NG CHING v. LINK MACHINERY WORKDS LTD

HCPI 112/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 112 OF 2004

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J U D G M E N T

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1.  The ultimate cause of the Plaintiff’s injury was a broken metal sheath that wrapped around some electric cables which supplied electricity to a lathe.  The lathe was used to cut and polish some large steel cylinders for use in textile factories.

2.  The Plaintiff was an artisan.  His duty was to cut and polish steel cylinders with the lathe.  The cables supplying electricity to the lathe were wrapped in an extendable metal sheath of 3.5 inches wide, 2.5 inches thick and 3 metres long.  This metal sheath was placed on the coil track of the lathe that was about 20 inches above the floor.  The track situated on the other side of the lathe away from the Plaintiff and close to the wall.  The metal sheath was broken and cracked at about 1 metre from one end.  Whenever the cutter of the lathe travelled to and fro in the course of cutting, the metal sheath would be displaced from the track and fall to the ground.  If the sheath was not put back to the track, the electric cables would be damaged and the electricity supply would be interrupted.

3.  On 13 November 2002 at about 6:45 pm, the Plaintiff was operating the lathe to cut and polish a steel cylinder.  The cylinder was about 95 inches long and 8 inches in diameter.  The Plaintiff was wearing a short-sleeved T-shirt and standing near the tailstock end of the lathe.  When the metal sheath on the other side of the lathe fell from the coil track to the floor, he used a metal hook of about 1 metre long to try to hook it back into the track.  In the course of doing so, his left sleeve was caught by the screws protruding from a rotating circular fixture which was fixed to the end of the cylinder close to the tailstock end.  The sleeve as caught by the screws pulled his right arm into the spinning circular fixture and his arm was injured. 

4.  The Plaintiff brought this action against the Defendant on the grounds of breach of employment contract, negligence and breach of statutory duty.  The Defendant denied liability up to the conclusion of evidence.  Its counsel however admitted liability in the course of submissions.  It still argued contributory negligence and quantum. 

5.  The Defendant argued that the Plaintiff should have switched off the lathe before trying to hook the metal sheath back into the track.  The Plaintiff responded to this by saying that he could not have switched off the lathe when it was in the course of processing a cylinder, otherwise, the processing would be defective and the product would become sub-standard.  In order to resolve this argument, it is necessary to understand how the Plaintiff would cut and polish a steel cylinder with the lathe in question.

How to polish a steel cylinder?

6.  The Plaintiff firstly had to mount a cylinder on the lathe.  The cylinder had two narrow steel spindles with one protruding from each end.  One spindle would be clamped to the geared headstock at one end of the lathe.  That was the driving end.  The cylinder would be held horizontally and could be driven by the headstock to rotate.

7.  The spindle at the other end of the cylinder would appear to rest inside the centre of a big circular metal stator.  The stator was positioned near the tailstock at the other end of the lathe.  It was fixed on and was part of the lathe.  It was a big ring with a large hole at the centre.  It had three large screws driven from three directions through its ring into the hole at the centre.

8.  The three screws spread out evenly at 120 degrees from each other.  Their tips inside the hole were screwed to positions where they were almost in touch with the spindle.  They thus served as a sort of guard to keep the spindle within its obit when it was spinning.  The spindle would appear to rest in the hole, but in fact it was not because the three screws did not really touch it.

9.  The cutter was mounted on a carriage apron which could travel from one end of the lathe to the other.  When the cutter was set against the surface of the cylinder and the cylinder was set to spin, the cutter would peel off the rough and rusty surface of the cylinder.  If the cutter was also set to travel from one end of the lathe to the other, it would peel off the rusty surface of the whole cylinder from one end to the other.

10.  However, before the commencement of the cutting process, the position of the cylinder had to be adjusted so that its axis would be in line with the axis of spinning of the lathe.  If the axis of the cylinder was the same as the spinning axis, the cylinder would spin smoothly, the cutter could also peel off the surface of the cylinder smoothly.  However, if the cylinder was spinning off axis, it would vibrate.  The vibration would be more vigorous at the tailstock end of the cylinder where the spindle was not clamped to anything.  If the cylinder should vibrate, it would bump against the cutter and there would not be a smooth cutting.  The cylinder’s position was initially adjusted by regulating the three screws in the stator at the tailstock end and the clamping position at the geared headstock end.

11.  The Defendant had provided a testing pin for the Plaintiff’s use in adjusting the axis of the cylinder.  It was a pin that was set to rest on the surface of the cylinder.  If the cylinder was spinning off axis, the pin would vibrate.  The vibration of the cylinder caused the vibration of the pin.  The bigger the deviation of the cylinder axis from the spinning axis, the more vigorous would be the vibration of the cylinder and the testing pin when the cylinder was spinning.  If the cylinder axis was aligned exactly with the spinning axis.  The cylinder would spin smoothly and produce no vibration to itself or to the pin.  The degree of position required by the Defendant was at 0.001 mm.  It would be difficult to adjust the cylinder’s axis to align with the spinning axis up to this degree of position simply by adjusting the three screws in a stator and the clamping of the spindle at the geared headstock end.

12.  The fine adjustment was made with the use of a circular fixture ringed on the spindle at the tailstock end.  This fixture was not part of the lathe.  It also had a hole at the centre through which the spindle passed.  It was affixed to the end of the spindle and would spin with the cylinder.  It had four screws driven from 4 sides through the rim into the hole at the centre. 

13.  The four screws of the fixture spread out evenly at 90 degrees from one another.  They were 1.25 cm in diameter and about 5 cm in length.  They stuck out prominently.  Each of the screws could be adjusted so that the length of the stock that stuck out part could be varied.  If the cylinder axis was off the spinning axis by a small degree, its position could be adjusted by varying the lengths of the stocks as stuck out from the rim of the circular fixture.  This was because when the fixture was set to spin at a certain speed, the difference in lengths of the stock would produce a certain amount of centripetal force at the tailstock end of the spindle.  With careful adjustment of the stocks, the centripetal force produced at a desired spinning speed could just correct the position of the cylinder axis to the required degree of precision.  The testing pin by its vibration or otherwise could tell if the axis of the cylinder was in correct alignment with the spinning axis.

14.  In order to obtain the proper alignment, repeated exercises of adjustment to the lengths of the stocks followed by the spinning of the cylinder to the desired speed might be necessary.

15.  It is the Plaintiff’s case that once the proper adjustment had been made, the cylinder would be set to spin at the desired speed so that the cylinder axis would coincide with the spinning axis.  The cutter would then be set in place to peel off the old and rusty surface of the cylinder from one end to the other.

16.  It is also the Plaintiff’s case that once the cutting process was on, the lathe had to run until the cutting was complete.  If the lathe should be interrupted in the middle of the process, the cylinder as cut would become sub-standard.  I think there is a good reason for this.  If the spindle was corrected to the right position by the centripetal force at the certain spinning speed, it was essential to maintain the spinning at that speed so as to maintain that amount of centripetal force.  If the spinning speed was varied or the cylinder stopped spinning, the centripetal force would also be varied or removed.  The cylinder would then go off the spinning axis and vibrate.  The cutting would become uneven.  When the cylinder was switched on again and accelerated to the desired spinning speed, the cylinder would again move to proper alignment with the spinning axis.  There would again be uneven cutting at the start which would quickly become even when the cylinder attained the desired speed.  The stop and start of the lathe would thus produce uneven cutting.  I therefore agree that in a normal course for cutting the surface of a steel cylinder, the lathe should be allowed to do the cutting at one go.

17.  The defence witness Mr Yip Ping Chiu said that after adjustment had been made to the position of the cylinder axis.  The circular fixture would be removed before cutting commenced.  However, that could not be right because once the fixture was removed from the spindle, the corrective effect would also be removed and the cylinder axis would not align exactly with the spinning axis.

18.  Though Mr Yip said that the procedure for operating the lathe was designed by him, however he had never operated this lathe since he purchased it some 20 years ago.  I do not think he knew how to use it to cut and polish a steel cylinder.  I do not accept his evidence.

19.  There is also an accident report prepared by a Safety Officer of the Labour Department and dated 24 December 2002.  The report said that the accident took place about 15 minutes after the Plaintiff has started the machining and the whole machining time would take two to three hours.  This was in line with the Plaintiff’s evidence.  However the report went on to say that, but for the accident, the fixture would be removed after 5 to 10 more minutes when the centre of the cylinder was fixed.  This was contrary to the Plaintiff’s evidence but was in line with Mr Chiu’s evidence.  Since the Safety Officer had interviewed both the Plaintiff and Mr Chiu, I think he might have got this information from Mr Chiu.  The Plaintiff was adamant that the fixture could not be removed in the middle of the process, otherwise the product would be sub-standard and there would be a wastage of material that would cost several thousand dollars.

20.  I accept the Plaintiff’s evidence on this and reject this part of the accident report.  The Safety Officer apparently had not considered the effect on the alignment of the cylinder if the fixture was removed in the course of cutting.

Was the Plaintiff’s negligent?

21.  There is no dispute that there was no guard for the fixture at the tailstock on the lathe.  The Safety Officer recommended that the fixture and the projected parts of the four screws should be effectively guarded during operation.  The risk posed by the four protruding screws of the fixture when the lathe was in motion was obvious.  When spinning, the protruding screws could easily drag in any loose clothing worn by any person coming near it.  When that happened, this person would be pulled over to the fixture in no time.  The Plaintiff was injured when this happened.

22.  The Plaintiff said that whenever the metal sheath wrapping the cables had fallen off the coil track, he would use a hook of about 1 metre long to hook the sheath back to the track so as to avoid interruption of electricity supply.  This method of using a hook to hook the sheath was used by him, his colleagues and the foreman.  He was in fact taught by the foreman to do it this way.  The metal hook had also been there for such use since he joined the Defendant on 17 March 2000.  He was not cross-examined on this. 

23.  The Plaintiff further said that he and his colleagues all hook the sheath back to the track when the lathe was running instead of switching off the lathe first.  I have already dealt with the reason why he thought it undesirable to switch off the lathe in the middle of a cutting process.

24.  Even if the account in the accident report should be preferred and that the fixture was only used in the course of adjustment.  The fixture should still be guarded, because the process of adjustment was part of the operation of the machine and the dangerous part should be guarded.

25.  In the light of the lack of safety training for the Plaintiff, the dangerous use of the hook as practised by the foreman and other workers of the Defendant and the failure to provide a guard to the fixture, I hold the Defendant to be negligent.  I also hold that the Defendant has breached Regulations 4 and 5 of the Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations and the employment contract.

Contributory Negligence

26.  I accept the Plaintiff’s evidence that in the normal course, it was undesirable to stop the lathe when it was in the process of cutting and polishing a cylinder.  Otherwise, the product would be sub-standard and there would be a wastage of a few thousand dollars worth of materials.

27.  I also accept the Plaintiff’s evidence that the accident indeed happened in the middle of a cutting and polishing operation.  This was supported by the photograph produced by the Safety Officer which showed a shiny and reflective appearance for the part of the cylinder that had been cut and polished and a dull appearance for the remaining part.

28.  I do not accept Mr Yip’s evidence that the shiny look was the result of polishing with sand paper by the Plaintiff.  Firstly, such a process was extremely dangerous as the Plaintiff’s hands could easily be trapped in the gap below the spinning cylinder.  Secondly, such a process was never mentioned in any witness statement or the accident report. 

29.  Even if it can be argued that the Plaintiff was in advertent in not switching off the lathe before dealing with the metal sheath, I would not hold this against him because the purpose of having guards to prevent injury caused by the dangerous parts of a machinery is just to protect the Plaintiff from such inadvertence.  I refer to the judgment of Lord Reid in John Summers & Sons Limited v Frost [1995] AC 740 and 766, 771. 

30.  However, I would not hold that the Plaintiff was inadvertent.  If the Plaintiff should have thought that he could have switched off the lathe without affecting the quality of the product, I do not think he would have spared this step before leaning over and above the cylinder to hook the metal sheath back to the track.  Furthermore, what the Plaintiff did was just to follow the same method that had been practiced by the foreman and his fellow workers.  The Defendant had also provided him with no safety training.  I would therefore also refer to General Cleaning Contractors Limited v Christmas [1953] AC 180.  For these reasons, I would hold that the Plaintiff had not committed any contributory negligence in causing the accident.

Quantum

                   Agreed medical reports

31.  After the accident, the Plaintiff was sent to Yan Chai Hospital for treatment.  He was treated by Dr Lin Hong of the A & E Department at the Hospital.  Dr Lin stated in his report of 9 September 2003 that the Plaintiff had suffered a laceration to the upper right arm of about 30 cm which was deep at the medial side with muscle lacerated, there was no active bleeding and no neurovascular deficit.  The Plaintiff was then admitted to the orthopaedic ward for treatment.

32.  A medical memorandum dated 14 August 2003 by Dr Kam Wing Lok of the Orthopaedic Department recorded that the Plaintiff had a 15 cm deep laceration over the right arm region and a partial cut of the underlying brachialis muscle, but the neurovascular structures were intact.  The memorandum also stated that the Plaintiff had recovered uneventfully and was discharged on 18 November 2002.  The wound eventually healed with scarring.  The function of the right arm slowly regained and became static since May 2003.  The overall progress was satisfactory.  It also stated that as a consequence to the severity of the injury, some degree of residual problem was inevitable.

33.  The medical assessment board assessed that the Plaintiff should have sick leave from 13 November 2002 to 25 May 2003 and he had a 3% permanent loss of earning capacity. 

34.  The Plaintiff also received physiotherapy and occupational therapy.  The occupational therapy report dated 24 May 2004 said that after completion of remedial class training and work rehabilitation, the Plaintiff still complained of stretching pain over right forearm scar on exerting force and reduced sensation over right forearm muscle.  His right hand power grip was increased to 52 kg and maximum lifting capacity from floor to waist was improved to 65 pounds.  When discharged on 20 May 2003, he was advised to try resume work with modification i.e. avoid lifting more than 50 pounds or to seek help from others when doing so.

The Plaintiff’s evidence on effect of the injury

35.  In his evidence in chief, he said that he had difficulty in carrying a 5-kg bag of rice.  He had to rest for a while after carrying it for a few steps.  In cross-examination he said he could carry 10 catties of rice for 20 metres.  With both hands, he could carry 50 catties.  Before the accident, he could carry 100 catties.  He could however carried 30 to 40 catties just with his left arm.  He could not carry a heavier weight with his right arm because of the pain.

Medical assessment reports

36.  Both parties provided medical assessment reports by their respective experts.  The Plaintiff’s expert was Dr Johnson C K Lam.  The Defendant’s expert was Dr David H F Cheng.

37.  The first report by Dr Lam dated 17 December 2003 recorded the Plaintiff’s complaint of weakness in his right upper limb including the grip numbness over the lateral aspect of the forearm and no sensation over the part distal to the wound even when pinched, pain in the distal arm and scar pain.  The Plaintiff also told Dr Lam that he had returned to his pre-accident job but with decreased efficiency and was dismissed on 1 July 2003.  Dr Lam assessed the Plaintiff’s right handgrip and opined that it had decreased to about 84% of that of the uninjured non-dominant hand.  He also opined that the numbness was compatible with injury of the lateral cutaneous nerve, a superficial nerve.  He also observed mild wasting and mild hypertrophy of the scar.  He referred to the 5^th edition of The Guide to the Evaluation of Permanent Impairment published by the American Medical Association and assessed the impairment of the whole person of the Plaintiff at 9%.

38.  The first report of Dr Cheng dated 22 April 2004 recorded the Plaintiff’s complaint of pain over the wound scars especially upon touch, paraesthesia over the right dorsum of the forearm and occasional pain over the right wrist.  Dr Cheng found that the wound was non-tender.  There was no muscle wasting as there was the same diameter of 29 cm as of the left arm.  There was a patch of decreased sensation of about 6 cm x 3 cm.  The ranges of motion of shoulder, elbow and wrist were normal and there was no muscle weakness.

39.  Dr Cheng was of the view that the wound had healed.  There was no involvement of any major nerves.  It was possible that minor superficial sensory nerves were injured during the accident.  However, the upper arm was fully functional.  The prognosis was excellent.  He did not agree with Dr Lam’s assessment and also opined that it was a minor injury with partial cut of a single muscle, the brachialis muscle, which is one of the elbow flexors.  He said muscles were vascular structures and healed the best among all soft tissue injuries and usually healed with little impairment.  He did not place much weight on the grip assessment as it depended almost entirely on the patient’s effort and willingness to do so.  He said the grip test was only of supportive value and should never be used as a principal consideration for assessment.  Moreover, the brachialis was for flexion of the elbow and the handgrip was the function of a different group of muscles.  There was no medical support for a weaker grip alleged by the Plaintiff.  He also said that the paraesthesia could possibly be caused by the injury of some superficial nerve, but such complaint was more of a nuisance than actual physical impairment.  He said the overall function of the limb was certainly unaffected in anyway and the Plaintiff was perfectly capable of returning to his pre-accident job.  His physical condition was not worse than before the accident.

40.  Dr Lam furnished some supplemental notes dated 17 September 2005 to respond to Dr Cheng’s conclusions.  Dr Lam disagreed that there was no involvement of any major nerves or that the injury was to a minor superficial nerve.  He assessed that there was a complete cut to the lateral cutaneous nerve.  In cross-examination, he qualified this to a possible partial cut or damage by traction.  He further said that the injury to this nerve was possibly missed by the treating doctors as Dr Kam of Yan Chai Hospital had stated in his report that “major neurovascular structures were intact” and thus he probably had not performed any nerve repair.  Dr Lam also said that the brachialis was one of two major muscles responsible for elbow flexion and repair after injury to this muscle would often produce sub-optimal result.  He also tried to justify his use of the handgrip test to corroborate the Plaintiff’s subjective complaint of weakness.  He finally concluded that the lifting, pushing and gripping would be decreased to about 75%-80% of the Plaintiff’s previous level.

41.  Dr Cheng also responded to Dr Lam’s notes on 26 September 2005.  He criticised Dr Lam for having suggested that the doctors at Yan Chai Hospital had failed to diagnosis the injured nerve which was a serious suggestion of incompetence or negligence.  He reiterated that the Plaintiff has sustained a simple laceration of the right brachialis muscle which healed without complication.  He said muscles had good regeneration power and could hypertrophy on exercise.  The Plaintiff also recovered well and showed little weakness.  The overall function of his right upper limb was little affected.  He also said Dr Lam had detected some weakness by his method of assessment and placed overriding emphasis on it.

Oral evidence of the experts

42.  There was no dispute that the cutaneous nerve had been damaged.  Dr Lam said in his evidence in chief that the treating doctors had missed the injured nerve.  He was of the view that if the Plaintiff should lift heavy objects for a long time, the scar around the nerve may produce discomfort.  If there was irritation to the nerve, it could produce the sensation of pain and numbness which would force the Plaintiff to stop.  He also said that the Plaintiff’s evidence that he could only carry 10 catties of rice for 20 metres was consistent with his injury. 

43.  In cross-examination, Dr Lam agreed that the injury to the cutaneous nerve only affected the sensation of the skin and had no effect on motor power.  He also agreed that he had not come across any article in any learned journal saying that damage to sensory nerve could affect motor function.  He also said that some people would experience no problem even if their cutaneous nerves were damaged.

44.  Dr Cheng said in evidence that the treating doctor had done a good job.  The doctor had to explore the wound and look at the major nerves.  He further said that the injury to the lateral cutaneous nerve was never considered important.  Doctors would be more concerned with debridement.  The injury to the cutaneous nerve only produced numbness or loss of sensation of a small part.  It was a minor injury.

45.  In cross-examination, Dr Cheng agreed that it was possible for a patient to suffer from loss of motor power after recovery from an injury to the brachialis muscle, but it was unlikely.  Furthermore, from his examination, the Plaintiff had not suffered any loss of motor power.  He also emphasised that the brachialis muscle was not responsible for gripping and the Plaintiff had not suffered any loss of handgrip or lifting power by the injury to this muscle.  He only suffered from loss of sensation.

Findings on effect of injury

46.  Though Dr Lam said that the Plaintiff’s evidence that he could only carry 10 catties for 20 metres was compatible with the injury, such evidence was not compatible with Dr Lam’s written report.  Dr. Lam’s report opined that the Plaintiff’s lifting and gripping power would only be reduced to 75-80% of the previous level.  The Plaintiff’s left hand could lift 30-40 catties.  His right hand could of course have done better before the injury.  If the Plaintiff’s evidence was to be preferred, than the decrease in lifting and gripping power was a lot more than 20-25%.

47.  Furthermore, Dr Lam had accepted that the cutaneous nerve had no motor function.  His justification for the Plaintiff’s loss of motor power was thus quite indirect.  He also had not come across any article in any learned journal that could support his conclusion.  His opinion that the operating doctor had missed the injury to the cutaneous nerve was a serious allegation made against a colleague.  I find the allegation groundless. 

48.  In fact, both the doctor at the A & E Department and the operating doctor did not find any damage to the neurovascular system.  I agree with Dr Cheng that the cutaneous nerve was not regarded as an important nerve and its injury was not regarded by the doctors as serious.  It was thus right for the two doctors at Yan Chai Hospital to regard the neurovascular system as in order despite the injury to the cutaneous nerve.  I do not think the operating doctor had missed out anything of significance.  I also note here that the Plaintiff’s evidence is inconsistent with the findings and conclusions in the occupational therapy report which stated that he had a right hand power grip at 52 kg and maximum lifting capacity from floor to waist at 65 pounds.  He was only advised not to lift anything of more than 50 pounds.  I also accept Dr Cheng’s evidence that the brachialis muscle had nothing to do with handgrip and handgrip was controlled by another group of muscles.

49.  Thus, even if the Plaintiff had a poor right handgrip, it had nothing to do with the injury.  Dr Lam tried to link up the weak handgrip with the injury by saying that apart from the brachialis muscle, there was also injury to the soft muscle.  However, the only significant part of the injured soft tissue was the cutaneous nerve, which was a sensory nerve that had nothing to do with handgrip.  The argument put forward by Dr Lam has no basis.

50.  Counsel for the Plaintiff criticised Dr Cheng for being inconsistent in saying that the injury to the cutaneous nerve would only result in loss of sensation but at the same time admitted that such injury could produce paraesthesia.  I see no inconsistence there.  The injury to this nerve might hamper its sensory function and thus resulted in loss of sensation.  Paraesthesia is on the other hand a phenomenon produced by the damage to this nerve. 

51.  There may be phenomena that the current state of medical knowledge cannot explain, but this is not a basis for drawing wild and unsupported conclusions.  Even though a phenomenon is in explicable, the medical world may, from its experience and statistics, acknowledge its existence and its relationship with a particular injury or diagnostic features.

52.  In saying this, I am not applying aetiology in place of the balance of probability test.  In applying the balance of probability test, I have to look at all the evidence available which includes medical evidence.  I however should be wary of groundless conclusions even proffered by experts.  Having said this, I should express my gratitude to Counsel for the Plaintiff for drawing my attention to the cases of Ocean Tramping Company Limited v Lee Kin Kai [1991] 2 HKLR 232 and Lo Kwok Fai v Ngan Cheung Wah [2003] 1 HKLRD 82.

53.  I find the Plaintiff’s evidence on the effect of the injury exaggerating and reject it.  I also do not accept Dr Lam’s evidence insofar as it is different from that of Dr Cheng.  Dr Lam’s explanations are tenuous.  Dr Cheng’s opinions are reasonable, logical and in line with common sense.  I find that the Plaintiff had recovered well from the injury at the end of his sick leave.  The overall function of his right arm is unaffected in anyway.  He is capable of returning to his pre-accident job of a machinist.  He lost his job because of the closure of the factory and not because of his injury.  He had received severance payment for losing his job.

PSLA

54.  The Defendant suggested that this award should be at $100,000 to $125,000, if I should prefer Dr Cheng’s view.  However, if I should accept Dr Lam’s view, it should be at $175,000.  No authority has been cited to support these contentions.  Counsel for the Plaintiff has referred me to Ching Kam v Au Wing Keung & Another [1999] HKLRD B13; Tsang Chin Keung v Lo Tat Kong (trading as Hung Kwong Glass Works) & Another [1996] HKLY 669; Li Yuk Ching v Secretary for Justice [1998] HKLRD K30 and Yip Mau Leung v University of Hong Kong [2000] 3 HKLRD 198.  Based on these authorities, Counsel suggested a PSLA award at $250,000 to $280,000 if I should take Dr Lam’s view or the smaller sum of $220,000 if I should agree with Dr Cheng.  Having reviewed these authorities, I am of the view that the Plaintiff should have $200,000 under this item.

Loss of earnings during sick leave

55.  The average salary of the Plaintiff for the 12 months before the accident was $16,000 per month.  Counsel for the Defendant submitted that business was declining since the few months before the accident and I should use $13,000 per month as the monthly earnings.  The cylinder in question was processed for use in the textile industry.  I do no think this industry was on a decline towards the end of 2002.  I agree with the Plaintiff’s evidence that there was some reduction in his earnings in the few months before the accident because of the unavailability of raw materials to the Defendant.  I would thus take the 12 months average or $16,000 as the monthly earnings.

56.  On the period of sick leave, I am prepared to be more generous and would accept the sick leave granted by the government doctors rather than the period of 3-4 months as suggested by Dr Cheng.  The sick leave granted by the government doctors was contemporaneous with the treatment and recovery.  Dr Cheng only assessed the Plaintiff on 6 January 2004.  The lost of earnings during sick leave would thus be ($16,000 x (18/30 + 5 + 25/31 =) $102,560.

Loss of MPF

57.  There is no dispute that this loss should be at 5% of the loss of income, which is ($102,560 x 5% =) $5,128.

Loss of earning capacity

58.  Despite the Plaintiff’s full recovery, there is an obvious unsightly scar on his right arm.  This would put him under a disadvantage in seeking new jobs.  He was aged 42 at the time of the accident.  I would award him $130,000 under this item.

Special Damages

59.  The parties agree that special damages should be at $4,874.

60.  The total award is thus at ($200,000 + $102,560 + $5,128.00 + $130,000 + $4,874) equal to $442,562.  I deduct the ECC award of $127,320 from this sum.  The net amount payable by the Defendant to the Plaintiff is $315,242.

61.  I also award the Plaintiff with interest at half of the judgment rate for the loss during the sick leave, the loss of MPF and the special damages.  Finally, I make a cost order nisi that the Defendant do pay the Plaintiff the cost of this action.