TAM KWOK MAN v. THE KOWLOON MOTOR BUS CO (1933) LTD

HCPI 755/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 755 OF 2001

____________

____________

_______________

J U D G M E N T

_______________

1. In this action, the Plaintiff claims against the Defendant for damages for personal injuries, allegedly suffered whilst he was in the employment of the Defendant, together with interest and costs.

2. The Plaintiff, a man now aged 50, was born on 27 November 1952 and was employed by the Defendant between September 1989 and August 2000 as a bus station regulator. The Plaintiff's duty was to supervise the journey times of the buses, to ensure the buses arrived and departed on time. At all times, the Defendant was a company registered under the Companies Ordinance, carrying on the business of providing public bus services. The Defendant was the employer of the Plaintiff.

Facts

3. On 12 September 1996, at about 8.00 pm, the Plaintiff, aged 44, was working at the kiosk at the bus station of Sui Wo Court, Shatin, Hong Kong. While he was attending to a driver and handing him a schedule, the wheeled office chair on which he was sitting, lost one of its wheels, collapsed, and deposited the Defendant on the floor of the kiosk. The Plaintiff landed on his buttocks and the upper part of his back hit against the door-sill of the kiosk. Some 10 or 15 minutes after the accident, the Plaintiff notified his supervisor and was sent to Prince Wales Hospital by ambulance. There he was diagnosed to have suffered a back injury which caused back pain radiating to his legs. The Plaintiff was not hospitalized.

4. The Plaintiff contends that it was the duty of the Defendant to take all reasonable and adequate precautions for his safety whilst he was engaged in work and to take reasonable or adequate steps to ensure that he was safe in carrying out his duties, to provide adequate tools and/or equipment to assist him in carrying out his duties and to provide a safe place of work. The particulars of negligence alleged were;

a) failing to take any or adequate precautions or reasonable care for the safety of the Plaintiff whilst he was engaged upon his work;

b) exposing the Plaintiff to a risk of damage or injury of which the Defendant knew or ought to have known;

c) failing to take proper or adequate steps to ensure the Plaintiff would be safe in carrying out his duties;

d) failing to provide any or adequate equipment or furniture to assist the Plaintiff in carrying out his duties; and

e) failing to provide a safe place of work.

5. The Defendant denied that the accident was caused by the negligence and/or breach of contract of employment whether on its own part, or that of its servant or agent, as alleged by the Plaintiff.

6. Originally the Defendant relied on Section 27 of the Limitation Ordinance, Cap. 367 arguing that the alleged causes of action had not arisen within 3 years before the action began. That was heard as a preliminary issue before Deputy High Court Judge Woolley on 25 July 2002. As a result, Section 27 was found not to apply and the Plaintiff was given leave to proceed with the action.

Liability

7. The chair, an armless office chair, had either 4 or 5 wheels. The restricted space of the kiosk, which measured 1.5 m deep x 1.25 m wide, meant the amount of free floor space between the desk, which was 0.5 metre deep, and the door opening, was only about 1 metre x 1.25 metre.

8. In his witness statement the Plaintiff said he, while sitting, moved the chair back intending to give a schedule to a driver who was just outside the kiosk. One of the wheels of the chair suddenly came off, the chair collapsed, he lost his balance and fell on to the floor with the chair, which turned over. The upper part of his back hit the edge of the door sill causing serious injuries to his back and coccyx.

9. The Plaintiff also described the accident in evidence. He was sitting on the chair when a driver came with a time schedule and inserted his hand through the kiosk door, so the Plaintiff had to reach out his hand to grip the paper. He did so, turning a little to his right in the direction of the driver. At the same time, he pushed the chair backwards, utilising the wheels. This caused the chair to hit against the door-sill of the kiosk. A wheel came off suddenly, the chair collapsed and overturned. The Plaintiff fell with the chair and his back hit the door-sill. Part of the chair fell outside the kiosk as it turned over and the upper part of the Plaintiff's body also fell outside the kiosk itself. The driver subsequently helped him up. He attended to the driver, but felt pain and he sat down until he notified his supervisor of the accident.

10. Although the Defendant suggested that the Plaintiff had given several different versions of how the accident occurred, in particular by changing the account originally included in his witness statement, I was satisfied that the accident, as described by the Plaintiff, did occur on 12 September 1996, and furthermore, occurred in the manner described by the Defendant in court. Any discrepancies were minor and, given the lapse of time since the accident, to be expected.

11. The kiosk in which the accident occurred was at the bus terminal at Sui Wo Court, Shatin. The Plaintiff had been working at that kiosk since about 1994 and the chair had been in the kiosk all that time. There was no company prohibition on the supply, or regulations about the use, of furniture and in the time the Plaintiff had been working for the Defendant, none of his supervisors had complained about the furniture.

12. The Plaintiff did not know who supplied the chair. All he knew was that furniture, on occasion, was left in the kiosk by employees. Most of the furniture in the kiosks was not provided by the Defendant. The kiosk in which he was working at the time, had a desk and a chair neither of which was provided by the Defendant. A fan and an electric water pot were provided by the Defendant. At some point after this accident, the Defendant provided the bus station regulators with folding steel chairs.

13. I was satisfied that the chair on which the Plaintiff sat was not supplied by the Defendant, nor by the Plaintiff. It is not known who supplied the chair, or when, but given their 11 hour shifts and their need to do some clerical work, bus regulators using the kiosk would be likely to require a chair to enable them to carry out their duties efficiently.

14. If the Defendant failed to supply furniture, such as a chair or a desk, it was only to be expected that the regulators would supply whatever items of furniture they considered necessary to enable them to carry out their tasks and to ensure their comfort while doing so. Ordinarily an office chair on wheels would seem to be eminently suitable for use in the tasks the bus regulators were required to perform, but given the small size of the kiosk, a wheeled chair would be less desirable than a conventional chair, because the area of free space was so small, that the full benefit of a wheeled chair would not be obtained.

15. On the basis of the evidence presented by the Plaintiff, I am satisfied that the accident occurred whilst he was carrying out his duties, when a wheel came off the chair, upsetting the chair and causing the Plaintiff to be precipitated to the floor. I am satisfied the Defendant owed a duty to the Plaintiff to provide furniture of suitable standard for use by the bus regulators. If furniture was provided by a person, or persons, other than the Defendant, the Defendant had a duty to ensure that such furniture was suitable for its purpose and that it was safe. If not, the Defendant should prohibit its installation or continued use, or remove it. In this case, that was not done. I am satisfied that the Plaintiff has established the liability of the Defendant for this accident.

Employment History

16. The Plaintiff began working for the Defendant in September 1989, the accident occurred on 12 September 1996. At that date, the Plaintiff worked 11 hours per day, 25 days per month. His daily rate was $460.00. The basic salary was $11,500.00 per month, with a diligence bonus of $300.00 and a service bonus of $700.00. The agreed figure for wages for the period from 12 September 1996 to 16 August 2000 was $12,700.00 pm. From 17 August 2000 the agreed figure for all pre- and post-trial purposes was $14,000.00. After the accident continuous sick leave was granted from 12 September 1996 to 31 October 1998.

17. On 1 November 1998, the Plaintiff resumed working for the Defendant. When the Plaintiff did return to work he took sick leave almost immediately, claiming back pain. Between 12 September 1998 and 5 November 1999 he was away from work for a total of 159 days. This would not have suited the Defendant, and indeed the Plaintiff's employment was terminated in December 1999 because of the excessive amount of leave taken. However the period of termination was short, about 1 month and the Plaintiff was reinstated soon afterwards when the Federation of Trade Unions of KMB intervened on his behalf.

18. On 17 August 2000, the Plaintiff was dismissed permanently by the Defendant for misconduct, not connected with his accident. The Plaintiff appealed to the internal appeal board, but the dismissal was upheld. The Plaintiff did not take the matter further and did not consult the Union, or the Labour Department, or the Legal Aid Department.

19. The dismissal was confirmed on 18 September 2000. Since that date the Plaintiff has been unemployed. According to him he is now unable to work at all because his age, health, lack of qualifications and the economic climate, make it impossible for him to find a job.

Medical History

20. There was little dispute about the medical findings of the various doctors who attended the Plaintiff post-accident. The initial medical report from Dr S K Kwong of A&E Prince of Wales Hospital (PWH) indicated no stepwise deformity along the spine; tenderness at the lumbar and sacral regions of the back; reduced movement of the back, but sensation, movement and circulation of both legs proved normal. The Plaintiff's next referral was to the Department of Orthopaedics and Traumatology, at PWH.

21. The first consultation at the Department of Orthopaedics and Traumatology was on 24 September 1996. The finding was "diffused low back tenderness with muscle spasm"; there was no lower limb neurological deficit. Treatment was physiotherapy and medication. Subsequent follow-up revealed no bony lesion of the lumbar spine and there was an improvement of the back symptoms, although slow progress was noted. Sick leave was granted from 24 September 1996 to 31 October 1998. The last follow-up at this Department was on 23 February 1999. The Plaintiff complained at that time of residual back pain, a symptom which was expected to persist.

22. The Plaintiff attended physiotherapy at PWH from 19 September 1996 to 4 February 1997. He had a further course of physiotherapy from 8 July 1997 to 30 September 1997. After that, he defaulted on treatment. In all there were 22 physiotherapy sessions.

23. A supplementary report, dated 17 October 2002, from the Department of Orthopaedics and Traumatology showed the Plaintiff had been seen on 10 August 1999. His back pain had increased slightly after a minor sprain, but he was still able to work. He was treated conservatively with analgesics and physiotherapy and sick leave was granted from 10 August to 13 August 1999. He defaulted on a follow-up appointment on 26 January 2000. He was also referred by West Kowloon GOPC for follow-up on 16 July 2002, but did not attend that appointment.

24. A joint medical report on the Plaintiff was prepared by Dr David H F Cheng and Dr Danny C W Tsoi, for the trial. The report was dated 13 October 2002; the examination was on 10 October 2002. The Plaintiff complained of on-and-off back pain which was said to increase after he sat for about 20 minutes; of pain when lying down; of disturbed sleep because he needed to change position; of an inability to walk with long strides; of an intermittent click at the back; of back pain during sexual activities and of his inability to pursue his former leisure activities: swimming, soccer, snooker, and cycling.

25. On examination, no deformity was found, tenderness was noted over the low back and left para spinal-region, with some muscle spasm on the left side. The range of movement was compatible with individuals of his age group. There was back pain on flexion of the hips. He was otherwise considered to be normal. An X-ray of the lumbar spine showed the spine was stable with no fractures, had normal disc spaces and lumbar lordosis, and a slight list of about five degrees to the right on the AP-film, suggesting some muscle spasm.

26. The doctors commented that the diagnosis, from the papers that they had read and their examination, was a contusion of the back. They concluded that treatment for the injury as given by the Prince of Wales Hospital was standard, adequate and satisfactory. The present condition was that there were only subjective complaints of pain by the Plaintiff. There was no neurological deficit. There was a mild spasm of the back muscles. The doctors noted a certain inconsistency in the signs, such as the differences of alleged pain and tightness of a straight leg-raising test in the supine position and the lack of complaints for the same test in the sitting position and the unexplained pain on flexion of the hips. They agreed that while it was possible there might be some residual pain, they thought there may be a certain degree of exaggeration by the Plaintiff about his symptoms.

27. The prognosis was good and there was no need for continuous treatment. They agreed in assessing permanent physical impairment, that Mr Tam probably suffered a minor back impairment. They did not feel the impairment should preclude his working as a station regulator as the job was not a heavy manual one, and probably suitable for his capacity. They agreed it was possible that the Plaintiff might suffer occasional pain on prolonged standing or sitting and there might be a small reduction of his working efficiency.

28. They considered for that sort of injury a period of sick leave of 9 to 12 months was reasonable. By the end of that time, the Plaintiff would have reached a state of maximum medical improvement and further sick leave would be of no medical value, it would merely serve to prolong the disability. They concluded that by the end of that period, Mr Tam should be able to return to work in a capacity befitting his state of health.

Psychiatric History

29. The most contentious part of the evidence related to the Plaintiff's assertion that he is no longer able to work at all because of his disability; in particular, that his injury triggered a major depressive disorder (MDD) and consequent inability to work shortly after the accident.

30. Dr Chan Man Lui, a psychiatrist, prepared a report for the court in November 2002. The Plaintiff attended the Li Ka-shing Outpatient Department (LKSOP) on 10 May 1999 after a referral by an Orthopaedic Surgeon of PWH. He was considered to be suffering from stress, the consequence of back pain. He was diagnosed as having a "depressive episode" and given anti-depressant medication, but defaulted on follow-up appointments. He returned on 17 August 2001 and reported that he resumed work in April 1999 and his mood improved, but that it deteriorated again when he was fired from work in August 2000.

31. After 17 August 2001, the Plaintiff attended follow-up clinic appointments regularly and was given anti-depressant and anti-psychotic medications over that period. Dr Chan saw him last on 4 October 2002. His mood was low but had improved. He was suffering auditory delusions, but he was not having hallucinations and was not suicidal. Dr Chan's conclusion was that Mr Tam was suffering from psychotic depression and that one of the possible precipitating causes could be the accident. He noted that the illness had improved after the Plaintiff's resumption of work and stated that the deterioration of mood and the emerging of psychotic symptoms in 2001, seemed to be related to his sacking from work rather than the accident.

32. A jointly appointed psychiatrist, Dr Chung Kwong Wong prepared a report in February 2003, after examining the Plaintiff on 9 January 2003 and 20 February 2003. Dr Chung was supplied with all the necessary documents including previous medical reports, psychiatric reports and the documents relating to the claim.

33. At the time of the interviews, Dr Chung noted that the Plaintiff was attending the outpatient clinic, of the Orthopaedics and Traumatology Department at Prince of Wales Hospital, several times a year and attending the Psychiatric Department at the same Hospital, once every 6 weeks or thereabouts. Dr Chung diagnosed a major depressive disorder (MDD) and said that it was likely to have come on after the accident. He thought it fair to say that without the accident the probability was that the Plaintiff would not have suffered from psychiatric illness and would have been able to carry on with his job. He considered the Plaintiff was showing signs of only mild depression and that his condition had improved with treatment and medication.

34. In his opinion, when the Plaintiff started work in April 1999, he was already suffering from MDD which most probably seriously compromised his performance. When he was fired in December 1999, the psychological and financial blow probably aggravated the disorder, particularly as he had defaulted on psychiatric treatment. By the time he returned to treatment on 17 August 2001 the disorder was worse. Dr Chung estimated that the Plaintiff would improve over the next 12 months, by which time he would have recovered or significantly improved, unless there were complicating factors.

35. In his view the Plaintiff wanted to work, but a number of factors accounted for his unsuccessful attempts to find a job. These were his age (by now 50), educational background (Form 4), limited job experience and the poor economic state of Hong Kong.

36. In making his assessment of MDD, Dr Chung purported to rule out the possibility that substance abuse had initiated, or exacerbated, the MDD. This was relevant because the Plaintiff admitted to Dr Chan he had been an intravenous drug addict ten years previously. When questioned about this in court, the Plaintiff claimed he had taken heroin only twice in about 1987. However in my view he had not told the whole truth about the length and strength of his addiction; in particular as he admitted that on two occasions during the sick leave period after the accident he resorted to smoking heroin. That indicates a much longer addiction than two occasions in 1987.

37. Further, there are references in the psychiatric notes for each of the consultations of 10 May 1999 and 17 August 2001 to the fact that the Plaintiff was an "ex. IV heroin addict quitted 10 years". It is highly improbable that the Plaintiff would have been taking heroin intravenously if he tried it only twice.

38. As for the sick leave period, the first occasion of resorting to illicit drug use occurred several months after the accident. He continued to smoke heroin for 7 or 8 months, but stopped when he knew he was returning to work. When he was eventually fired, he took heroin for another 7 to 8 months, but gave up because he did not have enough money to support his habit. That would have been about March 2000. He told the psychiatrist that he attended a methadone clinic first in 1998 and thereafter attended irregularly and infrequently. The medical notes made by Dr Chan on 27 December 2002, some 16 months after the Plaintiff's return, show he considered the Plaintiff was suffering a psychotic drug episode and he noted the Plaintiff's admission he abused cough mixture and heroin. The admission was made only after the Plaintiff was confronted with the positive results of a toxicology test.

39. I note Dr Chung's evidence and have considered it with care. He opines that the MDD had its onset after the accident and I accept that view, but I note Dr Chan's comment that it may have been one of the causes. However the question of when after the accident the depressive episode began, falls to be considered and it appears more than likely that the disorder began and worsened the longer the Plaintiff remained away from work. In my view, if he had gone back to work six, or at the very latest nine months after the accident, it is quite likely that the depressive disorder may not have manifested itself at all, or, if it did, would have been milder.

40. Dr Chan had a better opportunity than Dr Chung to consider the causes of the MDD as his examination was closer in time to its alleged onset. Significantly he considered the accident might be only one of a number of possible, causative factors. Dr Chung, examining the Plaintiff some 2 1/2 years later, was prepared to be more definite, although, in my view, with less justification for being so. In Dr Chan's report he refers to the Plaintiff on 10 May 1999 as suffering "a depressive episode". Dr Chung, working retrospectively, offers for the same period "a MDD".

41. The MDD may have manifested itself after the accident, but given the Plaintiff's admission that he had been an intravenous drug user in the past (and quickly returned to drug use after the accident) it is equally likely that whatever reasons instigated, or underlay, his drug use, could have triggered the MDD.

42. The Plaintiff may have become depressed because he refrained from working after the optimal sick leave period of 9-12 months, but the reports and the evidence show that what probably caused his depression was the termination of his job and the fact he was not re-instated after the second termination. That appears to have made him bitter. Clearly he brooded about that matter and has continued to brood about it until the present day.

PSLA

43. Having considered the medical evidence, I find that the injury suffered by the Plaintiff was a minor contusion of the back which, although it may have caused him residual pain for some months, would not have done so for as long as claimed by the Plaintiff. The joint medical report indicates the doctors considered a period of 9-12 months sick leave suitable, and I consider that assessment is a generous one.

44. There was no permanent or structural damage done to the Plaintiff by the accident. At the follow-up appointments for sick leave purposes, the doctors' account of his symptoms and their assessment of them was based on the Plaintiff's subjective views of his symptoms coupled with, on occasion, simple physical tests conducted by the doctor. For that reason the sick leave certificates are not conclusive of the Plaintiff's fitness to work.

45. Given the minor nature of the contusion, the longer the Plaintiff remained inactive, the more likely it was that any stiffness or pain would be exacerbated. I note also that defaulting on physiotherapy would have militated against the Plaintiff's regaining his fitness to return to work.

46. The doctors who prepared the joint medical report pointed out that although there may be some residual pain or discomfort suffered by the Plaintiff there is likely to be a degree of exaggeration in the complaints about his condition.

47. Having heard the Plaintiff's evidence, I am of the view that he is not a reliable witness, or particularly honest in what he told the court about his medical condition. For that reason he is likely to have been economical with the truth in discussing these matters with the doctors, or to have exaggerated his symptoms.

48. I find it surprising that during the 24 months sick leave period no attempt was made by the Plaintiff, who claims he was very keen to work, to return to work, whether or not with doctors' consent and that no trial was made to see whether or not he could carry out his duties properly.

49. The sick leave chits cover the period of 24 months from the date of the accident and were issued at two or three-monthly intervals. I have no doubt that if the Plaintiff had indicated to the doctor that he wished to attempt to work, the doctor would have been able to accommodate him, giving a further sick leave certificate, if necessary, after any attempt at work that proved unsuccessful. Accordingly I view with scepticism the Plaintiff's claim he wished to return to work.

50. The job of bus regulator was not one that required the Plaintiff to do very much more than sit and stand. His claim that he needed to assist drivers by unrolling signs, or moving cash boxes, reflected informal arrangements between him and the drivers. They were not part of his job description. His job might have required him to sit down a lot of the time, but also gave him freedom, if he wished, to get up and move around at any time he felt discomfort from his immobility.

51. Similarly, although I accept that as a matter of practice regulators kept water boiling for the drivers' tea, this was not part of his job either, but even if it were, could have been dealt with by the Plaintiff's using smaller buckets and/or making more frequent journeys rather than, as he claimed, carrying 4-gallon buckets.

52. I conclude from the evidence that the Plaintiff suffered a back injury as a result of the accident, but do not accept it was as serious or had such long-term effects as he claimed. Back injuries are notoriously difficult to diagnose properly, they are often even more difficult to cure, or ameliorate. Here, however the injury was not a complex one, there was no bone or disc damage, he required no operation and there was no reason the Plaintiff could not have gone back to his job after nine months. He may have had some residual discomfort at intervals, but from the medical evidence this appears to be the type of injury that would benefit from moderate activity.

53. Given what appears to be an excessive length of time between the date of the accident and the Plaintiff's return to work, it may be that he experienced some pain or stiffness. From the evidence it appears more likely however, that the Plaintiff's real problem was his objection to being required to move from one bus station to another, filling in for regulators who were ill, or on leave.

54. He complained of stress when he first visited the psychiatrist, Dr Chan Man-lui, and asked for a note to his employer saying he should be assigned to one station. Reference is made to this problem, as the Plaintiff perceived it, in the following doctor's notes - "He changed the bus stop daily and he found it very stressful". "He requests memo to help him to work in the same stage every day." "He has stress from work." When speaking to Dr Cheng the Plaintiff said he thought his erstwhile colleagues "picked on" him. The Plaintiff returned to work between 1 November 1998 and 10 May 1999; when he saw Dr Chan he had taken 81 days sick leave out of 150 possible working days. The stress he reported was related not to his back pain, but to his working at different bus stations.

55. The Plaintiff could not accept that he was working as a relief regulator. He claimed his supervisors picked on him and generally treated him unfairly, although there is no evidence of this other than his assertion. From that time onwards the Plaintiff kept complaining about the unfair way he was treated; in his view the Defendant was angry because he took EC proceedings. When, eventually, he was fired for misconduct he became bitter, resentful and obsessive about getting his old job back. If he had been prepared to work as a relief regulator, as required, it is likely he would have progressed to a more permanent regulator's station.

56. The Plaintiff tried to find a job after his employment with the Defendant was terminated for the second time, but was not successful. After he had applied for CSSA in November 2000 he took part in the Comprehensive Social Security Assistance Scheme. Copies of the log kept of job applications were in evidence and covered the period from 5 December 2000 to 5 September 2001.

57. Those efforts were unsuccessful, usually because the job had been filled. His remaining efforts were not successful by reason of the Plaintiff's 'old age' (circa 50). The Plaintiff refrained from telling prospective employers that the Defendant had terminated his employment, and did not mention his back injury, except at one interview where the prospective employer asked if he could carry heavy loads of dishes.

58. Such reticence might be understandable at an interview, but I note that in the Job Seeker's Questionnaire dated 15 November 2000, which the Plaintiff had to complete before joining the Scheme, he was asked to tick those of a number of things he felt were a barrier to his seeking a job. He chose one only of 16 choices. That was "Other - cannot adapted (sic) to society". No mention was made of the back pain, age, limited qualifications, or the economic recession on which the Plaintiff relied at trial to establish future loss of earnings.

59. In my view, 9 months sick leave would be the maximum that would have been necessary in this case. That the Defendant did not attempt to go back to work, or to return to his leisure activities, or continue physiotherapy all indicate that any later physical or mental disability was in all likelihood occasioned by his inactivity rather than being a true result of the accident.

60. In assessing PSLA, I was referred to a number of comparable "back" cases ranging from 1996 to 2003. Here the Defendant had a simple injury which required no hospitalisation, nor any operation, and for which any residual pain or discomfort could have been treated by physiotherapy and/or analgesics.

61. The cases for back injuries to which I was referred, in the main, resulted from more serious accidents, outlined injuries which required hospitalisation, or treatment more aggressive than conservative and had graver long-term effects. Most came closer to the serious injury category than did the injury in the instant case. None had a claim for depression linked to the injury. For those reasons they were of limited value as comparable cases.

62. Taking those factors into account, I consider that this does not come anywhere near the serious injury category and I award the sum of $150,000.00 for PSLA.

63. For pre-trial loss of earnings I allow 9 months to cover the sick leave period from 12 September 1996 to 12 June 1997. I am not satisfied that the evidence adduced establishes that the MDD was a result of the accident, nor do I find that it had its onset within the period of sick leave referred to as appropriate in the joint medical report.

64. In respect of the claim for future loss of earnings or loss of earning capacity I make no award. The difficulties the Plaintiff undoubtedly has in finding employment have nothing to do with his back injury and the Defendant should not have to meet this claim. The Plaintiff's difficulties in finding a job are attributable chiefly to the economic recession, his lack of qualifications and his age. The manifestation of the MDD appears to have resulted from his remaining away from work longer than medically necessary and thereafter being exacerbated when his employment was terminated for reasons entirely unconnected with his back injury.

65. I award the amount of Special Damages as agreed by the parties. Interest is awarded at 2 per cent per annum on the PSLA award from the date of writ to the date of judgment. One half of the prevailing judgment rate is awarded on the pre-trial loss of earnings and special damages from the date of accident to the date of judgment.

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

67. The Plaintiff's own costs to be taxed in accordance with Legal Aid regulations.

68. The Defendant is to be given credit for the sum of $467,788.05 being the total amount agreed between the parties as the sum received by the Plaintiff between 12 September 1996 and 16 August 2000.

69. There shall be liberty to apply.

Summary

PSLA		150,000.00
Pre trial Loss of Earnings
Sick Leave Period
12 September 1996 to 12 June 1997
	(HK$12,700.00 x 9 = HK$114,300.00	114,300.00
From August 2000 to June 2003
	No Award
Future Loss of Earnings
	No Award
Loss of Earning Capacity
	No Award
Special Damages
	HK$5,878.00	5,878.00
		270,178.00