LAU HING KWAN v. LAI CHI KWAN AND ANOTHER

HCPI986/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 986 OF 2003

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ASSESSMENT OF DAMAGES

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Introduction

1.  The plaintiff,  Lau Hing-kwan, aged 40 at the time of the hearing, suffered personal injuries in a traffic accident that took place on 21 July 2001.  Born on 8 March 1955, he was seated in the front passenger seat on board a light goods vehicle, driven by the defendant.  In an ill-advised attempt to overtake another vehicle in the roadway, the defendant lost control of the goods vehicle and a crash ensued.  The plaintiff lost consciousness for a brief period and suffered injuries to his forehead.  In pursuing his claim for loss and damages, the plaintiff has put in two witness statements, which he adopted as his evidence-in-chief .  He was the sole witness at the hearing of the assessment of damages.  So much for an overview.

The plaintiff’s injuries, treatment and prognosis

2.  The medical reports have all been agreed and they disclosed the following.  On the  of the accident, the plaintiff was admitted to the United Christian Hospital where it was discovered that he had sustained a geographic degloved injury to his forehead.  An urgent CT brain scan was conducted and it revealed no fracture or any intracranial haemorrhage.  Surgical debridement to the forehead wound was done.  He remained in hospital and was discharged on 27 July 2001. 

3.  At the last follow-up on 21 September 2001, it was noticed that the wound to the forehead had almost healed, with healthy granulation tissue.  According to the medical report of Dr Cheng Wing-kay, d 21 November 2001, no further surgical intervention was required at that time.  The plaintiff was advised to avoid strong sunlight in order to facilitate the healing of the wound.  He was further advised to return for follow-up six months hence. 

4.  In his evidence, the plaintiff said that he had lost consciousness, or was semi-conscious, for about 30 minutes immediately following the accident.  The defence has taken issue on this point.  Reference was made to the report of Dr Cheng Wing-kay, which I have just mentioned.  There it was said that there was no loss of consciousness.  However, if one were to look at another report from the United Christian Hospital, d 21 January 2003, a report from Dr Chau Tam-lin, there can be no doubt that the plaintiff had lost consciousness for about 30 minutes.  I am satisfied to find that the plaintiff did indeed suffer a brief period of loss of consciousness. 

5.  The plaintiff attended United Christian Hospital for wound-cleansing between 28 July and 10 September 2001.  He had also received occupational therapy.  The plaintiff’s main concern and complaint was the scarring over the forehead.  He said he was very conscious of the moon-shaped scar and would frequently wear hats to conceal it.  This area of scarring over his forehead measured 20 by 60 millimetres.  It contained multiple telangiectusia.  The scarring was also accompanied by three areas of traumatic tattoos over his nose.  The scarring and the tattoos were the result of impact injury.  The scar was considered too wide to excise and expansiontherapy was then undertaken. 

6.  On 5 August 2002, the plaintiff was admitted for the insertion of a tissue expander under the forehead.  This was accomplished under general anaesthesia.  He then attended, on a weekly basis, between late August and end September 2002, for further expansion of the tissue expander. 

7.  On 30 September of the same year, he returned to hospital for surgical removal of the expander and excision of the scar.  The wound was then resutured.  He also received laser treatment for his traumatic tattoos.  The advice given to him was that he should massage the scar and avoid direct, strong sunlight.  Photographs have been produced and they show the injury to his forehead and nose.  Those photographs were taken in 2003. 

8.  I have had the benefit of examining at close quarters the plaintiff’s face during the trial and have noted that the scars have improved considerably since those photographs were taken; they were less prominent and less red in colouration. 

9.  On 28 July 2003, and on 4 August 2003, the plaintiff was admitted to Prince of Wales Hospital for surgical levelling of his eyebrows, as suggested by Dr Gordon Ma, a specialist in plastic surgery.  As seen in a photograph accompanying the medical report of Dr Gordon Ma, at page 511 of the trial bundle, the plaintiff’s eyebrows did not appear to be level.  The description Dr Gordon Ma gave was that “the two eyebrows were not level, the medial end of the right eyebrow was noted to have displaced downwards, resulting in facial asymmetry and disharmony”.  The later medical report of Professor Andrew Burd of the Department of Surgery at Prince of Wales Hospital, d 3 September 2004, indicated that when the plaintiff was examined on 5 August of that year, his eyebrows were level and the wound and scars were progressing satisfactorily.  I noted at the hearing that there was no obvious asymmetry in the eyebrows.  They appeared, to all intents and purposes, to be level and normal. 

10.  The plaintiff has complained that he suffers from depression and loss of confidence, loss of sleep and frequent headaches as a result of the traffic accident.  He said that his memory has been impaired and his description, in evidence, as well as to Dr Yu Yuk-ling, is that his personality has changed for the worst.  He shies from social contact as a result of his disfigurement and would become particularly depressed when he hears of other traffic accidents.  His headaches are not associated with dizziness, nausea, vomiting or any visual disturbance but they occur about three or four times weekly, sometimes lasting for two hours.  They are, however, relieved by analgaesics.  In his daily life he is fully independent. 

11.  The plaintiff had sustained but a minor head injury.  As evidenced by his symptoms of headaches, dizziness and impaired concentration and irritability, Dr Yu Yuk-ling considered that he has exhibited certain features of post-traumatic stress disorder (PTSD), with severity well below that of the full-blown syndrome.  The opinion of Dr Yu Yuk-ling in August 2003 is as follows:  

“	13.	In the accident on 21 July 2001,  Mr Lau sustained a minor head injury.  He had degloved wound over the forehead, loss of consciousness for about 30 minutes and post traumatic amnesia of about eight hours.  Part of the amnesia was due to anaesthesia administered for surgery for the facial degloved injury.
	14.	Patients with head trauma may be complicated by post-concussional syndrome (PCS).  The head trauma is usually sufficiently severe to result in loss of consciousness.  This syndrome includes symptoms, such as headache, dizziness (usually lacking the features of true vertigo), fatigue, irritability, difficulty in concentrating and performing mental tasks, impairment of memory, insomnia and reduced tolerance to stress or emotional excitement.  These symptoms may be accompanied by feelings of depression or anxiety.  The condition is thought to be partly physical due to disturbance of brain functions, and partly psychological in reaction to consequences of the accident.
	15.	Mr Lau has PCS as evidenced by the symptoms of headache, dizziness, impaired concentration, subjective impairment of cognition and memory and irritability.
		He also has certain features of PTSD (see section 8.4) with severity well below that of the full-blown syndrome.
	16.	Most patients with PCS achieve maximum recovery within 12 months of the head injury.  As it is two years from the time of injury, Mr Lau’s PCS is probably permanent by now.
	17.	Mr Lau has received an adequate course of treatment from the neurosurgeons at UCH.  He may need to consult his family doctor for symptomatic treatment of headache and dizziness or a need basis, say four times in the next 12 months.  The fee for each consultation, inclusive of drugs, is about $300.
	18.	The percentage of permanent impairment of the whole person (PIWP) is estimated with reference to the 5th edition of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association (AMA Guides) in 2001.  The PIWP for PCS and PTSD is estimated to be 2 per cent.”

12.  As for the plaintiff’s capacity for work, Dr Yu Yuk-ling considered that he should be able to resume his pre-accident employment as an office assistant but with a slightly compromised work capacity because of the post-concussional syndrome that has been observed.  He should, however, be medically fit for jobs, such as cashier, shop assistant, car park attendant, factory worker, caretaker and messenger.  She has taken the view that his working capacity in those jobs would also be mildly affected by the post-concussional syndrome.

13.  The plaintiff has also complained that following the accident he has become somewhat withdrawn, preferring to remain at home to watch television or listen to music.  Once interested in jogging and swimming activities, he said that he no longer pursues such interests. 

14.   The plaintiff was initially hospitalised for seven days immediately after the accident.  He was discharged on 27 July 2001.  From the medical reports, it is patent that he had attended the United Christian Hospital for wound cleansing and treatment from 28 July to 10 September 2001, a total of some 38 sessions.  He was followed up over 10-odd sessions in the Department of Surgery and Department of Neurology of the same hospital until about July 2002.  He has also, as we have noted, received occupational therapy in the initial few months following the accident. 

15.   The plaintiff’s principal complaints relate to his scarring on the forehead and to feelings of depression.  It is his case that he suffers from sleep loss and that he has become less sociable and sporty.  Prior to the accident, he enjoyed jogging, swimming and socialising, but has since become withdrawn.  His evidence was that he was acutely conscious of the constant staring from people and that had further depressed him.  In consequence, he shuns company, preferring to remain indoors. 

16.  When out and about, he said he would bow his head, wear a hat and avoid eye contact with other people.  He has become, he says, very pessimistic and has lost all his confidence.  He is less able to control his temper and is often irritable.  It is his case that he is unlikely to be ever gainfully employed and lead a normal life.  He is particularly worried about what he calls the asymmetrical scarring that the accident had caused to his head which he said made him look odd and funny.  In truth, he looked neither odd nor unsightly to me.  In his witness statement, which he adopted as his evidence, he went as far as to say that he thought that marriage was unlikely.

17.  The cosmetic disability in respect of his forehead and nose scarring amounts to 5 per cent on the evidence of Dr Gordon Ma.  Permanent impairment of the whole person in regard to the neurological aspect of his injury was assessed at 2 per cent by the neurologist, Dr Yu Yuk-ling.  This is on account of the plaintiff’s complaints and evidence that he continues to suffer from recurring headaches, dizziness, and impaired concentration. 

18.  As noted from the evidence of Dr Yu Yuk-ling, the plaintiff appears to be suffering from post-concussional syndrome (PCS) with symptoms of headache, dizziness, impaired concentration, subjective impairment of cognition and memory and irritability. 

19.  The neurologist also opined that the plaintiff exhibited certain features of post-traumatic stress disorder which, having heard the case and having seen the plaintiff, it would appear to me that the condition described by Dr Yu Yuk-ling is by no means severe or serious.  The permanent impairment figure has been put at 2 per cent only.  That is of course not to belittle the injury that the plaintiff has had to endure as a result of the accident. 

20.  With time, motivation and a determination to move on, there can be no doubt in my mind that the plaintiff would overcome his disabilities and lead the lifestyle that he had previously enjoyed. 

21.  The plaintiff has had difficulty securing and holding down employment after the accident.  The fact that he seemed to have a problem obtaining employment and, having done so, making a success at it, did not help in my view.  The constant change of employment would appear to show a lack of genuine effort to really make a go at it.  The reasons he gave for being laid off ring hollow.  I simply do not accept that he was often fired for his appearance or on account of the fact that he had to wear a hat, both of which must have only been too apparent when he was interviewed prior to being engaged.  It belies a lack of serious or genuine commitment and effort to return to gainful employment and make a success of his life.

22.  The plaintiff has also given evidence that he feels unhappy and that he has previously visited the Psychiatric Department for consultation.  He said he wanted the doctor to make him happy.  There is no evidence that he has received any psychiatric treatment.  The medical evidence disclosed no psychiatric ailment as a result of the accident beyond what Dr Yu Yuk-ling had diagnosed. 

23.  Having had the benefit of observing at the plaintiff in court, the disfigurement, with which he seems overly obsessive, does not appear to be particularly serious to me.  The colouration of the scarring has lightened over time, and his eyebrows appear to be symmetrical to me.  Cosmetic reconstruction has brought definite benefits.  There have been tangible improvements.  For a man now aged 40, his pessimism seems unjustified and bordering on exaggeration.  As for the headaches that the plaintiff says he occasionally suffers, that can readily be ameliorated or managed by analgesics. 

24.  In summary, I do not consider that the injuries and disabilities disclosed are especially serious in nature.  Counsel for both the plaintiff and the defendant have submitted a number of cases in respect of damages for PSLA.  These cases taken together included:  Li Yuen Wa (1981) HKLJ 122; Lau Ho Bun, Ben HCPI199/1995; Yeung Tung Sang HCPI826/2001; Lawati Bhawani Vikram CACV No. 3/2002; Ngan Pik Ha HCPI415/2004; Lee Suk Ha HCA418/1979; Chan Fung Yee [2000] 2 HKLRD 690; Chan Wai Leung DCPI166/2001; Cheng Lai Kwan [1998] 2 HKLRD 729; Tong Lin Keung [1999] 3 HKLRD K14.

25.  The plaintiff has submitted that his injuries should be placed at the bottom of the serious injury category for which an award of $450,000 was appropriate.  The defendant contends that these injuries were relatively inconsequential and should attract damages of no more than $200,000.  The cases referred to provide a guide of the type of awards that have been handed down in the past.  None of the cases are directly in point, but they are instructive. 

26.  Doing the best that I can and having come to the view that the injuries sustained by the plaintiff are by no means as serious as he has made them out to be, I consider an award of $280,000 appropriate and a fair sum to give.  That is the amount I shall award him for damages for pain, suffering and loss of amenities. 

Past and Prospective Claims for Loss of Income

27.  Prior to the accident, the Plaintiff was working as an office assistant-cum-messenger performing general office duties.  He had attained Form 3 education.  Shortly before the accident, he took up new employment with Glory Electrical Manufacturing (HK) Company Limited (Glory) at a basic salary of $5,000 per month. 

28.  His evidence was that after successful completion of a three-month probation, his monthly remuneration would have increased to $6,500 in addition to double-pay entitlement at year’s end.  No letter or contract of employment has been produced.  The only document exhibited is a note from this employer d 7 August 2001 (at page 168 of the trial bundle) confirming what was owed to him when he was let go. 

29.  The Plaintiff said he was dismissed on account of the accident and the consequential need for medical treatment that invariably would have taken him away from work from time to time. 

30.  Counsel for the defence contended that, as there was no documentary evidence of any entitlement to increment or year-end bonus, no provision for such loss should be made.  I disagree.  Employment on probationary and a 13-month salary terms is a common enough feature in Hong Kong.  The Plaintiff had similar benefits when he worked for Geber between July 1999 and the end of 2000 when that company ceased trading.  I have little difficulty in accepting his assertion that Glory offered similar employment terms. 

31.  The Plaintiff was granted two months’ sick leave to 22 September 2001.  Wishing to return to employment at the earliest opportunity, according to his witness statement, he said he had not sought additional sick leave.  Yet, in cross-examination, he admitted that when the United Christian Hospital granted him sick leave for two months only, he had requested for more but had been turned down. 

32.  The Plaintiff’s post-accident employment was as chequered or varied, as the periods were brief.  His first employer was Yeko Trading Limited, a job secured through the auspices of the Labour Department.  Although engaged as a driver at a monthly salary of $7,500 commencing 11 October 2001, he was dismissed with immediate effect some 10 days later.  No reason for termination was offered in the letter of termination d 26 October 2001 and he was paid just $2,500.  The Plaintiff, however, testified that he was sacked as his boss was displeased with his facial scarring.   

33.  His next and second job after the accident, began on 7 November 2001 and ended on 26 November 2001 for which he received $2,500.  Engaged as a miscellaneous clerk by Tai Sing Wo Company Limited as an office assistant, he admitted to having committed a series of errors while engaged on bookkeeping and calculating office expenses.  Not being good at mathematics, he was dismissed.  The employer’s letter of termination d 26 November 2001 clearly stated he had failed to meet the company’s expectation. 

34.  After a brief hiatus, the Plaintiff commenced work with a firm of solicitors, Messrs Anthony Kwan & Co., incidentally his current legal advisers, as an office assistant at a monthly salary of $5,000.  He was paid only $4,333.40 for his short stint there between 17 December 2001 and 11 January 2002.  He had admittedly left of his own accord hoping, he said, for better-paid employment elsewhere.

35.  China Overseas (Hong Kong) Limited was his next employer.  The terms of employment at pages 182 and 183 of the Trial Bundle stipulated a monthly salary of $7,800, his highest remuneration to , it seems, and three months’ probation.  The Plaintiff was taken on as a driver on 8 February 2002 but was sacked in May 2002 for unsatisfactory performance.  His wages from China Overseas, including a payment in lieu of notice, amounted to $25,741.10 (being the aggregate of $4008.60, page 193; $8862.50, page 191; $7,020.00, page 189; $5850.00, page 187). 

36.  In his first witness statement, the Plaintiff professed to having tried to work at this job but his need for occasional rest-breaks, headaches and forgetfulness had not endeared him to his employers.  In evidence, he further explained that his dismissal came about when he had forgotten to throw away some newspapers owing to poor memory.  The fact that he wore a hat at work, and bore a moon-shaped scar had made matters worse, he said. 

37.  A very long period of unemployment ensued.  That ended in March 2005 when Middleman Consultant Company, a recovery agent, it seems, hired him as an office assistant at a low salary of $2,000 a month.  At the hearing, he remained so employed. 

38.  To the  of the hearing, because of long periods of unemployment, the Plaintiff had earned only a total of $39,074.50 ($2,500 plus $2,500 plus $4,333.40 plus $25,741.10 plus $2,000 times 2 months).  To make ends meet, he lived at home, surviving on savings and a TAVAS payment of $33,670 and the generosity of his father.  He applied for but was rejected for public assistance. 

39.  It was the plaintiff’s case that between June 2002 and March 2005, his numerous attempts to secure employment had not been productive.  Details of such continual efforts were studiously recorded in notes he made:  (Trial bundle, pages 198 to 254 refer).

40.  He explained that he had applied for numerous job openings for some of which he had had to attend interviews.  However, without exception, no offer had come his way.

41.  The plaintiff stated that at nearly all interviews, prospective employers had voiced disquiet on noticing his scars, with some even openly questioning  whether his mental and physical ability might not be up to their expectation.  He remains convinced that his total lack of success in finding work must have been attributable to his “unsightly and obvious scarring”.

42.  Dr Yu Yuk-ling reported that the plaintiff had suffered a minor head injury with residual cosmetic impairment.  Despite her opinion that the plaintiff’s work capacity would be adversely affected by the PCS finding, she nonetheless considered him fit to resume his pre-accident employment as an office assistant, albeit with a “slightly compromised work capacity”.  In relation to the PCS, it was her judgment that 6 months’ convalescence was appropriate.

43.  The evidence of the plaintiff’s post-accident employment demonstrated, in my considered view, a less than adequate commitment to remain employed, notwithstanding the medical findings.  He was either told to leave for unsatisfactory performance, or had given up on a perfectly good job with a firm of solicitors without any definite offer of alternative employment.

44.  Whilst accepting that he had indeed suffered from occasional headaches, low spirits and impaired confidence, I do not accept for one moment that his cosmetic injury had contributed in any way to his sacking.

45.  If his appearance had been so off-putting to his employers, as alleged, would he have been hired in the first place?  Dismissal had plainly resulted from poor performance and a lack of any genuine determination to make the best of the available employment.  There was no causal link between this state of affairs and his residual disabilities which, on any view, are relatively moderate.

46.  From the records of the plaintiff’s many failed attempts to find work between May 2002 and March 2005, it seems clear that suitable employment opportunities with wage levels between $4,000 and $8,000 per month with most vacancies paying in the region of $5,000 per month were, indeed, generally available.  The job market had improved considerably as the local economy lifted in that period.  Unemployment figures fell as the gloom of the Asian financial crisis receded.

47.  The plaintiff's difficulty in finding employment over the period in question was blamed squarely on the injuries suffered.  This contention does not sit comfortably with the picture painted by the available evidence which, if anything, rather depicted an individual who had not used his best endeavours at work and who had, quite surprisingly, left a perfectly good job in January 2002.

48.  After a reasonable period of 6 months’ sick leave, the plaintiff should have been in a position to return to gainful employment as before, doing what he does best.  The fact that he was out of work for such a lengthy period cannot be attributed to the accident, or to his injuries and residual disabilities.  Rather, he had not fully maximised his earning potential.

49.  Under this head of claim, I shall only allow for damages based on the sick leave period suggested by Dr Yu Yuk-ling.  His remuneration from Glory at the time of the mishap was $5,000 a month and would have risen to $6,500 per month after successful completion of 3 months’ probation.

50.  On a generous assumption that he might well have progressed beyond probation, damages of $34,500 will be awarded for loss of earnings to the  of assessment.  This is calculated as follows:

$5,000 x 3 months plus $6,500 x 3 months = $34,500

Loss of MPF

51.  The loss of Mandatory Provident Fund benefits pre-trial represents additional damages.  They amount to $1,725, being 5 per cent of $34,500.  This amount will be awarded to the plaintiff.

Future Loss of Earnings

52.  Shortly before the hearing, the plaintiff landed his current job through newspapers.  His monthly salary of $2,000 is plainly not truly representative of his earning capacity.  Quite why he settled for such low-paid employment is unclear.  What is, however, certain is that he should have been in a position to earn considerably more as an office assistant, driver or performing any of the types of work open to him on the advice of Dr Yu Yuk-ling.

53.  If the plaintiff is content to remain on a meagre salary, he cannot legitimately look to the defendant to make up the shortfall.  There is no discernible impediment to his commanding and obtaining wages commensurate with the levels of income in jobs for which he is suitable.

54.  I am far from persuaded that he is genuinely likely to suffer any future loss of income as a consequence of the defendant’s tort.  That being so, I rule his claim for prospective loss of income incompetent.  The claim is accordingly dismissed.

Damages for Loss of Earning Capacity

55.  Damages for loss of earning capacity fall to be considered where there is a demonstrable real risk of the plaintiff being disadvantaged in the labour market by reason of his disabilities:  Moeliker and A. Reyrolle and Company Limited [1997] 1 WLR 132, 140.

56.  Where there is credible evidence that the plaintiff were he to become unemployed in the future and suffer financial loss on account of his disabilities, compensation would be appropriate.  In mounting his claim, the plaintiff prayed in aid his frequent sackings, the numerous setbacks in finding employment and his residual cosmetic and neurological disabilities as evidence of such risk.

57.  As I have found, the plaintiff’s present predicament was, and remains, largely of his own making.  There had plainly been a distinct lack of effort to improve on his circumstances.  His working capacity, as noted by the neurologist, was only slightly compromised as the effect of PCS was considered “mild”.

58.  I am confident to find that a substantial risk of the kind required for an award has not been established on the available evidence.

59.  In the immediate aftermath of the accident, the plaintiff has demonstrated an ability to find work quickly and without undue difficulty.  With diligence and determination, there can be no reason why he cannot remain in gainful employment or readily find work in the future.  No provision will therefore be made and the claim is dismissed.

Future Medical Expenditure

60.  Dr Gordon Ma had recommended in his report that further cosmetic surgery was likely to improve the plaintiff’s appearance.  The suggested costs was $38,000.

61.  In the event, the plaintiff did undergo such procedures at the Prince of Wales Hospital in the summer of 2003 and the actual cost came to $31,005.  This amount incurred and paid is obviously recoverable.

62.  On 3 September 2004, Professor Andrew Burd, Chief of Division of Plastic and Reconstructive Surgery at the Chinese University of Hong Kong, Prince of Wales Hospital, reported that when the plaintiff was examined on 5 August 2004, the eyebrows were level, with the wound and scars progressing satisfactorily.  No further surgical intervention was indicated, although it was said that the plaintiff, at that time, still required further laser treatment of the traumatic tattoos on the nose.

63.  The cost of the laser treatment was not indicated.  As it is incumbent on the plaintiff to provide evidence of such future medical expenses, and there being none, much as I sympathise, no allowance will be made in this regard.

64.  Dr Yu Yuk-ling stated in her report of 23 August 2003 that the plaintiff may require to consult his family physician for symptomatic treatment of his headache and dizziness “on a need basis”, say, four times in the next 12 months.  The suggested cost for each consultation, inclusive of medication, was about $300.

65.  I will allow for such visits at a total cost of $1,200, being $300 per visit  x 4.

Miscellaneous Special Expenses

66.  The defendant has agreed to the claim for medication and painkillers in the amount of $400.  This sum is recoverable.  In respect of the plaintiff’s expenditure on hospitalisation and outpatient follow-up treatment, the defendant has disputed so much of the claim as was unsupported by receipts. 

67.  A sum of $44,500 was said to have been spent, but there was documentary proof for only $40,879.  The reimbursement sought is not unreasonable, and will be allowed in full.

68.  The plaintiff was cross-examined at some length on his travelling expenses of $6,831.70.  They were allegedly incurred on taxis for medical appointments and job interviews.  The plaintiff explained that he found public transportation too crowded and uncomfortable for him.

69.  Plainly, the s of some of the receipts disclosed did not coincide with his various hospital visits.  A sum of $3,000 for transportation will be a fair sum to award.  In addition to this quantum, he will also be reimbursed $500, the agreed travelling expenses of his family on visits to him during his hospitalisation.

70.  Regarding the claim of $980 for repair of the Nokia cell phone, the plaintiff testified that the phone had become faulty after the accident.  The replacement part needed was apparently not covered by the guarantee.

71.  I accept his evidence in this regard.  This sum will be paid in full.

72.  Allowed in full as well is the claim of $4,000 for tonics and special foods during convalescence.  The sum sought is not unreasonable, and I see no reason why $1,000 should be deducted as suggested by the defence.

Summary of Awards

Pain, Suffering and Loss of Amenities		$280,000
Pre-trial Loss of Earnings		$34,500
Pre-trial Loss of MPF		$ 1,725
Pre-trial Medical Expenses		$31,005
Future Medical Expenses		$1,200
Miscellaneous Expenditure
	Medication and Analgesics	$400
	Hospitalisation and Treatment	$44,500
	Travelling Expenses	$3,000
	Travelling Expenses (Family)	$500
	Nokia Phone Repair	$980
	Food Supplement	$4,000
Total Damages		$401,810

Conclusion

73.  I award the plaintiff total damages $401,810.  There shall additionally be interest on general damages at the rate of 2 per cent per annum from the  of service of the writ to the  of judgment on 13 May 2005.

74.  Pre-trial special damages will attract interest at half of the judgment rate from the  of the accident to 13 May 2005.

75.  There will be an order nisi for costs of the assessment hearing for the plaintiff against the defendant, taxed if not agreed, with certificate for counsel and Legal Aid taxation of the plaintiff’s own costs where appropriate.

76.  I will also give liberty to apply within 14 days of the  of handing down of this ruling.