KOON SAI KWONG v. WELCOME ENGINEERING CO. LTD.

HCPI 930/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.930 OF 1999

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J U D G M E N T

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1. The plaintiff was employed by the defendant as a sewage construction worker at a construction site in Yuen Long, New Territories. On the day in question, namely 20 September 1996, in the course of his employment the plaintiff was engaged in constructing an underground storm water manhole at the site. An excavation had been dug for this purpose, and the plaintiff fell into the excavation, as a result of which he sustained multiple injuries.

2. On the pleadings the defendant denied any responsibility for the accident and denied all liability for the damages suffered by the plaintiff, however at the outset of the hearing Mr Li informed me that the defendant accepted that it was liable to the plaintiff in damages, on the basis that it had been in breach of Regulations 38L and/or Regulation 38P of the Construction Sites (Safety) Regulations, which respectively provide for the proper construction of a safe working platform, and the provision of suitable guard rails to prevent persons from falling into the excavation - it being common ground that no such rails had been provided at the site in question.

3. While accepting primary responsibility for the accident, the defendant alleges that the plaintiff was contributorily negligent in causing the accident, which is denied by the plaintiff. Whether the plaintiff was or was not thus contributorily negligent in causing the accident was the main issue in these proceedings; also in issue were the extent of the plaintiff's injuries which were properly attributable to the accident; and the quantum of the plaintiff's damages.

The events leading up to the accident

4. The plaintiff testified that he had been involved in constructing such underground storm water manholes on many previous occasions, and there was nothing different about this particular job : he and his co-workers adopted the same modus operandi as they always did.

5. This involved digging an excavation, at the bottom of which a cement block was built in order to support the drain-pipe which ran along its length. The sides of the excavation were shored-up by the installation of "mud-stopping boards", to prevent them caving in.

6. In accordance with their normal practice, the plaintiff and his co-workers had constructed a wooden working platform which spanned the excavation, to act as a bridge which enabled the workmen to walk across it and to carry tools from one side of the excavation to the other. The platform measured 4 feet by 8 feet, and was supported by a number of wooden beams which spanned the excavation, and onto which the platform was nailed. They had been using the platform without any mishap for about three days before the accident occurred.

7. On the day in question cement had just been poured from a concrete mixer into the bottom of the excavation, whereafter the plaintiff and his co-workers were clearing away cement which had been left on the ground near the edge of the excavation, and also cement which had accidentally spilt onto the working platform, by shoveling it into the bottom of the excavation. The plaintiff testified that it was necessary to do this before the spilt cement set and became hard.

8. The plaintiff testified that it had been raining on the day in question, though it was no longer raining when they started to pour the cement. He was standing on the working platform, clearing the cement spillage from it, when he slipped and fell off the platform to the bottom of the excavation below, into the cement which was still wet. He lost consciousness immediately after he fell, and he had no recollection as to what it was that had caused him to fall, or how precisely he fell.

Depth of the excavation

9. Surprisingly there was no reliable evidence led to establish what the depth of the excavation was into which the plaintiff fell. The plaintiff pleaded that the excavation was 2.5 metres wide and 5 metres deep; and he testified that he believed that it was about 6 metres deep, since that was the normal depth of such excavations in his experience.

10. However, the medical records show that the plaintiff repeatedly told the doctors who treated him after the accident that he had fallen from a height of about 3 metres. When he was cross-examined about this, he said that he had been confused at the time that he had spoken to the doctors, and that his co-workers had subsequently told him that he must have fallen considerably more than 3 metres, otherwise his injury would not have been so severe.

11. The only other witness of fact who was called, Mr Lee Sun who was one of the plaintiff's co-workers at the site, testified that in his estimation the plaintiff fell approximately 8 metres, which he based on the fact that they had been asked by the engineer to dig the excavation to a depth of about 24 feet. However in the diagram which he attached to his witness statement, he indicated that the height of the wooden steps which led from the top of the excavation to the bottom of the steps was 16 feet; I was not convinced by his explanation in cross-examination that there was in fact a further 6 feet between the bottom of the wooden steps and the ground at the bottom of the trench.

12. I do not consider the distance which the plaintiff fell to be a critical issue in this case, since whatever the distance was that he in fact fell, it is the extent of the injuries which he suffered, as reported by the various doctors who examined, treated and assessed him, that is decisive in this matter, which is not necessarily dependent upon the distance which he fell - though I note Dr Chun's evidence that if the plaintiff had fallen a distance of 5 or 6 metres as opposed to 3, he would have expected the injuries to have been greater than those he observed.

13. As an experienced construction worker who had constructed and worked upon many similar such excavations previously, the plaintiff should have had a good idea of the depth of the excavation in question. Considerable weight therefore attaches, in my view, to the fact that he repeatedly told the doctors who treated him that he had fallen a distance of about 3 metres.

14. On all of the evidence I find that as a matter of probability the plaintiff fell a distance of approximately 3 metres.

Whether the working platform collapsed

15. I note that it was pleaded in the Statement of Claim that " the defendant caused the plaintiff to fall and plunge from the temporary working platform when the wooden boards and its supports suddenly failed ... and further caused the plaintiff to be struck by the wooden beams and the strut of the shuttering boards beneath".

16. In cross-examination for the first time the plaintiff stated that when he was working on the platform just before the accident, he heard the sound of "Lap" - and he remembered that before he fell, the board had moved.

17. However, this was not consistent with the remainder of his evidence, in which he repeatedly stated that he had slipped and fallen from the platform (the same history which he gave to the doctors who thereafter treated him).

18. Mr Lee Sun testified that he did not witness the accident; he was working nearby when he heard a loud noise (apparently it was the plaintiff calling for help), and on rushing over, he found the plaintiff already lying at the bottom of the excavation. Then he saw a board, which had been on top of the working platform, also fall into the excavation. There is no suggestion that this board struck the plaintiff. Mr Lee was specifically asked to clarify whether his reference to a board falling was a reference to the whole working platform or a single board, and he clarified that it was "just one board that fell into the excavation".

19. The preponderance of the probabilities on the evidence is that the plaintiff slipped and fell into the excavation from the working platform, rather than that the platform itself collapsed and fell into the excavation, taking the plaintiff with him.

20. I note that the plaintiff was a very experienced construction worker. Before he joined the defendant company, he had been a construction worker for many years, in particular working as a caisson worker. Before the accident he had been employed by the defendant company as a construction worker for about eight years doing heavy construction work, including handling pneumatic drills, doing excavation work, shoveling and carting material, and also carpentry.

21. He testified that he and his co-worker named "Hui" were the most senior and experienced construction workers in their gang. By virtue of their greater experience and versatility, they were both known as "masters". The other workers addressed Hui as "master", whereas the plaintiff addressed him as "brother". The two of them earned higher wages than the other workers. For the most part they worked unsupervised on the site, though the Foreman who was employed by the defendant was sometimes present. The two of them had been responsible for designing the storm water manhole, and similarly for designing the working platform, which was constructed under their general guidance and supervision. He and Hui had been satisfied that the working platform had been constructed wide enough to enable the workers to safely walk across it. The plaintiff had never previously seen guard rails provided on such working platforms to prevent anybody falling off them. He himself had never fallen off such a platform nor injured himself in using such a platform previously, nor had he ever seen any other workers doing so.

22. If the working platform had been provided with properly constructed guard rails, they may well have prevented the plaintiff from falling into the excavation after he had slipped - thereby avoiding the serious injuries which he sustained in consequence of that fall. This appears to have been the main basis upon which the defendant conceded liability at the outset of the hearing.

Footwear

23. The plaintiff was wearing Wellington boots at the time, as were all his co-workers, in order to protect their feet from water and mud. These had not been issued to them by the defendant; they had purchased them themselves. (The defendant had issued them with helmets and fluorescent clothing, both of which he was wearing at the time).

24. It was put to the plaintiff, and is part of the defendant's case on contributory negligence, that the Wellington boots were not appropriate footwear for the plaintiff to have been wearing when shoveling cement from the wooden platform, and that he should have either asked the defendant to supply him with or should have obtained for himself special industrial, non-slip shoes. The plaintiff admitted that he had heard of such shoes; however while Wellington boots are as a matter of probability more clumsy and less manoeuvrable than non-slip shoes, nothing in the evidence establishes that the Wellington boots actually contributed to cause the accident, nor that the accident would have been avoided had the plaintiff been wearing the non-slip soled shoes.

Plaintiff contributorily negligent

25. The plaintiff was a mature man (54 years old at the time of the accident), very experienced in constructing such underground storm water manholes, and used to working without supervision. He had not been instructed to enter onto the working platform at the time; he exercised his own judgment in doing so, and in standing where he did on the platform. The question squarely arises whether the plaintiff was not to some extent the author of his own misfortune. He testified that it had been drizzling for the whole of the day before the accident occurred. He conceded that he realised, when he went onto the platform to shovel cement, that it would be slippery from the rain and the wet cement. He indicated on the diagram which he drew of the excavation and the platform, that just before he slipped and fell he was standing towards the middle of the length of the platform and near the edge at its width when he was shoveling cement off it. In so doing he left himself very little margin for error in the event that he did slip in the slippery conditions which, to his knowledge, then prevailed. In my view he failed, in so doing, to take reasonable precautions for his own safety, and I find that in all the circumstances his negligence substantially contributed to the cause of the accident; I assess his contribution at 40%.

Quantum of damages

26. The plaintiff is claiming damages in respect of the multiple injuries which he claimed to have sustained in consequence of the accident, primarily to his neck, chest and back; and various consequential problems which have resulted therefrom, including a trembling of his right upper limbs, coldness in his right hand, pain in his heart, loss of power in his legs, depression and loss of memory.

27. In relation to his back pain, the issue has been further refined as being whether the back pain which the plaintiff claims that he is still suffering today, which is specifically lower back pain, is properly attributable to the accident - which is denied by the defendant.

The medical records

28. The plaintiff's injuries as they were recorded at Pok Oi Hospital Accident and Emergency Department on the same day of the accident, were right back pain : swelling tenderness and bleeding were observed at a site around the middle of his back (as drawn in a diagram accompanying the notes); and a fracture of his 8th posterior rib was diagnosed. He was conscious, and his general condition was fair on admission. On the same day he was transferred to Tuen Mun Hospital for follow-up diagnoses and treatment, where he remained for four days.

29. His injuries as they were recorded at Tuen Mun Hospital on the same day were right back pain : swelling and tenderness were located on his back, apparently around the middle of the back as recorded in a diagram accompanying the notes; right forearm pain; and chest X-ray revealed a fractured right 8th rib. He was recorded as having no head injury, no dizziness, no nausea, no vomiting and no loss of consciousness.

30. Following his discharge from the hospital, he received treatment from Orthopaedic Specialists for a period of some two months. In a medical report dated 9 October 1997, Dr Yu Kong San of the Department of Orthopaedics & Traumatology of Tuen Mun Hospital noted that :

"[The plaintiff] first attended the Orthopaedics outpatient clinic on 1 October 1996, and a physical examination after his admission showed that there was abrasion over his back with mild local tenderness. ... Range of motion was full but with pain at end range. ... There was no neurological deficit ... Radiological examination of chest showed fractures of right 4th to 7th ribs. Mr Koon was treated conservatively with rest and analgesics. He complained of persistent chest pain over the right side of the body. Chest X-ray showed healing of the fractures. Mr Koon was subsequently referred to the Department of Medicine for further assessment. His neck pain was improving after conservative treatment. ..."

31. The plaintiff was referred to the United Christian Hospital for psychiatric examination on 11 September 1998. The attending doctor's notes show that the plaintiff was :

"... dissatisfied with (ortho) diagnosis and treatment. Antagonistic attitude. Compensation pending for neck injury ... Tendency to dramatise somatise symptoms. No formal psychiatric illness (compensation neurosis ). Alternative diagnosis mild depression."

The plaintiff's expert medical witness

32. The medical expert called by the plaintiff was Dr Au Ka Kau, an orthopaedic specialist. He first examined the plaintiff on 23 February 1999, namely some two and a half years after the accident. He found as follows :

"- multiple healed abrasion wounds on back;

- muscle spasm and tenderness over neck, back, and also right side of rib cage;

- impairment of his neck movement;

- impairment of his back movement;

- weakness of his left leg and also wasting of his left leg muscle;

- Radiographic examination shows that the rib fractures have united;

- There is no doubt that the neck pain, back pain and right chest wall pain is a result of the injury that he sustained on 20 September 1996 ...;

- The total impairment of body function is 12%; the loss of earning capacity is around 18%;

- With the present degree of disability, Mr Koon is not suitable to return to his previous job. Jobs that are suitable for him are those that are physically light in nature, eg, watchman, car-park attendant ... etc."

33. Dr Au next examined the plaintiff on 8 July 2000 at which time the plaintiff complained of frequent headaches, back pain and neck pain; also pain over the posterior aspect of his right chest wall. Dr Au found that his condition had remained static since the last examination.

34. Dr Au finally examined the plaintiff on 23 December 2000. The plaintiff was still complaining of back pain, neck pain and chest pain, and stated that his condition had not improved at all.

35. In relation to the chest wall pain, Dr Au noted that the location of the pain was different from the site which the plaintiff had previously indicated; and that :

"... the chest wall pain due to the rib fracture had improved and the chest pain noticed doing my recent examination is more likely to be cardiac in origin and is unrelated to his chest wall injury."

(I should note in passing that there have been no suggestions from any of the medical evidence that any cardiac problems which may exist are in any way related to the accident).

36. In relation to his lower back pain, Dr Au commented :

"I think his back condition had been static. Mr Koon's back pain is compatible with injury to his back sustained during the accident on 20th September 1996."

37. In relation to his neck and back injuries, Dr Au noted that :

"There is persistent limitation of his neck and back movement and muscle spasm in the paraspinal region. The occipital neuritis accounts for the tenderness at the occiput region. Occipital neuritis is caused by the entrapment of the greater occipital nerve; it may respond to treatment in the form of local steroid injection and a course of physiotherapy treatment. The cost of the treatment will be around HK$6,000."

38. Dr Au revised his earlier estimates of the plaintiff's total impairment of body function to 10%; and his loss of earning capacity to 15%.

39. Dr Brian Choa, a Specialist in Neurology, examined the plaintiff on 25 October 1999, and diagnosed him to be suffering from a right-sided occipital neuralgia, and a post concussion syndrome characterised by personality change, mild depression and poor concentration. Dr Choa reported that he felt that the plaintiff was a reliable witness, and he believed that the plaintiff's back pain was genuine and likely to have been caused by the fall. He assessed the permanent impairment (neurological) to be 5% of the whole person, and loss of earning capacity also at 5%.

The defendant's expert medical witness

40. The medical expert called by the defendant was Dr Chun Siu Yeung, who was also an orthopaedic specialist. He examined the plaintiff on 7 March 2000 and also reviewed the full history of medical notes, medical reports and X-rays which had attended his treatment.

41. He observed, judging by the injuries which had been sustained by the plaintiff and the history given by him, that it was likely that the plaintiff had fallen on his right chest wall, which should have had minimum affect on his lower back, and that in his view the lower back pain complained of by the plaintiff was unrelated to the fall, particularly bearing in mind that he had first complained of it on 2 December 1996, as reported by Dr Yu Kong San, which was about two and a half months after the fall.

42. He also disagreed with Dr Au's suggestion that nerve injury around the sites of the rib fractures had caused neuroma formation. Dr Chun found that there was no structural or physiological reason to account for the plaintiff's persistent pain at the thoracic cage.

43. The X-ray findings indicated that the plaintiff had a degeneration of the spine, which was most unlikely to be the result of the accident.

44. The complaint of upper neck pain and occipital pain is compatible with occipital neuritis, which he agreed with Dr Au would respond to treatment, and it therefore constituted a temporary condition. The neck pain, which probably resulted from a sudden flexion during the plaintiff's fall, should have cleared up within a few weeks.

45. Dr Chun flatly disagreed with Dr Au's assessments of impairment value based on the AMA Guides. He estimated that at the most (namely assuming that the plaintiff's upper neck pain did not respond to treatment, and that the muscle spasm might be related to the fall), he assessed the plaintiff's whole person impairment at 5%, and his loss of earning capacity also at 5%.

46. Dr Chun opined that the reasonable period of sick leave for the plaintiff should have been three months; thereafter he should have been able to return to work as before.

47. In his second and third reports, which did not involve any further examination of the plaintiff, but were based upon further analysis of all the medical records, including Dr Au's report, he noted that if the plaintiff had suffered any significant injury to his low back, neck or upper thoracic spine in the accident, he should have exhibited signs and symptoms immediately, or at least within a few days of the accident - and not weeks or months later.

48. Doctor Chun reaffirmed and expanded upon the conclusions which he had come to in his first report. He noted as follows in relation to the plaintiff's complaints of low back pain :

"The medical reports by Dr. Yu Kong-san dated 29 January 1998 & 15 May 1998 stated :

1. First complained of low back pain on 2 December 1996, which was 'not related to injury.'

2. As there was improvement of his cervical and chest wall symptoms upon conservative treatment, the chief complaint then changed to low back pain.

3. He also complained of right-sided chest wall pain on 19 September 1997 follow up.

4. The sick leave issued on 7.10.96 for 'back injury' referred to upper part of back around rib cage region. This carries a different meaning to the lower part of back around lumbar region."

He further found as follows :

"After reviewing the medical records and x-ray films, I came to the following conclusion :

1. He had contusion of the right posterior lower rib cage. There might be a fracture 8th rib which is in the lower thoracic cage region. Fracture of right third to 7th ribs was unlikely as the pain and tenderness was not marked on this region on the initial medical record and non-detectable on the x-ray films reviewed.

2. The low back complaint was not caused by the fall but by pre-existing condition.

3. There was no significant injury to the cervical spine, no objective findings that could classify him into a higher DRE category according to the AMA Guides.

4. His symptoms and signs were related to 'compensation neurosis'.

5. No permanent impairment resulted according to the criteria of AMA Guides.

6. Sick leave ended by 7 March 1997 was reasonable.

7. From physical point of view he should be able to return to his previous job."

49. I noted that Dr Au, in his three medical reports, was not astute to distinguish between upper and lower back pain. When he was faced with Dr Chun's opinion that the plaintiff's low back pain was not caused by the accident, Dr Au stated as follows in his last report dated 25 December 2000 :

"However, Dr. Chun's comment in his report dated 11th March 2000, may be right. If the low back pain occurred a few days to a week after the fall, it has a causal relationship between the fall and the low back pain. The time lag of two and a half-months had led Dr. Chun to doubt whether the back pain was related to the fall. I have specifically ask Mr. Koon about the onset of his back pain during my recent interview. Mr. Koon confidently told me that he had the back pain immediately after the accident. This is an important piece of information. I think there is a causal relationship if the back pain had occurred shortly after the accident; if there is a delay of two and a half months, the back pain probably is not related to the said accident."

Dr Au clarified under cross-examination that the question which he had asked the plaintiff was in the following terms : "Did you have back pain immediately after the accident?"

50. Dr Chun's observation on this is clearly correct in my view : that it is not sound practice to base a diagnosis upon the answer given by the patient to such a leading question as the aforesaid; it is a much more sound approach to base the diagnosis upon the contemporaneous medical records, which showed that the plaintiff did not complain specifically of lower back pain until some two and a half months after the accident - and/or by probing the plaintiff's condition and medical history by means of non-leading questions.

51. Dr Au agreed that degenerative changes were already present in the plaintiff's lower back at the time of the accident, and while he agreed that any normal daily activities such as bending or lifting weights could have triggered off the lower back pain which the plaintiff claims to have experienced, he said that in his opinion it was the accident which had caused the pre-existing degenerative changes to become symptomatic, namely to become painful.

52. When Dr Au was pressed in cross-examination on the delay of some two and a half months before the plaintiff first complained of low back pain, he proffered the "gate" theory, namely if there are two pain sites and the "gate" is flooded, the patient may not feel the lesser pain; then once the rib injuries started to heal he would have become aware of the pain signals from his lower back. Dr Au conceded that he had only thought of this explanation under cross-examination for the first time - he said that he had been stimulated to think more deeply about the matter by cross-examination.

53. Having heard detailed evidence from both Dr Au and Dr Chun, I preferred Dr Chun's views on those aspects upon which they differed, as more correctly and convincingly reflecting the probabilities.

Pain, suffering and loss of amenities

54. I find on the probabilities that the plaintiff's lower back pain is not attributable to the accident; rather that it is a result of degenerative changes to his lumbar spine which already existed at the time of the accident, the further development of which was not contributed to in any way by the accident.

55. I find further that the plaintiff's neck, hand and muscle spasm were temporary, and will respond to treatment, and do not constitute permanent impairments.

56. In my view, the evidence shows that the plaintiff has exaggerated his symptoms. A further suggestion of this is his claim to Dr Au that his sitting tolerance was only 30 seconds, yet he appeared to be able to sit in court without serious difficulty for periods of hours at a time during the hearing.

57. Notwithstanding the aforesaid, from my observation of the plaintiff during the hearing, even allowing for a degree of exaggeration of his symptoms, he did not appear to me to be a man who was robust enough to return to the sort of heavy labouring work which he used to do before the accident.

58. It seems clear that the plaintiff's life has changed course since the accident; I find that to some extent this has been the result of the injuries which he sustained in the accident, and to some extent, a self-imposed reaction to his injuries as part of a "compensation neurosis".

59. While making due allowance for the fact that the pain and suffering associated with the plaintiff's lower back pain, which I have found is not attributable to the accident, must be excluded, the plaintiff's damages for pain suffering and loss of amenities in consequence of the injuries which are properly attributable to the accident are nevertheless fairly substantial, in my view. The depression and demoralization which he has clearly experienced form no small part of that equation. His relationship with his wife has been adversely affected, and they have not had sexual relations since the accident. His family life as a whole has suffered, and the normal daily life-style which he enjoyed before the accident has been considerably disrupted. The quality of his life, it seems to me, has been quantifiably reduced.

60. In my view, a sum of $300,000 is an appropriate award for the pain, suffering and loss of amenities which he has suffered.

Pre-trial loss of earnings

61. The parties are agreed that the plaintiff worked about 26 days a month, and was earning $600 per day before the accident, namely $15,600 a month.

62. I note that the plaintiff claims for the full sick leave period from the date of the accident to the 7 December 1998, a period of 27 months, on the basis that he was unable to work during that period as a result of his injuries. This is unjustifiable on the evidence. I find that the plaintiff should have been able to resume working after nine months, namely allowing for sick leave of six months, whereafter Mr Li agrees that he should be allowed a further three months to enable him to have found alternative employment.

63. Dr Chun was of the opinion that the plaintiff would have been able to return to his previous job as a construction worker. Dr Au disagreed : he was of the opinion that "with the present degree of disability, Mr Koon is not suitable to return to his previous job. Jobs that are suitable for him are those that are physically light in nature, for example watchman, car-park attendant etc". I note that Dr Brian Choa also commented in his report dated 26 October 1999 as follows : "After about three months of treatment, he should at least be able to return to non-strenuous work, such as that of a watchman etc. Indeed, purely from the neurological point of view, he would be able to return to his pre-accident job."

64. From my observations of the plaintiff during the trial, it is my view that should be given the benefit of the doubt on this score. I find that he would have been able to resume working after a period of nine months had elapsed since the date of the accident, but not at his old job : rather, in a physically undemanding kind of job such as watchman, car-park attendant or the like.

Overtime pay

65. The defendant disputes the plaintiff's claim for over-time pay. The plaintiff testified that before the accident he worked overtime on average about seven days per month for two hours per day, earning $75 per hour. Mr Lee Sun testified that he worked overtime on an average of four days a month in 1996, which he said applied to the whole gang including the plaintiff; however he did concede that the situation has changed considerably since the economic downturn started at the end of 1997, since when it has been more and more difficult for construction workers to find work. Some construction workers, he said, are only able to get four to five days work a month in the present economic environment.

66. In my view, it is reasonable on all the evidence to allow for pre-accident overtime earnings of two hours a day for four days a month, namely $600 a month for the nine months following the date of the accident. Since the economic downturn started shortly after the end of that nine-month period following the date of the accident, I do not make allowance for any further overtime payments in calculating his loss of earnings thereafter.

67. The plaintiff's pre-trial loss of earnings during the nine months after the accident was $16,200 x 9 = $145,800.

68. I have found that the plaintiff should have returned to work after nine months in some alternative type of job such as a caretaker, watchman or the like. No evidence has been led as to what he would have earned at such a job; however, accepting the figure put forward by the plaintiff's counsel of $7,753 per month, he would have suffered a partial loss of $15,600 - $7,753 = $7,847 per month from that time. Therefore his partial loss with effect from July 1997 to the trial is $7,847 x 55 months = $431,585.

69. His total pre-trial loss of earnings are therefore :

For nine months after the accident	$145,800
Partial loss thereafter to trial	$431,585
Total	$577,385

Post-trial loss of earnings

70. The plaintiff is now 59 years of age. It is agreed that the appropriate multiplier to adopt is three. The plaintiff's post-trial loss of earnings is therefore $7,847 x 12 x 3 = $282,492.

Pre-trial medical and travelling expenses

71. The parties are agreed on medical expenses at $2,951 and travelling expenses at $3,510.

72. The plaintiff claims $9,360 in respect of herbalist treatment, and $5,000 in respect of tonic food, which sums are disputed by the defendant. The plaintiff admitted that he did not bother to keep any of the relevant receipts, and is therefore unable to prove these sums. In these circumstances he is not entitled to recover the sums claimed, and I propose to accept the sums of $5,000 and $3,000 respectively which the defendant is prepared to agree under these heads.

73. The full award for these expenses is therefore :

Medical expenses	$2,951
Herbalist treatment	$5,000
Travelling expenses	$3,510
Tonic Food	$3,000
Total	$14,461

Post-trial medical expenses

74. Both Dr Au and Dr Chun agreed that a course of steroid injections and physiotherapy would probably relieve the plaintiff's neck pain, and they are agreed that $6,000 would be the reasonable costs of such treatment. The defendant agrees to pay this amount.

Loss of earning capacity

75. The plaintiff claims a lump sum of $150,000 under this head.

76. However, there is, in my view, no basis for an award under this head on the facts of this case, and particularly given that the plaintiff is already receiving an award for loss of future earnings.

Interest

77. I award interest as follows : on the general damages at 2% per annum from the date of writ (9 August 1999) to the date of assessment (22 April 2002); and on the special damages at half of the judgment rate (namely 8.14% X 50% = 4.07%) from the date of the accident (20 September 1996) to the date of assessment (22 April 2002).

Total award for interest :

Employee's compensation

78. The defendant has already paid the plaintiff the sum of $366,472 as employee's compensation under DCEC No.682 of 1998. It is agreed that this sum should be deducted from the plaintiff's damages.

Summary of plaintiff's damages

80. I grant judgment to the plaintiff in the sum of $432,326. I make an order nisi that the defendant is to pay the plaintiff's costs of these proceedings.