be a question of his own contributory negligence.

9. There is evidence that the guard of the saw was defective.  Much of the trial was spent on this, though there is no pleading of how the defect, if there was one, caused the accident.  In brief, Mr Mak and his witnesses all say that when the guard went up to let the wood go under it into the saw blade, sometimes it did not go down. Mr Tsang says that he examined the guard after the accident, and when he tried it, it did go down.  There was nothing wrong with it.

10. I have had the benefit of seeing photographs of what Mr Mak and his witnesses say is the guard concerned as well as the evidence of Mr Yung, who described what he found wrong with the guard, and photographs of a similar guard which he produced.  I have also been shown a videotape of an operator using a similar saw and guard, and held a view of another similar saw and guard, with counsel and the witnesses, at a nearby work site of Hip Hing on the first day of the trial.  In simple terms the guard is a cover attached to a riving knife which lies behind the saw blade and pivoted so that its front end is held down by gravity on to the bench, or on to the wood which is pushed under the guard so that the saw blade can cut it.

11. I take the view that the defective guard point is a red herring.  Whether or not the defect described by the witnesses existed would make no difference to how the accident happened.  I will explain why when I evaluate the evidence.  However, the emphasis placed on the alleged defect may affect credibility.

12. Mr Mak has to prove his case on the balance of probabilities.  So the question is whether I can be satisfied on the balance of probabilities that the accident happened as he says in the face of any other evidence, such as that of Mr Tsang that Mr Mak made a report that it happened in another way.  As to contributory negligence, the question is whether, if the accident happened as he says, some failure on his own part to take reasonable care of himself contributed to it.

Evidence

13. Mr Mak says that it was his first day to work at the Hung Hom site.  He found it very messy, with a lot of things such as air conditioning ducts and carpets scattered around, and a lot of different workers working there.  He telephoned the supervisor, Mr Wong, who had told him to work there, and asked that someone be sent to clean up; but Mr Wong told him just to get on with his work.  He worked for about 20 minutes, cutting plywood into laths.  The plywood pieces were about four to five feet long, four to six inches wide, and 0.6 inches thick and he was cutting them into two-inch wide laths.

14. He says that his left foot stood on a metal object and he lost his balance.  At this point, his hands were on the wood, about eight to ten inches from the saw.  When he lost his balance his hand and the wood just ran into the saw.  The wood kept going and the guard was lifted up three to four inches and it could not come down.

15. Under cross-examination, Mr Mak maintained that the area round the saw bench was cluttered with odds and ends, all over the place.  He had had to clear the space around his feet by sliding his feet.  Asked whether he had looked for a broom to sweep up the area, he said that there was none, but later admitted that he had not tried to find one.  Nor had he picked anything up off the floor with his hands.

16. He said that he had not been provided with a push stick, but was supposed to cut one for himself.  He would not cut one from plywood; it would break.  But he had a hammer whose handle he could use as a push stick.  He demonstrated the action of pushing the wood through and then said that his hands would be about four inches from the guard.  The saw would be spinning, and that made the force that pushed the wood forward; and he also pushed it.  But he had to put his hands on the wood to stop it from bouncing up.

17. Later, Mr Mak said that when the accident happened, about six to seven inches of the wood remained uncut.  He was using two hands to push and hold it.  He had not used the hammer to push the wood, because there would still be enough force to make the cover bounce a bit.  Normally he would only use the hammer when the wood was about three inches from the end.

18. In re-examination he said that he would stand on the left of the saw.  His left hand would be holding the plank and his right pressing it down to stop it bouncing up.  His left hand would be about 13 inches from the front end of the plank, and his right would be six to seven inches from the saw.

19. It was suggested to Mr Mak that the accident happened as it had been reported on the Form 2, i.e. that he had pushed too hard.  This he denied.  He also denied having spoken to Mr Tsang, the safety officer, about the accident.  No one had come to take any statement from him, whether from the Labour Department or the construction department.  What appeared on the form was a fabrication.

20. Mr Wong Kui Pong gave evidence that Mr Mak had indeed told him that the area round the saw was messy, and had asked for someone to come and clean it up.  He had told Mr Mak to get on with his work.  He was told of the accident by telephone while he was in Mong Kok.  He went to the scene, cleaned up the blood and took some photographs.  Another worker, Mak Kwok Ming used the saw on the same day.  Also Mr Yung was brought in from another site to take over the work that Mr Mak had been doing.

21. According to Mr Wong, there was something wrong with the saw guard.  Sometimes it went up and stuck there.  It would not come down.  He had had the guard changed; he had bought a new guard, in Mong Kok, after being told of the accident.  It appears that Mr Yung came and changed the guard in the morning and one Mak Kwok Hei used it after that.  Also the guard had been changed before the safety officer arrived.

22. Mr Yung gave evidence about the defects in the saw guard also.  According to him, he was told to go to the site and take over the work on the following day, not the same day.  He had then checked the guard and found that it sometimes stuck.  He told Mr Wong about this; and Mr Wong gave him a new guard which he fitted in place of the old one.

23. In the second of the two witness statements which he adopted, Mr Yung had said that he was told of the accident on the same day, and arrived at the site; and thirty minutes later, Mr Tsang the safety officer arrived.  But in oral evidence he insisted that he had only arrived the next day.

24. Mr Tsang’s evidence was that he heard of the accident on the same day in the morning and went to the site at about lunch time.  By that time Mr Mak had gone to hospital.  He had tried out the guard and found nothing wrong with it.  He agreed that when he was there, there were a lots of ends scattered about; but he did not agree that it was messy.

25. Mr Tsang said that Mr Mak had come to his office the next day, 22 February 2001, after he had asked Mr Wong to tell Mr Mak to come in. Mr Mak’s hand was bandaged but there appeared to be nothing wrong with him.  Mr Mak had told him how the accident happened; the wood had stuck and he had pushed it.  He asked how it happened, and Mr Mak said that there was a knob in the wood.  So, he had written his preliminary report for Hip Hing, on a Hip Hing report form.  This read

“	Circumstance
	Mr Mak’s right hand was injured by a circular saw bench’s blade as he was trying to cut off a piece of board actively which was stuck
	Cause of the Accident
	Excessive force was applied to cut a piece of wood board”.

26. Mr Tsang had made a witness statement dated 23 June 2004.  He adopted it as evidence.  There was nothing in this witness statement about this preliminary report form, or any meeting with Mr Mak.  These matters only appeared in his supplementary statement dated 4 October 2005 which he also adopted.

27. Mr Tsang was asked why this matter was not in his first statement.  He said that when he first met the lawyer who took his statement, the lawyer had got the report, but he was not asked about it, and so he did not include the matter in the first statement.  It appeared in the second statement because the lawyer asked him how the wood got stuck, and he explained.

28. It was suggested to Mr Tsang that Mr Mak could not have come to see him on 22 February 2001 because he was in hospital and not discharged until 8 March 2001.  He insisted that Mr Mak had come to his office and pointed to the fact that sometimes patients admitted to hospital can have home leave.

Evaluation

29. It is clear from Mr Mak’s description of the accident that it happened when his right hand, which was holding down and pushing forward the wood, knocked up the front of the guard and went into the saw blade.  The wound itself, consisting of severe damage to the second metatarsal and a laceration to the back of the hand, is consistent with the hand having come into contact with the saw in this way.

30. For this reason I have largely disregarded the evidence about the alleged defect in the guard, and I have not described in detail how the guard works.  If the hand knocked the guard up, whether there was something to make it stick in the up position would make no difference; the hand was under the guard and contacting the saw.  There was some suggestion, but nothing to support it, that the guard might have been fixed to stay up; but even if it had been, that would have made no difference because by the nature of its construction the guard cannot stop something being pushed into the saw from its front; it must lift up, to let the wood in at the front.

31. In fact, the first mention of the defective guard appears in Mr Mak’s first statement, when he says that after the accident, Mr Yung came and told him of the defect.  From cross-examination, it appears that he noticed no defect in the 20 minutes he worked before the accident.

32. I suspect that what has happened is that the other witnesses, who were not present, have decided, because of some real or imagined defect in the guard, that it must have caused the accident, and so have given the evidence which they have.  In fact, their evidence is not very satisfactory.  There are obvious discrepancies concerning when Mr Yung went to use the saw, when the new guard was fitted and so on.  And indeed, given the way the guard was made, just how it was supposed to jam intermittently is far from clear.  The front cover was pivoted on the riving knife with a smooth bolt; if it was able to go up, gravity would automatically bring it down.  This would apply even if someone had replaced the bolt with one threaded along its full length, so long as the nut was not tightened.  If it was tightened, of course the cover could be jammed; but it would not jam intermittently.  So the whole story of an intermittently jamming guard is unlikely.

33. In any event, none of this really matters.  These witnesses cannot speak to what actually happened, and if they are telling lies about the defective guard, what they say is irrelevant anyway.  So their evidence can be disregarded.

34. Mr Tsang agrees, at least to some extent that the site was messy.  It did of course have a lot of large items, like air conditioning ducts lying about.  That can be seen from the photographs.  But these would not have affected Mr Mak.  What would have affected him was small debris lying on the floor.  I found Mr Mak a straightforward and believable witness, and Mr Tsang’s evidence on this point provides some support for him.  I therefore accept that there was a lot of small rubbish or debris lying on the floor, and that he tried to clear it from around his work area by kicking it out of the way.

35. There are two possible causes for Mr Mak’s hand having gone forwards into the saw blade; that Mr Mak tripped on something as he says, or that he caused the accident by pushing the wood too hard, to overcome a jam caused by a knot.

36. As I have indicated, the evidence that the latter is what he told Mr Tsang only appeared in the Mr Tsang’s very recent supplementary witness statement.  Mr Tsang’s explanation — “the solicitor did not ask me” — is a common one, in this sort of situation and it is rarely credible.  The solicitor has to know what to ask the witness, and he will not normally know what to ask, or if anything needs to be asked, until the witness has given an account in his own words.  If Mr Mak had said that the accident happened because he pushed too hard, that would surely have been the first thing in any safety officer’s mind and the first thing he would tell his employer’s solicitor when interviewed with a view to making a statement.  And if, as Mr Tsang says, the solicitor had the form when the first statement was made, it would be the first thing in the solicitor’s mind as well.  So Mr Tsang’s reasons for not saying this to the solicitor are unlikely to be valid.

37. As to whether Mr Mak saw Mr Tsang on the day after the accident, I find this unlikely also.  It is true that the hospital medical does not specifically say that Mr Mak was kept in the ward, and not allowed home leave or anything of that sort, between the emergency operation on the day of the accident and the bone graft operation four days later.  It only says that he was admitted on 21 February 2001 and discharged on 8 March 2001.  But the injury was quite severe, and it is difficult to imagine why a patient who had had one operation and was waiting for another would have wanted to go out, even if the hospital had been prepared to let him out.

38. In the circumstances, I do not believe Mr Tsang’s evidence on this matter.  I believe Mr Mak’s account of how the accident happened.  I am therefore satisfied that the accident came about because of the negligence and breach of statutory duties pleaded.  In particular he had to work in an unsafe environment and of course Regulation 6 of the Factories and Industrial Undertakings (Woodworking Machinery) Regulations requires that the floor surrounding a woodworking machine is to be kept, as far as practicable, clear of chips and other loose material.

Contributory Negligence

39. Mr Mak was required to work in a messy environment, which on his own evidence was something he needed to complain about.  I do not think the presence of air-conditioning ducts, carpets and so on would have affected him, but small debris on the floor would.  I do not know if he could have found a broom to sweep it out of the way; but he did not try.  There must, I think, be some fault on his part.

40. It is also suggested that he should have been using his hammer to push the wood.  Of course a sensible carpenter will use some kind of push stick.  No doubt that is why the Regulations provide (at Regulation 11) that push sticks be provided.  On the video recording, the operator used one, when the length of wood still to be cut was something like 12 inches, though he was cutting rather heavier planking than that cut by Mr Mak.

41. No push stick was provided, but that did not contribute to the cause of the accident, because Mr Mak did have a hammer, which he could have used.  I have not been told the direction of rotation of the saw.  I would have expected the blade to rotate so that the teeth were coming towards the end of the wood to be cut, i.e. towards the operator, because if the teeth were going the other way they would tend to lift the end of the wood.  But the blade probably was rotating the other way; because Mr Mak says that the wood tended to lift, so he had he to hold it down, and also that the motion of the saw blade tended to pull the wood forward.

42. I do not know whether a wood-cutting circular saw should be fixed so as to rotate towards or away from the operator; there is no evidence on that.  Maybe it was rotating the wrong way; and if it was, that would no doubt be a defect and the fault of whoever set it up.  But there is nothing to contradict Mr Mak’s evidence that he had to hold the wood down, and I accept that he did.  In those circumstances, I can accept that he would not have been able to use a hammer handle or other push stick until the wood was nearly cut through; particularly since the wood was relatively light plywood.  So I do not think he can be regarded as negligent in letting his hands get too close to the saw blade.

43. There is nothing in the suggestion that Mr Mak should have let himself fall on the carpets.  When one loses balance, the reflex, in the agony of the moment, is to save oneself.  Mr Mak cannot be blamed for doing that.

Quantum

44. Mr Mak was born on 5 August 1953.  He was 47 years old at the date of the accident and 52 at the date of trial.

45. The hospital reports show that Mr Mak suffered a six cm laceration to the back of the right hand with a fracture of the second metacarpal head.  Emergency debridement and extensor tendon repair was done on the same day.  A second stage operation of osteochondral autograft head of right second metacarpal, using the head of the third metatarsal of the left foot was done on 26 February 2002.  He was discharged on 8 March 2002 and referred for occupational therapy and physiotherapy.  Thereafter he was followed up at the specialist clinic until 21 June 2002 when the screws were removed after the bone graft had healed.  He had 83 sessions of occupational therapy and several months of physiotherapy.

46. He presented at the North District Hospital on 30 July 2002 with pigmentation, pain and swelling of the injured finger.  Biopsy was arranged but he did not undergo it.  He attended the out-patient department several times and was referred to the pain clinic at Queen Elizabeth Hospital where he is still undergoing treatment.

47. Mr Mak attended a private doctor, Dr Ho, on 8 August 2002 for right index finger pain and swelling.  Examination showed stiffness in the right index finger and the skin was dark and cold, and there was no movement at the joints.

48. He was also referred to a psychiatrist, Dr Lai, in March 2003.  He was diagnosed as suffering from post-traumatic stress disorder and depression.

49. He was assessed by the Employees’ Compensation Board on 2 January 2002 to have suffered 6% loss of earning capacity, and this was revised on 4 September 2002 to 8%.  He was signed off sick leave by the treating orthopaedic doctors after that assessment, but apparently obtained sick leave certificates thereafter from the private doctor or the psychiatrist.

50. Mr Mak said that he was still undergoing treatment at the pain clinic and the psychiatric clinic, with appointments for follow-up after the date of trial.  He said that he was now unable to lift more than a catty with his right hand.  He had no strength in the other fingers apart from the index.  In effect he could hardly use the hand.  He was in receipt of a disability allowance, at the date of the trial.

51. Mr Mak was examined by two orthopaedic experts, Dr Richard K.M. Poon, instructed by his own solicitors and Dr Chun Siu Yeung for the defendants.  They carried out a joint examination in May 2004.  Both experts found limitation in the active and passive motions of the metacarpo-phalangeal joint and the proximal and distal interphalangeal joints of the index finger.  Indeed, in court it was possible to see that Mr Mak could not bend the finger; it stuck out when he made a fist; and it was discoloured, particularly at the metacarpo-phalangeal joint.

52. While Mr Mak claimed to the experts, and still claims a considerable restriction in activities because he cannot do much with his right hand, the experts found that the only thing he should not be able to do was to use chopsticks.  Dr Poon said that his inability or refusal to use the other three fingers of the right hand suggested some psychological overlay and or conscious or unconscious exaggeration of disability, probably related to the post-traumatic depression.  Dr Chun went into considerable detail; he said that there was no muscle wasting in the arm, which was inconsistent with the patient’s report of being unable to use, and not using the right hand.  Indeed the arm strength indicated that the hand must have been actively used.  There was voluntary restriction of motion in bending the index finger, and that was an exaggeration.  X-rays showed bone changes compatible with the post-transplantation surgery but no osteoporosis which was to be expected if the hand had been unused, as the patient said, for three years.

53. As to the left foot, Dr Poon found some sensory deficit.  Mr Mak was complaining of recurrent numbness and some soreness after walking for half an hour, also pain on climbing a ladder.  Dr Chun said that the numbness, being intermittent, could not be traced to a nerve lesion and was therefore not structural.

54. Dr Poon thought that Mr Mak would face a lot of difficulties in returning to his pre-accident job.  The finger would get in the way of a lot of his job routines.  He would find it difficult to find other jobs less dependent on right hand dexterity, because he is illiterate.  Dr Chun thought he could work as a carpentry supervisor but there may be some reduction of work efficiency and some hands-on work may be restricted.

55. Dr Poon put the reasonable sick leave period at two years and Dr Chun at 18 months.

56. Mr Mak was examined by two psychiatrists, Dr Peter Ho and Dr Chung See Yuen, who saw him in September 2004.  They agreed that he was suffering from post-traumatic stress disorder in relation to the accident and also a depressive reaction in consequence of the accident.  Dr Ho thought the condition was mild to moderate, and Mr Mak had not exaggerated his symptoms.  Dr Chung thought that the condition was mild.  He pointed to some inconsistent findings, and believed that while some of the physical complaints could not be explained orthopaedically, they could not be explained psychiatrically either.  Dr Chung considered that Mr Mak was exaggerating his complaints.

57. Dr Ho thought that Mr Mak could not resume his previous job due mainly to the significant fear when exposed to cues that would remind him of the accident, as well as other psychological difficulties such as lack of concentration.  He thought psychiatric treatment in the private sector would be necessary for two years at a cost of $2,000 to $3,000 per month.  Mr Mak would need continuation of his sick leave because of the persistence of his psychiatric symptoms.

58. Dr Chung, however, thought Mr Mak should have treatment in the public sector for about a year.  While it would be difficult for him to return to the pre-accident work because of anxiety symptoms related to the power saw, noise and working environment, if his anxiety symptoms were treated, as they could be if he was motivated to overcome them, he could return to work.  He was otherwise mentally fit to work as a car-park attendant, shop assistant, watchman or the like.  He would be fit to work during psychiatric treatment.

59. The experts’ reports were adduced without oral evidence from the makers.  It is, I think, pretty clear from them, as well as Mr Mak’s own evidence that Mr Mak has continuing symptoms of pain and stiffness in the right index finger.  However, there is no orthopaedic basis for his complaints that he cannot use the other fingers of that hand.  It seems to me that he must be exaggerating his disabilities.  At the same time there is also continuing psychiatric disability which is probably the cause of such exaggeration.

60. He obviously cannot return to his pre-accident employment.  I doubt that he will be able to do so, if he can be successfully treated for his anxiety problems.  The finger is always going to get in the way of any manual work.  There is no way to hide the injury, and any prospective employer will be able to see that he will have a problem with manual work.

61. I do not see that he is likely to be employable as a carpentry supervisor, given that he is illiterate.  Indeed because of illiteracy he is always going to have difficulty in getting any but menial work.

62. As to his psychiatric condition, the fact is that he is still under treatment.  This being so, I think it more probable than not that he needs the two years’ treatment in the public sector which Dr Ho recommends, and that he should remain off work while having the treatment.

Pain, Suffering and Loss of Amenity

63. Mr Mak claims $550,000 under this head.  Mr Sakhrani, for the defendants, says that he should not have more than $250,000.  He refers to Tsang Chin Keung v. Lo Tak Kong [1996] HKLD J 70, Tsang Chung-wan v. Li Ming, [1998] HKLJ 119 and Ching Kam v. Au Wing Keung [1999] 2 HKLRD B13.

64. The orthopaedic injuries in the cases cited are arguably worse than in this case.  However, Mr Mak’s condition, while not as bad as he paints it — I do not accept that his hand is effectively useless — is sufficiently bad.  He has an index finger which will never allow him to do any kind of fine manual work, and will always get in the way of any manual work he has to do.  Further, he has psychiatric disabilities.  He is attending the psychiatric clinic for them, and he still has ongoing pain for which he still has to attend the pain clinic.  I award $450,000.

Pre-trial loss of earnings

65. Mr Mak claims that he was working 27 to 29 days a month, but this is not supported by the employer’s report which shows average monthly earnings of $17,945 per month.  Mr Cheung, counsel for Mr Mak, accepts this figure on the basis of the Inland Revenue documents.  I will take it as the pre-accident earnings figure.

66. No doubt Mr Mak should have been sufficiently recovered from his orthopaedic injuries to take up some kind of work after 18 months or two years.  The orthopaedic doctors were ready to end his sick leave in September 2002.  However, this leaves out the psychiatric problems, for which he is still undergoing treatment.  Although Dr Chung says that Mr Mak’s mental condition will improve when he returns to a job, and that prolonged sick leave is not helpful and could make the depression worse, there is an obvious difficulty in finding work, for a man with a psychiatric condition.  Although Mr Mak told Dr Poon that he was not looking for work because he did not know what work he could do, his evidence was that the Labour Department officer had asked him to work as a watchman, but later he was said to have a mental problem and did not get the job.  Further there is other evidence from Mr Mak, which appears in his first witness statement, of attempts he made to get work.

67. I accept that Mr Mak has not been able to work because of his psychiatric problems.  Therefore the pre-trial loss is total.  The period from the accident to the trial is 57 months.  The award is therefore 57 x $17,945 which is $1,022,865.

Post-trial loss of earnings

68. Mr Mak needs psychiatric treatment for two years.  That would mean a total loss of earnings for that period.  Thereafter he should be able to work in some kind of low-paid employment, earning say $5,000 or $6,000 per month.  This would give him a continuing loss of say $12,000 per month.  A multiplier of 6 should be applied.  For the first two years the loss will be $17,945 per month.  The award is 24 x $17,945, i.e. $430,680 plus $12,000 x 12 x 6, i.e. $864,000, or a total of $1,294,680.

Loss of Mandatory Provident Fund Contributions

69. At 5%, the pre-accident loss is $51,143.25 and the post-accident loss is $64,734, so the total will be rounded down to $115,877.25

Loss of Earning Capacity

70. Counsel agreed that if a post-trial loss of earnings award was considered appropriate, there should be no award for this.

Special damages

71. The medical expenses are agreed at $87,348 subject to their all being necessary and reasonable.  In the light of the medical evidence, I accept that they were.  There is a claim for travelling expenses of $29,682 which appears to be reasonable and will be allowed.  There is a claim for $42,022 for tonic food which appears to be excessive, and I have not been shown anything to support it; I will therefore allow $5,000.  The total award for special damages is $122,030.

Future medical expenses

72. I accept what Dr Ho says on this.  Mr Mak will need psychiatric and psychological treatment for two years.  I accept the figures set out in the Revised Statement of Damages and award $129,040.

ECC payment

73. ECC compensation of $395,720 has been paid, plus ECC medical expenses of $9,205 and credit must be given for these sums.

Summary

74. The final figures are as follows :

PSLA	$450,000.00
Pre-trial loss of earnings	$1,022,865.00
Post-trial loss of earnings	$1,294,680.00
Mandatory Provident Fund	$115,877.00
Special Damages	$122,030.00
Future Medical Expenses	$129,040.00
Sub-total	$3,134,492.00
Less 20% contributory	$626,898.00
Less ECC Payment	$395,720.00
Less ECC Medical expenses	$9,205.00
Total	$2,102,669.00

Judgment

75. There will be judgment for the plaintiff in the sum of $2,376,359.00.  Interest is awarded at half the judgment rate on the special damages and pre-trial loss of earnings from the date of the accident and at 2% on the general damages from the date of service of the Writ until the date of judgment; and thereafter at the judgment rate.  Costs be (nisi) to the plaintiff, to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.