LIU KING YU t/a DR LIU KING YU'S CLINIC v. HO WAI LAN JANKIE t/a GOOD-WELL SUPPLIES CO.

HCA 2632/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2632 OF 1998

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J U D G M E N T

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1. In this action, the Plaintiff claims damages for breach of agreement causing loss and damage. The agreement was a contract for sale of goods by description, the item sold and purchased being a medical instrument known as the Lasik Turbo Keratome. The Plaintiff alleges that the instrument was not reasonably fit for the purpose for which it was sold, that it was not of merchantable quality and did not correspond to the description with which it was required to conform.

2. The Plaintiff claims $352,000.00 being the agreed contract price, already paid to the Defendant for the Turbo Keratome and loss of business profits for the period from 16 December 1996 to 14 March 1997 which sum was estimated to be HK$600,600.00, together with interest and costs.

3. The facts, in the main, were not in dispute. The Plaintiff was an ophthalmologist carrying on practice in Hong Kong and the Defendant was carrying on a business trading in medical equipment in Hong Kong.

4. The parties entered into an agreement, partly oral and partly in writing on or about 14 November 1996. By that agreement, the Defendant was to supply to the Plaintiff a surgical instrument known as the Lasik Turbo Keratome (Microkeratome) for the price of $352,000.00, although Defendant claimed that in fact a substantially discounted price was paid.

5. The Plaintiff wished to use the Microkeratome in carrying out Lasik Surgery, a surgical procedure which corrects refractive errors of the human eye. Lasik is a two-step operation which requires first the cutting of a corneal flap and thereafter stromal ablation, which is a reshaping by laser of the stromal bed underneath the cornea.

6. The Microkeratome is specially designed to cut the corneal flap, the initial step in such surgery. The corneal flap is created at a pre-planned thickness, which is governed by the cutting depth of the Microkeratome head. An eximer laser is then used to ablate and reshape the stroma, so that the light can be refocused immediately on the retina and thus myopia can be corrected.

7. Before making the purchase, the Plaintiff considered two types of Microkeratome machine. One had a fixed gap in the cutting head, which means that the cut is always made at that particular thickness; the other was an adjustable Microkeratome, whereby the depth of the cut can be adjusted for each operation. The Plaintiff chose the fixed type.

8. The Plaintiff's evidence was that he had made known to the Defendant the purpose for which the Microkeratome was required and, in particular, that he wanted one with the cutting depth fixed at 150 microns. The Plaintiff contended that it was an implied condition of the sale that the Microkeratome be reasonably fit for the purpose for which it was required, that it be of merchantable quality and in particular, that it correspond to the description the Plaintiff made known to the Defendant, that the cutting head be fixed to cut at 150 microns depth.

9. The Plaintiff gained his initial M.BBS in London and obtained a fellowship in ophthalmology. He conducted research for 3 years and returned to Hong Kong in 1987 to set up as an ophthalmologist. He has been in practice, as an ophthalmologist, since then.

10. Since 1992, he had been doing an eye operation known as PRK and was therefore experienced in eximer laser ablation. In 1996, he wished to begin Lasik Surgery, an operation that had the advantages of being quicker and requiring less healing time than PRK.

11. Prior to beginning Lasik Surgery, the Plaintiff attended surgeries carrying out this procedure in Australia; he also attended, in Hong Kong a lecture by a specialist who performs surgery here, Dr Avalos.

12. The Plaintiff began Lasik Surgery on 16 December 1996, by operating on two patients, each having one eye operated on. An engineer, who was the Defendant's employee, (DW2) supervised the surgery to ensure the machine was working correctly. There were no obvious problems with the machine, but the Plaintiff was not satisfied with the accuracy of the corrections that resulted from those operations.

13. On 23 December, the Plaintiff did two further operations but again was not satisfied with results. He mentioned this to the Defendant who arranged for him to attend an eye hospital in Shenzhen on 3 January 1998, to observe operations done there.

14. The Plaintiff complained to the Defendant about the quality of the machine; the Defendant responded by providing a Certificate of Quality from the manufacturer, which certified that the machine was set at 150 microns. The manual which came with the machine also stated that the machine was set at 150 microns.

15. When around 7th to 14th January 1997 Dr Liu found that his operating results did not achieve the results that he expected and had predicted, he stopped Lasik surgery and purchased another machine, "Chiron" brand from another supplier. That machine arrived in March 1997 and thereafter Dr Liu used it to continue with Lasik surgery. When he obtained the corrective results he expected using this machine he began to suspect the accuracy of the cutting depth of his original machine.

16. The Plaintiff initially thought the inaccurate corrections might have resulted from his particular technique, but, having checked his technique against those of other operators, was satisfied that was not the cause. He then began to consider whether or not the cutting gap was accurate and raised this topic with the Defendant's engineer. According to the Plaintiff, the engineer told him that he could measure the gap for him, but that he would not do it in his presence; understandably, the Plaintiff was less than happy with this suggestion.

17. It was suggested by the defence, in what amounted to an attack on Dr Liu's expertise, that the inaccurate results were occasioned by his lack of experience in performing Lasik Surgery. I am of the view that given Dr Liu's lengthy experience as an ophthalmologist, his experience with the PRK operation and the measures he adopted to familiarize himself with the technique, that he was more than capable of predicting the results of such surgery, based on what he believed the fixed cutting depth of the Microkeratome to be.

18. Dr Liu took action to examine his suspicions. He first did this visually by comparing the machine he had with one owned and operated satisfactorily at the I-Centre. This examination indicated to him that his Microkeratome was set at a wider gap. He checked this himself by microscope. When he referred the matter to the Defendant the only suggestion made was that he return the machine to the manufacturer in America. On 12 May 1997 Dr Liu bypassed the Defendant as he considered her to be unhelpful and wrote to the manufacturer setting out his complaint.

19. The Plaintiff considered the Defendant unhelpful as, having provided the Certificate of Quality, she did not appear to take his problem seriously. According to Dr Liu he was led to believe by the Defendant's engineer that he had the means to measure the head, but said he would not do so in the Plaintiff's presence. At trial both the Defendant and her engineer denied they had equipment which enabled them to measure the cutting width of the head and the engineer denied ever telling the Plaintiff he would do so in his absence.

20. The Plaintiff said in evidence he would have been prepared to keep the Microkeratome as a spare machine if he could have been reassured it was set to the 150 microns he initially believed it to be. In cross-examination he said that by the time the SEM test was done and the gap was shown as 190 microns, rather than 150 microns, he no longer had any trust in the Defendant as agent and was not prepared to have the machine exchanged, as was eventually offered.

21. In May 1997 he measured and compared plastic film samples that he cut using his original head and a similar one he borrowed from the I-Centre, a clinic in Hong Kong. When he found that the samples showed the cutting depth to be significantly more than 150 microns, he instructed the Hong Kong Standards and Testing Centre Ltd to compare the thicknesses of the samples. The calibration test results produced, confirmed the cutting depth of the original head as significantly more than 150 microns.

22. Eventually in February 1998 Dr Liu commissioned an expert report from Safety, Accident and Failure Experts Ltd, a firm doing scientific and engineering investigation work in Hong Kong. Four sets of Microkeratome heads were compared, the objective being to measure the width of the gap between the blade tip and the body of the Microkeratome head using a scanning electron microscope (SEM).

23. The Microkeratome heads measured were those of the Plaintiff, one from the I-Centre and 2 from the 148 Vision Centre. Both Centres carried out Lasik surgery. Representatives of the I-Centre and the 148 Vision Centre attended, as well as the Defendant, Mr Hermes Ho, the Defendant's engineer and Mr Fung Shu-wah, the Defendant's solicitor. The same blade was used for each measurement and the results appeared to show a wide variance for the gap measure.

24. The report prepared by Dr Eric C. H. Lim is dated 27-2-98. As the Defendant attacked the methodology and the accuracy of the results contained in Dr Lim's report, it is necessary to consider briefly the procedure he adopted. Each Microkeratome head in turn was mounted on a clamping stage and inserted into the chamber of the Scanning Electron Microscope(SEM). The stage was tilted so that the gap was almost perpendicular to the electron beam. Adjustments were made after the SEM was turned on. The clamping stage was tilted so that the whole plane was in focus for the same focal setting.

25. The stage was tilted until the two edges of the blade extending from the gap could be seen clearly. The blade tip was set in focus at 200X magnification and the width of the gap was measured by a point to point method.

26. When the first head was measured the working distance was set to 22mm,but was reduced to 20mm for the remaining 3 heads as the working stage could not be lowered further to attain the same working distance. Dr Lim did not consider that these differences should have any significant effect on the accuracy of the measurement, as the SEM was well calibrated to work under different working distances.

27. The results obtained showed that the width of each gap, after minor correction for the tilt of the angle, were as follows:

I-Centre	164.7 microns
Dr Liu	190.0
148 Vision Centre (1)	200.6
148 vision Centre (2)	145.9

28. Dr Lim pointed out the very high accuracy of the SEM used. The widths of the gaps were measured from the images on the display monitor. The images were viewed from a direction almost perpendicular to the gap between the blade tip and the Microkeratome head, so that the distance between the blade tip and the edge of the Microkeratome head at the gap could be measured. No significant distortion of the image could be observed under the magnification used.

29. In case some error might have occurred in the alignment of the gap in respect of the imaging direction, Dr Lim took the maximum misalignment to be in the range of 0.5 degrees. After taking into account the resolution of the human eye on the screen Dr Lim believed that the maximum error incurred in his measurement was in the range of +/- 1.5 microns.

30. These results were criticised in a report prepared by Dr K. S. Lau, Associate Professor of Applied Optics at Hong Kong Polytechnic University. This report did not involve a re-measuring of the 4 Microkeratome heads by Dr Lau, but was described as a "Review on Measurement of the gap of Microkeratome Head", a critical evaluation of the methods use by Dr Lim and of the results of the measurements he obtained. Dr Lau had a copy of Dr Lim's report and also a video-tape which recorded the test done by Dr Lim.

31. Criticisms of Dr Lim's report by Dr Lau were that he had misaligned the Microkeratome head in examining it by failing to make allowance for non-level contours of surface; had proceeded as if there was a perfect right angle of the head when there was not; had failed to make subsequent adjustments of the heads after measuring the first one; and had failed to take into account that the Microkeratome, a dynamic instrument had been measured by use of a static method which was not suitable, given the nature of the instrument.

32. Dr Lim's competence as an expert was challenged for his failure to review his report in the light of the criticisms levelled against it by Dr Lau. It is correct that Dr Lim said he had only made such a review at the outset of the trial; nevertheless I was satisfied that he had done so and satisfied that he had done the re-measuring that he considered necessary.

33. The defence asserted that Dr Lim had not recognised the importance of the "b-value" the formula for measuring the width of the gap and that, in light of Dr Lau's methodology, he should have made more than one measurement of the b-value, thus acknowledging it was variable across the surface of the Microkeratome. The defence suggested the failure to do so, showed bias on Dr Lim's part, but in my view no indication of bias could be shown by Dr Lim's not adopting Dr Lau's methodology. It was a matter for Dr Lim's exercise of his judgment as an expert whether he did so or not.

34. In his re-measurement Dr Lim used a b-value of 110 microns to reach his final result of 185 microns as the measurement of Dr Liu's Microkeratome head. Although Dr Lim put this forward as a true value that he had measured from the Microkeratome head, it was rejected by the Defendant's expert because it differed significantly from his own series of b-values measured from 2 different heads, neither of which was Dr Liu's.

35. Dr Lau believed that when considering the matter of misalignment Dr Lim had arrived at a rather low maximum error of 0.1%. He "corrected" this to 7.8% and adjusted the figures obtained by Dr Lim accordingly. This meant, for example, that the figure for Dr Liu's Microkeratome head of 190.3, was altered to a probable range of 163.3 to 182.2.

36. Dr Lau pointed out what he considered another important misalignment that Dr Lim's report did not address. Although when the first Microkeratome head was measured it was clamped in a particular position to be examined, there was no subsequent readjustment of the clamping stage when each of the next 3 heads were measured subsequently. As the clamp was not meant for high precision alignment and as the 4 heads would not have identical external features, Dr Lau considered it very unlikely that the surface AB would remain parallel to its original position. He assumed what he termed a "modest" 5 degree misalignment for the last 3 heads. This altered the range of Dr Liu's Microkeratome head to a probable range of 147.4 to 161.0.

37. Dr Lau concluded as follows:

" ... the measurement exercise has not been conducted with good care. Geometrical details have not been observed. The reference surface has not been duly aligned each time of sample placement Even a basic trigonometry function has been misused. With the amount of uncertainty involved, it is unlikely to have good accuracy. The results however do suggest that, prima facie, that all samples could meet the specification of the Manufacturer".

38. When all the adjustments suggested by Dr Lau were effected the figures for the probable ranges of the 4 heads had been altered as follows:

I-Centre	138 - 158
Dr Liu	147 - 183
148 Vision Centre(1)	158 -193
148 Vision Centre(2)	102-139

39. This was the basis for his assessment that all 4 samples could meet the specification of the manufacturer i.e.150 microns.

40. There were certain difficulties with Dr Lau's report, the most significant being that he himself did not measure any of the heads that had been measured by Dr Lim. The Defendant had provided a sample Microkeratome head for Dr Lau to examine, but despite a letter dated 24 February 1998 from the Plaintiff's solicitors offering to make available Dr Liu's Microkeratome head, the Defendant chose not to avail herself of the offer at the time and made no later request for it.

41. Further one of Dr Lau's significant adjustments was based on what Dr Lim stated at trial to be a typographical error. At page 3 of his report Dr Lim had stated, in respect of the alignment of the gap vis-a-vis the imaging direction "The maximum misalignment is expected to be in the range of 5 degrees, i.e., a maximum error of 0.1%, see Figure 2". This should have read "in the range of 0.5 degrees". Dr Lim's conclusion that his measurements had an accuracy of +/- 1.5 microns was thus established.

42. At trial Dr Lim adjusted his measurements a little further by adopting the formula for the b-value used by Dr Lau in his Review, agreeing that Dr Lau's formula was correct.

43. Although Dr Lim adjusted his figures by remeasuring according to Dr Lau's formula, even after the adjustment he confirmed that the resulting figure of 185 microns was not acceptable in terms of the specification claimed for the Microkeratome head.

44. Some matters were not in dispute. It was accepted, for example, that the accuracy of the cutting width of the Microkeratome head was very important in enabling the surgeon to predict results as accurately as possible. Professor Lam Shun Chiu Dennis, Chairman of the Department of Ophthamology & Visual Sciences of The Chinese University of Hong Kong gave evidence that confirmed this.

45. He stressed what was evident from both textbooks and manuals, as well as from his actual practice of such surgery, that a minimum of 250 microns of stromal tissue had to remain in place after the corneal flap was cut otherwise there would be resulting problems and possible infection for the patient. It was his professional opinion that the important thing to be measured and known was the width of the gap and he considered that an electron microscope was an appropriate means of measuring the gap width. An ophthamologist, in his view, needed to know with certainty the depth of the cut that would be made e.g. 150 microns +/- because that figure would form the basis for the operating calculations.

46. Thus if a Microkeratome was used in the belief that the cutting depth was 150 microns, when it was in fact 185 microns, that would be a substantial deviation which posed the danger of corneal thinning and an increased risk of keratoconosus to the patient.

47. The plaintiff relied on Section 15 of the Sale of Goods Ordinance, Cap.26 insofar as it states that where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description. It was Dr Liu's evidence that he had made clear to the Defendant that his requirement for the Microkeratome was that it have a fixed cutting depth of 150 microns. This would have been obvious to the Defendant, because of her general trading experience in the field in particular because prior to the final agreement the Plaintiff attended with her the I - Centre in Hong Kong and the Shenzhen Eye Hospital for the purpose of watching operations conducted using similar Microkeratome heads.

48. The Defendant claimed that neither she, nor any other staff, made representations about the precision of the thickness of the corneal tissue to be 150 microns exactly and that none of her company brochures indicated that the cutting depth would be 150 microns exactly. However the Manual that accompanied the Microkeratome stated that ''The Microkeratome head is preset to produce a corneal resection approximately 150 microns thick." The Plaintiff and his witnesses accepted that variations of plus or minus 10 microns could reasonably be expected. What the Plaintiff considered unacceptable was the very large variation from the 150 micron fixed cutting depth that an operator should reasonably expect and be able to rely on in fixing calculations for each operation.

49. When in January 1997 the Defendant, at the Plaintiff's request, provided a Certificate of Quality from the manufacturer, the relevant part of that Certificate read as follows : "We SCMD Ltd., the manufacturer of Lasik Keratome, hereby certify the above reference commodity is fully in compliance with the requirements in Specifications, Quality, Quantity, Proper Packing and Marking. The fixed cutting depth of the Keratome Head is 150 microns." (Emphasis supplied)

50. The Defendant contended that all the last sentence meant was that the cutting head of the Microkeratome was calibrated at 150 microns in thickness and that it did not certify or guarantee that the thickness of corneal tissue resected by the Microkeratome would be at 150 microns exactly. However the real issue at trial concerned the exactness or otherwise of the calibration, it being accepted that individual operations would produce varying results, depending on the particular physical characteristics of the patient, the conditions under which the operation was carried out and the technique of the surgeon.

51. I have considered the very lengthy technical arguments advanced by Mr So for the defence which endeavour to destroy the validity of the measurements obtained by Dr Lim. It is clear that some plus or minus adjustments to those measurements might reasonably be expected, if one could accept some, or all of Dr Lau's criticisms of Dr Lim's technique. However even if allowances were made for those adjustments, the calibrated cutting width of the Microkeratome head sold to Dr Liu is too far in excess of the 150 micron calibrated width claimed by the manufacturer for it to justify its description.

52. The major difficulty in accepting Dr Lau's criticisms and projected calculations is that he at no time measured any one of the 4 Microkeratome heads that were measured by Dr Lim. The Defendant was given the opportunity to measure the Microkeratome head which belonged to Dr Liu and no convincing reason was advanced by the Defendant as to why this was not done, or why the offer was not relayed to Dr Lau, as he stated in evidence.

53. I note too that although there was criticism of the method of measurement that Dr Lim employed, that no manner of measurement other than by SEM was ever suggested by the Defendant, whether at the time of Dr Lim's measurement, or after Dr Lau had conducted his own investigation, or at any time by the manufacturer. All Defendant ever suggested was that the head be returned to the manufacturer for checking, or that the head be replaced. Given the late stage at which these suggestions were made and given the initial refusal of the Defendant's engineer to measure the Microkeratome head in Dr Liu's presence, Dr Liu's reluctance to accept either suggestion can be regarded as reasonable in the circumstances.

54. I am satisfied on the balance of probabilities that the sale of the Microkeratome head by the Defendant was a sale of goods by description, that Dr Liu had made clear his requirements to the Defendant and that the Defendant had purported to fulfil those requirements.

55. I am satisfied too that the Microkeratome head sold by the Defendant to Dr Liu did not correspond to the fixed cutting depth specified in the manual that accompanied the Microkeratome head, nor did it comply with the fixed cutting depth of 150 microns certified by the manufacturer in the Certificate of Quality issued in January 1997.The Defendant had impliedly if not explicitly warranted that the Microkeratome head was fixed at 150 microns and it was on this basis that Dr Liu proceeded with the purchase.

56. I am satisfied that the Plaintiff's evidence has established that the cutting depth of the Microkeratome head purchased by Dr Liu was so significantly in excess of that specified, that it did not correspond to the description of it and that it could not be used for the purpose for which it was intended by Dr Liu.

PARTICULARS OF LOSS AND DAMAGE

57. The Plaintiff alleged that he suffered loss and damage as he was unable to use the Microkeratome and claimed its price, which was, according to him, $352,000.00. He also claimed $600,600.00 for loss of business profits for the period from 16-12-96,when he stopped Lasik Surgery as a result of the problems he experienced, until 14-3-97,when he obtained the new Chiron Microkeratome.

58. Dr Liu planned originally to buy the Microkeratome and 2 other pieces of equipment. The Defendant offered a discount if he bought all 3 items from her - the total price would be $480,000.00. Dr Liu, later, wished to buy a further item and the Defendant offered a greater discount if all 4 items were purchased from her- the total price for 4 items would be $508,000.00. This was the price Dr Liu paid for the 4 items.

59. Dr Liu's evidence was that the Defendant was anxious to keep the price of the Microkeratome at $352,000.00 and therefore the global price eventually negotiated, meant that he paid the full price for the Microkeratome and received reductions only on the other items. The Defendant asked that he tell other doctors who might enquire, that the price of the Microkeratome was $352,000.00 and that was what he had paid for it. Dr Liu said the negotiation was for the package and as it was part of the Defendant's pricing policy to maintain the price level of the Microkeratome, which was a new model, that was the purpose of the written price quotation Defendant supplied.

60. A quotation for the 3 pieces of equipment that Dr Liu initially wished to buy, dated 6-11-96, listed the Microkeratome at $352,000.00. The Defendant said that the total price for the 3 pieces was $584,510.00, the discount was $104,510.00, spread evenly for the 3 items, and the total was $480,000.00. The invoice for the 4 items eventually purchased by Dr Liu did not set out the price for each item, only the total of $508,000.00. No written indication of the discount for individual items was given.

61. The fourth piece of equipment cost $31,750.00, which brought the previous 3 item total of $480,000.00 to $511,750.00. As Dr Liu was not satisfied with this total he negotiated a further reduction of $3750.00. Thus the overall reduction was $108,260.00 with an equal percentage for each of the 4 items. The Defendant claimed that a gross discount rate of 17.88% was given on the total sale, which meant that the Microkeratome was offered to Dr Liu at a reduced price of $290,048.00.

62. The Defendant pointed out that if she had sold the items other than the Microkeratome at the prices suggested by Dr Liu, at Paragraphs 3 and 6 of his Reply, being $128,000.00 for 2 and $156,000.00 for 3 other pieces, she would have been selling the items below, or so near, cost, as to be incompatible with sound business principles. Dr Liu's evidence was that the Microkeratome price was high because it was new and highly accurate technology and for that reason no discount was given.

63. It is very difficult to assess this aspect of the evidence, particularly because of the rather unusual way the Defendant formulated its quotes and the final Invoices. Further, no evidence was adduced by the Defendant to show the listed retail, or cost, prices of any of the items purchased by Dr Liu. The sole evidence of the Microkeratome price appears in the 3 item Invoice of 6 December 1996 without a clear indication of what, if any, part of the discount stated applies to it. The 4 item invoice simply gives a global price as "Special $508,000".

64. I accept Dr Liu's evidence that he was asked to tell other doctors who enquired that he had paid the full price of $352,000.00 and I have no doubt that Defendant's quotes and Invoices were drawn in the manner they were to be as supportive of that price as possible. However I consider it unrealistic in the context of this purchase to accept Plaintiff's contention that there was no discount given for the Microkeratome.

65. If Dr Liu had been purchasing the Microkeratome alone, I am of the view that, given the competitive nature of the medical supplies business, he would have been able to negotiate a discount on that item regardless of its high price and its new, higher accuracy; although I accept that such discount might not be as generous as it would be for an older model, or for a multiple item order.

66. As there is a paucity of evidence from which I can reliably deduce the discount actually given for the Microkeratome and as I do not consider the Defendant's own documents are reliable in this regard, I propose to assess the discount as if the sale had been of the Microkeratome alone. Because of its high price, its high accuracy and its novelty I consider it unlikely that the Plaintiff would have been able to negotiate a discount of more than 10%. Giving credit to the Defendant for that amount I assess the price of the Microkeratome at $316,800.00.

LOSS OF BUSINESS PROFITS

67. Dr Liu claimed loss of business profits for the 9 weeks between 7-1-97 and 14-3-97. This was calculated on treating 6.5 patients per week from the time that he began using the Chiron Microkeratome after receiving it in March 1997.

68. The cost for each eye treated was $9,800.00, less the $2,156.00 hospital charge, as Dr Liu operated in surgical premises rented at a private hospital. Business profits were expressed and claimed as follows;

($9,800.00(treatment fee per eye) - ($2,156.00 (hospital charge)) x 6.5 patients p.w. x 9 weeks)

69. There is no evidence other than that given by Dr Liu at trial to support the claim for loss of business profits. I note that Dr Liu had been in practice as an ophthamologist for 10 years by 1997 and had been performing surgery. The number of Lasik operations he would have performed during the period in question, must be speculative given that he was carrying out a new procedure and it is difficult if not impossible to assess what, if any, loss of profit there would have been from his ceasing to carry out operations of a type that he had just begun to perform. There is no explanation why there should be any loss of profits during the period in question, unless Dr Liu had given up all other types of practice entirely in anticipation of performing only Lasik surgery. No doubt the time later devoted to Lasik Surgery could have been filled with other work. No documents were produced to establish so much as the hospital charges claimed, let alone copies of bills that might support the claim that the 6.5 Lasik operations would have been carried out each week. No accounts support the loss of operating profit.

70. It is difficult to accept that Dr Liu's operating timetable would initially include so many operations, given that he began to operate with a new Microkeratome in March 1997, after having done very few operations with the Microkeratome before ceasing to use it in January 1997.

71. Although I accept Dr Liu's figure for the average number of operations that he performs now, I am not satisfied, even on the balance of probabilities, that he has established any loss of profits for the period claimed. I decline to award any sum under this head.

JUDGMENT

Judgment is entered for the Plaintiff in the sum of $316,800.00 with interest to run at 2% above the prime lending rate from date of Writ until judgment and thereafter at judgment rate until payment in full.

73. There will be an order nisi for costs in favour of the Plaintiff, such costs to be taxed if not agreed.