SIU KIN KEUNG ANTHONY v. H & M HENNES & MAURITZ LTD

HCPI 81/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 81 OF 2011

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ASSESSMENT OF DAMAGES

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Introduction

1. The Plaintiff suffered injuries at work.  It is the assessment of damages payable to him.

Background

2. The Plaintiff was born in Hong Kong on 6 April 1983.  He was brought up and educated locally up to primary level.  He then furthered his studies in England.  In 2003, he obtained a National Diploma in Design Crafts at Camberwell College of Arts in London.  Then, from 2003 to 2005, he studied Menswear Design in the London College of Fashion.

3. In 2006, he returned to Hong Kong.  Commencing from February 2007, he worked as a sales with the Defendant.  About 4 to 5 months later, he was promoted to visual merchandiser, common known as “VM”. Briefly, it is a display designer or window dresser, creating eye-catching product displays in shops.

4. On 14 February 2008, at around 8:00 a.m. the Plaintiff was displaying and arranging posters at a working platform of about 2.4 meters high.  He unfortunately fell from it.  He lost consciousness and was immediately taken by ambulance to the A & E Department of Kwong Wah Hospital.

Medical evidence

5. The relevant medical report dated 4 December 2008 says that:

“Mr SIU was admitted to Department of Neurosurgery, Kwong Wah Hospital on 14/2/2008, sustained severe head injury at work. The history was that he felt dizzy and fell down from ladder, sustained head injury but still conscious on arrival to the accident and emergency department. He developed generalized convulsion soon and then was admitted to our ward. His conscious level dropped after admission. Physical examination showed GCS 8/15, occipital scalp abrasion, bruising over back and both limbs. Urgent CT scan revealed skull fracture and a large epidural hematoma over right parietal and occipital region, small frontal brain contusion. Emergency operation was performed to evacuation of hematoma and repairing of torn transverse sinus, as a life saving procedure. He recovered satisfactory after the operation, fortunately without neurological deficit. Finally he discharge on 22/2/2008.

Mr SIU was followed regularly in our patient clinic. The latest MRI revealed evidence of previous transverse sinus thrombosis with recanalization. The brain parenchyma injury had subsided. He still complained of headache and dizziness, which is quite common after the severe head injury. The prognosis is good and he needs regular follow up and assessment.

Declaration: This statement is true to the best of my knowledge and belief.”

Sick leave was granted to the Plaintiff for about 1.5 months from the date of accident until 28 March 2008.  He then resumed his job with the Defendant.

6. Apart from the treatment in Kwong Wah Hospital, on 18 December 2008, the Plaintiff attended Dr Gardian Fong, a specialist in neurology, who prepared a report dated 26 July 2010 for him.

“He was first seen on 18 December 2008 and reviewed again on 26 February 2009 and 10 July 2010. After the head injury, he had daily headache, recurrent vertigo, impairment of the memory and weight loss. He became irritable without physical violence. His concentration was normal. His appetite was normal. His job required him to work at height. However, after the accident, he has hesitation to work at height.

His higher mental function was assessed serially by mini mental state examination (MMSE). He scored 26/30 on 18 Dec 2008, 29/30 on 26 Feb 2009 and 28/30 on 10 Jul 2010. His general knowledge and abstract thinking were normal. Neurological examination no significant muscle wasting or deformity. Muscle tone, power, deep tendon reflexes, coordination were unremarkable. Sensory examination was unremarkable. Cranial nerves were unremarkable. Gait and station were unremarkable.

On the last assessment (10 July 2010), he reported that his memory remained unchanged. He needs written reminders. He may misplace his belongings but he never lost item of valuable. He has no dizziness. His concentration was normal. He can manage banking transactions. He can commute with public transportation. Current he still suffers from recurrent headache and mild hearing problem. Headache attacks were associated with changing of weather. Each attack of headache lasted for few days. His hearing problem has been reviewed in government hospital, an audiogram (of October 2009) showed a mild conductive hearing impairment. He has returned to work (as a visual merchandiser) since 2 Feb 2010. It does not require him to work at height.

In summary, Mr Siu has mild post-concussional syndrome. His post-concussional syndrome at this stage is likely to be permanent.

……”

7. For the purpose of the present assessment, a joint neurological experts report was prepared on 20 April 2011.  Dr So acted for the Plaintiff and Dr Yu, for the Defendant.  Both experts shared their opinion in lots of the area.

“Opinion

13. Severity of the head injury. We agree that in the accident on 14.2.2008, Mr. Siu sustained a severe head injury complicated by an epidural haematoma from a torn transverse sinus. He had post-traumatic amnesia of about 30 hour. CT revealed a skull fracture and a large epidural haematoma over the right parietal and occipital regions, and a small frontal brain contusion. Emergency operation was required and he was managed in the High Dependence Unit post-operatively.

14. Neck injury and low back injury. We agree that in the accident, there was also mild injury of the neck and the lumbar region. At present there are no ill sequelae arising from the mild injury in these two regions.

15. Potential for further improvement and duration of sick leave. Most patients with severe head injury achieve maximum recovery within 2 years. As 38 months have elapsed from the time of injury, we agree that Mr. Siu’s neurological deficits are probably permanent by now.

We agree that the 6-week sick leave he took was appropriate.

16. Residual disabilities.

……

We assess the percentage of permanent impairment of the whole person (PIWP) is estimated with reference to the 6^th edition of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association (AMA Guides) in 2008. The PIWP is estimated to be:

- 1% for headache

- 4% for neurocognitive impairments

- 1% for neurobehavioural impairments

(N.B. This item will not be included in the computation of Combined PIWP because only the most severe item of cerebral dysfunction is used to represent cerebral impairment. In this case, the percentage for neurocognitive impairments is used).

The Combined PIWP according to the Combined Values Chart of the AMA Guides is 5%.

17. Work potential and loss of earning capacity.

18. Medical care regime. We agree that Mr. Siu could continue to receive care in the public sector for as long as the attending doctors there deem it necessary. If he opts for care in the private sector, 6-monthly consultations with a neurologist or neurosurgeon (at about $700 per visit) until February 2012 would be recommended.

19. Life expectancy. His cognitive dysfunction is mild and he has no other neurological deficits. As such, we agree it is unlikely that there will be any material reduction of his life expectancy as a result of the head injury he sustained in the accident.

20. Assessment by other specialist doctors. We agree there is no indication that Mr. Siu needs to be assessed by other specialist doctors.

……”

8. On 15 December 2011, the Plaintiff consulted Professor Lee, a specialist in clinical and health psychology.  He produced a report dated 26 December 2011.

“……

Overall, my preliminary psychological assessment indicates that Mr. Siu suffers from two residual disorders subsequent to his accident:

A. He has residual symptoms of head injury characterized by temper outbursts, reduced frustration tolerance, poor physical stamina, headaches, poor concentration and short-term memory problems;

B. He has developed a condition of Height Phobia.

Both the above conditions are amendable to psychological management and treatment. With further psychological treatments, Mr. Siu’s diagnosis may be further clarified and refined. In terms of the residual symptoms of his head injury, Mr. Siu may be able to improve his functions with advice on better focus, improvement of his short-term memory functions as well as better control of his volatile moods and temper. In terms of his Heights Phobia, he should avail himself to a standard course of psychological therapy to overcome his fear and aversion towards working on heights.

The expected course of psychological treatment for Mr. Siu’s conditions should comprise of at least 10 sessions. The fees, should Mr. Siu chooses to continue to take on such treatment at the Hong Kong Sanatorium & Hospital is HK$3,000 per session.

……”

9. The medical evidence on the Plaintiff should have ended by the report of Professor Lee.  However, the Professor recommended the Plaintiff to take further psychological treatment.  He did so and went to a specialty in clinical psychology Dr Chan for 7 sessions, resulting in an extra report dated 26 July 2012.

10. By a summons filed on 28 August 2012, he sought leave to

(a)   adduce the report of Dr Chan at the assessment, and

(b)   call Dr Chan as an expert psychologist to give oral testimony.

11. To avoid any unnecessary adjournment, at the assessment, I allowed 10(a) on a de bene esse basis, refused (b) and reserved costs to be dealt with.  Now that, I will formally confirm my said rulings.  Here are the reasons.

(a)  The extra report is by its nature a continuation of the treatment received by the Plaintiff.  Hence, to be fair to both parties, the Plaintiff’s condition should be updated.

(b)  The Defendant will not be prejudiced by a mere production of an updated medical report.

(c)   However, the calling of Dr Chan as an expert psychologist is quite different.  The application is late, about 14 days before the assessment.  It contradicts the expert directions having agreed by the parties back in July 2011.  The Defendant will also be deprived of the opportunity to even consider adducing its own expert evidence on the area.

12. Hence, for the present assessment, I also note that the followings as contained in the Psychological Treatment Report dated 26 July 2012.

“……

Mr. Siu attended a total of 7 clinical sessions since 25^th February 2012. He was given a structured course of cognitive behavioural treatments, which involved vivo exposure therapy for height phobia, rational emotive therapy for increased irritability, and social skills training for interpersonal conflicts and communications problems with his parents.

Mr. Siu was compliant throughout the recommended course of treatment.  When he was last seen on 26^th July 2012, Mr. Siu reported moderate improvements in his height phobia, increased irritability, and interpersonal problems with his parents when compared to the original conditions.  Mr. Siu still experienced mild degree of memory deterioration, which manifested mainly in form of daily forgetfulness and absent-mindedness.  He needed to cope with his memory problems at work by taking notes for essential work schedules and appointments ……”

13. I make no order as to costs for the summons.

Interlocutory judgment

14. Shortly after the commencement of proceedings, the Defendant conceded liability.  By consent, interlocutory judgment on liability was entered for the Plaintiff on 14 February 2011 with costs.  Parties thereafter proceeded with in usual course for the assessment of damages.

Assessment

15. They appeared before me for 3 days in September 2012 for the assessment of damages.  Both parties were represented by Counsel.  Mr YM Liu acted for the Plaintiff and the Defendant, Mr Daniel Chan.

Credibility of the witnesses

16. Two witnesses attended the assessment, the Plaintiff himself and his supervisor at the Defendant, namely Mr Claeys.  As usual, their credibility are important because it affects the finding of facts by this Court, and in our present case, including:

(a)  What is the extent of residual symptoms suffered the Plaintiff?

(b)  Why did the Plaintiff resign from the Defendant?

17. Upon consideration, on balance, I agree to accept the case of the Plaintiff. He is a reliable and credible witness.  While saying so, I in no way mean that Mr Claeys is unreliable or incredible.  Quite to the contrary, he is also an honest person.  In my view, both of them were telling me the truth, just from different sides of the same story.

18. To start with, I entirely agree with the following observations from Dr So and Dr Yu upon the Plaintiff when he was at his examination. These comments are equally applicable to the Plaintiff at the assessment.

“ 12. He was cooperative and forthcoming, and was truthful about his symptoms and disabilities. During the interview and examination, he was attentive and maintained good eye contact. His mood was neutral with no feature suggesting anxiety or depression ……”

19. At the assessment, with consent from the Plaintiff, and no objection from both Counsel, I took a look at the scar at his head.  It was a long (about 7 inches) curved craniotomy scar at the right occipital region.  He honestly told me that he had got used to it.  Very fortunately, it was something he seldom noticed himself as it was at the back of his head.  But for such positive attitude towards the same, cosmetic medical expenses could be one major heading in the assessment.

20. However, the Plaintiff did have a difficult hurdle.  He resumed his job after the sick leave for about 1.5 months.  He continued to work with the Defendant at the same post for nine months.  He then resigned on his own.  In his resignation letter, he wrote:

“Dear Supervisor

As required in my contract, I hereby give a week notice of my intent to resign Effectively date on January 18, 2009 as agree by Mark. I would like to thank you for making my experience here a positive and rewarding one. It has been a pleasure working with you and the others in the company.

It is now time for me to move on and I have recently accepted a position with another firm. This decision was not an easy one for me and it took a great deal of consideration. However, I am confident that this new role will be a positive step towards fulfilling my career goals.

I wish the company continued success and once again, would like to thank you for allowing me to be a part this great company.

Sincerely

……”

At the present proceedings, he said however that he had to resign because, inter alia, he was scared of climbing up to work.  He made it known to the store manageress who told him that he still had to comply with the tasks assigned to him.  It happened more than one occasion.  He felt anxious and stressed, and finally, decided to quit.  For the purpose of, among others, maintaining an amicable relationship with the Defendant, he did not tell such truth formally in the resignation letter.

21. Should I accept the explanation by the Plaintiff?

22. In this respect, Mr Chan spent quite some time on the Plaintiff at his cross-examination.  The learned Counsel also persuaded me not to do so at his closing submissions:

“ 37. First, after the expiration of his sick leave, the Plaintiff resumed work with the Defendant …… visual merchandiser at the same salary and with the same job duties …… for more than 9 months until his resignation on 18 January 2009 ……

38. Secondly, the allegation of height phobia preventing him to work at height did not emerge in the documentary evidence in this case until a late stage. From the available medical evidence, it also did not appear to be of a very serious nature. This is different from the oral evidence given by the Plaintiff in Court. In Court, the Plaintiff said that upon returning to work for the Defendant after the expiration of his sick leave, he found himself feeling uncomfortable each time when he climbed one to two rungs of ladder and his legs would shake for fear when he climbed three to four rungs of the ladder, up to the height of his waist …… Under cross-examination, he said that he did tell the hospital doctors at Kwong Wah Hospital, Dr. Gardian Fong, the private neurologist whom he consulted for treatment, and Dr. So and Dr. Yu who jointly examined him for the purpose of this case that he had these symptoms. He also said in Court that he told Dr. Fong and Dr. So and Dr. Yu that he resigned from the Defendant because of his fear of working at height. However, this is contradicted by the available medical report from Kwong Wah Hospital, Dr. Gardian Fong, and the joint medical report from Dr. So and Dr. Yu.

39. ……

  42.   Thirdly, if the Plaintiff did suffer from the serious symptoms of uncomfortable feeling upon climbing one to two rungs of ladder and shaking legs for fear upon climbing three to four rungs of ladder up to the height of his waist each and every time when he did so, it would stretch everybody’s imagination as to why he could have continued doing that every 15 to 20 minutes on each and every working day after his resumption of work on 31 March 2008 until about 9 months later when he resigned from the job on 18 January 2009 ……”

……

  45.   The Plaintiff explains in his witness statement that this nicely-worded letter of resignation is his way of pleasing or expressing to the Defendant so as not to offend them [51-52].  However, this is inconsistent with his own evidence in the same witness statement at paragraph 5.3 [51] that it was due to repeated occasions of working from height, which aggravated his anxiety, that he decided to resign.  And his explanation of trying not to offend the Defendant is also inconsistent with his own evidence in paragraph 5.2 [50-51] of his witness statement that he repeatedly complained and protested to the management as well as the store manageress.  The question is: which version is a lie?

……

  48.   Sixthly, in any event, there is no medical opinions in this case tending to support that the Plaintiff cannot return to his pre-accident job with the Defendant by reason of his neurological or psychological condition.  Even Professor Peter Lee has not stated as his opinion in the medical report that the Plaintiff is not suitable to return to his pre-accident job with the Defendant or any job requiring him to work at height.  Further, it is also Professor Peter Lee’s opinion that the Plaintiff’s psychological conditions are amenable to psychological management and treatment ……”

23. No doubt, one can see the force of argument by Mr Tang.

24. However, having said that, there are also strong factors for the Plaintiff.

(a)   The resignation letter cannot be “true” because there was undisputed evidence that:

(i)   The Plaintiff did not accept any position with another firm before his resignation at all.

(ii)   He indeed sent out about 60 applications for jobs within 8 months after his resignation.  In September 2009, he worked as VM for Gas for a few days.  He only joined Giordano, also as VM from 8 February 2010.  Hence, the Plaintiff was left unemployed for about 1 year after the resignation from the Defendant.

(b)   The Plaintiff confirmed that he only told the store manageress his problems.  The reply was negative.  He did not further inform higher management level, including Mr Claeys.  The manageress left the Defendant for some time.  She did not prepare any statement or attend this Court before the assessment.  It leaves that part of evidence by the Plaintiff un-contradicted virtually or un-contradicted.

(c)   After all, I am impressed by the performance of the Plaintiff at the assessment.  He is not someone who says only at his convenience.  Instead, he will hide his true feelings in order to make others feeling better.  In the words of his Counsel, Mr Liu, in his closing submissions:

“ 12.   Putting the medical and psychological diagnosis and evaluation aside, the evidence on facts points to the Plaintiff’s assertion of pressure building up (comparable to increasing pressure in a balloon, as he put it) inside him slowly due to his enforced job requirement to climb up ladder (after the accident and after resuming work in H&M) in order to put up poster or dress mannequins. However, he also added that his female colleagues (by the names of Samantha and Allison) had assisted the Plaintiff when they took turns to hand over items to him from the ground level.  This, according to the Plaintiff, was a departure from the usual practice, which should be a “one-person-job”.  This is another piece of evidence showing the Plaintiff was indeed suffering from Height Phobia which was known among all his colleagues.  Otherwise, why the need to devise a new practice.  He also developed the discomfort of the need to ask his colleagues to do him such favours by assisting him from the ground or floor level.

  13.   In addition, the critical building up of such frustration was preceded by the Plaintiff’s complaints to the Store Manager, Sophia, as the Plaintiff repeatedly complained to her of not feeling comfortable when he had to mount a ladder to a certain height, compounded by his fall on 14 February 2008.  To this, Sophia told the Plaintiff: “This is your duty to do or else you leave the employment” – this is paraphrasing.  When cross-examined on this issue of suffering in silence for so many months, the Plaintiff emphasized that this was indeed a result of accumulation of pressure building up, since his initial complaint of 3 to 4 times were constantly rebuked by Sophia.  To the Plaintiff, it would be useless to complain further though his dissatisfaction was growing.

  14.   ……

  15.   Furthermore, the motive for the Plaintiff of not to state of being compelled to climb up ladder in his resignation letter of 8 January 2009 was his desire to obtain a good Reference Letter from H&M (Page 213 of the Agreed Assessment Bundle).  It also shows that the Plaintiff was concerned with his future employment prospects.  This sounds quite logical, from the Plaintiff’s point of view, as he admitted in Court that he was young and inexperienced when dealing with such a situation, plus this was his first full time employment in Hong Kong after return from England.  Although admitting the resignation letter did not contain this specific complaint, the Plaintiff (in re-examination) emphasized that he was not intentional or deliberate in telling such a lie (of having found another job), other than of feeling too embarrassed to say so explicitly (that he was traumatized).  In other words, the Plaintiff chose not to be confrontational.

  16.   The Plaintiff’s version is that all along he had acted and testified truthfully, without exaggeration or omitting relevant facts.  One may ask: “If the Plaintiff was performing his work well, after resumption of duty, and without complaints from any person, why should he tender his resignation and thus make himself out of gainful employment?”  Or why should he give excuse to H&M that he had found another job, when in truth, he became instantly unemployed.  If such was the scenario of not purposely stating his fear of height but hiding it, the Plaintiff then submits that it would be entirely illogical – or put it this way, a by-stander may exclaim: “He must be mad to resign by telling such a lie of having found another job.”

  17.   ……”

Which expert is to be preferred: Dr Yu or Dr So?

25. I have quoted in details hereinabove the shared opinion of the 2 neurological experts.  As to their differences, I see only little of them. Nonetheless, I still have to make a choice between the two for the purpose of the present assessment.  As I have accepted the case of the Plaintiff, the views of Dr Yu are preferred to.

“16. Residual disabilities.

Dr. Yu

Mr. Siu sustained a severe head injury but has made a pleasing recovery. Often patients like him who appear to have normal higher mental functions, and little or no deficits elicited on neurological examination, yet their performance at work shows deterioration. Judging from the reported symptoms and disabilities, Mr. Siu has mild neurocognitive deficits. There is minimal neurobehavioural disturbance in the form of irritability. His headache is infrequent and most of it is of mild intensity.

……

17. Work potential and loss of earning capacity

Dr. Yu

With his mild neurological impairment, Mr. Siu should be able to resume his pre-accident employment as a visual merchandizer and to hold onto his current job of a similar nature.  The loss of earning capacity is estimated to be 5%.”

26. With the above findings, I now move to the assessment of damages.

PSLA

27. The Plaintiff asked for $400,000 pain, suffering and loss of amenities when the Defendant offered $300,000.  There is no doubt that the Plaintiff suffered serious head injury and recovered quite well, leaving residual symptoms so suggested by Dr Yu.  The position of the Plaintiff, as confirmed by himself before me, should be even better after the 7 sessions of treatment by Dr Chan.

28. Bearing in mind the award of $450,000 PSLA under the case of Yeung Tung Sang v Jamsant Cleaning Service Co Ltd HCPI 826/2001, unreported, Deputy High Court Judge Fung (as he then was) dated 17 October 2003 and the well-known principles in Chan Pui-ki v Leung On & another [1996] 2 HKLR 401, I have no hesitation to award $400,000 to the Plaintiff under this head.

Loss of Past Earnings and MPF

29. Mr Liu asked for the total sum of $191,179 for the Plaintiff regarding loss of past earnings and MPF.

“ (a) Unemployed between 19/1/2009 and 17/9/2009: $113,201

(b) Employed at Gas Far East Ltd. between 18/9/2009 and 12/11/2009 at reduced income per month: $6,737

(c) Unemployed between 13/11/2009 and 7/2/2010: $40,398

(d) Employed at Giordano Ltd. between 8/2/2010 and 31/1/2011 at reduced income per month: $30,843.

Total: $113,201 + $6,737 + $40,398 + $30,843 = $191,179”

  (Revised Statement of Damages dated 26 October 2011)

30. Mr Chan disagreed.  The Defendant’s primary position was of course that the Plaintiff could and did resume his pre-injury job.  The Plaintiff only resigned on his own and should not be paid anything.  Further and in the alternative,

“ 13. It is further averred that although the Plaintiff had to work at height in his job as a visual merchandiser for the Defendant, the job of a visual merchandiser does not take him under the specialist category of workers which had to work at height such as those who work on gondolas. Further, not all fashion retailers for whom the Plaintiff would work for would require their visual merchandisers to work at height.

  14. Further, the Defendant H & M is an intentional fashion retailer far bigger than Gas Far East Ltd and Giordano Ltd.  The Plaintiff’s alleged reduced income was not caused by his injury but due to the difference in pay structure between H & M, the Defendant and Gas Far East Ltd. and Giordano Ltd.”

(Defendant’s Answer to the Plaintiff’s Revised Statement of Damages dated 18 November 2011)

31. Having accepted that the Plaintiff did resign as a result of his continuing physical and psychological condition, together with the need to continue to work at height if required, the Plaintiff is in principle to be granted his claim under this head.  Nonetheless, I do not forget about the confirmation from the Plaintiff that he had been working happily at Giordano. He learnt some other things that the Defendant could not offer.  More importantly, Giordano did not underpay him.  It was about the market rate.  He earned more at the Defendant because it paid more than the usual rate at market.

32. Having agreed that the Plaintiff is honest and credible, both evidence to his advantage and disadvantage will be equally accepted by me. Hence, in my findings, upon his joining in of Giordano, he did earn less than in the Defendant. However, he did so in his own choice and was not caused by his injury or otherwise.  Certainly, I also do not forget the fact that the Plaintiff has been recovering gradually as time went on.

33. Because of the above, I will award the Plaintiff the sums of $160,336 ($113,201 + $6,737 + $40,398).

Loss of Future Earnings

34. In my judgment, there will be no loss of future earnings because of the subject accident.

Loss of Earning Capacity

35. As I have accepted the opinion of Dr Yu, the Plaintiff will still be slightly disadvantaged in open labour market.  As he is still at his late twenties, in my assessment, a sum of $121,500 ($13,500 x 9) is appropriate.

Special damages

36. The Plaintiff claimed a sum of $15,560 for expenses incurred.

(a)	Hospital and medical expenses	$4,560
(b)	Travelling expenses	$3,000
(c)	Travelling expenses of the Plaintiff's family	$1,000
(d)	Tonic food	$2,000
(e)	Cost of Future Medical Care	$5,000
		$15,560
		======

Item (e) has to be revised in light of the 7 sessions of treatment having taken by the Plaintiff as well as the further 12 sessions recommended by Dr Lee [$46,800 ($3,600 + $2,400 x 6 + $2,400 x 12)].  All of them will be allowed in full as they were either documented or reasonable in the nature and quantum, i.e. $57,360 ($15,560 – $5,000 + $46,800).

Summary

37. Having taken into the employees’ compensation received by the Plaintiff, the Defendant shall pay the followings to the Plaintiff:

		$
(a)	PSLA	400,000
(b)	Loss of past earnings and MPF	160,336
(c)	Loss of earning capacity	121,500
(d)	Special damages	57,360
		739,196
	Less: Employee compensation received	25,920
		713,276
		======

Interest

38. As to general damages, the Plaintiff is further entitled to interest at 2% per annum from the date of writ to the date hereof.  Regarding special damages, interest will be calculated at half judgment rate from the date of accident until the date of judgment herein.

Costs

39.  Finally, there will be a costs order nisi that the Defendant is entitled to costs of the assessment, on District Court scale, on party-and-party basis, to be taxed, if not agreed.

Mr YM Liu instructed by Messrs CT Chan & Co, for the Plaintiff.

Mr Daniel Chan instructed by Messrs Vincent TK Cheung, Yip & Co, for the Defendant.