AGACER JAMES C v. ARNOLD ARTHUR JOHN

HCPI 518/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 518 OF 2012

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages. 

2. According to the Statement of Claim, on 30 August 2008, the defendant wrongfully assaulted the plaintiff by hitting him twice on the head with the defendant’s skateboard.  As a result, the plaintiff sustained injuries and suffered loss.

3. The writ herein was issued in 2012 and served on the defendant out of jurisdiction at the United States of America.  The defendant failed to file acknowledgement of service.  Interlocutory judgment had been entered against the defendant on liability on or about 28 October 2013 with damages to be assessed.  The plaintiff proceeded to assessment of damages before me today.  Notice of this assessment had been served and the defendant did not appear.  I proceed on ex parte basis.

4. There were 2 factual witnesses for the plaintiff, namely, the plaintiff himself and his wife, Marilouf Agacer (“PW2”).  A number of medical reports from his treating doctors had been produced.  Expert medical reports by Dr Michael Tsang, a clinical psychologist, and Dr Clarence Leung, an expert in spine and brain surgery were also produced.  By prior order of this Court, the expert reports were to be adduced without calling the makers. 

The Incidence on 30/8/2008

5. The plaintiff gave evidence.  He adopted his 2 witness statements dated 24 December 2013 and 28 April 2015 respectively as his evidence-in-chief.

6. According to the plaintiff, he was born in England on 10 January 1953.  He is 63 as at today. He came to Hong Kong in 1993.  According to his evidence, he started his career in Hong Kong as a property agent.  He had changed his occupation on a number of occasions.  From 2003 to 2005, the plaintiff was the manager of a furniture shop earning about $15,000 per month.  From 2005 to 2007, he worked as an English teacher.  Before the assault hereinbefore mentioned, the plaintiff was an English language teacher in a Kindergarten in Yuen Long.  The plaintiff relied mainly on his earning before the assault to prove his loss of earnings.

7. At about 8:30 pm on 30 August 2008, he went to Mei Fu Sun Chuen to wait for his wife PW2.  When he was waiting at the sitting out area at Mount Sterling Mall, he was talking with people who were also there.  After some 90 minutes, he noticed a group of male teenagers using skateboards in the area.  Some people complained against them saying that they were skateboarding too close to pedestrians.  He had some argument with those teenagers.  He got up from his seat and tried to place himself as a barrier from their skateboarding route.  He had further argument with the teenagers and in the midst of argument, he was struck on the head by the defendant and became unconscious (“the 1^st incident”).  The next time he remembered was waking up in Princess Margaret Hospital (“PMH”).

8. The defendant was arrested by police and was charged.

9. PW2 did not have first hand information about the 1^st incident.  According to her witness statement, she learnt of the attack from the Police and went to see the plaintiff at PMH.

Examination and treatment after the 1^st incident

10. According to the evidence of the plaintiff, he was treated at PMH after the 1^st incident.  As his evidence was similar to the report from the hospital, I would set out his treatment and injuries as recorded in the medical report from government hospital as evidence of his injuries and treatment.

11. According to a medical report from PMH dated 18 September 2008 by Dr Li Ka Lin, when he was examined on the date of the 1^st incident, the plaintiff complained to medical officer of being hit by a gang of people over right head region.  He did not have convulsion or loss of consciousness.  On examination, he was fully alert.  There were 3 scalp lacerations over right fronto-parietal region with active bleeding.  Limb power was full and there was no neurological deficit.

12. Subsequent CT brain showed depressed non-comminuted skull fracture over right frontal bone underlying the scalp lacerations.  Treatment option including conservative management and surgical intervention were offered and the plaintiff chose the conservative management.  He was put on a one week course of anti-biotic.  On follow up one week later, his condition was stable and wounds healing well without infection.

13. According to another report from Dr Li Ka Lin dated 3 November 2008, the plaintiff had been complaining of mild on and off headache after the 1^st incident and he was admitted once in September 2008 for persistent headache.  Clinically there was no focal neurological deficit.  On follow up in the out-patient department, the plaintiff was still complaining of subtle headache over the right side of his head.  The scalp wound had healed well without sign of inflammation.  Clinical neurological examination was totally normal.

14. In summary, Dr Li Ka Lin of PMH recorded that the plaintiff had an assault injury with depressed skull fracture but no intra-cerebral hemorrhage, which carried no recognized complications such as CNS infection, epilepsy, or wound infection.  There was no permanent functional deficit or cognitive impairment.  His headache could be due to post concussional syndrome.

15. PMH also referred the plaintiff to clinical psychologist at Caritas Medical Centre (“CMC”) for psychological treatment in April 2009.  As stated in the witness statement of the plaintiff, he first attended CMC for treatment in May 2009.  He complained of dizziness, difficulty in concentrating, problem with balance, lack of motivation, afraid to go to sleep at night, and poor sleep.  He returned regularly for treatment. The ongoing issue included anger management and failure to take medication.  He continued to have psychological treatment at CMC, approximately every 5 weeks.

16. The plaintiff said in his witness statement that before the 1^st incident, he had bipolar disorder which was kept under reasonable control by medication.  He was able to keep up full time employment – including teaching young children which is his favoured occupation.  After the 1^st incident and by April 2010 (just before the 2^nd incident), the plaintiff said he had extreme headaches on the right side daily especially in the afternoon.  It may last for about 1+ hours after he took panadol.  He was in fear of strangers and public places.  He had problem with balance and memory loss.  This caused him problem in washing.  His sleep was very disturbed and he had no sex in few months after the 1^st incident.

17. The plaintiff also said he used to run twice weekly at least which had stopped.  He used to do cycling, swimming, hiking and scuba diving, which all had stopped.

18. The plaintiff was given sick leave from 30 August 2008 to 3 May 2009.  The plaintiff claimed total loss of earning of this period, when he did not work.

19. After the 1^st incident, his employment with the Kindergarten was terminated and wages in lieu of notice of $5,000 was paid.  He did not have any further formal or full time job.  According to the plaintiff, he had some part time work in providing private tuition to adults and children, starting from about mid 2009 to April 2010 when the 2^nd incident took place.  It would be 4 to 12 hours per week, at a rate from $150 to $350 per hour.  There were no formal contracts, receipts or report to IRD.

20. And after the 2^nd incident, his condition got worse and could take up any part time work.  It is a convenient time to consider the expert evidence on his injury and health condition.  For completeness, I shall also set out the evidence of PW2. 

21. As mentioned above, PW2 was not an eye witness to the 1^st incident.  On the physical and mental condition of the plaintiff, she mentioned that physically the plaintiff is pretty much the same after the 1^st incident.  What had changed was on his mental and emotional side. 

22. PW2 also gave some evidence in relation to the 2^nd incident when she was not present.  She said the plaintiff recovered well physically after that incident.  But his mental condition become worse and he become more stressful.

The 2^nd Incident

23. It is not disputed that on 13 April 2010, the plaintiff suffered from a second assault by another person (“the 2^nd incident”).  As he told Dr Leung, on 13 April 2010, the plaintiff was assaulted by another 2 masked men at home.  He was kicked and knocked down and there were lacerations on his face and head, and he also suffered a fracture of the left rib.  The plaintiff claimed that he did not suffer severe physical injury and disability but a worsening of the psychiatric condition.  The condition after the 2^nd incident has been considered by both experts in their reports.

Expert Medical Evidence of the plaintiff

24. The plaintiff admitted that he was born deaf in left ear, which had nothing to do with the 1^st incident.  He also had a pre-existing mental condition, bipolar disorder, and had received treatment in Hong Kong at Nethersole Hospital in 2006. 

25. It is the case of the plaintiff that he is now suffering from head injury resulting in symptoms of post concussional syndrome and post traumatic stress disorder (“PTSD”), and/or aggravation of pre-existing psychiatric condition.   

26. According to the medical report from Dr Clarence Leung, the plaintiff complained of two incidents of assault in the past, namely the 1^st and 2^nd incidents. After the 1^st incident, the plaintiff had intermittent headache every afternoon localized over the right side of head and it lasted for about 6 to 8 hours.  The headache would subside 2 hours after taken Panadol.  The headache would wake him up 3 hours after he was asleep.

27. As noted by Dr Leung, on 13 April 2010, the plaintiff was assaulted by another 2 masked men at home.  He was kicked and knocked down and there were lacerations on his face and head, and he also suffered a fracture of the left rib.  He lost consciousness at the time.  He woke up at home and he was then admitted to Pok Oi Hospital and later transferred to Tuen Mun Hospital (“TMH”) on the same night.  He had a brain scan and it did not show any brain injury.  He stayed in the hospital for 10 days without any surgical intervention.  For his chest injury, he had 2 chest drains inserted.  After discharge from the hospital, he was followed up in the TMH.

28. The plaintiff complained to Dr Leung that he had afternoon headaches.  He also had difficulty in swallowing which cause choking especially with solid food.  He had no problem with fluid.

29. According to Dr Leung, the head injury was certainly caused by the 1^st and 2^nd incidents.  The headaches happened after the 1^st incident.  And there was no other evidence of brain injury at the time of the 2^nd incident in April 2010.  He opined that the headaches are most likely secondary to the 1^st incident, which I adopt.

30. Physically, Dr Leung opined that there was no reason why the plaintiff could not resume his work as an English teacher apart from his headache which was controllable with Panadol.  Alternatively, he would be able to cope with a part-time job which only involved manual work such as a clerk in the office. 

31. Orthopaedically speaking, Dr Leung commented that the sick leave given were reasonable.  There was not impairment in general functional ability and there was no problem with his usual activity.  I accept the assessment of Dr Leung.

32. The second medical report adduced was prepared by Dr Michael Tsang, a registered clinical psychologist.  According to Dr Tsang, the plaintiff was quite vague in reporting the psychological and/or psychiatric treatment he had had prior to coming to Hong Kong.  According to the plaintiff, he had developed an on and off relationship with a girl in his early 20s and became seriously depressed after the girl had left him.  He was hospitalized for one or two weeks and was given follow up treatment at an outpatient service unit.  He was well for a number of years until he moved to Hong Kong when he was about 40 years old.

33. The plaintiff had depression since 2006 and he used to receive treatment at private clinics.  He stopped visiting the private doctor because of financial reason.  He was then referred to the public hospital because he was complaining of being depressed and having suicidal thoughts.

34. Dr Tsang referred to some medical reports from treating doctors of the plaintiff for his pre-injury psychiatric problem.  According to the note dated 31 August 2006 from the A&E Department of Prince Wales Hospital, the plaintiff was referred to the hospital for depression.  He was then referred for follow up at the outpatient service of Nethersole Hospital.

35. The plaintiff first attended the psychiatric outpatient clinic of Nethersole Hospital on 13 September 2006.  According to Dr Pang Hin Tat of Nethersole Hospital, the plaintiff had mood problem since teenager.  Reportedly, a few months prior to attending the clinic, the plaintiff had quitted his job as a teacher and started a business with a partner in trading clothing which he had no prior knowledge or experience.  He had spent a lot of money.  According to Dr Pang, the plaintiff was experiencing many depressive symptoms.  Dr Pang formulated that the plaintiff might be having a recurrent of depression or bipolar disorder over a cyclothymic personality.  The plaintiff continued to have follow-up treatment at Nethersole Hospital from September 2006 to June 2011.

36. After the 1^st incident, the plaintiff was referred for psychological intervention at CMC by PMH.  The plaintiff complained of having difficulty with concentration and balancing.  He was afraid and would tend to avoid going out at night time.  Reportedly, since the 1^st incident, he had poor sleep and had thought about suicide occasionally.  The treating doctor at CMC, Dr Valda Cho concluded that the plaintiff was suffering from PTSD.  The plaintiff continued his consultation by Dr Cho for psychotherapy from 2009 to February 2013.

37. The plaintiff went to Queen Mary Hospital on 18 July 2011 complaining of having fluctuating mood for one week, insomnia, nightmares, financial stress and suicidal ideas. He was subsequently referred for follow-up treatment at western psychiatric centre.

38. The plaintiff was first seen at Western Psychiatric Centre on 29 July 2011.  According to Dr Law Chi Wing of the centre, the plaintiff claimed that his mood was stable.  He had no depressive cognitions and he needed Ativan to help with his sleep.

39. According to progress note by Chan Ka Po of Nethersole Hospital dated 27 September 2013, the plaintiff was brought to QMH by police on 27 September 2013.  Reportedly, the plaintiff had damaged a microphone and had attempted to hit the glass window of the counter at the Legal Aid Department.  He was then admitted to Nethersole Hospital under Form 123.  At the hospital, the plaintiff was found to be calm and co-operative.  His mood was euthymic with reactive affect and his speech was relevant and coherent.  He was not suicidal.  He was discharged from hospital on 2 October 2013 with follow up appointment at the psychiatric clinic of Castle Peak Hospital.

40. At the time of examination by Dr Tsang, the plaintiff was having follow up treatment at the outpatient department of Castle Peak Hospital on 2 occasions.  According to the case summary by Dr Yu of Castle Peak Hospital, the plaintiff responded well to the medication.  He admitted to feeling generally calm.  Although he might occasionally get angry, he was never physically aggressive.  His mood was stable and his sleep was satisfactory.  At the examination by Dr Tsang, the plaintiff complained of headaches, dizziness, sleep disturbance, emotional distress and depression, agitation and anger outburst, recurrent and intrusive thought of the assault and aftermath, memory problems and difficulty in his relationship with his wife and socialization in other activity.  I did not intend to repeat herein the details records of the complaints as set out in paragraphs 58 to paragraph 66 in the report, which I had taken into account.

41. Dr Tsang had given a very detailed and careful analysis of the psychological condition of the plaintiff.  In particular, he was aware of the pre-injury psychiatric condition of the plaintiff and the occurrence of the 2^nd incident.  He acknowledged that the plaintiff has a history of depressive and bipolar disorder.  He also had a mild anger and depressive temperament.  However, his anger and irritability seem to have been exponentially increased since the 1^st incidence.

42. Dr Tsang however found difficult, if not impossible to distinguish the degree to which his disturbance was a result of the 1st or the 2^nd incidence.  It was however, apparent to Dr Tsang that many of the symptoms were observed since the 1^st incident and prior to the 2^nd incident.  He therefore concluded that the plaintiff has developed PTSD after the 1^st incident.  The 2^nd incident had made it worse.  He had become even more withdrawn and tended to get more irritable easily.  I agree with the conclusion of Dr Tsang.

43. Dr Tsang also commented that the sick leave granted to the plaintiff is reasonable.  On the working capacity of the plaintiff, Dr Tsang commented that the plaintiff had not been able to work full time since the 1^st incident.  He had returned to work part time until the 2^nd incident which happened in 2010.  His current earning capacity was limited.

Discussion and Ruling

44. With the above evidence, I now proceed to consider, first of all, the effect of the pre-injury medical condition of the plaintiff on this assessment.

45. Mr Burke submits that the wrongdoer must take its victim as he finding so that the wrong-doer remains liable even though the severity or extend of the damage has been increased due to victim’s pre-existing weakness or susceptibility to harm.  He referred to a judgment given by Master Ng (as she then was) in Yu Wai Kan v Law Cho Tai HCPI 62/2010.  As commented by the learned Master, “if the primary victim has a pre-existing propensity to depression or psychiatric illness which is activated or reactivated by physical injury caused by the wrongdoer’s negligence, the wrongdoer cannot escape liability for the loss posed by the activated or reactivated depression even in rare or aggravated form by pleading lack of forseeability once the relevant duty of care is established and personal injury of some kind is reasonably foreseeable.”

46. As to the effect of the pre-existing condition on award of damages, there are 3 possible scenarios. The first is where the plaintiff is almost certain to have gone through life unaffected by the condition, and defendant will be liable for all damage caused.  The second is where there is a strong possibility that some other event or natural progression of the condition would have brought about the plaintiff’s present state, so it will be necessary to assess the degree of the possibility in deciding what reduction is appropriate in the same way as it is necessary to assess the effect of other vicissitudes of life that may abbreviate the plaintiff’s working life or life span and does abridge his loss.  The third is where this will certainly have occurred at some stage in any event so that clearly an allowance has to be made but the extend of which depends on the evidence as to when the precipitating event will have occurred (Chan Kan Hoi v Dragages et Trauvaux Publics [1998] 4 HKC 523, 527).

47. I agree entirely with the analysis of the learned Master.  I accept the evidence of the plaintiff that he had been living a normal life and was employed or working in various capacity before the 1^st incident including a kindergarten English language teacher.  The evidence before me shows that his pre-injury psychiatric condition was controlled by medication and did not have any adverse effect on his earning capacity. I accept the submission of Mr Burke that from the evidence before me, the plaintiff was stable and he could work full time before the 1^st incident.  The defendant was absent and no evidence has been adduced by the defendant to suggest that the plaintiff would have a compromised earning capacity without the impact of the 1^st incident. 

48. Further, Dr Tsang recorded that according to the plaintiff’s wife, the plaintiff used to feel very confident in himself and felt he was always able to think of ways to handle challenges.  Indeed, many of his friends used to come to him for advice and/or help.  His condition had become much worse since the 1^st accident.  He was depressed.  He viewed himself as a “mental invalid person” and felt ashamed that he had to rely so much on his wife.  He developed a low sense of self image after the 1^st incident.

49. As noted by Dr Tsang, a number of his complaints such as dizziness, weak memories, anger outburst were not symptoms of his earlier psychiatric conditions.  Dr Tsang had carefully undergone a number of tests.  He analysed from the examination he conducted and earlier medical record. 

50. Dr Tsang came to the conclusion that the plaintiff suffered from PTSD, which is based on he being assaulted and suffered head injury in the 1^st incident, and his subsequent change in behavior, the details being set out in paragraph 73 of the report of Dr Tsang which I do not intend to repeat.  In those circumstances, it is clear that the psychological injury of PTSD is a direct result of the 1^st incident.  There is no suggestion that the pre-injury psychiatric condition would in any event or at some stage develop into PTSD which is the main reason that he could not work full time as a teacher or tutor.  Hence, for the purpose of this judgment, I conclude that I do not allow any adjustment for his pre-injury condition in assessing his loss of income.

51. The condition and recovery of the plaintiff is further complicated by the 2^nd incident. In about a year’s time, the plaintiff received a second attack by some other person who is not a party herein.  Mr Burke sensibly conceded on behalf of the plaintiff that there is an overlap of injuries and disabilities on the psychological and psychiatric condition.  He conceded that this should be taken into account in assessing claims for loss of earning, additional expenses and PSLA.  I shall come back to these matters and shall move first of all to the claim of PSLA.

PSLA

52. Mr Burke had referred me to a number of cases and prepared a summary on award of PSLA when those plaintiffs suffer skull fracture and PTSD.  I do not intend to repeat herein save to record that I have gone through the cases referred to by him.  Mr Burke submits that a reasonable award should be HK$500,000.  While I am still on PSLA, the evidence on the plaintiff’s working capacity shed light on the effect of the 1^st incident and the further adverse effect by the 2^nd incident.  According to his own evidence, the plaintiff was dismissed by the kindergarten while he was on sick leave.  He started working part-time as a private tutor for adults or children in mid 2009 and continued until April 2010 when the 2^nd incident took place.  He was able to do 3 to 12 hours per week at the rate from $150 to $350 per hour.  It shows that he regained some earning capacity in or about mid-2009. It was his own evidence that had he not had the 2^nd incident in 2010, he could have continued with the part-time tuition and probably increasing over time to 20 hours per week.

53. Bearing in mind the medical evidence I referred to, the plaintiff seemed to have a stable recovery before the 2^nd incident, psychologically and psychiatrically.  His skull injury had recovered orthopaedically.  Leaving aside any damage to his condition by the 2^nd incident, and bearing in mind the cases referred to me by Mr Burke, I am of the view that a reasonable sum for PSLA would be $380,000.

Loss of Earning

54. Before the 1^st incident, the plaintiff was last employed by the kindergarten with a monthly salary of $17,000.  He also said that he had tuition work during weekends.  The plaintiff originally claims his loss based on an earning of $23,850 per month which including MPF and $6,000 for his tution work at weekends.  There was no documentary proof of the tuition earnings.  Mr Burke subsequently conceded to a lesser amount of $20,000 per month for assessing the loss of earning.  I see no reason to doubt that the plaintiff could have done some additional tuition and given there was supporting evidence of his employment at the kindergarten, I accept his evidence and the submission of Mr Burke and use $20,000 per month to assess the pre-trial loss of earning of the plaintiff.

55. As mentioned above, the plaintiff had sick leave from 30 August 2008 to 3 May 2009.  As the plaintiff had not been formally employed after the 1^st incident, Mr Burke submits that the plaintiff is entitled to his loss for 17.5 months i.e. up to the time of the 2^nd incident, less what had been earned by the plaintiff. 

56. On the earning of the plaintiff for this period, only very limited documentary record had been produced.  I accept the evidence of the plaintiff that he had been working at an average $7,000 per month as part time tuition and had earned $68,000 during this period (which was from mid-2009 to April 2010 and including $5,000 wages in lieu of notice he received from former employer).  Accordingly, his loss would be ($20,000 x 17.5)-$68,000 = $282,000. 

57. According to the evidence of the plaintiff, since the 2^nd incident, he could not return to work as a teacher or tutor, full time or part time.  It was not disputed that the further injury to him caused by the 2^nd incident was not the responsibility of the defendant.  It is the submission of Mr Burke that the 2^nd incident had not broken the chain of causation as the psychiatric condition of the plaintiff after the 2^nd incident was attributed mainly to the 1^st incident. According to the expert opinion of Dr Tsang, his PTSD was a result of the 1^st incident, and the 2^nd incident had made it worse.  I agree.  And to assess the damages recoverable from the plaintiff, I have to make an apportionment of the loss arising from the 1^st and 2^nd incidents.

58. To begin with, after the 2^nd incident, the plaintiff could not return to work. There is no evidence to challenge his evidence which I accept.  He would be suffering from total loss, namely $20,000 per month.

59. In his submission, Mr Burke invited me to use the monthly earning of the plaintiff at $7,000 to assess his loss.  I take it that Mr Burke suggested that the apportionment would be 35% of the loss should be the responsibility of the 1^st incident and hence the defendant is liable to pay.  He had not explained the basis of adopting this formula.  Mr Burke submits that the case law in this area is not very clear.

60. I would take a reduction approach.  Out of the $20,000 loss of earning per month, $7,000 representing the earning from part time earning before the 2^nd incident. It should be caused by the 2^nd incident and I therefore would first reduce the month loss attributable to the 1^st incident by this amount.

61. It is tempting to use $13,000 to assess the loss of the plaintiff as his loss caused by the 1^st incident after the 2^nd incident.  As commented by Dr Tsang, it was difficult, if not impossible to distinguish the degree to which his disturbance was a result of the 1^st and 2^nd incident.  Mr Burke in his closing submission rightly concede that it could be argued that the balance of the loss is still partly due to the 2^nd incident.

62. I note that the reason for the plaintiff in not being able to return to teach was due mainly to his psychiatric condition after the 2^nd incident.  Orthopaedically, according to the expert opinion of Dr Leung, the plaintiff could return to work as a teacher.  But according to Dr Tsang, because of his PTSD, he would not be able to return to teaching which tends to require a lot of patience and attention. 

63. And further, it is the evidence of the plaintiff that he could improve his number of hours at work to about 20 hours per week without the 2^nd incident.  I see no reason to doubt the assessment of the plaintiff himself on his working capacity has there been no assault in the 2^nd incident.  Given that he could earn $150 to $350 per hour, if I used the median figure of $250 per hour for his tuition work, his monthly earning would be rounded up to over $20,000 per month, and would be about the same as his pre-injury income. Notwithstanding the opinion of Dr Tsang that the 1^st incident is a factor for the PTSD, it is reasonable to conclude that sometime after April 2010, had there not been the 2^nd incident, the plaintiff would not suffer further loss of earning.

64. It is not possible to assess the exact date when he could work 20 hours a week.  In fairness to both the plaintiff and the defendant, I would further reduce the balance of the loss claimed by half, i.e. $6,500 per month, to represent my finding that he should be able to have sufficient tuition earning to compensate his pre-injury earnings some time after April 2010, had the 2^nd incident not occurred, and some of the loss would still be attributable to the 2^nd incident.  And it is close to the assessment of Mr Burke.

65. According to the calculation of Mr Burke, from the date of the 2^nd incident until date of assessment, there would be a further loss of income for about 69.5 months.  His loss is therefore $6,500 x 69.5 = $451,750 for the period from 2^nd incident to date of assessment.

66. As for the post trial loss, the plaintiff is 63 now.  Assuming he works until 65, Mr Burke suggests I use the multiplier of 2.  However, given my earlier assessment, had there not been the 2^nd incident, the plaintiff should have returned to part time tuition and the earning would be about the same before the accident.  Accordingly, I refuse to grant any further loss of earnings.

67. For handicap in the labour market, the plaintiff is prepared to waive the claim if the future loss is allowed.  Given I have not allowed any future loss, I would award a notional sum as the period of future earning is relatively short.  It would be one month’s earning at $20,000. 

68. I shall now proceed to deal with the miscellaneous expenses.  The plaintiff claims medical expenses and travelling expenses incurred.  I adopt the calculation of Mr Burke who rightly conceded some expenses are caused by the 2^nd incident.  The amount allowed before the 2^nd incident is $5,344.  The amount allowed from 13 April 2010 to present is $2,239 (after the plaintiff conceding 50% of the original claim be apportioned to the 2^nd incident). 

69. As for future loss of medical expenses and travelling, a sum of $10,000 is allowed.

70. The total award is :-

PSLA	$380,000
Pre-trial loss of earning	$282,000
Post-trial loss of earning	$451,750
Loss of earning capacity	$20,000
Other expenses	$17,583

71. I also make an order nisi that the defendant do pay to the plaintiff interest at 2% per annum on general damages for PSLA from the date of the writ until judgment and interest at half judgment rate on the balance of the damages from the date of the incident to judgment.

72. I also make a costs order nisi against the defendant in favour of the plaintiff for the assessment of damages proceedings including all costs previously reserved in relation to the assessment of damages.  As the plaintiff is legally aided, his own costs shall be taxed in accordance with the Legal Aid Regulations.  The above order nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within this 14 days period.