TANG SHU SHEK v. LEUNG CHI KIT AND ANOTHER

HCPI 219/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 219 OF 2002

_________________________

_________________________

_______________

J U D G M E N T

_______________

Introduction

1. The present assessment of damages arises from an industrial accident sustained by the Plaintiff, a wood-work fixing carpenter or a formwork carpenter as referred to in the pleadings, on 22 March 1999 at a construction site in Cheung Sha Wan. When the Plaintiff was in the course of lifting a metal frame weighing about 40 to 50 catties (equivalent to 24 kgs to 30 kgs) for the purpose of erecting formwork, he lost his balance and fell to the ground together with the metal frame. He suffered injury to his left wrist.

2. The writ was issued on 20 March 2002. Interlocutory judgment for 80 percent liability was entered by consent against the 1st and 2nd Defendants on 19 June 2003.

3. The reports of the government hospitals as to the condition, treatment and care of the Plaintiff were ordered by Master Kwan to be adduced as agreed evidence and the medical reports of Dr. Choi Chi Wah Danny and Dr. Lam Kwong Chin were further ordered to be adduced without oral evidence.

4. In this assessment, oral evidence was only given by the Plaintiff and his younger brother, Tang Shu Lin, who was at all material times also a formwork carpenter.

Injuries, treatment and disabilities

5. After the accident, the Plaintiff felt pain but there was no noticeable wound. After taking a short rest, he went to Queen Elizabeth Hospital and was X-rayed. His left wrist was found to be swollen and the X-ray showed a suspicious crack of the scaphoid bone. He was discharged on the same day with analgesics. The Plaintiff felt great pain on the night of the accident and the next day he went to seek treatment at Prince of Wales Hospital. He was then found to have suffered a fractured left scaphoid and was hospitalized for 2 days. He was in plaster cast for 2 months.

6. After the plaster cast was removed in June 1999, the Plaintiff had about 5 sessions of physiotherapy treatment. In April 2000, the Plaintiff had a diagnostic arthroscopy of his left wrist, the result of which revealed degenerative changes of the Plaintiff's scaphoid and mild synovities of his radio carpal joint. Thereafter, the Plaintiff had physiotherapy treatment on about 40 occasions including heat therapy and active wrist mobilization, until March 2001 when the Plaintiff was found to have satisfactory wrist movements and grip power.

7. During the period when the Plaintiff was receiving physiotherapy treatment, he also received occupational therapy treatment. It was not immediately apparent from reading the occupational therapy reports how many times the Plaintiff received occupational therapy treatment. The medical receipts however lend support to the submission of the Plaintiff's counsel, Mr. Wong, that the Plaintiff had received occupational therapy treatments about 23 times and I so find. At the last work assessment conducted by the occupational therapist in August 2001, the Plaintiff was still found to be suffering from left wrist pain. The sick leave granted to the Plaintiff also ended on 21 August 2001.

8. Towards the end of the Plaintiff's physiotherapy treatments, he was examined by the independent expert instructed by the 1st and 2nd Defendants' solicitors, Dr. Lam, whose opinion is found in his report dated 6 January 2001. The date of examination on Dr. Lam's report was however stated as 3 January 2000. This date I find be a typing mistake and the correct date must be 3 January 2001. The date of examination I find is on the same date as the X-Ray on the Plaintiff's left wrist conducted upon referral from Dr. Lam, which was 3 January 2001. Upon examination of the Plaintiff, Dr. Lam found that the Plaintiff had local tenderness at the dorsum of the left wrist with no significant restriction in motion and the overall power was satisfactory. Permanent impairment was assessed at 2% of the upper extremity or 1 % of the whole person. The loss of earning capacity was assessed at 2%.

9. The Plaintiff was also examined by Dr. Tsoi, instructed by the Plaintiff's solicitors, on 21 September 2001. An X-ray examination of the Plaintiff's left wrist on this occasion revealed solid healing of the scaphoid fracture without any complications. Upon examination, Dr. Tsoi found the Plaintiff's injured wrist had a mild reduction in extension and ulnar radiation but the wrist strength and hand grip were well preserved. Tenderness over the scaphoid and lunate was also noted. Dr. Tsoi opined that the Plaintiff's injured wrist had already reached a stage of maximum improvement with a good prognosis. Dr. Tsoi assessed the permanent impairment at 5% of the left upper limb or 3% of the whole person and the loss of earning capacity at 4%.

10. At the hearing, the Plaintiff said that he still felt pain when he moved his left hand in an upward direction (which movement was agreed by both counsel to be medically described as radial flexion) or when the weather changed.

Evidence

11. After having carefully considered all the medical evidence and having had the benefit of hearing and observing the witnesses giving evidence, I find that the Plaintiff fractured his left scaphoid as a result of the accident. The undisputed medical chits issued by the government hospitals confirm that the Plaintiff received treatment 74 times from Li Ka Shing Specialist Clinic and Prince of Wales Hospital. I accept the opinion of both Dr. Lam and Dr. Tsoi in finding that the Plaintiff's injury had healed with mild reduction of power and good prognosis and that the Plaintiff was able to resume his pre-injury job. Where there is any variance of opinion between Dr. Lam and Dr. Tsoi, I am inclined to prefer that of Dr. Tsoi. After having considered the reports of both Dr. Tsoi and Dr. Lam, I come to the view that the opinion and findings stated in Dr. Tsoi's reports are more reliable than those of Dr. Lam who examined the Plaintiff about 8 months before Dr. Tsoi. At that time, Dr. Lam did not have the benefit of the reports from the physiotherapist and the occupational therapist of the Prince of Wales Hospital which reports however were available to Dr. Tsoi at the time of his conducting the examination. I also find it unsatisfactory that Dr. Lam failed to comment on the conclusion of the said X-Ray report dated 3 January 2001 about the presence of 2 foreign bodies adjacent to the left distal radius and only selectively reported findings of a lack of fracture and preservation of joints which tend to create an impression of an injury of a less serious nature. In paragraph 5 of his report, Dr. Lam commented that the Plaintiff's injury was a crack, which comment is clearly contradicted by the X-ray result reported in the medical report of the Prince of Wales Hospital dated 31 March 2001 confirming a fractured left scaphoid. For these reasons, I conclude that I am unable to completely accept Dr. Lam's opinion.

12. I have considered the opinion expressed in Dr. Tsoi's reports and accept his opinion therein. I find however a reference in Dr. Tsoi's first report dated 24 September 2001 to a partial tear of the Plaintiff's scahpo-lunate ligament to be a mistake as there was no medical evidence in support of this statement. I find that the mistake was most probably due to an oversight and I do not find that it has affected the reliability of his opinion.

13. After having heard the Plaintiff and his brother giving evidence, I find both of them to be honest witnesses. Apart from the evidence which I shall specifically deal with below, I am inclined to accept their evidence. I accept that the Plaintiff was 41 at the time of the accident and is now 46 and a half years of age. The injured wrist is not on his preferred right hand. I have heard and observed the Plaintiff in the witness box and I am satisfied that he has not exaggerated his injury. The only substantial injury in this case is a fractured scaphoid which has healed without any operation or complication. The Plaintiff is only left with a mild reduction of strength and residual pain. Whilst I do not underestimate the considerable physical pain and discomfort caused to the Plaintiff, I do not find the injury is of such a nature that it has affected the Plaintiff's amenities such as sporting or recreational pursuits or musical activities like some plaintiffs as no evidence has been adduced as to the Plaintiff's hobbies or recreational activities.

Damages

Pain, Suffering and Loss of Amenities

14. Having considered the authorities (Yip Mau Leung v University of Hong Kong [2000] 3 HKLRD 198, Ho Kwai Hong v Cheung Kok [2003] 1 HKLRD A14, Yu Pun Yuen v Ng Kwok Man & Others [2003] 2 HKLRD F23 and Yuk Kok Wing v Lee Tim Loi [2001] 3 HKC 314) relied on by Mr. Wong, I do not agree with his submission that the Plaintiff's injury should be placed at 70% of the lowest end of the "serious injury" category as defined in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657, justifying an award of about $322,000. The plaintiffs in the cases cited by Mr. Wong suffered far more serious injuries than the present Plaintiff. In my view, the Plaintiff's injury does not come anywhere near to the "serious injury" category which "covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the lose of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain." (per Cons J.A. at 659 [1980] HKLR 657, supra)

15. I am however also unable to accept the contention by Miss Molloy, counsel for the 1st and 2nd Defendants, that the Plaintiff's injury was a minor one involving a crack only, justifying an award of not more than $60,000. In support of her contention, Miss Molloy relied on a number of authorities (Lee Wong Sin v The Estate of Wong Shek Mei, deceased and Others, HCPI 769/1995, date of judgment 31 October 1995, unreported, Sin Sau Mui v Yuen Sai Kwong and Others, HCA 11319/1993, date of judgment 4 November 1996, unreported and Wai Ching Fong v Leung Yau Nam and Another [2000] 1 HKLRD A13) which are mostly concerned with elderly plaintiffs of over 60 years of age with similar or more serious injuries than the Plaintiff in this case. Miss Molloy submitted that as the Plaintiff in this case suffered less serious injuries than those plaintiffs, his award should be significantly less. In assessing damages under this head, the courts seemed to have taken the age factor into consideration. In Lee Wong Sin, the learned Master stated that "the Plaintiff here has a higher overall impairment because of her age (per Master Woolley at p.3). In Sin Sau Mui, the learned Master also stated, "I bear in mind that the Plaintiff is no longer young and permanent disabilities included weakness and pain in her right hand..." (per Mr. Registrar Betts at p.2). It is however not clear from these authorities that the extent the court's assessment had been influenced by the age of the plaintiffs. Therefore in my view this court can derive no assistance from these cases. As no reference was made to the age of the plaintiff in assessing the level of award under this head in Wai Ching Fong, I also do not find it of much assistance. In Wai Ching Fong, no light is thrown on the duration of the plaintiff's physiotherapy and occupational treatments, and the case is therefore also of little assistance. The other case relied on by Miss Molloy, Chow Siu Ping v Hop Lee Iron Work and Another (HCPI103/1999, date of judgment 22 December 1999) is also of little assistance as it involves a plaintiff with multiple injuries. In the circumstances, I am in agreement with Mr. Wong that these authorities are of little help.

16. The injury suffered by the Plaintiff in this case is in my view similar to but slightly less serious than the plaintiff in Leung Chung Ngar Christopher v Yeung Man Wai & Another (HCPI 63/1999, date of judgment, 20 December 2000, unreported) which is one of the authorities in the Defendants' list of authorities. In that case the court awarded a sum of $200,000 for general damages to a male hairdresser who suffered fractures of the metartarsal neck of his 3rd and 4th toes and dislocation of the 5th metatarsophalangeal joint of the left foot, with residual pain and prolonged weight-bearing but no post-traumatic arthritic change. After having considered this case and the authorities referred to by counsel, I consider an award of $180,000 under this head to be appropriate and I so order.

Loss of Earnings

Pre-Trial Loss

(A) The sick-leave period

17. The Plaintiff gave evidence that at the time of the accident, he was earning on average $37,000 per month as a formwork carpenter. There was no wage record or any bank statements in support of the Plaintiff's earnings. According to the Plaintiff, before the accident, out of an average of 26 working days in a month, he was engaged in "subcontracted jobs" for about 10 days on average with a average daily wage ranging from $1,800 to $2,000 and 15 days on "contractor jobs" or "company jobs" with an average daily wage of about $1,200. "Subcontracted jobs" refer to those jobs which the worker is paid according to the amount of work he has finished every day with a basic wage of $1,200. The Plaintiff said that he was initially able to make $1,800 to $2,000 a day from doing "subcontracted jobs" but his daily wage dropped to $1,200, when he was assigned more difficult jobs. "Company jobs" refer to the additional or alteration jobs upon the completion of a construction project. As the jobs were relatively easier, a worker was paid a fixed daily wage of $1,200.

18. Miss Molloy took issue with the Plaintiff's wages before the accident. There is no direct evidence contradicting the Plaintiff's evidence of his wages before the accident save that Miss Molloy urges me to take into account the Government Statistics of "Average Daily Wages of Workers Engaged in Government Building and Construction Projects" for the period between 2002 and 2003 which shows that the average daily wage of a carpenter in the government construction projects of $1,200, the inclement weather to which the construction industry is particularly vulnerable and the statutory holidays and holidays taken during the Chinese New year as well as the breaks in between projects. I agree that all of these circumstances are relevant factors affecting the amount of Plaintiff's wages and should therefore been taken into account when establishing the Plaintiff's actual pre-accident earnings. In this case, I find I am entitled to attach weight to one of the Plaintiff's documents to establish the Plaintiff's pre-accident earnings, which document is a Chinese statement dated 30 October 2000 given to the employer's insurer, Kono Insurance Ltd. The statement was recorded by the claims officer of the insurer and it is not disputed that the contents were explained to the Plaintiff before he signed thereon to confirm the accuracy of the statement. In the said statement, the Plaintiff informed the claims officer that at the time of the accident, he worked 26 days every month and received daily wage of $1,200, making a total monthly average salary of about $30,000. When the Plaintiff was cross-examined on the inconsistency, he said because he was told by his employer to understate his earnings to the insurer. I do not find his explanation for understating his wages on account of misrepresentation by his employer plausible. The Plaintiff was not legally represented at the time of giving the statement and he was aware that he was giving the statement in connection with his Employees' Compensation claim. He had no reason to understate his earnings. Further, according to the statutory Form 2 Notice by Employer dated 1 April 1999 issued by the 1st Defendant pursuant to s.15 of the Employees' Compensation Ordinance, the earnings of the Plaintiff for the month preceding the date of accident was stated as $31,200 and the average number of working days stated as 26. However, in the said Notice, the employer did not state the average monthly earnings of the Plaintiff for the past 12 months preceding the accident. The daily wage of the Plaintiff was therefore $1,200, which corroborates with the daily wage of $1,200 stated in the said statement. After taking into account the factors mentioned above such as statutory holidays and susceptibility to weather conditions, I find that the monthly earnings of $30,000 stated in the said statement to be the Plaintiff's monthly earning at the time of the accident.

19. The Plaintiff did not work at all during the entire period of his sick leave, hence he claims total loss of earnings during this period. Miss Molloy contends that the Plaintiff's claim for loss of earnings for the entire period of sick leave was not justified for the reasons that firstly it was not substantiated by medical evidence; secondly, the Plaintiff exaggerated his condition and thirdly, the sick leave was extended due to the Plaintiff's numerous defaults on the physiotherapy and occupational treatments.

20. The period of sick leave relied upon by the Plaintiff to support his claim is borne out by the sick leave certificates. There is no evidence that doctors in granting the sick leave to the Plaintiff had taken any irrelevant matters into account when certifying the Plaintiff's incapacity. The opinion of the independent experts, Dr. Lam and Dr. Tsoi, was divergent as to the length of sick leave the Plaintiff was entitled to. Dr. Lam opined that the Plaintiff should only be entitled to sick leave of about 2 to 3 months. Dr. Tsoi on the contrary was of the view that the sick leave granted to the Plaintiff was reasonable. Although Dr. Tsoi had made a typing error in his report regarding the date on which the sick leave period ended and the later rectification of the error still contained error in relation to the month by stating July instead of August, I do not find the difference of one month renders his opinion unreliable. I further find corroboration of the Plaintiff's sick leave by virtue of the 2nd Occupational Therapy Report from the Prince of Wales Hospital dated 30 November 2001. It is reported in the said Report that the Plaintiff attended work assessment on 16 August 2001, which assessment disclosed that the Plaintiff's strength and tolerance could not cope with his previous work demand. There is no suggestion in the report that the Plaintiff had manipulated the assessment to distort the result. The assessment result clearly confirms that the Plaintiff was still not fit to work on 16 August 2001. It is therefore reasonable that the Plaintiff was granted sick leave until 21 August 2001.

21. In coming to this view on the reasonableness of the duration of the sick leave, I have also taken into account the report of defaults in treatment by the Plaintiff. In the Occupational Therapy Reports, the defaults reported seem to be only in relation to the appointment for pre-operation wrist assessment as well as the rehabilitation treatment programme. In the Physiotherapy Report, it is reported that the Plaintiff did not turn up for treatment after 5 sessions, it is not disputed however that the Plaintiff had further 35 physiotherapy treatments subsequently. As there is no evidence that the reported defaults had delayed the Plaintiff's recovery from his wrist injury, I am unable to accept Miss Molloy's contention that the Plaintiff was not entitled to be compensated for the entire period of sick leave.

22. For these reasons, I find that the Plaintiff is entitled to full loss of earnings during this period. I now turn to deal with the earnings the Plaintiff would have made but for the accident during the period of sick leave. In quantifying the Plaintiff's loss during this period, Mr. Wong used the Plaintiff's wages on the date of accident as the basis for the calculation. Unless there is evidence that the Plaintiff's wages remained constant during the entire period of sick leave, I have difficulty in accepting that approach. The evidence, on the contrary, does not seem to support this method of quantification. Under cross-examination, the Plaintiff agreed that since 1999, the construction industry has dropped each year. This evidence is borne out by the government statistics on the "Gross Value of Construction Work Performed by Main Contractors at Construction Sites", which statistics shows that between 1999 and 2000 the value of construction work dropped by about 3.9% and between 2000 and 2001 by about 8.5%. As the Plaintiff's earnings are linked to the amount of construction work available in Hong Kong, I am therefore inclined to find that the wages of a formwork work would have also declined by similar percentages. Applying the median percentage decease of 6% (3.9% + 8.5%, divided by 2), I find the loss of earnings during the sick leave period to be $817,800 ($30,000 x 29 m x 94%).

(B) Post Sick-leave Period

23. It is the Plaintiff's case that after his sick leave expired, he would but for the accident have earned wages similar to his brother. However, due to his wrist pain and age, he only resumed employment in May 2002, initially working for his brother. The Plaintiff's explanation for being not able to be gainfully employed between the expiry of sick leave and May 2002 was due to his age and injury. The Plaintiff accepts that after the sick leave expired, he could have been engaged as a general light duty work with notional monthly wages of about $5,000. He therefore claims loss for this period between 22 August 2001 to April 2002 on the basis that he was making $5,000 per month even though he did not have any gainful employment in this period.

24. The evidence however does not support the Plaintiff's case that after the sick leave expired, he could only engage in general light duty work. I find that the Plaintiff was able to resume working as a formwork carpenter with reduced earning capacity. About a month after the Plaintiff's sick leave expired, he was examined by Dr. Tsoi on 21 September 2001. Upon examination, the Plaintiff's wrist was observed to have reached a stage of maximal medical improvement and Dr. Tsoi opined that the Plaintiff could resume his pre-injury job with reduced capacity. I am satisfied therefore that after the expiry of the sick leave, the Plaintiff was able to resume work as a formwork carpenter with reduced capacity owing to the residual pain of his injured hand. From the Plaintiff's evidence, I am inclined to conclude that the reason that the Plaintiff did not work for about a year after his sick leave expired was due partly to the generally poor market situation in Hong Kong and partly to the Plaintiff's lack of sufficient motivation when his wife was able to work to support the family.

25. As to the level of wages the Plaintiff could be expected to earn for the post sick-leave period had he not been injured, Miss Molloy contends that the Plaintiff could not have been expected to earn similar amount of wages as his brother on the basis that the Plaintiff was less motivated than his brother, that he was older and had less contacts and that the younger brother only engaged in "subcontracted jobs" while the Plaintiff did not. The Plaintiff and the younger brother are only two years apart and both of them have had considerable experience as carpenters for over 20 years. The Plaintiff confirmed in his witness statement which evidence I accept that prior to the accident he had engaged in "subcontracted jobs" with his brother and his partners. The younger brother whose evidence I accept also confirmed during cross-examination that but for the accident, the Plaintiff would have had a good chance of getting a type of employment, and earnings, similar to his. I am satisfied that there is sufficient evidence before me to conclude that the Plaintiff would, but for the accident, have earned wages similar to those of his young brother.

26. It is not disputed that between the period from July 2002 to December 2003, and the half-month of January 2004, a total of 18 and half months, the younger brother's total earnings were $438,100, or $23,680 per month. There is however no direct evidence as to the actual earnings of the younger brother during the period from August 2001 when the Plaintiff I find should have been able to resume working as a formwork carpenter in June 2002. Miss Molloy submitted that the Government statistics show that the daily rates of a carpenter with the government construction projects throughout the period between 2000 and 2003 have remained relatively static. I am therefore inclined to adopt the said monthly average wage of $23,680 of the brother as the average monthly wage the Plaintiff would but for the accident have earned for the entire post-sick leave period.

27. The Plaintiff only resumed gainful employment in May 2002 working initially for his brother for 8 days, making a total sum of $8,000 for that month and 20 days in June 2002, earning a sum of $20,000. Between the period of July 2002 to December 2003 and half month of January 2004, the Plaintiff's total earnings during the period of 18 and 1/2 months was $241,145, or $13,035 per month. As I have found that the Plaintiff was able to resume working as a formwork worker with reduced capacity, the realistic wages the Plaintiff was able to earn would be the wages he earned for said period of 18 and a half months when the Plaintiff managed to resume gainful employment with reduced capacity. The partial monthly loss of wages for the period from 22 August 2001 to the date of hearing on 16 February 2004 should therefore be $317,930 (($23,680-$13,035) x 29 and 26/30 months).

28. The total pre-trial loss of earnings is in the total sum of $1,135,730($817,800 + $317,930)

Future Loss of earnings

29. As I have found above that the Plaintiff can resume the work of a formwork carpenter with reduced capacity due to the residual pain, I am therefore unable to accept Miss Molloy's contention that the Plaintiff suffers no loss of future earnings. I find that the Plaintiff will have to carry on making a living as a formworker with reduced capacity and that he suffers loss of future earnings.

30. The Plaintiff was aged 46 and a half at the date of assessment. Mr. Wong urges me to adopt a multiplier of 10 relying on "the Personal injury Tables Hong Kong" (edited by Nevill Sarony QC, SC at pp.172-175), which contains a list of cases adopting multipliers ranging from 10 to 13 in respect of male plaintiffs of 46 years of age. In considering an appropriate multiplier to be adopted, I ought to have regard to the nature of the Plaintiff's occupation. According to the Plaintiff, the nature of his job requires him to lift wooden planks of some considerable weight of occasionally exceeding 90 pounds. Whilst I accept the Plaintiff's evidence that he was prepared to work as long as work was available to him, I find this is not the kind of job that the Plaintiff could be reasonably expected to continue into old age. Having considered the authorities submitted by Miss Molloy (Tang Shau Tsan v Wealthy Construction Co. Ltd. [1999] HKLRD 374, in which a multiplier of 8 was adopted in respect of a 47-year-old carpenter. Lau Tuen Ping v Law Wai Kwan trading as Sun Chiu Kwong (Sheung Shui) Construction Material and Others [2003] 2 HKLRD E16, in which a multiplier of 9 was adopted for a 45-year-old demolition worker. Yan Fai Wah v Kong Seung Chuen and Another [1999] HKLRD 387, in which a multiplier of 11 was adopted for a 44-year-old domestic carpenter), I consider a multiplier of 8 is appropriate.

31. As I have assessed the Plaintiff's monthly loss of earnings to be $10,645, I accordingly make an award of $1,021,920($10,645 x 8 x 12).

Loss of Retirement Benefits (pursuant to the Mandatory Provident Fund Schemes Ordinance Cap.485)

32. The Plaintiff also claims a 5% contribution for mandatory provident fund from his employers as a loss of earnings from the date when the said scheme came into effect on 1 December 2000. In accordance with the findings above, the Plaintiff is entitled to an award under this head. I note however that instead of claiming the entitlement under this head from 1 December 2000, the Plaintiff in his Substituted Revised Statement of Damages filed on 18 February 2004 mistakenly stated the date as 1 December 2001. The error is obviously a typing error as in the Revised Statement of Damages dated 2 September 2002, the date was stated as 1 December 2000. I am satisfied therefore that the date from which the loss should be calculated is 1 December 2000. The award is broken down as follows:

(a)	From 1 December 2000 to August 2001 at $1,000 per month,
	= $9,000.
(b)	From September 2001 to February 2004, a total of 30 months, the Plaintiff, but for the accident, would have been earning wages similar to his brother's of $23,680 per month and contributing $1,000 to the scheme. As a result of the accident, the Plaintiff's monthly earnings were reduced to $13,035, hence a monthly contribution of $651.75 ($13,035 x 5%). The monthly loss is therefore $348.25.
	= $348.25 x 30
	= $10,447.5.
(c)	The post-trial loss since February 2004 is,
	= $348.25 x 8 x 12
	= $ 33,432.

33. Accordingly, I allow a total sum of $52,879.5 under this head.

Loss of Earning Capacity

34. The Plaintiff also claims damages under this head, relying on Li Wan Choi v Choi Wan Hing & Anor [2000] 4 HKC 549, on the ground that "the plaintiff could be expected to be at a disadvantage in the job market which might cause him to be out of work..." (per Rogers VP and Le Pichon JA, at 555I).

35. In my view, the correct approach in assessing this head of damages is set out in a later Court of Appeal decision also including Rogers VP and Le Pichon JA of Yu Kwok Wing v Lee Tim Loi [2001] 2 HKLRD 306, at 313 Keith J.A. observed,

"the question which the Master should have asked was whether there was a substantial or real risk that, as a result of his reduced capacity and as a result of the greater possibility of the onset of degenerative arthritis, the plaintiff would not be able to obtain as much casual work as a painter as he would have done if he had continued to be able-bodied. If there was such a risk, the plaintiff was entitled to an award for loss of future earning capacity to the extent that loss had not been reflected in the award for loss of future earnings."

I would respectfully adopt this approach in this assessment.

36. The Plaintiff under cross-examination told this court that the nature of his occupation involved him working for an employer for a period of time and then for another when a particular project was completed. His earnings therefore were irregular in nature and they were dependant on various factors such as the amount of construction work available, his work network etc. In the present case, I find that the Plaintiff could return to his pre-injury job with reduced capacity and I have awarded him an amount compensating him for the future loss of earnings till the end of his working life. The question I therefore have to ask myself is whether in those circumstances there is a 'substantial' or 'real' risk that he would lose his present job at some time before the estimated end of his working life. After having carefully considered the evidence before me, despite Dr. Tsoi's estimation of 4% loss of capacity in respect of the Plaintiff's injury, I am inclined to answer "no" to that question. Owing to the nature of the Plaintiff's occupation, it is likely that the Plaintiff will lose his present job in the sense that he has finished working for the present employer. This is clearly not a loss of employment that this head of damages is intended to compensate for the change of employer in the Plaintiff's case. Having taken into account the vicissitudes of one's working's life and the award I have made in compensating for the Plaintiff's loss of future earnings, I am not persuaded to award any sum under this head.

Special Damages

Tonic Food

37. This is the only disputed item under the special damages claim. The Plaintiff claims a sum of $10,000. This claim is not supported by any medical evidence. There is also no receipt to support the said amount claimed. The Plaintiff told this court that he developed oral ulcers after he took painkillers for his wrist pain. He was advised by a nurse to take American ginseng and by a herbalist to take a nourishing Chinese herb called "Tung Chung" Grass (冬蟲草) to reduce the side effect caused by painkillers. The Plaintiff estimated that he had in total spent about $13,000 to $19,000 in purchasing these tonic foods.

38. Both counsel referred to me a decision of Master Woolley in Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575. The learner Master in that case was also required similarly to deal with a claim for tonic food expenses not supported by any medical advice or receipts. In dealing with the problem of this sort of claim, the learned Master observed,

"Where sums have been spent on nourishing food without medical advice, then it ought to be supported by evidence as to the amount spent, and justified on the grounds of reasonableness." (per Master Woolley, at 580A-B).

This in my view is the evidential threshold the Plaintiff is required to meet.

39. After having had the benefit of hearing the Plaintiff giving evidence, I accept that the Plaintiff had indeed acceded to the advice of the nurse and the herbalist by consuming the said tonic foods in order to minimise the side effects of the painkillers. I consider that it is reasonable for him to consume those foods. The difficulty with this claim however is that the amount claimed is only an estimation. In the absence of any evidence to support the amount claimed, I am only inclined to award an amount which I consider reasonable in the circumstances and I assess it at $5,000.

Medical and travelling expenses

40. Medical and travelling expenses in the sums of $3,344 and $3,000 respectively are agreed.

41. Accordingly, the total amount in respect of special damages is $11,344.

Interest

General Damages

42. There shall be interest of 2% per annum from the date of the writ of 20 March 2002 to the date of judgment.

Special Damages

43. The customary interest in respect of this head is half of the judgment rate from the date of the accident to the date of judgment. Miss Molloy contends that no interest should be awarded under this head, citing Kong Chun Mui (Widow and Administrative of the Estate of Cho Po Deceased) v Chau Kwai Fong (Trading as Chau's Civil Engineering) and Anor [1989] HKCU 267 in support. In that case, on the date of assessment, the widow and administratrix of the Estate had received employees' compensation and had also been receiving various payments since the date of accident from the defendant. The learned Master declined to award interest to the plaintiff on the pre-trial loss and the funeral expenses.

44. In this case, Miss Molloy contends that as the Plaintiff had received sick leave pay each month and eventually received a sum of $622,000 as the Employees' Compensation from the Defendant, the Plaintiff has not been kept out of his pre-trial special damages funds, hence no interest ought to be allowed. In considering if I should also follow the case of Kong Chun Mui, I am of the view that it is essential to remind myself of the rationale for the customary rate of half of the judgment rate for special damages. It is "to reflect the fact that not all out-of-pocket expenses are incurred at the same time during the pre-trial period. Awarding interest at half rates operates to average out the pre-trial period." (Butterworths' Hong Kong Personal Injury Service, Issue 8 para. [1352]) The rationale of the court in not awarding full judgment rate on special damages is to do justice between parties by ensuring that on the one hand, a plaintiff would be adequately compensated for the out-of-pocket expenses a plaintiff has incurred during a period of many months prior to the date of judgment; and that on the other hand, the defendant does not overcompensate the plaintiff for the expenses that are not incurred in fact on the date of the accident. For this reason, I am of the view that a customary rate of interest of half of the judgment rate is a practical way of achieving rough justice. There is no reason why it should be departed from unless in my view there are good reasons or special circumstances in a case to do so. The case of Kong Chun Mui is a case decided on its own facts and I do not find it applicable to this case.

45. In this case, I do not find any exceptional circumstances or good reasons which justify any departure from the customary award of interest. Accordingly, there shall be interest at the usual rate of half of the judgment rate from the date of accident to the date of judgment.

Summary

46. In summary, the awards I make in favour of the Plaintiff are as follows:

(i)	Pain, suffering and loss of amenities	$180,000
(ii)	Loss of pre-trial earnings	$1,135,730
(iii)	Loss of future earnings	$1,021,920
(iv)	Loss of Retirement Benefits	$52,879.5
(v)	Special Damage	$11,344

47. The above sums together with interest calculated in accordance with the respective rates I have allowed will be discounted by 20% by viture of the consent interlocutory judgment. After further deducting the sum of $622,000 in respect of the employees' compensation, I accordingly enter final judgment against the 1st and 2nd Defendants for these amounts.

48. Costs order nisi that the costs of the assessment be to the Plaintiff, to be taxed if not agreed, with certificate for counsel. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.

49. Lastly I wish to express my gratitude to both Mr. Wong and Miss Molloy for their helpful assistance in this assessment.