WONG PO KIN v. HOPEWELL CONSTRUCTION CO. LTD. AND OTHERS

HCPI 406/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 406 OF 2001

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J U D G M E N T

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The Claim

1. In this action, the Plaintiff, Mr. Wong Po Kin, claimed damages for personal injuries sustained and other consequential loss and damage suffered by him as a result of an industrial accident (fire and explosion) on 22 January 1999 at 4:15 p.m. ("the Accident").

2. Liability was not contested and interlocutory judgment with damages to be assessed was entered in late 2001.

3. Unless otherwise stated, references to numbered pages in this Judgment are to pages of the Bundle of Documents lodged for the assessment of damages.

Personal particulars of the Plaintiff

4. The Plaintiff was born on 15 August 1951 (page 187). That is to say, he was 47 years old at the time of the Accident and is now 51. He is married with 3 children aged 17, 7 and 5. He lives with his eldest son (from a previous marriage) and parents in Hong Kong while his wife (who is about 29 years old and a full time housewife) and the younger children live in Shenzhen.

The Plaintiff's pre-Accident work history

5. At the time of the Accident, the Plaintiff was employed by the 2nd Defendant as a casual labourer at the St. Teresa's Hospital Extension construction site at Lomond Road, Kowloon ("the Site"). He started to work at the Site on 9 January 1999. He was paid $350 per day for about 26 days per month plus $66 per hour for about 15 to 20 hours of overtime work per month.

6. The Plaintiff had previously worked for the 2nd Defendant in the same capacity but at a different construction site at the Western District in October and November 1998. For the month of November 1998, he earned $12,377 inclusive of overtime pay (page 197).

7. However, the Plaintiff 's claim (in particular, that for damages for loss of earnings) was premised upon the following further facts:

(1) Prior to mid 1997, although he could not read plans and did not hold a certificate, the Plaintiff worked full-time as a steel bender earning $800 - $900 per day for 26 days per month, i.e. $20,800 per month at least.

(2) Between mid 1997 and June 1998 (especially after the completion of the Chek Lap Kok Airport), there was less work for steel benders. Nevertheless, the Plaintiff was still able to find steel bending work for 15 days per month. As he needed to work for 26 days per month to support his family, for the remaining 11 days, he worked as a casual labourer earning $350 per day or thereabout plus regular overtime pay. His earnings during this period was at least $15,850 per month.

(3) In about June 1998, the Plaintiff enrolled on a 3 month course offered by the Construction Industry Training Authority ("CITA"). He did so with a view to improving his competitiveness as a steel bender as there was at the time many steel benders out of work and competing for the work that was available. On 15 September 1998, he obtained a "Bar Bender & Fixer Intermediate Trade Test Certificate" (page 218).

(4) The Plaintiff was referred by CITA to the 2nd Defendant as a steel bender. Although the 2nd Defendant's work at the Western District site required steel-benders, such positions had already been filled and the Plaintiff was only offered work as a casual labourer. The Plaintiff did not only stay on at the Western District site but also resumed working for the 2nd Defendant at the Site in January 1999 as a casual labourer in the hope of securing work from the 2nd Defendant as a steel bender at some stage. In this regard, the Plaintiff said that the 2nd Defendant's wife had promised him that if he performed well, he would be given a steel bending job in 3 months' time at $800 per day. But for the Accident, the Plaintiff would have left the 2nd Defendant's employ to look for steel bending work elsewhere if no such vacancy materialized after 3 months.

8. I find that the Plaintiff was qualified and had worked as a steel bender before the Accident. In addition to producing a CITA Construction Industry Silver Card dated 26 August 1998 certifying that the Plaintiff had passed a two day course in industrial safety for steel bending and fixing work, CITA's record of training assessment dated 5 September 1998 in respect of the Plaintiff in a bar bending and fixing class and the Plaintiff's said "Bar Bender & Fixer Intermediate Trade Test Certificate" (pages 188, 217 & 218), the Plaintiff also called a Mr. Ho Kam Wing ("Mr. Ho") who testified that between April/May 1996 and mid 1997, he employed the Plaintiff as a steel bender for about 12 to 14 days every month at $900 per day. He was satisfied with the Plaintiff's performance as a steel bender. This part of Mr. Ho's evidence was not challenged in cross-examination. Further, the Plaintiff's said testimony of the 2nd Defendant's wife's promise of a steel bending position was not contradicted or challenged in cross-examination.

9. In so finding, I have not overlooked the testimony of Mr. Chiu Kee Wai, the 3rd Defendant who was the 1st Defendant's foreman at the Site and the only defence witness, that none of the Defendants knew at any material times of the Plaintiff's qualification and experience as a steel bender. The Defendants did not lead evidence of the basis upon which the 3rd Defendant purported to speak on behalf of the 2nd Defendant in this regard. In particular, I note that the 2nd Defendant's own foreman, one Mr. Chu Wing Hon, was invited by the Defendants' solicitors to testify but had refused (page 128, paragraph 5). I am, therefore, bound to disregard what the 3rd Defendant said about the 2nd Defendant's state of knowledge of the Plaintiff's qualification and experience. As for the 1st Defendant's state of knowledge, I assume the 3rd Defendant spoke of the same on the basis of what could be imputed to the 1st Defendant through the 3rd Defendant. The 1st and 3rd Defendants did not know that the Plaintiff was a steel bender because the Plaintiff had not mentioned the same to them. However, the 1st Defendant was not the Plaintiff's direct employer and the Plaintiff did not do steel bending work at the Site. Mr. Chiu did not give evidence of any occasions on which the Plaintiff should mention to him or the 1st Defendant his qualification and experience as a steel bender. The 1st and 3rd Defendants' lack of knowledge was, therefore, neither here nor there.

10. While working as a steel bender, the Plaintiff was required to move steel bars around the site, bend them using a jig and lift the other ends of the bars being bent with his hands. The weights that he had to lift unassisted could be as heavy as 100 catties or more. He also had to climb up and down scaffolding.

Injuries and treatment therefor

11. According to the report dated 4 October 1999 of Dr. Fung Ting-pong, Department of Surgery, Queen Elizabeth Hospital ("QEH") (page 134), the Plaintiff sustained 6% burns to his neck, face, hands and forearms. He was hospitalized for 4 days at QEH where his burns were treated conservatively.

12. After his discharge on 26 January 1999, the Plaintiff returned to the burn clinic at QEH on 28 January, 5, 10 and 19 February 1999 for follow-up and on 16 April 1999 for physiotherapy (pages 270 & 271). According to the Plaintiff, he did not return for further physiotherapy sessions (though advised to do so) because he did not want to take any more time off work. The last sick leave certificate expired on 7 March 1999 (page 269).

Residual pain and impairment for which the Plaintiff claims damages

13. Despite the aforesaid treatment, according to the report dated 28 August 2000 by Dr. Gordon Ma, a specialist in plastic surgery, the Plaintiff was left with finely mottled scars over both forearms and some flat hypopigmented scar over the back of his left hand (pages 135-140).

14. The Plaintiff complained that these scars would become red, blotchy and itchy in hot and humid weather. To alleviate the irritation, he regularly applied an ointment (Mopiko Cream). He was also unable to sweat in these areas.

15. More importantly, the Plaintiff claimed that his left upper limp had become weaker after the Accident. The fingers of his left hand would become painful and the knuckles swollen after prolonged use of the left hand. He could not make his left hand into a tight fist and his left hand grip had weakened because he could not fully bend his left middle and index fingers to his left palm. He could not hold or lift heavy objects.

16. The Plaintiff was examined by Mrs. Shelley Chow, a registered occupational therapist, on 26 September 2001. Although I am bound to disregard Mrs. Chow's statements of opinion as to loss of earning capacity (Tang Shau Tsan v. Wealthy Construction Co. Ltd., unrep., CACV 58/2000), her following observations regarding the strength of the Plaintiff's left hand and how a weakened left hand had affected his capability were not only admissible but also helpful :

(1) The Plaintiff had a left hand power grip of 36 kg while the average norm should be 43.5 kg (page 148).

(2) The muscle bulk of the left upper extremity (upper arm and forearm) was less than the right side based on circumferences. It was possible that the Plaintiff had been relying more on his right upper extremity to compensate for the comparative weakness of the left side or that there could have been some muscle wasting of the left upper extremity with reduced usage in face of weakness.

(3) Although the weakness of the left hand power grip was quantified as "very slight" (page 156), the Plaintiff should avoid tasks requiring critical grasp with heavy loading over extended periods or to support the body weight, e.g. hanging or swinging from cables or climbing scaffolding (page 157). These were precisely some of the job requirements of a steel bender. Mrs. Chow specifically stated that these limitations were results of the Plaintiff's burn injuries.

(4) The Plaintiff may be able to manage general light cleaning duties or as a security guard, car park attendant, cashier in small restaurants/retail shops, construction site odd job worker performing light duties or office messenger.

17. The Defendants did not accept

(1) that the Plaintiff's left hand had weakened or that he could not lift heavy weights;

(2) that such impairment, if any, was as serious as claimed by the Plaintiff;

(3) that such impairment, if any, was caused by the minor and superficial burn injuries the Plaintiff sustained in the Accident.

18. Counsel for the Defendants drew my attention to the following:

(1) Dr. Fung's report did not mention any left hand impairment.

(2) The Plaintiff was assessed by the Employees' Compensation (Ordinary Assessment) Board on 9 June 1999 to have suffered a 4% loss of earning capacity on the basis of injuries which did not include any left hand impairment other than "tightness of left hand" (page 226).

(3) Although the Plaintiff complained to Dr. Ma on 24 July 2000 about cramps in his left hand when he tried to make a tight fist, Dr. Ma noted normal finger movements and assessed a 2% impairment for the scarring only. The Defendants suggested that this omission must have been deliberate because Dr. Ma was unable to explain the complaint of left hand impairment.

(4) The Plaintiff attended only 1 session of physiotherapy and did not undergo any occupational therapy.

(5) The Plaintiff resumed working for the 2nd Defendant immediately after the expiry of his sick leave and continued to do so for 16 months during which he also undertook overtime work. To put it differently and from the point of view of the 2nd Defendant, the 2nd Defendant considered the Plaintiff fit enough to take him back at what was market wages.

(6) The Plaintiff had not adduced any evidence by any qualified medical expert deposing to any structural or neurological damage to his left hand or explaining how the minor and superficial burn injuries that he had sustained in the Accident could have resulted in such extensive reduced strength and dexterity of his left hand.

(7) In any event, Mrs. Chow also observed that

(A) the Plaintiff's left hand power grip was only slightly below average (page 148) and the weakness was very slight (page 156);

(B) Another possible reason for the lesser muscle bulk of the left upper extremity was the Plaintiff's right-handed dominance (page 156).

(C) The Plaintiff did not have any problem with short term use of his hands for most common tools used in daily and work tasks (page 152).

(D) When performing lifts (10 kg to 16 kg) from table height to the floor and from the floor to an overhead shelf, the Plaintiff reported that his arms and hands had no problems but his left ankle was a problem as he could not stretch up on tiptoes to gain height for the overhead shelf (page 152).

(E) The Plaintiff had some reduction in his ability to lift heavy loads but such reduction was more likely to be related to the second injury to be mentioned in paragraph 29 hereinbelow (page 156).

19. The difficulty which the Defendants faced was that they had chosen not to adduce any evidence from their own medical experts or occupational therapists on either the impairment suffered by the Plaintiff as a result of the burn injuries sustained in the Accident or the causes therefor notwithstanding leave to do so by the Orders of Master Kwan dated 16 October and 1 November 2001. Nor was Mrs. Chow required to attend court for cross-examination. In the absence of a contrary opinion by a relevant expert, I do not see any or any valid grounds for rejecting Mrs. Chow's evidence as summarised in paragraph 16 hereinabove and I find that the Plaintiff was so handicapped and that such handicap was caused by the burn injuries he sustained in the Accident.

20. In so finding, I have attached considerable weight to Mr. Ho's evidence that in 2000, he engaged the Plaintiff for 4 days to work at a site at Tseung Kwan O. The Plaintiff was instructed to do cutting and other preparatory work before the actual steel bending work began. Mr. Ho gained the impression that the Plaintiff's hands were weak so that he could not lift heavy objects or do work which required him to lift and cut heavy objects. As a result, Mr. Ho stopped employing the Plaintiff after 4 days. This incident took place after the termination of the Plaintiff's employment with the 2nd Defendant in August 2000 (more particularly described in paragraph 25 hereinbelow) and before the second injury to be mentioned in paragraph 29 hereinbelow.

The Plaintiff's post-Accident work history

21. The Plaintiff returned to work for the 2nd Defendant at the Site as soon as his sick leave expired. He was assigned lighter duties. Initially, he cleaned vehicles with a water hose and tidied up equipment at the Site. After about 6 months, he was assigned to buff concrete with a small light weight buffing machine. On about 6 occasions, he was required to use a pneumatic drill weighing about 5 to 6 lbs. He had also repaired equipment such as electronic drills. All in all, he was not required to lift heavy weights or use a large electronic drill.

22. At a daily wage of $350, the Plaintiff could only earn $7,682.21 per month after 7 March 1999 as he worked less than 26 days per month due to sickness.

23. In about October 1999, his daily wage and overtime hourly rate were increased to $400 and $75 respectively. On average, he made $8,889.80 per month since October 1999.

24. The Plaintiff was paid by the 2nd Defendant twice per month. According to the wages records kept by the 2nd Defendant (pages 89-120), his earnings for the period from April 1999 to July 2000 were as follows:

April 1999	$ 7,831.26
May 1999	$ 5,075
June 1999	$ 8,575
July 1999	$ 7,579.69
August 1999	$ 7,000
September 1999	$ 7,325
October 1999	$ 9,200
November 1999	$ 9,185.94
December 1999	$ 9,498.44
January 2000	$ 7,600
February 2000	$ 6,065.63
March 2000	$ 7,600
April 2000	$ 8,200
May 2000	$ 9,600
June 2000	$ 8,400
July 2000	$ 6,000
	_____________
	$ 124,735.96

In addition, the Plaintiff was paid a sum of $9,550 on 15 July 2000 for paid annual leave and holidays (page 120).

25. His contract of employment was terminated by the 2nd Defendant on 3 August 2000 on the ground that he had failed to turn up at work on 1 and 2 August 2000 without leave (page 225). According to the Plaintiff, he was unwell on those 2 days. He tried to telephone the 2nd Defendant's office to take leave but no one answered. When he eventually managed to speak to a staff of the 2nd Defendant on 3 August 2000, he was told that his service was no longer required and that he need not return to work. Following such dismissal, in Labour Tribunal Case No. 7611 of 2000, the 2nd Defendant was ordered to pay the Plaintiff $6,886 which sum was settled on 15 November 2000 (page 120).

26. In summary, after the Accident, the Plaintiff earned from working for the 2nd Defendant the total sum of $148,854, i.e. rounding off $7,682.21 (March 1999) + $124,735.96 (April 1999 - October 2000) + $9,550 + $6,886.

27. The Plaintiff gave evidence that between 1 August and 6 October 2000, he was only able to find employment as follows:

(1) 3 days as a casual labourer; and

(2) 4 days as a steel bender in the employ of Mr. Ho.

In total, the Plaintiff earned just $4,000 for those 7 days of work inclusive of overtime. He felt compelled to leave after 4 days of work as a steel bender because he was inefficient as a result of the residual weakness in his left hand and Mr. Ho, not understanding, accused him of being lazy. Nor did the Plaintiff find it any easier to secure employment as a casual labourer at construction sites, having to limit himself to light duties.

28. Between 7 and 25 October 2000, the Plaintiff worked for one Tong Kee Works as a painter painting the inside of large pipes which were to be laid underground. He was paid $450 per day from 7 to 15 October 2000 and then at $500 per day from 16 to 25 October 2000. He earned $9,050 for those 19 days.

29. On 25 October 2000, he was instructed to help unloading a vehicle as it was raining and painting had to be halted. While he was passing a heavy load to a co-worker, he sprained his back. This accident put the Plaintiff off work until mid August 2001.

30. Then, the Plaintiff twisted his left ankle in about August 2001.

31. The Plaintiff had since remained unemployed save for the week before the assessment hearing during which he worked as an odd job worker in a project in a school.

32. Had the Plaintiff not been injured again in October 2000 and assuming that he would have continued to work as a painter, he would have made $338,000, i.e. $500 per day x 26 days x 26 months (25 October 2000 to date of this Judgment).

Sick leave pay and Employees' Compensation already received by the Plaintiff

33. Following the Accident, the 2nd Defendant paid the following "advanced meal allowances" (pages 190, 191, 193 & 194) to the Plaintiff:

13 February 1999	$1,960
27 February 1999	$3,640
10 March 1999	$2,240
29 March 1999	$1,960

34. On 30 June 1999, the Commissioner for Labour certified that as a result of the Accident, the Plaintiff was entitled to employees' compensation in the sum of $36,400 (page 227). A net sum of $26,600 was paid by the 1st Defendant to the Plaintiff on 11 August 1999 after deducting the 4 sums mentioned in the preceding paragraph (page 192).

Damages for pain and suffering and loss of amenities

35. The Plaintiff, stressing his loss of the ability to work as a steel bender and the efforts he had made before the Accident to improve his skills and competitiveness as such, claimed a sum of $280,000.

36. The Defendants, taking the stance mentioned in paragraphs 17 and 18 hereinabove, were prepared to concede $120,000 only. I have already rejected the Defendants' said submissions.

37. Taking into account the Plaintiff's injuries (which fell far short of the serious injury category as defined in Lee Ting Lam [1980] HKLR 657), the relatively smooth recovery, the residual pain and impairment and how it impacted upon his working life as found in paragraph 19 hereinabove, I consider an award of $240,000 to be appropriate. In so holding, I have referred to and considered the awards for burn injuries in the following 2 recent cases: Cheang Kam Lan, unrep., HCPI 143 of 1998 (Suffiad J. on 13 January 2000) and Leung Pui Yiu, unrep., HCPI 453/2000 (Seagroatt J. on 18 May 2001).

Damages for loss of earnings

38. The Plaintiff believed that had it not been for the Accident, he could have found work for a minimum of 15 days per month as a steel bender and for 11 days per month as a casual worker plus regular overtime work. In this regard, it is to be recalled that the Plaintiff took up employment with the 2nd Defendant as a casual labourer in the hope of eventually obtaining steel bending work as he had been promised such work in 3 months' time at $800 per day. The Plaintiff stated in his Witness Statement that there was now more work for steel benders and the market therefor was better than in 1998.

39. The Plaintiff expected to have been able to earn $1,000 per day working as a steel bender and $400 - $700 per day as a casual labourer depending on the work undertaken.

40. In support of such claim, the Plaintiff produced the average daily wages of male labourers and steel benders engaged in government building and construction projects from April 1998 to March 2002. The Defendants agreed that I could look at these statistics. The ranges were:

(1) male labourers: $572.40 - $634.90;

(2) steel benders: $1,242.20 - $1,308.

Mr. Ho also gave evidence that he was still working as a steel bender as well as a sub-contractor for steel bending work and that a steel bender who could read plans could make between $1,050 and $1,200 per day. The higher rate would apply when the employment was on a casual basis. Given the Plaintiff's concession that he could not read plans and would not have received the full rate (page 75, paragraph 26), I shall adopt the claimed rate of $1,000 per day as the current rate applicable to the Plaintiff in assessing his loss of earnings as a steel bender.

41. As for his actual earnings, the Plaintiff accepted that his second accident on 25 October 2000 had nothing to do with the Defendants and invited me to assume that he had continued to work as a painter earning an average monthly income of $13,000.

42. I have already found that the Plaintiff was qualified and had worked as a steel bender before the Accident. The issues remaining are:

(1) whether the types of work desired by the Plaintiff would have been available;

(2) if so, whether the Plaintiff would have taken up the same.

43. If I had been able to answer both questions in the affirmative, the Plaintiff would have suffered loss of earnings in the total sum of $438,496 to date and will continue to suffer loss of earnings after trial in the total sum of $1,159,200 arrived at as follows:

Given that the Plaintiff had a relatively young family to support, I accept Mr. Sakhrani's submission that it would have been unlikely for the Plaintiff to retire before 65. In cross-examination, it was suggested to the Plaintiff that his ability to manage steel bending work would diminish as he advanced in age. The Plaintiff answered by saying that he knew steel benders who were still working at 65 and that with more experience, one could act as leader of a group of steel benders. No evidence was led by the defence to contradict such assertion.

44. The Plaintiff also claimed loss of the employer's 5% contribution towards his mandatory provident fund ("MPF"). Such contribution became compulsory with effect from 1 December 2000 and that an employer is required to contribute 5% of an employee's monthly income but only up to $20,000 for each employee. That is to say, taking the Plaintiff's case at its highest, he lost the employer's MPF contribution attributable to the difference between his actual/notional post-Accident earnings and what he should have earned but for the Accident or $20,000 whichever was the lower from 1 December 2000. In this connection, the Plaintiff agreed that he should be treated as having earned $13,000 per month from October 2000. On these premises, subject to what I will say in paragraphs 46 to 51 hereinbelow, the Plaintiff's loss of MPF is as follows:

(1) From 1 December 2000 to date of this Judgment: $8,351, i.e. rounding off ($19,550 - $13,000) x 5% x 251/2 months; and

(2) Post-trial: $50,400, i.e. ($20,000 - $13,000) x 5% x 12 months x 12 years.

45. I have no reason to doubt the Plaintiff when he said he would have taken up work as a steel bender and a casual labourer as and when such works had been available to him and he preferred steeling bending work.

46. However, I do not share the Plaintiff's optimism about the availability of work, in particular, steel bending work. Although neither side had adduced direct evidence on this issue and the conditions of the labour market did not fall into the category of matters of which judicial notice could be taken (Lau Wing-shing v. Chung Fat Mechanical Works Co. [1988] 1 HKLR 435 (CA), per Cons, V.-P. at 439 F-G), I did have the following evidence before me which was inconsistent with the Plaintiff's statement that the market had improved for steel benders:

(1) The Plaintiff was referred by CITA to the 2nd Defendant as a steel bender but the latter in fact had no such vacancy for the Plaintiff from October 1998 to January 1999 over the course of 2 projects. This was so notwithstanding that the 2nd Defendant did retain some steel benders at the Site. For instance, on the day of the Accident and the day following it, 2 steel benders worked at the Site (pages 132a-132g).

(2) The Plaintiff himself gave evidence that after leaving the 2nd Defendant's employ, he had contacted many friends for referrals. These contacts did not know of the Accident as the Plaintiff did not tell them about the same for fear that such information would jeopardize his chances of securing employment. Yet, he was only able to find work as set out in paragraphs 27 and 28 hereinabove. According to the Plaintiff, his friends were also in difficulty. At most, they had just about enough work to do themselves.

(3) For the said 4 day job with Mr. Ho, the Plaintiff said he had to beg Mr. Ho to give it to him. According to Mr. Ho, after mid 1997, he did not employ the Plaintiff again until October 2000 because there was no steel bending work suitable for the Plaintiff as he was not qualified to work in caissons. Again, Mr. Ho did not know of the Accident.

(4) Mr. Ho also gave evidence that his work as a steel bending sub-contractor had reduced since 1997 because there had not been that many projects. It was also difficult for Mr. Ho to find work as a steel bending worker on a casual basis despite his ability to read plans. For instance, he had no work at all in June 2002 (although he had otherwise been able to find 20 days of steel bending work every month for the 6 months preceding the assessment hearing because of his superior experience and wider contacts as a sub-contractor). There was also the problem of default by employers which was common in the construction industry at the moment. Mr. Ho further observed that other steel benders faced the same or similar problems. As a sub-contractor, he preferred workers who were younger and of stronger physique.

47. In light of the aforesaid evidence, in particular, the Plaintiff's unsuccessful job-hunting through contacts who knew nothing about the Accident, I am unable to accede to the Plaintiff's claim for damages for loss of earnings premised upon a 26 day month divided between steel bending and casual works (15 days and 11 days respectively).

48. As an alternative, Mr. Sakhrani, argued that as a result of the injuries he sustained in the Accident and the impairment resulting therefrom, the Plaintiff had at least been deprived of a substantial chance to work as both a steel bender and casual labourer with no limitation as to the duties manageable by him. I accept such submission. Afterall, it was not suggested that the construction industry had come to a standstill. There were still projects for which steel benders and casual labourers were required. There was no reason to assume that the Plaintiff would always have been passed over even if he had not been injured in the Accident.

49. On the evidence summarised in paragraph 46 hereinabove, I am, however, unable to accept Mr. Sakhrani's quantification of such loss of chance at 70%. In the absence of more direct evidence of the conditions of the labour market in the construction industry, doing the best I can, I would say the Plaintiff's chances of having a 26 day month divided between steel bending and casual works (15 days and 11 days respectively) were at most 50/50.

50. In this regard, in Doyle v. Wallace [1998] PIQR Q146 (CA), the plaintiff claimed damages for loss of earnings on the basis that but for the accident, she would have qualified and been employed as a drama teacher. The trial judge held that her chances of becoming a teacher were 50/50 and that the best way to reflect that loss of chance was to take a middle figure between earnings as a teacher and earnings in a clerical capacity (which the plaintiff would have assumed failing qualifications as a teacher). The English Court of Appeal approved such approach.

51. Adopting the same approach, I award damages for loss of earning as follows:

(1)	Pre-trial:
	(A) loss of earnings : $219,248, i.e. $438,496 x 50%;
	(B) loss of employer's MPF contribution : $4,175.50, i.e. $8,351 x 50%;
(2)	Post-trial:
	(A) loss of earnings : $579,600, i.e. $1,159,200 x 50%; and
	(B) loss of employer's MPF contribution : $25,200, i.e. $50,400 x 50%.

Damages for loss of earning capacity

52. The Plaintiff asked for $80,000 under this head. The Defendants were prepared to concede this amount only if no damages were awarded to the Plaintiff for loss of future earnings.

53. The award of damages for loss of earnings was premised partly upon the Plaintiff having notionally continued to work as a painter earning $13,000 per month. It sought to compensate the Plaintiff for the difference between his actual/notional earnings after the Accident and what he would have earned had he remained able-bodied.

54. As a general rule, an award for loss of earning capacity would be appropriate even though the plaintiff is at work at the date of the trial (which was assumed in the instant case) if there is evidence to show that there is a "substantial" risk that he will at sometime before the end of his working life lose that job and be thrown on the labour market in which he is disadvantaged. This award is designed to cater for the times when the plaintiff may be left without income in between jobs. See Moeliker v. Reyrolle & Co. [1977] 1 WLR 132 (CA) at 140-143.

55. Having regard to Mrs. Chow's evidence as summarised in paragraph 16 hereinabove, I find that as a result of the impairment attributable to the burn injuries, there would be a "substantial" risk that the Plaintiff would lose his $13,000 per month job (the existence of which was assumed) and he would further be disadvantaged by the same impairment in securing replacement employment.

56. The sum of $80,000 sought by the Plaintiff would give him a cushion for about 6 months only and is, therefore, not unreasonable.

Miscellaneous accrued expenses

57. The Plaintiff claimed $5,976 for medical and travelling expenses, costs of the clothing that he was wearing at the time of the Accident, Chinese medicine and ointment. This was agreed by the Defendants.

Costs of future medical treatment

58. The Plaintiff claimed $11,000 being the costs of the ointment required to ease the irritation in the areas where he sustained the burn injuries for 11 years. The Defendants were only prepared to agree $7,000.

59. The Plaintiff told Mrs. Chow that on average 1 tube of ointment lasted about 3 weeks and each costed $30 (page 143). He had from the time of the Accident up to the time of his Witness Statement dated October 2001 (i.e. over a period of nearly 3 years) spent about $1,000 on this account. To provide for consumption for 11 years, the Plaintiff would not need as much as $11,000. I award the agreed sum of $7,000.

Total award

60. In summary, the Plaintiff is entitled to damages in the total sum of $1,124,799.50 which I break down as follows:

PSLA			$240,000
Damages for Pre-trial loss:
	Earnings	$219,248
	MPF	$ 4,175.50
	Miscellaneous expenses	$ 5,976
	Less
	Employees' Compensation	$ 36,400	$192,999.50
Damages for future loss:
	Earnings	$ 579,600
	MPF	$ 25,200
	Earning capacity	$ 80,000
	Medical expenses	$ 7,000	$691,800

61. There should be interest on the PSLA award at 2% per annum from the date of Writ to the date of judgment and on the net award for pre-trial loss ($192,999.50) at half judgment rate from the date of the Accident to the date of judgment.

62. I also make an order nisi that the Defendants pay the Plaintiff's costs of this action, such costs to be taxed if not agreed, and that the Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.