MO HEE YUK v. GAMMON SKANSKA LTD AND ANOTHER

HCPI 502/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 502 OF 2004

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J U D G M E N T

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1.  The plaintiff was employed by the 2^nd defendant as a steel-binding apprentice in a construction site at Tai Po Treatment Work and Pumping Station.  The 1^st defendant was the main contractor of the site.  The 2^nd defendant was a sub-contractor of the 1^st defendant at this site. 

2.  On 28 October 2000, the plaintiff was assisting an operator of a steel-bending machine to bend steel bars.  The bars were being bent in a clockwise manner.  The plaintiff was standing at one end of the bar and holding on to this end when the machine was bending it.  However, the operator made a mistake by pressing the anti-clockwise button.  The bar then turned in an anti-clockwise direction and struck the plaintiff.  The plaintiff was pushed to a pile of bars behind him.  He was wearing a safety helmet but was still knocked unconscious on the spot.

3.  He was immediately sent to the A & E Department of the Alice Ho Miu-ling Nethersole Hospital and later transferred to the Prince of Wales Hospital (“PoW Hospital”).  He was unconscious for about four hours. 

4.  The defendants admitted liability but contested quantum. 

5.  The first medical report dated 20 October 2001 was by Dr K C Wong of the Orthopaedics and Traumatology Department of the PoW Hospital.  Dr Wong said that the plaintiff, after being hit by the metal bar, experienced left upper limb weakness and numbness.  The clinical diagnosis was left brachial plexus (which is a network of nerves) injury after traction injury.  There was no fracture.  Conservative treatment with drugs and physiotherapy was given.  The plaintiff had gradual improvement in the neurological symptoms.  At the follow-up on 5 October 2001, his left upper limb showed mild residual weakness.  He defaulted follow-up with this department after 5 October 2001.  Dr Wong opined that residual weakness might be present in future. 

6.  Before the plaintiff defaulted follow-up with the Orthopaedics Department, he had found a job as a casual worker.  He started working on 21 June 2001.  He was carrying some paint and thinner to the lift entrance on each floor of a building.  At about 12 noon, he felt serious numbness and weakness in his left arm which was also shaking.  He went to the Pok Oi Hospital and was transferred to the Yan Chai Hospital on the same day.

7.  A medical reported by Dr Li Chun Hing of the A & E Department of Yan Chai Hospital recorded the plaintiff’s complaint of numbness and weakness in his left upper limb because of the said accident.  He was given panadol and discharged.

8.  He tried to work again on 26 June, but there was the same problem.  He thus returned to Yan Chai Hospital and repeated the same complaint.  He was again discharged.  This hospital gave him sick leave from 21 to 24 June and from 26 to 27 June 2001. 

9.  A report by Dr K W Chan of the Neurosurgery Division of PoW Hospital dated 26 October 2001 confirmed that the plaintiff had left suffered brachial plexus injury which was dealt with by the Orthopaedics Department.  Dr Chan also said that the plaintiff had post-concussional syndrome which might produce on/off headache and fair memory.  This was confirmed by another report by Dr Y Y Tsang of the same division dated 29 November 2002.  Dr Tsang said that the plaintiff had complained of headache and poor sleep for a few months.  He further said that clinically the plaintiff had no focal neurological deficit.  The plaintiff had also defaulted follow-up in the clinic of this division after 24 April 2002.

10.  The plaintiff had on 12 December 2001 attended a medical assessment for the purpose of employees’ compensation.  The assessment board certified his sick leave from 28 October 2000 to 15 June 2001, 21 June to 24 June 2001 and 26 June to 21 August 2001.  The board also certified his injury as head injury and left brachial plexus injury resulting in numbness of left upper limb headache, dizziness and poor memory and assessed his permanent loss of earning capacity at 3.5%.

11.  It appeared that he had gone back to the Neurosurgical Division of the PoW Hospital on 24 April 2003 as he was referred by this division on that day to the Department of Psychiatry of the Shatin Hospital.  He was referred there for treatment of poor sleep and headache. 

12.  A report by Dr Hung Ho of the Shatin Hospital dated 4 February 2004 said that the plaintiff was first seen at the Li Ka Shing Psychiatric Clinic on 28 April 2003.  His mood was not depressed with congruous affect.  His spoke coherently with relevance and did not elicit any psychotic feature.  His attention and concentration was satisfactory.  The diagnosis was post-concussional syndrome.  He was then referred to the psychiatric clinic of the Kwai Chung Hospital for continuous psychiatric care and he went there on 15 September 2004.

13.  Dr Chan Kwai Yuenof the Kwai Chung Hospital in a report of 21 October 2004 recorded his complaint of irritability, insomnia, headache, palpitation and lack of energy.  The previous diagnosis of post-concussional syndrome was maintained.  Dr Chan said that the plaintiff still needed treatment for six months to a year before it could be decided when he could resume working and what sort of job he could do. 

14.  The plaintiff had a tempter outburst on 8 December 2004 at the Kwai Chung Clinic and was admitted to the Kwai Chung Hospital for a month.  A report by Dr. Lee Che Kin dated 31st January 2005 stated that the plaintiff complained of irritability and had conflicts with others over trivial matters.  His mood was not depressed after treatment.  His conditions improved.

15.  After his sick leave was over in August 2001, he found a job with the Haking Wong Institute of Vocational Education as a temporarily workshop attendant.  The salary was $7,500 per month.  The employment letter stated that either party could terminate the employment with seven days notice.  The employment was terminated on 15 August 2003 by a notice of termination dated 16 July 2003 from the Institute.  However, the plaintiff said in his witness statement that the job was subject to a contract which expired on 15 August 2003 and he was dismissed upon a expiry of the contract.  He also told Dr Chung See Yuen (whose report will be discussed below) that his headache, dizziness and mental problems did not affect his performance and he performed well in this job.  Nevertheless, he said he was not hired since 15 August 2003 after he had told the supervisor that he had to attend a psychiatric clinic.

16.  The plaintiff appeared to be in a satisfactory condition when he was working with the Institute.  It was during this period that he had defaulted follow-up with the Orthopaedics Department and Neurosurgical Division of the PoW Hospital though he went back to the Neurosurgical Division on 24 April 2003 and was referred to the Department of Psychiatry.  He explained his defaults in oral evidence that he had been told by the orthopaedic doctor that his injury had become stable and he also thought he had recovered from his neurosurgical problems.  However, he still complained about problems of headache, fair memory and poor sleep even during this period when was employed by the Institute.

17.  After his employment with the Institute had come to an end, he found a job with the Hospital Authority as a supporting services assistant with daily wages at $90.  The employment contract lasted from 16 December 2003 to 31 March 2004.  He had not found any more employment thereafter despite repeated attempts.

Medical Assessment Reports

18.  The plaintiff was interviewed by his neurosurgical expert Dr Brian Choa on 27 November 2001.  Dr Choa made an assessment report on 5 December 2002.  The plaintiff complained of insomnia, absent-mindedness, impaired smell and taste, headache, discomfort in his left shoulder joint with occasional numbness, difficult to perform repetitive movements and easily irritable.  He also said that he no longer had the courage to go back to work in the construction industry.  Although his grip strength was apparently reduced to 10 kg compared with 37 kg in the right hand, Dr. Choa found that his finger flexor muscles were normal or near normal.  Dr Choa opined that he was suffering from a post-concussional syndrome with feature of post-traumatic stress disorder.  Dr Choa further opined that the phobic element of his disorder would prevent him from resuming training as a steel binder.  This opinion seems to be based on what he said.

19.  Dr. Choa further made an orthopaedic comment that the his injury to the left shoulder had not been properly attended to.  Dr. Choa thought the cause for the apparent weakness in the left arm might be a rotator cuff injury as there was no objective evidence of damage to the nerve supply to explain this weakness.  The lack of reflex change or muscle wasting also argued against a spinal lesion as the cause for this pain and weakness.  He said that if he was right, arthroscopic surgery might cure the weakness.  He also recommended an MRI Examination. 

20.  The plaintiff was next interviewed by his orthopaedic expert Dr K K Au on 1 December 2002.  The report by Dr Brian Choa was not yet available then.  Dr Au in his report of 21 December 2002 said that the plaintiff complained of headache, dizziness for 2 to 3 hours a day particularly at night, poor memory, impaired taste sensation, insomnia lightening feeling over the neck when turning left, left shoulder numbness and left upper limb weakness.  He is left-handed.  He further complained of difficulty in picking up small objects with chopsticks or small objects like pins with his left hand.

21.  A comparison of the two upper limbs did not show any significant difference.  There was also no deformity.  There was however limitation of the movement of left shoulder joint, left elbow joint and the left wrist joint.  The grip strength of the left hand was also weaker with impairment of the motor power of the left upper limb.  

22.  Dr Au opined that the plaintiff had suffered a neurological injury to his brachial plexus which resulted in both sensory and motor deficiency of the left upper limb.  However, he only had satisfactory recovery for the sensory part.  Dr. Au accepted that there was persistent motor weakness in his left upper limb and as a result there was limitation of his shoulder, elbow and wrist movements.  Dr Au took the view that the plaintiff had attained maximum medical improvement. 

23.  Dr. Au thus had a different opinion from Dr. Choa on the cause of the plaintiff’s alleged weakness of his left upper limb.  Dr Au ascribed a neurological cause but Dr Choa gave an orthopaedic cause. 

24.  The defendants’ orthopaedic expert Dr Lau Hoi Kuen gave an assessment report dated 24 May 2003 having examined the plaintiff on 23 May 2003.  The plaintiff again complained to Dr Lau of the residual numbness, pain and weakness of his left upper limb which prevented him from returning to work in a construction site.  He also complained about pain over the base of his neck on the right when he turned his head to the left, pain over the left of his neck when extending the neck, frequent headache and dizziness, decreased memory, poor taste sensation and frequent nausea.

25.  Dr Lau did not find any muscle wasting around the joint or any swelling or deformity of the left shoulder.  There was no sensory or motor deficit on both upper limbs.  Dr Lau noted that on the plaintiff’s follow-up on 5 October 2001 at the PoW Hospital, there was mild residual left upper limb weakness.  However, on 21 May 2003, the plaintiff was still complaining of severe impairment of his left upper limb as a result of the alleged accident.  There was also decrease in the power of left handgrip.

26.  After examining the plaintiff, Dr Lau opined that the plaintiff had suffered mild traction injury to the brachial plexus of his left upper limb.  He should have recovered well as early as in October 2001.  Dr Lau agreed with Dr Choa than brachial plexus injury should not be the cause of pain and weakness of his left upper limb as there was no change of reflex or muscle wasting.  The lack of muscle wasting around the left shoulder argued against any significant local pathology that affected the left upper limb.  The muscle bulk in the left arm and forearm indicated that the plaintiff had been using his left upper arm actively.  Orthopaedically, Dr Lau also opined that the plaintiff had not suffered any degree of permanent impairment.  Orthopaedic wise, Dr Lau opined that the plaintiff could return to work as an apprentice in steel binding in a construction site.

27.  Dr Lau made a supplemental report on 14 June 2003.  He said all doctors observed marked limitation of the movement of the plaintiff’s left shoulder.  However, the result of such examination depended entirely on the plaintiff’s co-operation.  There was no muscle wasting around his left shoulder and good muscle bulk in his left arm and forearm.  These suggest active use of his left upper limb.  It was most unlikely that the plaintiff had such degree of limitation of movement as found in the examinations during the 2½ years after the accident.  Dr Lau reiterated that orthopaedically the plaintiff could return to his pre-injury job. 

28.  The next assessment report was by the defendants’ neurological expert, Dr Edmond Woo and dated 29 May 2003.  Dr Woo interviewed the plaintiff on 27 May 2003.  The plaintiff complained about his frequent headache and dizziness, but without associated vertigo, nausea or vomiting.  He also complained of poor memory, partial loss of smell and taste, weakness in his left upper extremity and could not carry weight with his left hand. 

29.  Dr Woo’s comment was that the plaintiff had residual headache, non-specific dizziness and subjectively impaired memory which were consistent with the mild post-concussional syndrome.  Dr Woo did not think that there would be further improvement to the problems.  He also said that the plaintiff should be able to resume working as a steel binder though his mild memory loss would limit his performance at work and his headache might compel periodic rests during the day.

30.  Dr Choa made a second report on 19 April 2004 having examined the plaintiff again on 16 April 2004.  Dr Choa said that the plaintiff had sought treatment from him twice in 2003 for insomnia and he prescribed medication for the plaintiff.  At the interview, the plaintiff still complained of frequent headaches which were sometimes associated with nausea, dizziness, insomnia and irritability that included shouting to his son.  There was also limitation of internal rotation of the left shoulder.  The deltoid muscle was slightly weak, but other upper limb muscles were normal in bulk and power. 

31.  Dr Choa also carried out a nerve conduction study and ruled out brachial plexus injury as suggested by Dr Au.  Dr Choa said that the plaintiff’s headache had not been treated and the insomnia and depression had not been adequately handled.  His condition had evolved into an adjustment disorder with a significant depressive component.  He had become a psychological cripple.  Dr Choa therefore recommended treatment by a psychiatrist and a neurologist.  He also said that the plaintiff might require a six months intensive treatment at a cost of $15,000.

32.  Dr Au also produced a second report dated 14 May 2004 after interviewing the plaintiff on 29 April 2004.  The plaintiff complained of the same problems including weakness of his left upper limb.  However, I note that the results of the grip strength test conducted on 29 April 2004 and at the interview of 3 December 2002 were different for both hands. 

33.  The plaintiff also complained of shoulder pain.  Dr Au found that the shoulder pain complained by the plaintiff on 29 April 2004 was related to assertion and prolonged activities and such was not mentioned in the interview of 1 December 2002 nor recorded in the PoW Medical Reports.  He thus opined that this pain was not related to the accident. 

34.  On the weakness of left upper limb, Dr Au maintained his view that it was compatible with the brachial plexus injury despite Dr Choa’s conclusion to the contrary after having a nerve conduction study.  On muscle wasting, Dr Au said that the plaintiff was left handed and he expected the plaintiff’s left upper limb to be much thicker than his right upper limb before the accident as he had worked for two years as a steel binding apprentice before the accident.  Dr. Au further said that the plaintiff’s muscle bulk was maintained by vigorous rehabilitation.  Dr Au concluded that the plaintiff was not fit to resume his pre-injury job. 

35.  If Dr. Au was right on muscle wasting, we would find right-handed steel binders or other right-handed workers who have to exert strength in their work to have their right upper limbs significantly thicker than their left upper limbs.  However, steel binders and those who have to exert strength in their work have to use both upper limbs regardless of whether they are left-handed or right-handed.  The preferred hand is not the only hand used for heavy tasks.  It is only the dexterous hand.  I do not agree with Dr Au on this.

36.  After the examinations by the neurological and orthopaedic experts, the plaintiff was examined by the defendants’ psychiatric expert, Dr Chung See Yuen on 21 June 2005.  Dr Chung made a report on 11 July 2005.  The plaintiff told Dr Chung that he was anxious when he thought about the accident, he was also anxious when climbing up and down at construction sites or in handling machines.  He worried about the injury and his working ability.  He related to Dr Chung the same complaints that he had told the other doctors.  He was irritable and depressed, had illusion at times and had a tendency to fight with people.  He thought he did not have the strength to resume working as a steel binder.

37.  Dr Chung opined that as a result of the accident, the plaintiff was suffering from post-concussional disorder which is an acquired impairment in cognitive functioning accompanied by neurobehavioural symptoms.  Dr Chung believed the plaintiff’s complaints and said that the plaintiff was suffering from adjustment disorder with mixed anxiety and depressed mood.  The mental condition got worse in December 2004 such that he was admitted to the Kwai Chung Hospital for a month.  The deterioration of mental condition was caused by the stress of unemployment and financial difficulties.  Dr Chung believed that the plaintiff was mentally unfitted to resume working as a steel binder.  He also said that it was not advisable for the plaintiff to work in construction sites because of dizziness, anxiety problems and difficulty in attention and illusion.  Dr Chung recommended additional sick leave of six months from the discharge from Kwai Chung Hospital.  Dr Chung also recommended continuous monthly maintenance treatment for another three years at the cost of $18,000 per year.  However, he took the view that the plaintiff was mentally fitted to work during the period of such treatment.

38.  The last report is by the plaintiff’s psychiatric expert, Dr Ronald Chen and dated 13 September 2005.  Dr Chen interviewed the plaintiff on 27 July 2005 and the plaintiff recounted the same problems to him.  The plaintiff also said that he had severe anxiety when getting close to construction sites.  He said he had repeatedly experienced the accident via dreaming and flashback.  He was depressed with negative thoughts.  He was also irritable and could get into conflict with strangers easily. 

39.  Dr Chen also found that the plaintiff was suffering from post-concussional disorder and post-traumatic stress disorder as a result of the accident.  He said it was likely that the plaintiff would continue to have mental symptoms perhaps to a lesser severity.  His estimated degree of permanency of the psychiatric disability was 60%.  He thought that the plaintiff was not fit to resume working as a steel binder and was more suitable for a sedentary job.  He further said that if the plaintiff should have difficulty in adapting to a new job, he should be assisted by an occupational therapist.

Finding on Permanent Disability

40.  I accept that the plaintiff was suffering from headache, fair memory and poor sleep.  He had made these complaints to all the doctors who had treated or assessed him.  He made these complaints even when he was in the employ of the Haking Wong Institute and was then in comparatively better conditions. 

41.  However, I do not accept that he has any weakness in his left upper limb.  The alleged weakness cannot be traced to any neurological or orthopaedic cause.  It was also contradicted by the absence of any change in reflex, any muscle wasting or any significant difference in the girth diameters.  Furthermore, a surveillance videotape produced by the defendants showed that in September 2004, the plaintiff had used his left and right limbs interchangeably to carry his bag and umbrella and had supported himself with his left upper limb whilst riding the MTR.  The surveillance tape showed nothing abnormal in his left upper limb.  In addition, he was able to go through successfully a full-time formwork-training course from 19 July 2004 to 12 November 2004 at the Construction Industry Training Authority (“CITA”).

42.  On the question of his return to work in a construction site, he mentioned his inability for lack of courage for the first time when interviewed by Dr Choa on 27 November 2001.  The other doctors who had treated him in the hospitals and clinics however did not record such problem in their reports.  Furthermore, he had not told Dr. Chan Kwai Yuen and Dr. Lee Che Kin of Kwai Chung Hospital or Dr. Chung See Yuen and Dr. Ronald Chen that he had gone through the formwork-training course in CITA.

43.  This course was a full-time course that took place between 19 July 2004 and 12 November 2004.  The participants were trained for 5½ days a week and were given a daily allowance of $158.  The plaintiff had attended 95 full days training (with Saturday counted as half a day) and taken six days off.  In this training, he had to take part in building formwork although not in as big a scale as in construction sites.  The conditions under which he was trained might also not be as hectic as in construction sites.  However, he still had to handle the equipment and materials for building formworks as in construction sites.

44.  When he saw Dr Chan Kwai Yuen of Kwai Chung Hospital on 15 September 2004, he was in the middle of this course.  He withheld this from Dr Chan.  Dr Chan then concluded in his report of 21 October 2004 that he needed a further period of six months to one year treatment before it could be decided when he could resume working and what job was suitable for him.  But if Dr Chan had been told that he was in this full time formwork-training course.  I do not think Dr Chan would have arrived at the same conclusion.

45.  The opinions of Dr Ronald Chen and Dr Chung See Yuen that the plaintiff could not go back to work in construction sites were also given without knowing that the plaintiff had gone through this full time training course successfully.  I doubt if they would have come to the same conclusions had they been told about it.  Dr Choa also did not know that the plaintiff had the ability to go through such a training course. 

46.  Not only did he fail to disclose the formwork-training course to the doctors, he also made no mention of it in his witness statement dated 25 October 2004 and his revised Statement of Damages dated 30 November 2005.  However, the defendants’ investigator who tailed him on 18, 20 and 21 September 2004, discovered this.  The investigator found that he had entered CITA everyday shortly after 8:00 a.m.  The investigator waited for him on 20 September and he came out of CITA at 4:20 p.m.  The investigation report dated 21 September 2004 was disclosed by the defendants on 19 January 2006.  The plaintiff then disclosed the certificates he obtained from CITA for the formwork training in a supplemental list of documents dated 21 February 2006.

47.  In fact, he had been less than candid not only on the training course.  He also lied on the cause of his divorce.  In his witness statement dated 25 October 2004, he said during the period of his injury, his income was reduced and he had to request for relief from his mother.  His wife was unhappy about this.  They often quarrelled about money and daily living expenses which led to a breakdown of relationship.  They eventually divorced on 16 July 2001 and he got custody of the son.  In his revised Statement of Damages dated 30 November 2005, he made a claim for breakdown of marriage together with deterioration of family relationship. 

48.  However, the decree absolute produced by him showed that the decree nisi was made on 12 March 2001 which was less than five months from the accident.  He admitted in oral evidence that his wife had in fact left him in 1999 and the divorce proceedings were initiated in 2000 though he wanted to rescue the relationship.  It is thus clear that his marriage had already broken down long before the accident and his attempt to seek compensation for the breakdown was a dishonest one. 

49.  I do not think the plaintiff is a reliable weakness.  I also doubt the medical opinions that he cannot go back to work in a construction site because the opinions were given without knowledge of his successful completion of the formwork-training course.  I therefore do not accept that he has the alleged phobia about working in construction sites.  I also find that he can resume working as a steel binder or work as a formwork builder though his performance may be affected by his mild memory loss and he may be compelled by the headache to have periodic rests.  This would certainly affect his competitiveness in the labour market.

Quantum

PSLA

50.  The plaintiff relied on Yan Kwok Yue v Dong Shu Kei, HCPI 923/2000.  The plaintiff there was assaulted by the defendant on 30 August 1998.  He suffered a 2cm haematoma on the back of his head.  There was local tenderness at the occipital, thoracic and lumbar regions of the head.  He had pain in the back of his head and his lower back.  He was hospitalized for two days and received follow-up treatment until 7 September 1998.  He became anxious, irritable, had recurrent nightmare and vivid daytime recollection of the assault.  He became nervous and depressed.  He lost interest in sports.  He also had persistent headache, dizziness, neck plain, neck stiffness and upper back pain.  His psychiatric problems included nightmare of the accident; recurrent waking recollection of the incident causing panic and palpitation, distress when hearing of assault; avoidance of objects and situations that reminded him of the accident; a feeling of detachment from others; poor sleep pattern; depressive mood; suicidal ideas; restlessness, and cold sweats.  The diagnosis was post-traumatic stress disorder in moderate to severe degree, post-concussional syndrome in moderate degree and depressive disorder in moderate degree.  Psychiatric treatment would have to continue indefinitely.  It affected his relationship with his mother and resulted in the loss of a long time girlfriend.  He was placed in the upper range of the serious injury category and was awarded $500,000 for PSLA.  The problems of the plaintiff in the present case are less serious than those of Mr Yan.  I do not think the two cases are comparable.

51.  The defendants relied on two cases.  The first case of Cheng Lai Kwai v Nan Fung Textile Ltd, HCPI 175/1996 was obviously a much less serious case than the plaintiff herein and I would not consider that case. 

52.  In the second case of Tse Lai Yin & Ors v Incorporated Owners of Albert House  & Ors (No. 5), HCPI 828/1997, the plaintiff was hit by a collapsing building canopy.  She sustained permanent orthopaedic, cosmetic, cognitive and psychiatric disabilities.  Her right hand was crushed and there were grossly contaminated wounds of the right index middle and ring fingers.  The distal joint of the ring finger was amputated.  The distal segment of index finger and the middle finger were repaired together with repair to the nerve of the middle finger.  She suffered decreased sensation at the index and middle fingers with a partial loss of grip and reduction of ability to life heavy objects.  She also had scars on her hand.  She suffered multiple contusions of chest wall and the back and the shoulder areas and still suffered aches in these areas.  She also had two lacerations to the scalp at the right and left parietal regions and two scars behind the hairline.  She suffered from post-concussional syndromes with headaches, dizziness, memory loss and difficulty in concentrating.  She also suffered from post-traumatic disorder with recurrent flashbacks associated with fear and palpitations and increased arousal which cause insomnia.  She had a personality change, became bad tempered and had marital problems.  She was placed just within the lowest end of the serious injury category and was awarded $430,000 for PSLA.

53.  I think the situation of the plaintiff here is less serious than that of Madam Tse.  He was hit by an iron bar but did not suffer any fracture and had not undergone any surgery.  He suffered from post-concussional disorder and a depressed mood.  He had been admitted to Kwai Chung Hospital for a month in December 2004 because of mental problems.  His condition improved after treatment.  He had headache, dizziness, insomnia and irritability.  He is receiving psychiatric treatment once every four months which has improved his conditions.  I think the plaintiff’s case is below the category of serious injury.  I award him $350,000 per PSLA.

Pre-trial Loss of Earnings

54.  During October 1999 to January 2000, the plaintiff had been working consistently for about 20 days per month.  He slowed down a bit in February and March 2000.  The Chinese New Year could have accounted for the slowdown in February but not that in March.  He worked for only a few days in April 2000 because of ill health of his mother and his son.  I accept that this month was not the norm and should not be taken into consideration in assessing the number of days he usually worked in a month.  He was on leave from May to the end of September.  For the purpose of assessing the number of days he would usually work in a month, I would discard September 2000 as well.

55.  In October 2000, he had worked for 15½ days up to the morning of 28 October.  I accept that, but for the accident, it was likely that he would have worked for about 18 days in that month.  I find that he would on the average work for about 19 days per month during the period after the accident. 

56.  He was earning $600 per day at the time of the accident.  The Government doctors gave him 10 months sick leave but several of the experts who had assessed him gave him one year sick leave.  I accept the expert’s view and award him one year sick leave after the accident. 

57.  His mental conditions got worse in December 2004 and he was hospitalized for one month.  Dr Chung opined that he would require six months sick leave after that.  That would make a total of seven months.  I think, but for the accident, he would have gained a lot more experience by December 2004 if not achieving the craftsman level.  I would adopt $900 per day as his wages for the seven months.  His total pre-trial loss is at: $600 x 19 x12 + $900 x 19 x 7 = $256,500. 

58.  Since I have found that he could resume working as a steel binder or start working as a formwork builder, I would not award him any more pre-trial loss of income. 

Future Loss of Earnings

59.  For the reason in the last paragraph, I would also not award him with any future loss of income. 

Loss of MPF

60.  $256,500 x 5% = $12,825.

Loss and Earning Capacity

61.  The plaintiff’s competitiveness in the labour market was hampered by his mild memory loss, headache and his mild psychiatric problem for which he receives treatment once every four months.  However, I do not agree with this counsel’s approach of compensating him with 1/3 of his future income.  Nevertheless, because of the long-term effect of these problems since the time when his contract with the Haking Wong Institute had expired, I think he deserves a relatively larger award under this head.  I award him $250,000.

Future Medical Expenses

62.  Though the treatment he received from the Government hospital is improving his conditions, I agree with Dr Chung that he should be given maintenance and symptomatic treatment for his post-concussional disorder for three years at $18,000 per year or a total of $54,000.  This treatment is more generous than that suggested by Dr Ronald Chen.  Regarding Dr Chen’s suggestion for occupational therapy, I do not think there is sufficient evidence to justify it.  I also add another $10,000 for treatment by a neurologist for his physical symptoms of headache and dizziness as suggested by Dr Choa.  The total future medical expenses would be $64,000.

Other Special Damages

63.  This item has been agreed at $14,877.

Total amount

64.  $350,000 + $256,500 + $12,825 + $250,000 + $64,000 + $14,877 = $948,202.

Interest

65.  I also order that interest be paid for the general damages at 2% per annum from the service of the writ to the day of judgment and be paid for the special damages at half of the judgment rate from the accident to the day of judgment.

Credit for employees’ compensation

66.  I deduct from the sums payable the employees’ compensation of $163,155 that has been paid to the plaintiff.

Costs

67.  Finally, I make a costs order nisi that the defendants do pay the plaintiff the costs of this action.