GURUNG SANTOSH KUMAR v. PACIFIC CROWN ENGINEERING LTD AND OTHERS

HCPI 316/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 316 OF 2005

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J U D G M E N T

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1.  The Plaintiff claims for damages against the Defendants in respect of injury suffered by him in the course of his employment. 

2.  The Plaintiff at the material time was employed by the 1^st Defendant but was seconded to the site to work under the supervision of the 2^nd Defendant.  The 2^nd Defendant was a sub-contractor of the 3^rd Defendant who was the principal contractor at the site. 

3.  On 16 May 2003, at the construction site at Route 9, Highway near the Container Port at Ngong Shuen Chau (Stonecutter’s Island) Viaduct, Kowloon, the Plaintiff was hammering a metal bucket with a hammer when a piece of metal broke off and hit the Plaintiff’s chest.  The Plaintiff was unaware of his injury until his colleague told him there was blood on his chest and he was immediately sent to the Tuen Mun Hospital for treatment.

Liability

4.  At the commencement of the trial, liability was admitted by the Defendants so what remains is the quantification and assessment of the damages sustained by the Plaintiff.

Injuries and treatment

5.  The Plaintiff, upon arrival at Tuen Mun Hospital, was given a chest x-ray which revealed that a piece of metallic object about the size of 0.5 cm by 1 cm was found at the left interior part of his chest.  Otherwise his chest was clear and there was no murmuring from his heart.  On the same day, the Plaintiff had an operation to have that metallic object removed.  He was finally discharged from the hospital on 19 May 2003.  Subsequent follow-up review no physical abnormality and the Plaintiff’s wound at the left chest wall recovered well with no sign of infection and his chest was clear.

6.  Upon the Plaintiff’s complaint of persistent chest pain on his left side, radiological examination of his chest and heart and electrocardiogram revealed no abnormality in his chest or heart nor in his sinus rhythm or was there any acute ischaemic change.

7.  Since the Plaintiff was discharged from hospital, he had attended the Pok Oi Hospital, the Tuen Mun Hospital, the Yuen Long Jockey Club Clinic (for 45 times) and the Yuen Long Government Out-patient Clinic for follow-up and for sick leave.

8.  In 2004, the Plaintiff was referred to the Tuen Mun Hospital for physiotherapy treatment in order to manage his chest pain and for muscle training, however he did not finish the course as he was discharged after a few months due to non-compliance.

9.  On 27 February 2006, the Plaintiff was examined at the Department of Surgery in Tuen Mun Hospital and it was determined that his pain was not related to his heart condition and the computerised tomography done on 6 September 2006 confirmed that there were no abnormal chest wall soft tissues failing or fluid collection nor was there any foreign body in the chest wall and his rib cage was intact nor was any structural abnormality of his chest wall detected.

10.  The Plaintiff had been granted sick leave from 16 May 2003 to 18 August 2004.  He attended the Employees’ Compensation (Ordinary Assessment) Board on 11 May 2004 and was given an assessment of 1% loss of earning capacity.  On review which was conducted on 10 August 2004, the original assessment was reduced to 0.5%.

Assessment

11.  The Plaintiff, since his discharge from hospital, had been complaining about a persistent left-sided chest pain which disturbed his sleep and which had resulted in a psychiatric depressive disorder.

12.  According to Dr Lo Chun Wai, a psychiatrist who examined the Plaintiff on 1 November 2004 (1^st report) and on 1 September 2005 (2^nd  report), in his 1^st report, the Plaintiff had adjustment disorder and post-traumatic stress disorder and cannot return to his former employment as a welder or a scaffolder but should be able to work at a less well paid job after six months of psychiatric or psychological therapy.

13.  In his 2^nd report Dr Lo disagreed strongly with a report compiled by Dr Chung See Yuen, a psychiatrist, dated 25 May 2005 wherein Dr Chung had opined that the Plaintiff would be fit to return to his former occupation one month after the accident and that his psychiatric condition would not have prevented him from working.  Dr Lo concluded by recommending that the Plaintiff seek immediate psychiatric/ psychological treatment without delay.

14.  Dr Lo further examined the Plaintiff on 18 July 2007 and concluded that the Plaintiff was still suffering from adjustment disorder and he was also displaying residual symptoms of post-traumatic disorder.  Dr Lo concluded that the Plaintiff could no longer work in construction sites and that a period of drug treatment for up to twelve months may help to improve his depression and pain thus enable him to work longer hours.

15.  The next expert called by the Plaintiff is Dr C K Mok, who is a cardio-thoracic surgeon and a respiratory and critical care medical consultant.  Dr Mok said that there is no objective finding that could explain the Plaintiff’s persistent left-sided chest pain and said that the chest pain is musculoskeletal in origin and that if the Plaintiff’s complaint of chest pain was true then he would not be able to return to his pre-accident job as a welder.  Dr Mok also agreed with the original assessment made by the Employees’ Compensation (Ordinary Assessment) Board that the loss of earning capacity is 1% only.

Defence expert

16.  Dr Joseph Pang examined the Plaintiff on 15 June 2004.  Dr Pang who is a specialist in respiratory and critical care medicine was of the opinion that the Plaintiff suffered no permanent disability or loss of earning capacity as a result of the injury he sustained and Dr Pang considered that the Plaintiff would be fit to return to his pre-accident job as a welder after having one month sick leave from the time of the operation.

17.  The 2^nd expert for the defence is Dr Chung See Yuen.  In his report of the examination of the Plaintiff on 11 May 2005, Dr Chung stated that the Plaintiff’s complaints were compatible with adjustment disorder with mixed anxiety and depressed mood but these were all subjective mental complaints.

18.  There were no signs suggested of significant depression or anxiety during Dr Chung’s examination and he believed that the impairment level suffered by the Plaintiff as a result of his mental problems are mild.  Dr Chung was of the opinion that the Plaintiff was mentally fit to resume his pre-accident job as a welder one month from the date of the accident, from a psychiatric point of view, and that all the Plaintiff needed were four one-hour sessions of psychological treatment to help him cope and adjust to the injury and deal with his problems.

19.  Dr Chung examined the Plaintiff again on 28 September 2007 and observed that the Plaintiff’s mental condition had changed insignificantly.  Dr Chung disagreed with Dr Lo’s assessment that the Plaintiff suffered post-traumatic stress disorder because the Plaintiff’s injury was mild and his response at the time did not involve intense fear helplessness or horror and in conclusion Dr Chung believed that the Plaintiff deliberately tried to paint a bad picture of his condition.

Trial

20.  The Plaintiff elected to give evidence at the trial.  He complained that he was still suffering from chest pain and his memory was poor as he could not even remember being in court the year before.  He said that he had pain three to four times a day and sometimes it could last as long as three to four hours continuously.  In chief, he was hazy and at times claimed he could not remember seeing doctors nor did he remember whether he had received any psychiatric treatments.  Under cross-examination his memory improved and he remembered that he had sought treatment for his pain at the Tuen Mun Hospital, the Pok Oi Hospital and the Yuen Long Hospital.  He also agreed that he had done some security guard jobs since the accident, each time lasting about eight hours over a period of 2 to 4 days. 

21.  He claimed he could not remember if he had told Dr Lo that he was a casual worker or a security guard the year before and when asked if he did actually work as a casual worker the year before he said he did not know.  He was extremely evasive when asked about his witness statement and he claimed he could not remember whether his witness statement was true.  The question which he claimed he could not remember whether it was true was that he had told his solicitors in his witness statement that he had worked on 20 and 21August.

22.  Counsel for the defence put to him that on his last visit to the Pok Oi Hospital, the doctor had refused to give him further sick leave and therefore he returned to work on 21 and 22 August.  As a result of this being put to him, the Plaintiff then could not evade the question any more.  It was also put to him that on 4 August, he had told the doctor that he had planned to start work within ten days.  The Plaintiff denied that.

23.  He was also evasive when asked about his job seeking, activities and he initially agreed that he went to the Labour Department and subsequently he disagreed that he went to the Labour Department. 

24.  The Plaintiff was also asked about why he did not follow Dr Lo’s request that he sought psychiatric treatment immediately, initially he disagreed that he had made any appointment at the government hospital in Tuen Mun for such treatment, but when it was put to him that he had told Dr Lo that he had obtained the government psychiatric hospital appointment in October 2007, he then made an excuse that he had to go to India for a year because of his daughter’s illness.  Then when asked why he made no more appointment upon his return to Hong Kong, he said that they never called him back to make an appointment.  He was also asked whether he had used his interim payment and Employee Compensation to pay for his psychiatric treatment and he said that he was still awaiting an appointment from the Tuen Mun Hospital. 

25.  On the whole, I did not find the Plaintiff to be a credible witness at all.  And I am of the opinion that he was indeed malingering and exaggerating his condition.

26.  The 2^nd prosecution witness is Dr Lo Chun Wai, he was accepted as an expert witness.  He told this Court that he has been in private practice since 1998 and has treated about ten thousand patients and has given evidence in Hong Kong as an expert. 

27.  Dr Lo adopted his report as his true and honest opinion.  Dr Lo said that he did not agree with Dr Chung’s assessment that the Plaintiff had not suffered a traumatic event.  He opined that different people react differently.  Although a traumatic event may not have caused intense fear and horror, it could still affect one person more traumatically than another.  Dr Lo said that the Plaintiff may not have suffered the traumatic effect immediately but certainly after he realised that he had the chip in his body which could have gone to his heart, that would be the time he would have been affected by the event traumatically and even though he is told a month later that they had successfully removed the chip, the psychological effect could not have been erased.

28.  Dr Lo was also of the opinion that going back to work may be therapeutic for some but for those suffering from post-traumatic stress, it is not helpful.  Dr Lo said that because the Plaintiff did not start his psychiatric treatment due to his journey to India, the treatment would therefore necessarily have to last longer.

29.  Under cross-examination, Dr Lo was asked what the cause of the Plaintiff’s “severe depression” was, which he had diagnosed.  Dr Lo said that after the traumatic event and the repeated visits to hospital and with the prolonged unemployment, financial problems can perpetuate and intensify depressive symptoms to become chronic.  Dr Lo agreed that if the Plaintiff went back to work with satisfactory pay then it could improve him.

30.  In re-examination, Dr Lo agreed that a patient must have severe and chronic depression over a period of six months before there is actual damage to the brain.  When asked if the Plaintiff’s depression was severe, he said the Plaintiff had “marked depression” and that mild adjustment disorder and severe depression do not go together.

Defence expert

31.  Dr Chung was also accepted as an expert witness in this case.  Dr Chung adopted his reports on the Plaintiff as true and honest testimony.  Dr Chung opined in his 1^st report in 2005 that the Plaintiff’s symptoms were compatible with adjustment disorder.  He explained that the adjustment disorder is a mental illness in response to stresses usually anxiety, depression or behavioural changes and it affects the daily life of a patient.  This disorder usually subsides when the stresses are resolved or when the patient could adjust and cope.

32.  After conducting tests and examinations on the Plaintiff, Dr Chung was of the opinion that the Plaintiff was only suffering from a mild adjustment disorder and he considered that the Plaintiff displayed no sign of significant anxiety or depression. 

33.  When Dr Chung examined the Plaintiff a second time, he also administered the same MMSE testing as Dr Lo had administered and the Plaintiff had a similarly low score.  Dr Chung was of the opinion that the low score cannot be explained by his depressive symptoms or anxiety level and that in his opinion the Plaintiff was trying to paint “a worse picture of his mental function”.  Dr Chung explained that for a patient to have such a low score it meant normally that that patient is suffering from dementia.  In this case, the Plaintiff had not sustained any head injury so he should not have been suffering from dementia from the accident.  From the fact that the Plaintiff was able to tell him his history, the incident of the chest injury two years ago and what happened to him up to the time of the examination, Dr Chung considered that this was not consistent with his test score.

34.  Dr Chung also opined that the Plaintiff’s condition was not a post-traumatic syndrome because the response to the traumatic event should be one of severe anxiety, helplessness and horror.  The Plaintiff however, suffered only mild physical injury and had no physical disability and Dr Chung said that when he asked the Plaintiff about the incident, the Plaintiff, though worried or anxious about it, did not display the severe symptoms mentioned above.  Dr Chung said that the severe reactions to a traumatic event would happen soon after the accident and it is unusual for a patient to develop more severe symptoms much later.

35.  Dr Chung said the Plaintiff did complain about his anxiety about construction sites, and about the accident and he believed it was caused by an adjustment disorder rather than post-traumatic syndrome.  To support his opinion, Dr Chung said he had referred to the hospital notes and he observed that the Plaintiff had made no complaints to the attending physicians about his anxiety, nightmare or flash backs which would have been symptoms of post-traumatic syndrome.  It was clear that the attending physicians had not referred the Plaintiff to a psychiatrist until some months after the accident.

36.  Dr Chung said he spent time asking the Plaintiff a lot of questions about the accident and from the Plaintiff’s answers to these questions and his calmness in talking about the accident, Dr Chung was of the opinion that there was no sign whatsoever of post-traumatic syndrome.

37.  Dr Chung was also asked to explain why he considered that the Plaintiff needed only one month treatment and his view was that for adjustment disorder when the stresses are removed, the patient would improve.  Even if the stresses are there, the patient can learn coping skills and thus would be able to cope with the stresses and then his mental condition will improve.  Dr Chung also considered that the Plaintiff would be able to return to work in a construction site once he gets psychiatric assistance to overcome his anxiety and fear. 

38.  Dr Chung did not agree with Dr Lo’s opinion that the Plaintiff’s memory may have been damaged because of his chronic depression.  Dr Chung considered that the Plaintiff did not have any brain damage at all.  There was no sign of brain damage because the Plaintiff could talk about his history and his problems, he had no difficulty talking, his responses were well organised and he was able to give appropriate answers and relevant history.  So in conclusion, Dr Chung said the Plaintiff was suffering from a mild adjustment disorder with depression and anxiety and therefore needed only one month to overcome it.

Analysis

39.  Having heard and seen the two expert doctors and considered their report and testimony, I am inclined to accept the evidence of Dr Chung over that of Dr Lo.

40.  As Miss Lau pointed out Dr Lo’s examination of the Plaintiff was not as well rounded as Dr Chung’s.  For example on the question of “mood”, he simply stated that the Plaintiff felt depressed and hopeless which does not properly tell us whether that is a normal reaction to the event or it is because of some psychiatric disorder.  It is also important to ask the Plaintiff about the cause of the depression and Miss Lau pointed out that on the question of “interest”, Dr Lo merely said the Plaintiff had little or no pleasure in doing things whereas Dr Chung said that one should ask for more background information, for example, what were the hobbies and interests of the Plaintiff prior to the accident.  Because, in some cases, a person may not have any other interest or hobby prior to the accident so to ask him that question after the accident would not indicate whether the Plaintiff indeed had been affected by the accident.  The questions listed upon which Dr Lo placed much emphasis were suggested by the Diagnostic and Statistical Manual of Mental Disorders – 4^th ed (“DSM – IV”).  Dr Lo in his report considered these questions to be “diagnostic criteria” but eventually in Court he admitted under cross-examination that these are only checklist questions and that if these questions were diagnostic criteria then the Plaintiff would have been diagnosed suffering from major depressive disorder.

41.  Dr Chung, however, gave very cogent explanations about his diagnosis and explained fully how he arrived at his conclusion apart from considering the guidelines laid down in DSM – IV, he also took into account the Plaintiff’s history, the medical reports and his observation of the Plaintiff during his interview.  Dr Chung had concluded that the Plaintiff was suffering from a mild adjustment disorder with depressive mood and not depression.  He came to this conclusion because the Plaintiff did not exhibit any signs of severe anxiety or depressive symptoms during his examinations and he did not have psycho motor retardation.  He had no guilt feelings and no suicidal ideas and had no difficulty in making decisions.  His intellectual memory and cognitive functions were fair and he was coherent in his speech.

42.  I would like to add here that this became even more apparent when the Plaintiff decided not to attend the psychiatric consultation and instead decided to return to his native place to see his daughter which is an indication that he could function perfectly well at that time. 

43.  It is also apt to point out here, as Miss Lau submitted, Dr Lo had never asked the Plaintiff about the onset of post-traumatic stress disorder or its development during either of his examinations of the Plaintiff and Dr Lo’s first examination of the Plaintiff was in October 2004 which was more than 16 months after the accident.  So had the Plaintiff suffered post-traumatic stress disorder, the symptoms would have been clear by the time Dr Lo examined him for the first time in October 2004.

44.  So after considering all the above matters, I accept the evidence of Dr Chung and accept that the Plaintiff only required one month treatment to help with his adjustment disorder.

45.  Mr Wright pointed out that Dr Chung had represented to the Court that for a score of less than 20, it can only indicate dementia is not a fair and balanced view because in the document (see C88) a score of less than 20 can indicate signs of dementia or affective disorder. 

46.  As has been noted above, Dr Chung’s examination and final conclusion was based not only on the MMSE result, which gave a very low score, he also considered the history of the Plaintiff, the fact that in his interview with the Plaintiff, the Plaintiff was able to tell his history and background to Dr Chung in September 2007, so at the end of the day his low score in the MMSE is not consistent with his performance in the interview with Dr Chung.

47.  I do not agree with Mr Wright’s submission that Dr Chung had “tried to hide” that a low score in the MMSE test may indicate affective disorder.  I note that Dr Chung when giving evidence was not cross-examined on this point by Mr Wright and thus Dr Chung was deprived of an opportunity to explain the matter more fully. 

48.  Mr Wright also suggested that the Plaintiff’s lack of complaint about his emotional state indicative of post-traumatic syndrome was due to the language barrier when he was being seen by the government doctors.  There is no indication by any of the doctors who saw him for over a 100 occasions that there was any language difficulties and it was only when the government doctors refused to give the Defendant any more sick leave that he was finally referred for counselling in a psychiatric facility.  But the Plaintiff voluntarily absented himself from the appointment and upon his return, a year later, did not actively seek to regain his appointment with the government psychiatrist.

49.  As I have indicated above, I did not find the Plaintiff to be an impressive or credible witness.  He was evasive and obviously chose with care what he could remember and what he could not remember.

The pain, suffering and loss of amenity (“PSLA”)

50.  The Plaintiff, it is clear, suffered minor physical injury as a result of the accident which after the operation to remove the foreign object had healed well.  The main dispute in this case concerns the psychiatric condition of the Plaintiff.  After considering all the evidence in this case and in particular the evidence of the Plaintiff as a witness, I accept the opinion of Dr Chung that at the most the Plaintiff is suffering from a mild adjustment disorder with depression and he was never suffering from post-traumatic syndrome.

51.  As I have been indicated above, I did not find the Plaintiff to be a credible witness for the reasons I gave and I do not wish to go into it again.  As for Dr Lo’s evidence, I find that he relied to a great extent on the MMSE test result and on the answers given by the Plaintiff to the suggested question in that test without, for example, as I have said above, delving into the past history of the Plaintiff in order to compare with his answers.  The example, given by Miss Lau, is a very good one, i.e. when Dr Lo concluded that he lacked any interest or hobby, he should have found out whether the Plaintiff, prior to the accident, had any interests or hobby.  If he had not then the answer “no” does not indicate that his life style had been so affected by the accident that he lacked any outside interest or hobby. 

52.  And looking at the history of the Plaintiff, he was certainly not a man suffering from any serious mental condition because he presented himself very many times at the government clinics to obtain sick leave certificate until the doctor refused to grant him any more and then when he was referred to a government psychiatric counselling centre, he avoided the appointment and went to Nepal with the excuse that he was going to see his daughter.  His daughter may have been ill but there has been no evidence given as to what exactly was ailing her which necessitated his staying away from Hong Kong for a year.  Upon his return, he failed to, as a matter of urgency, seek assistance from the government psychiatric centre.  He said he did try to telephone and they told him that they will call him back but they never did. Somehow despite his serious condition he failed to pursue the matter of appointment.  And to complete the picture, when he was giving evidence in Court, it was clear to me that he was deliberately evasive in order to avoid answering questions which he felt may be against his interest.

53.  I therefore find that the Plaintiff did suffer an injury to his chest which healed completely and his psychiatric condition was that he had a mild adjustment disorder with depressive symptom.  I also accept the evidence of Dr Chung that the adjustment disorder could manifest itself by stress but that stress could be alleviated by the Plaintiff attending psychiatric counselling and learning ways to deal with those stresses and that the Plaintiff could then return after a month of counseling to his pre-accident work without a problem.  His mild adjustment disorder had persisted for so long is because of his voluntary absence from Hong Kong.  Therefore accepting that there was a mild chest injury and an adjustment disorder with depressive symptom and making allowance for the occasional pain he may have felt psychologically in his chest because there is no physical explanation for such pain so I will give him the benefit of the doubt on this and give him an award of $180,000.00 which would be in line with previous awards cited to me in counsels submissions.

54.  $180,000.00 would therefore be my assessment for PSLA for this Plaintiff.

Pre-trial loss of earning

55.  I agree with Miss Lau’s submission that the Plaintiff’s claim for pre-trial loss of earning is completely unreasonable and excessive.

56.  The Plaintiff’s injury, physically, was a minor one and he did undergo an operation to remove the foreign object in his chest.  The Plaintiff managed to get sick leave from the Pok Oi Hospital until 16 August 2003.  On 18 August 2003, the doctor at Pok Oi Hospital refused to give him any more sick leave and advised him to resume work.

57.  The Plaintiff himself admitted in his witness statement that he did resume work at the construction site on 21 and 22 August 2003.  And on 23 August, he went to the A&E Department of the Tuen Mun Hospital to obtain a sick leave certificate.  Subsequently, he obtained further sick leave certificates from the same Tuen Mun Hospital and the Yuen Long Jockey Club Out-patient Clinic.  It is pertinent to note that the doctor at Pok Oi Hospital on 18 August 2003 when refusing to issue the Plaintiff with any more sick leave certificate had urged him to return to work and noted that this was a case of “mind over body”.  I accept that there is no physical reason for the Plaintiff not to return to work. 

58.  The Employees’ Compensation (Ordinary Assessment) Board had initially assessed the Plaintiff’s loss of earning capacity to be 1%.  On review upon the Plaintiff’s application that assessment was reduced to 0.5%.  It is also pertinent to note, in Miss Lau’s submission, which I agree, that the Plaintiff had gone to seek sick leave certificates from the Tuen Mun Hospital on 23, 25 and 26 August 2003 after resuming work on 21 and 22 August 2003, and the Plaintiff was not recorded as having mentioned that he was afraid to work inside a construction site.  And thus, this would tend to support Dr Chung’s opinion that the Plaintiff was not suffering from post-traumatic stress syndrome or disorder.

59.  Because of the Plaintiff’s repeated complaints of chest pain and requests for sick leave certificates he was referred for physiotherapy treatment in 2004 to help him improve his chest pain management and train his muscles.  However, he was discharged from that programme because of poor compliance.  As mentioned earlier, he was advised by his own physician Dr Lo to seek psychological or psychiatric treatment in October 2004 and this was repeated in 2005 but the Plaintiff failed to do so.

60.  It is clear from the evidence that the Plaintiff was malingering and was clearly able to return to work by 21 and 22 August 2003.  Miss Lau has very generously calculated the amount of pre-trial loss of earning to cover an extra month from 18 August 2003.

61.  On the evidence, it is clear that the Plaintiff prior to the accident was earning an average of $595.64 a day in the month of April 2003 and $652.53 average for the month of May and Miss Lau has very reasonably adopted the figure of $709.00 as the daily rate of the Plaintiff in assessing his loss of earning and therefore the Plaintiff’s pre-trial loss of earning would be assessed as follows :

($709.00 x 26 days) x 4 months equals to $73,736.00 and his pre-trial loss of MPF contribution is 5% x $73,736.00 equal to $3,686.80.

Future loss of earning

62.  In my view, I am not convinced that the Plaintiff is entitled to claim for any future loss of earnings.  As stated above, had he listened to the doctors and attended psychiatric or psychological counselling, he would already have started work back at the construction site way before this trial.  So I agree with Miss Lau that his loss of earning post-trial is not related in the injury he sustained in the accident.  So his claim under this head of damages should be dismissed.

Loss of earning capacity

63.  I have accepted the evidence of Dr Chung that the Plaintiff has at the most an adjustment disorder with depressive anxiety and according to Dr Chung he would only need a short course of psychological counselling i.e. about four times for him to cope and manage the stresses he may experience and be able to adjust to his working environment again.

64.  As Miss Lau submitted in the case of Chan Wai Tong & Another v LI Ping Sum [1985] Hong Kong Law Report 176 at page 183 where Lord Fraser said :

“…….a claim for loss of future earning capacity usually arises when the claimant is in employment at the time when the claim falls to be evaluated.  The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.  The Court has to evaluate the present value of that future risk.”

65.  There is no evidence to suggest that the Plaintiff is at risk of being dismissed in the future by his employer due to his physical or mental condition.  I am convinced that once Plaintiff received the recommended counselling as suggested by Dr Chung, he will be fully fit to return to work.

66.  I agree with Miss Lau that the claim for damages under this head of claim has not been substantiated.

Special damages

67.  The defence agrees the claim amount of $1,648.00 under this head of damage.

Future medical expenses

68.  Although the Plaintiff was recommended to see a government psychiatrist and an appointment was made for him, and though the Plaintiff had absented himself from keeping that appointment, nevertheless, the defence is willing to concede a sum of $10,000 for psychological counselling at the rate of $2,500.00 x 4 sessions as recommended by Dr Chung, so I am allowing that sum of $10,000 under this head of damage.

Interest

69.  There would be an award of interest on damages for PSLA at 2% from the date of the writ until the date of judgment.

70.  Interest for pre-trial loss of earnings and special damages at the half judgment rate from the date of the accident until judgment.

Summary of Awards

71.  The amount of damages payable to the Plaintiff is assessed as follows:

(1)	PSLA	$180,000.00
(2)	Interest at 2% for 32 months	$9,600.00
(3)	Pre-trial loss of earnings	$73,736.00
(4)	Interest at 5% for 54 months	$16,590.60
(5)	Pre-trial MPF contribution	$3,686.80
(6)	Special damages	$1,648.00
(7)	Interest at 5% for 54 months	$370.80
(8)	Future medical expenses	$10,000.00
	Sub-total	$295,632.20
	Less EC award	- $225,573.51
	Total	$70,058.69
		==========

Conclusion

72.  Judgment for the Plaintiff for the amount of $70,058.69.

Costs

73.  I make the following order nisi as to costs that unless either party applies to be heard on the question of costs within 14 days the Plaintiff costs be taxed on the District Court scale and paid by the Defendant.