GURUNG CHANDRA KUMAR v. KIN KEI ENGINEERING CO. AND ANOTHER

HCPI 650/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 650 OF 2000

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J U D G M E N T

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1. The plaintiff, a 37 year old, Hong Kong born male of Nepalese descent, seeks compensation for injuries which he sustained in an accident which occurred on 11 November 1998 on a construction site where he was employed.

2. The two defendants, the 1st being his then employer, the 2nd the principal contractor on the site, dispute both liability to make payment and, if found liable, the amount which is claimed.

Applications

3. At the commencement of the hearing the plaintiff made application for leave to do three things: to amend the particulars of breach of statutory duty by the 2nd defendant; to file, out of time, a Further Revised Statement of damages; and to file, out of time, a Second supplemental witness statement by the plaintiff. Over the objection of the defendants I allowed the application and granted leave in respect of all three matters.

4. In doing so I had regard to the fact that, insofar as:

(1) the amendments to the Statement of Claim were concerned, although they contained allegations which were new, they simply made reference to two other Regulations then in force under the Construction Sites (Safety) Regulations, Cap.59 and effectively merely defined the statutory basis of the claim. The allegations of fact remained unchanged: the evidence remained unchanged. The 2nd defendant had already denied any breach of statutory duty;

(2) the Further Revised Statement of Damages and the 2nd supplemental witness statement were concerned, whilst neither document was strictly necessary and whilst the matters contained in them were matters which could have been dealt with during the course of the evidence, allowing their filing ensured that the defendants would not be taken by surprise; and

(3) the defendants would suffer no prejudice as a result of the application being allowed.

5. I refused a subsequent application for an adjournment by the defendants. I was satisfied that they had suffered no prejudice as a result of the grant plaintiff's application; that their positions had not changed as a result; that there were no matters upon which there was any genuine need to seek advice.

LIABILITY

The accident

6. The circumstances in which the accident occurred are disputed. I am satisfied that it occurred in the manner deposed to by the plaintiff and his witness. I reject the version propounded by Mr Yan Po Hung who testified on behalf of the defendants.

7. The plaintiff's case is straightforward and brief. He was employed as a labourer by the 1st defendant. On the day of the accident he was assigned to grind away imperfections in the surface of a four-sided concrete pillar. To do this he was obliged to use an electrically-powered, hand-held machine whilst standing on a platform mounted on scaffolding erected around the pillar. At that time the platform was at a height of some seven metres above ground level. Power was supplied by means of an extension cable from ground level. The cable was secured to the scaffolding at the level of the platform: the grinding machine would be plugged into that extension cable. The plaintiff had been working there during the morning. He descended around noon for a meal. None of this is in dispute.

8. The plaintiff says that when he had descended from the platform he had unplugged the grinding machine and left it behind, secured there. After eating he had returned to the platform. Upon arrival he had tested the machine by switching it on and off. He did so to ensure that there was a power supply: the extension cable was subject to being driven over at ground level. Upon returning to the platform he had been wearing a safety belt, supplied by his employer, about his waist. He had not attached the free end of the one metre-long lanyard to anything at that stage as he was still preparing to start work: as he explained, the lanyard was shorter than the distances he had to move to prepare himself to work.

9. As he was completing his preparations and was about to attach the lanyard to the scaffolding one of the planks comprising the platform broke, causing him and both planks to plummet to the ground. He said that whilst it had taken him about five seconds to test the machine, he had been on the platform for about a minute before it gave way.

10. He described the platform as being comprised of two planks each 2 inches thick by 4 inches wide and some 10 feet in length, placed side by side on cross-members of the scaffolding.

11. It was submitted on behalf of the defendants that the plaintiff had contradicted himself in his various statements and his oral evidence as to his activities at the time of the accident. He did not. Insofar as there may be any differences they were differences in phraseology: he was saying the same thing but simply expressing himself differently.

12. When he fell he had been holding the grinding machine which was switched off: after his fall it was dangling from the scaffolding by its cable and was running. He speculated, but did not know, how it had come to be switched on. Someone had been despatched to turn it off. After hitting the ground he was semi-conscious: he described himself as being "not in a very fresh mind". He saw the broken plank which had fallen near him. He was aware of others around him but not who they were. I shall return to the injuries he sustained when considering quantum.

13. The plaintiff accepted in cross-examination both that leaving the grinding machine on the platform during his mealtime was contrary to company policy and that had he secured the free end of the lanyard at the outset the injuries he sustained may not have been so severe: he knew, from his experience, that the safe course would have been to secure the lanyard immediately upon entering upon the platform. These concessions, amongst others to which I shall advert, demonstrate the refreshing frankness with which he gave his evidence. He was an honest witness who, in my judgement, did not seek to exaggerate his evidence.

14. He denied the defendants' suggestions that the accident had occurred when he had been climbing the scaffolding, carrying the grinding machine slung over his shoulder, on his way up to the platform; that he had dropped the machine; that he had then started to climb back down the scaffolding to retrieve it, lost his footing and fallen. He frankly accepted the suggestion that had he been doing this he could have secured himself to the scaffolding with his safety belt in the course of his ascent.

15. One witness, the Nepalese leader of the gang of Nepalese workers, testified on his behalf. He did not profess to have seen the accident. He had noticed the plaintiff on the platform a short time before whilst he, the witness, was passing nearby. This does suggest that the plaintiff's estimation of how long he had been on the platform prior to the plank breaking may be on the low side. He had not seen what the plaintiff had been doing at the time. He was summoned to the scene by a foreman who told him that the plaintiff had fallen.

16. When he had arrived at the scene he had found the plaintiff lying inside the scaffolding. He was able to see bones protruding from the plaintiff's leg at that stage. He saw the grinding machine, still operating, hanging in the scaffolding some two to three metres above where the plaintiff lay. After about 30 seconds a worker, whom he named, went to switch off the grinding machine.

17. He saw the planks from the platform lying on the ground. He observed that the platform was missing. It was suggested that this latter was a fabrication as no reference had been made to it in his first statement: he refuted that suggestion saying that he had simply responded to questions put to him, that he had not been asked about the absence of the platform and that therefore he had not mentioned it. His first statement is extremely brief, the second in which he dealt with this issue, far more detailed. I accept his explanation and his evidence as to his observations. He, too, impressed me as an honest witness.

18. The sole witness who testified on behalf of the defendants was Mr Yan Po Hung. In his first statement he confirmed that the 2nd defendant was the principal contractor on the site; that it had sub-contracted certain works to a company Lap Kei (Wing Yip) Engineering Company Ltd; that Lap Kei in turn had sub-contracted the supply of labour to Kin Kei Engineering Company, the 1st defendant; that he was employed by Lap Kei supervising 1st defendant's workers on the site as site foreman; he was a Safety Supervisor on the site.

19. He claimed to have been an eye-witness to the accident. His version was that he had noticed the plaintiff, with the grinding machine slung from his shoulder by its power cord, ascending towards the platform; that there was a ladder for the first five metres of the ascent which the plaintiff used before entering upon and scaling the scaffolding; he watched the plaintiff whilst he was on the scaffolding and saw him drop the grinding machine which lodged in a safety net some 2.5 metres above ground level; the plaintiff then started to descend the scaffolding and when about 4 metres above ground level, lost his footing and fell.

20. He described the fall in this manner: "On his way down, his body hit and broke some wooden planks and bamboos and those broken planks and bamboos fell onto the ground together with him.". I quote this because of its significance: it purports to explain away the presence of planks about the area where the plaintiff lay as testified to by the plaintiff and his witness. Yet in his oral testimony he contradicted this evidence: firstly, he described the removal of bricks but not planks from where the plaintiff lay; secondly, he described how the same platform was moved level by level down the pillar, accepting that there had been only the one platform and no other platform, hence no other planks, below it.

21. He says that he went to where the plaintiff had landed and helped him remove his shoes and safety belt. In doing so he had noticed that the plaintiff's ankle or leg had swollen but had "not noticed" any bones protruding from his leg and not seen any fracture, despite it being an undisputed fact that the plaintiff suffered a compound fracture.

22. Paragraph 4 of the defendants defence dated 30th June 2000 asserts that "...right after the alleged accident...Mr Yan Po Hung went to the site of the alleged accident and inspected the wooden working platform in question..."(emphasis supplied). Implicit in that is that Mr Yan did not witness the occurrence.

23. There are further disquieting factors. Mr Yan says that he had notified one Stephen Lee, an employee of the 2nd defendant and the site Safety Officer, immediately the accident occurred. In his oral testimony he says that Lee went to the site and took photographs that same day. If this occurred and if the photographs demonstrated the falsity of the plaintiff's allegations it is remarkable that there is no explanation for their non-production.

24. Mr Yan also says that he prepared a report on the circumstances of the accident on behalf of his employer which he submitted to the 2nd defendant, to Lee. He says that that report contained the same version of events as he now propounds; he had completed that report the day following the accident although there had been a short delay in submitting it to 2nd defendant. When the accident was finally reported to the Commissioner of Labour by 2nd defendant over two months later what was reported as to the circumstances of the accident was, on any sensible reading of the document, entirely at variance with even Mr Yan's version of events in almost every respect. It was fundamentally misleading. There is, of course, no explanation for this.

25. Then there is the month-end report purportedly covering the month of November 1998, Form 2A, completed, according to Mr Yan, by Lee. That report singularly and significantly fails to record the fact of any accident at all. Moreover each of the columns where there was an opportunity for the provision of information has not just been left blank but a line has been drawn plainly representing, when viewed in the context of the report as a whole, that there was no occurrence to report. There is, of course, no explanation for this.

26. I do not accept Mr Yan's evidence that another worker had been sent, after the accident, to work on the same platform. His evidence accords with that of the plaintiff that there was another platform on the opposite side of the pillar. I accept the evidence for the plaintiff that any other worker who may have been working on the pillar was working on that other platform.

27. I am satisfied that Mr Yan was not being truthful when he related his version of how the accident occurred. Consequently I do not need to traverse issues such as whether or not there was a safety net; whether or not a ladder had been provided; whether, if one had, it was adequate in the circumstances; whether or not the plaintiff should have clipped himself onto the scaffolding as he ascended or descended: whether there had been specific safety instruction given in this connection. The plaintiff fell when one of the planks on which he was standing broke.

Negligence

28. On the basis of that finding the defendants are liable to compensate the plaintiff. Both owed him a common law duty of care. The 1st defendant was also in breach of its contract of employment with him. The 2nd defendant was also in breach of its statutory duty under Regulation 38L of the Construction Sites (Safety) Regulations as well as Regulation 38A, the platform being a point of access to the place on the site, the face of the pillar, where the plaintiff worked.

Contributory negligence

29. Contributory negligence by an employee is not to be regarded as any diminution of the duty of care owed by an employer or any statutory duty of care. I am mindful of the necessity to guard against excessive findings of contributory negligence by a workman. The defendants say that in the event of it being found that the accident occurred in the manner deposed to by the plaintiff, their liability falls to be reduced by virtue of the plaintiff's own negligence. I agree.

30. In the present instance the plaintiff was an experienced construction site worker. He plainly appreciated the dangers of working at a height. That he was provided with a safety belt would have reinforced that appreciation. He had been working on what by any standards was a narrow platform. He would have appreciated that. Whether or not he actually accepted in his testimony that he was in breach of the company's rules relating to fastening his safety belt immediately upon reaching the platform is a little unclear. However, he did accept that this would have been the safer course for him to follow. His opinion, of course, is not the deciding factor - but it does provide compelling evidence.

31. I am satisfied that given the circumstances in and period for which he had been on the platform prior to its collapse and the time which he said it would take to test the machinery, both being estimates of course, he had adequate time to have taken the precaution which a prudent man would have taken. He failed to do so.

32. I have had regard to the various authorities to which I have been referred concerning the degree of his negligence. Their circumstances are as varied as the decisions which resulted. Save to say that this matter is a far cry from that considered in Siu Chi Moon v Rainfield Design [1999] 2 HKC 306 and wholly distinguishable, I do not regard it as helpful either to traverse the judgements or to list the citations.

33. Each assessment will depend upon the facts in the case being considered: on the facts of this case I assess the level of the plaintiff's contributory negligence at 20%.

QUANTUM

The plaintiff's injuries

34. The medical reports have been agreed, alleviating the necessity of calling those who examined the plaintiff. Other than one minor area where the defendants contend for a difference in "interpretation" there is no real dispute concerning the injuries he sustained and his present condition. He suffered a compound fracture of the left tibia and fibula; a fracture of the 1st and 2nd lumbar vertebrae with no neurological deficit; a compound fracture of the left 5th metatarsal bone; lung collapse; microscopic haematuria. He has been examined, for the purposes of these proceedings, by three specialists. The most recent examination was conducted this month by Dr Lau Hoi Keen, the orthopaedic surgeon retained by the defendants.

35. He was admitted to Tuen Mun Hospital on the day of the accident and remained there for close on three months. In summary, the treatment he received during this period is debridement, open reduction, internal fixation and external fixation of left tibia and fibula; posterior lumbar fusion and instrumentation L1 to L3; adjustment of external fixation, bone grafting and removal of implants from left tibia; close reduction and percutaneous screw fixation of left 5th metatarsal bone with skin grafting; adjustment of external fixator of left tibia.

36. He has had a number of re-admissions and treatments: from 31st July 1999 to 9th August 1999 as a result of left leg cellulitis when he was treated with antibiotics and dynamization of external fixation; from 11th to 16th October 1999 for removal of an external fixator; from 22nd November 1999 to 8th December 1999 as a result of infection of screws of his left tibia, when the screws were removed, debridement performed and antibiotics administered; 23rd April 2001 to 3rd May 2001 for removal of an implant from his back and a left ankle arthodesis, the latter due to post-traumatic osteoarthritis of the left ankle; and 27th to 28th March 2002 for removal of a screw from his left ankle consequent upon pain whilst walking.

37. He has attended hospital as an outpatient for routine follow-up. He has also received physiotherapy at Tuen Mun Hospital for which there are payment receipts. He testified that he also attended some physiotherapy sessions at Pok Oi Hospital: no payment receipts have been produced for those but I see no reason to doubt that he received that treatment even if there is no claim for reimbursement.

38. The medical reports detailing his present condition may be summarised thus:

(1) his spine has been fused from L1 to L3. Alignment is satisfactory. There is residual surgical scarring. He has a stiff back with marked reduction in the lordotic curvature of the spine. The residual pain and stiffness is expected to persist;

(2) the compound fracture of the left tibia and fibula has healed in satisfactory alignment. He developed post-traumatic osteoarthritis resulting in an arthodesis of the ankle: the left ankle is fused in neutral position. There is residual scarring. There is persistent pain in that ankle which may be explained by the fact that there is still some movement in the joint. The residual pain is expected to persist;

(3) the fracture of the left 5th metatarsal has healed with good alignment. There is residual impairment of sensation over the lateral half of the left foot;

(4) there is osteoporosis over the left foot and ankle;

(5) there is significant wasting of the left thigh muscles due to the disability of that lower leg;

(6) he walks using a walking stick as an aid, displaying a limp. He cannot squat or stand only on his left leg; and

(7) there is some reference to, but no detail about, a complaint of impotence: only Dr Lau comments on this, to opine that it "is likely to be psychological in nature.".

39. There is one matter which may conveniently be addressed at this stage as it is relevant to several categories of damages. Dr Lau expressed the opinion that further conservative treatment of the Plaintiff would be unlikely to be of benefit to him in view of the already lengthy period of rehabilitation he has enjoyed. In certain specific regards Dr Wong disagrees and I shall return to those. Of importance is the fact that the plaintiff himself is apparently optimistic that his condition will improve: he says that he is unable to work at present but hopes to be able to find some form of employment in future. He also testified that he is able to walk, on occasion, without the support of his stick although that is largely confined to indoors. Neither medical practitioner suggests that the use of a stick is unnecessary. In my judgement this is a further demonstration of the plaintiff's lack of exaggeration generally.

PSLA

40. The plaintiff claims that his injuries fall at the upper end of the "serious" and lower end of the "substantial" categorisations set out in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. The defendants contend that an award in the mid-lower range of the "serious" category is proper. A court compares a given plaintiff's injuries with injuries described in previously decided cases in order to determine the appropriate category. An award is then made from the range of amounts fixed by the Court of Appeal as applying to a particular category.

41. In Leung On & Anor v Chan Pui Ki [1996] 2 HKC 565 the Court of Appeal revisited the range of amounts applicable to the various categories. It is not disputed that it is appropriate for the revised ranges of awards to be further revised by something of the order of 15% given the effects of inflation in the intervening period.

42. I have had regard to each of the authorities to which the parties made reference, in particular Chan Kui v Lee Fai (1997) 2 HKLRD 444 where there was an award of $350,000.00 in 1997 consequent upon a compound fracture of the left tibia (no injury to the fibula is reported) and right 5th metatarsal; Lai Ching v Wong Chiu Kwai (1999) HKLRD A12 where there was an award of $300,000.00 in 1998 consequent upon a prolapsed disc at L4-5 level with compression of the nerve root; Ho Ah Look v Nam Kin Scaffolding & Anor HCPI 156/1996 where there was an award of $564,000.00 in 1999 consequent upon a subtrochanteric fracture of the right femur and fracture of the superior pubic ramus; as well as Sui Wai Man v Lee Chi Chong & Anor [1999] HKLRD (Yrbk) 352 where there was an award of $400,000.00 in 1998 consequent upon a bimalleolar fracture of the ankle; Lai Chi Ming v Ng Pak Chuen & Ano [2000] HKEC 1190 where there was an agreed award in 2000 of $574,000.00 consequent upon fractures of the tibia and fibula with residual inability to squat. I bear in mind, particularly, the observation of the Court of Appeal in Leung On & Anor v Chan Pui Ki that it is the total effect of the injuries which is to be assessed rather than the artificial category into which they fit.

43. In my judgement the plaintiff's injuries fall at the upper end of the "serious" category and are deserving of an award, in today's monetary terms, of $600,000.00.

Pre-trial loss of earnings

44. As at the date of accident the plaintiff was earning $500.00 a day. There cannot be any sensible dispute about that. In the Form 2 which the 2nd defendant itself submitted to the Commissioner of Labour it indicates that the plaintiff would work 26 days per month: it indicated that his monthly income would be $13,000.00 which equates to $500.00 a day. There was no discussion, according to the plaintiff, concerning any annual bonus: Mr Gautam's evidence indicates that such moneys as may have been given to him to share amongst the workers were nominal. The plaintiff has not established that he would have received an annual bonus. The further evidence of Mr Gautam is that although the plaintiff had initially been employed on a temporary basis by the 1st defendant his status had changed to that of a long-term employee: there is no evidence that his salary actually had reduced as a consequence.

45. In regard to his pattern of employment, I recognise that the plaintiff said in cross-examination that he was unemployed for about three months prior to working for the 1st defendant. In re-examination he said that his unemployment was for three, four or five months in total since his return to Hong Kong and that, even during those periods, he had worked from time to time. The documentation dealing with his periods of employment show that he had regular substantial periods of employment even if the one did not necessarily follow immediately upon the other.

46. Then there is the issue of just what his income would have been at the date of trial. The plaintiff was in no position to lead any real evidence in this connection as he is unemployed: both Mr Gautam and Mr Yan said that there has been something of a drop in the construction industry both in terms of work available and wages paid. To offset this, of course, it is clear from Mr Gautam's evidence that at the date of the accident the plaintiff was in receipt of a wage higher than others.

47. The government statistics are of little assistance in this matter. As a matter of fact he was not earning anything like the figures reflected in those statistics at the date of accident.

48. Doing the best I am able with this information it seems to me that it is realistic to assume that the plaintiff would have been in receipt of an income of $450.00 a day at this stage. This figure takes into account any short periods of unemployment. On that basis, his income would have been $11,700.00 per month calculated on, as represented by 2nd defendant in Form 2A, 26 days employment per month. That results in a pre-trial median income of [($500.00 x 26 + $450.00 x 26) /2] $12,350.00.

49. The interpretation which the defendants seek to place on Dr Lau's unequivocal statement that the plaintiff's sick leave "should cover up to early May 2002" is devoid of merit and does them no credit. Dr Wong opines that a further three months beyond that date is appropriate for the reasons he gives. I accept that. The effect is that plaintiff is entitled to recompense for the full period from 11th November 1998 to trial. The period is 44.6 months which results in an award of $550,810.00.

Future loss of earnings

50. I have assessed the plaintiff's earnings at $450.00 per day/$11,700.00 per month as at trial. That equates to $140,400.00 per annum. I take that as the multiplicand.

51. The plaintiff is 37 at present. The preponderance of authorities indicate that a multiplier of not less than 12 would be appropriate. However, the plaintiff was a construction site worker. Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 is authority for the proposition that "...a reduction in the multiplier is appropriate to account for the inherent risks..." involved in working on a construction site: in that matter the plaintiff was a carpenter.

52. The defendants contend that another factor to be taken into account is that the plaintiff is Nepalese with consequent "Loose ties with Hong Kong", has "No fixed plan of settling in Hong Kong" and "...may go back to Nepal and could resume working as a shopkeeper...". These contentions ignore, firstly, the fact that he was born in Hong Kong and has the right to reside here should he so wish which places him in an entirely different position to that of a worker who has permission to remain in Hong Kong only whilst in employment and, secondly, his own evidence, which I see no reason not to accept, that he had returned to Hong Kong to see how it suited him, had found that it did, had moved his wife, and now his son, here, preferred living here to living in Nepal and had no plans to depart.

53. He now says, again quite frankly, that he does not know what his plans will be from now on given his changed circumstances. To say that he should be penalised for this ignores the fact that he is entitled to be placed, insofar as that is ever possible, in the same position as he would have been in as at the date of the accident, but for the fact of the accident. I do not believe that any adjustment should be made to the multiplier for this factor.

54. Then there is the medical evidence, by both practitioners, to the effect that the plaintiff will be unable to return to work on construction sites but is capable of sedentary or light work. That is doubtless correct in theory. It has to be remembered, though, that he is a man, approaching middle-age, with permanent residual disabilities which handicap his ease of movement, who has limited linguistic skills in both Cantonese and English. He is hardly the class of potential employee likely to be highly sought after by those with jobs available - particularly when one bears in mind type of job for which he is now suited of which, commonsense alone suggests, there is a finite number.

55. The harsh reality of the situation, it seems to me, is that the plaintiff's prospects of finding any form of gainful employment are remote, although they cannot be excluded entirely. I have already noted the fact that the plaintiff himself expresses an optimism about an ability to perform some form of work. He is still a comparatively young person. On balance, I am of the view that some allowance should be made for the prospect of limited employment; that it is not feasible to quantify that in monetary terms; that reduction of the multiplier is a method which is fair both to the plaintiff and the defendants to cater for this eventuality.

56. In the circumstances I apply a multiplier of 11. This results in an award of $1,544,400.00.

Loss of earning capacity

57. In view of the preceding award, none is appropriate under this head. See the judgement of Keith, JA., in Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD306 at 313B:

" If there was such a risk, the plaintiff was entitled to an award for loss of future earning capacity to the extent that that loss had not been reflected in the award for loss of future earnings." [emphasis supplied]

Loss of MPF benefits

58. There is no dispute that the plaintiff is entitled to an award under this head at 5% of pre-trial loss of earnings from 1st December 2000, when the Ordinance came into effect, to trial and on future loss of earnings. The amounts awarded are [($11,700.00 x 5%) x 19.6] $11,466.00 and $77,220.00 respectively.

Past hospital and medical expenses

59. There are vouchers establishing payment of $9,560.00 in respect of treatment rendered to the plaintiff. The balance of the amount claimed relates to provision of medical reports and should be claimed as part of costs.

Future medical expenses

60. There is a difference in the opinions of the medical practitioners as to the plaintiff's future treatment. Dr Lau suggests there is no further necessity for treatment other than routine follow up at Tuen Mun Hospital and the provision of analgesics. Dr Wong recommends a further 20 sessions of physiotherapy; orthopaedic consultations every second month for the next 3 years (18 consultations); and the provision of a special shoe. The plaintiff says he wishes to follow this regimen and to do so wishes to consult private practitioners - something he has not done until now.

61. Dr Wong contemplates almost 40 treatments and consultations. It appears from the documents that, when attending Tuen Mun Hospital, the plaintiff has been required to pay $44.00 on each occasion. No complaint has been made as to the nature or quality of the treatment he has received thus far and I see no reason why he should not continue to be treated there. In the circumstances I propose to allow a somewhat arbitrary lump sum of $1,500.00 in respect of future medical expenses excluding the shoe to cover further treatment, consultations and analgesics.

62. Insofar as the question of the shoe is concerned - the plaintiff obviously limps; it is only in the most recent report, compiled only two months ago, that Dr Wong suggested the provision of the shoe; it is a tad unrealistic to criticise the plaintiff for not having reacted immediately to that suggestion. I regard it as quite proper to allow for the shoe at the cost and frequency suggested. The plaintiff will receive $18,000.00 in respect of this specific item.

Interest

63. The plaintiff has claimed interest on PSLA at 2% p.a. from the date of writ, 29th May 2000 - 26 months. This is not disputed. It amounts to [($600,000.00 x 2% x 2) + ($600,000.00 x 55/365)] $25,808.00.

64. The plaintiff also claims interest on pre-trial special damages at half judgement rate. However, the plaintiff has received periodical payments and employee's compensation in excess of the amount of those damages. No interest is thus payable.

Employee's compensation

65. An amount of $588,640.00 paid to the plaintiff falls to be deducted from the post-apportionment award.

The result

66. The award is thus as follows:

	$
PSLA	600,000.00
Past Loss of earnings	550,810.00
Future Loss of earnings	1,544,400.00
Past MPF contributions	11,466.00
Future MPF contributions	77,220.00
Past Medical expenses	9,560.00
Provision for modified shoe	18,000.00
Future medical expenses	1,500.00
Interest on PSLA	25,808.00
Aggregate	2,838,764.00
Less contributory negligence 20%	567,753.00
	2,271,011.00
Less Employees compensation	588,640.00
	1,682,371.00
	=========

JUDGMENT

67. Judgement is for the plaintiff in the sum of $1,682,371.00 against the 1st and 2nd defendants, jointly and severally.

68. Costs of the plaintiff, as taxed or agreed, save that there be no order as to costs in respect of the plaintiff's application on the first day of trial or the defendants' opposition to it, to be paid by the defendants jointly and severally.

69. The costs order shall be an order nisi with liberty for any party to restore for argument on notice given within 14 days of this judgement.