LEE CHUN FAT v. CHAN KIN WO AND ANOTHER

HEADNOTE

(1) A Defendant's failure to give evidence could in a positive way make it easier to accept the Plaintiff's evidence (Reg. v. I. R. C. Ex p. Coombs & Co. [1991] 2 AC 283 at p. 300 F-G)

(2) No award of aggravated damages was appropriate in the present case where a man was injured when pushed from behind by another man. Such a case was distinguishable from W v. Meah [1986] 1 All ER 835 in which the Plaintiffs were women, one who had been raped by the defendant, and the other who had been subjected to a vicious sexual assault by him.

(3) For an award of loss of earning capacity to be made there had to be evidence to prove the extent, if any, of the risk that the plaintiff will at some future time during his working life lose his employment (Chan Wai-tong v. Li Ping-sum [1985] HKLR 176). But if there is such evidence, an award can be made even if assessing the extent of the risk is highly speculative (Yu Kwok Wing v. Lee Tim Loi [2001] HKCU 404). Here the Plaintiff had a day job as a general worker and a night job as a watchman. There was a real and substantial risk of his not being able to hold down two jobs in future. Loss of one year's salary from the night job, which was less stable than the day job, was taken as representing such risk. Damages for loss of earning capacity was awarded accordingly.

HCPI 1306/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1306 OF 2000

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J U D G M E N T

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Liability

1. This is a claim for damages for the tort of battery resulting in personal injuries and consequential loss. The claim arises out of an incident which took place on the afternoon of 1 October 1998 at the carpark of Kingsun Computer Industrial Building at 40 Shek Pai Wan Road in Aberdeen. The parties to this action are adult men. By occupation, the Plaintiff is and was a general worker by day and a watchman by night while the two Defendants are and were car repair technicians. The two Defendants are brothers.

2. It is common ground on the pleadings that at about 1:30 that afternoon the Plaintiff arrived at that carpark to visit his friend, Mr Au Wong Chi, who was a watchman at that building. It is also common ground on the pleadings that a card game was going on at the carpark. But there is a dispute on the pleadings as to who the players were. In the Statement of Claim it is pleaded that the players were the two Defendants, a colleague of Mr Au's and an unknown person. In the Defence of the 1st and 2nd Defendants it is pleaded that the 1st Defendant was one of the players but that the 2nd Defendant was merely standing behind the players.

3. As to how the incident arose and what it consisted of, it is common ground on the pleadings only that in the course of the incident the Plaintiff fell to his knees and suffered a fracture of his right patella i.e. knee cap. In the Statement of Claim it is pleaded that the Plaintiff was watching the card game, that there was an exchange of words between the Plaintiff and the Defendants on how the cards should be distributed and that the Defendants assaulted the Plaintiff. This assault, it is pleaded in the Statement of Claim, consisted of the 2nd Defendant punching the Plaintiff's head and right arm and of the 1st Defendant pushing the Plaintiff from behind causing him to fall to his knees.

4. A very different account is pleaded in the Defence of the 1st and 2nd Defendants. There it is pleaded that there was a quarrel between the Plaintiff and the 2nd Defendant, that the Plaintiff ran towards the 2nd Defendant intending to punch his head, that the 2nd Defendant evaded the Plaintiff's attack, and that the Plaintiff lost his balance and fell to his knees sustaining the injuries of which he complains. It is also pleaded in the Defence of the 1st and 2nd Defendants that after the Plaintiff had fallen down someone helped him up but he mistakenly alleged "that it was the 1st Defendant who had pushed him".

5. There is a further or alternative averment in the Defence of the 1st and 2nd Defendants which I propose to quote rather than summarize. It is in paragraph 5 of that pleading, which reads:

"Further or in the alternative, if the fall or accident occurred in the circumstances as pleaded by the Plaintiff (which is hereby denied), the Defendants aver that the accident was caused wholly or contributed to by the negligence of the Plaintiff.

PARTICULARS

(a) impulsively to run towards the 2nd defendant and assault him;

(b) failing to maintain his proper balance; and

(c) failing to take reasonable care for his own safety at the material time."

6. That averment is somewhat odd. It purports to address what the position would be if the fall or accident occurred in the circumstances pleaded by the Plaintiff, and then goes on to aver that the Plaintiff ran towards the 2nd Defendant to assault him. But the Plaintiff does not plead an accident or an attempt by him to assault the 2nd Defendant. He pleads an assault upon him by both Defendants. Having noted this oddity, I do not propose to dwell on it.

7. It is common ground that the Plaintiff fractured his right patella when he fell to his knees. The crucial issue on liability is why he fell to his knees. Three witnesses have given evidence on this issue; and I turn now to their evidence on it. I have of course considered everything said by these witnesses, whether on paper or in the witness-box. However, I propose only to summarize the gist of the vital part of their evidence.

8. According to the Plaintiff, how he came to fall was as follows. There was a quarrel among the card players, which included both Defendants. The quarrel was about a problem arising from how the cards had been dealt and about how that problem should be solved. He i.e. the Plaintiff offered a suggestion as to what should be done. This suggestion angered the 2nd Defendant who told him in foul language that it was none of his business. An angry exchange of words between him and the 2nd Defendant followed. Then the 2nd Defendant rushed towards him to hit his right temple area and his right shoulder area. He fought back to protect himself. Then somebody pushed him from behind causing his fall. While on the floor, he turned around and saw the 1st Defendant standing there.

9. Ms Barbara Wong for the two Defendants cross-examined the Plaintiff to challenge and test his account. She put it to the Plaintiff that he swore at the 2nd Defendant when the 2nd Defendant rejected his i.e. the Plaintiff's proposal as to how to solve a problem arising from how the cards had been dealt. The Plaintiff disagreed. Ms Wong put it to him that he refused to stop swearing when asked to stop by the 2nd Defendant, and that he rushed towards the 2nd Defendant trying to punch his head. The Plaintiff disagreed. Ms Wong put it to him that he lost his balance when the 2nd Defendant dodged the punch and that, as a result of such loss of balance, he sustained his fall. The Plaintiff disagreed. She put it to him that the 1st Defendant did not push him. He disagreed.

10. The first witness on the defence side was the 2nd Defendant, whose account of how the Plaintiff came to fall was as follows.

11. He, i.e. the 2nd Defendant, was not one of the card players. There was a problem over how the cards had been dealt. The Plaintiff made a suggestion as to how the problem ought to be solved. He i.e. the 2nd Defendant said that the solution proposed by the Plaintiff would be unfair. Whereupon the Plaintiff swore at him. When he told the Plaintiff not to swear at him, the Plaintiff rushed towards him trying to hit him. He i.e. the 2nd Defendant evaded the Plaintiff several times. In trying to hit him, the Plaintiff fell to his knees.

12. Mr Wright for the Plaintiff cross-examined the 2nd Defendant challenging and testing his account. In short, he put it to the 2nd Defendant that what had happened to the Plaintiff was as the Plaintiff has described in the witness-box. The 2nd Defendant disagreed.

13. The second witness on the defence side was Mr Lau Chun-sing, a watchman of the building in question. His account as to how the Plaintiff came to fall was as follows.

14. He was one of the card players, so was the 1st Defendant. But the 2nd Defendant was not one of the card players. Upon the 2nd Defendant saying that the Plaintiff's proposal as to how to solve a problem arising from how the cards had been dealt was unreasonable, the Plaintiff rushed out trying to hit the 2nd Defendant. In the course of trying to do that, the Plaintiff fell to his knees by himself. That was not caused by anybody else. The Plaintiff fell by himself.

15. This account given by Mr Lau was challenged and tested in cross-examination by Mr Wright. Mr Lau did not agree with Mr Wright's suggestion that the Plaintiff had fallen in the way the Plaintiff had described in the witness-box.

16. As to the inherent probabilities of this matter, I see them like this. There is nothing inherently probable in the notion that the 2nd Defendant attacked the Plaintiff by punching him and that the 1st Defendant then joined in by pushing the Plaintiff from behind. Nor, on the other hand, however, is there anything inherently probable in the notion that the Plaintiff attacked the 2nd Defendant by trying to punch him. That too is not the way one expects people to behave.

17. So I ask myself whether one account, and if so which, is even more improbable than the other. In my view, the 2nd Defendant's account is even more improbable than the Plaintiff's account. At the time of the incident, the Plaintiff was in his early fifities, the 2nd Defendant was in his mid-forties and the 1st Defendant was a few years younger. Looking at the Plaintiff and the 2nd Defendant in the witness-box and the 1st Defendant at the back of the courtroom (he not having gone into the witness-box but having been present in court on the first two days of the trial), both Defendants seemed appreciably more robust than the Plaintiff. Of course that is only some indication of what they were like at the time of the incident. What is an immutable fact is that the Defendants were materially younger than the Plaintiff. So the Defendants' account is of an older man attacking a younger one in the presence of the younger man's brother, who was even younger. That, in my view, is even more improbable than the Plaintiff's account. I should mention that Mr Au Wong Chi whom the Plaintiff had come to visit was not present.

18. As to demeanour, I was favourably impressed by the Plaintiff but unfavourably impressed by the 2nd Defendant and Mr Lau Chun-sing.

19. I have of course had regard to the whole of each witness's evidence and everything said by each counsel about all the evidence which I have received. When things happen quickly and witnesses recount them, there are almost always flaws in their accounts. There are only two specific matters relevant to credibility which I feel the need to mention.

20. The first consists of the discrepancies between the Plaintiff's statements to the police, particularly the first one, and his evidence in court. I am satisfied that these are adequately accounted for by the Plaintiff being, as he said and I believe, in a muddled state of mind and in pain.

21. The other specific matter relevant to credibility is this. In the witness-box, the 2nd Defendant admitted in cross-examination that he had in the past lent money to Mr Lau. But when Mr Lau was cross-examined on this, he denied that he had ever been lent any money by the 2nd Defendant. Whether Mr Lau is impartial being obviously material, I do not see why the 2nd Defendant would admit having lent money to Mr Lau unless he had. The fact of the loans does affect Mr Lau's impartiality, but the effect would not have been great if he had frankly admitted the loans. But his denial of them would affect his credibility unless I thought that he had merely forgotten them. Watching him in the witness-box, that is not the impression which I formed.

22. Now I come to the fact that the 1st Defendant, although he had filed a witness statement and was present in court on the first two days of the trial, chose not to enter the witness-box to give evidence denying that he had pushed the Plaintiff. In Reg. v. I. R. C. Ex p. Coombs & Co. [1991] 2 HC 283 at p. 300 F-G, Lord Lowry explained the position in situations of this kind, saying:

"In our legal system generally, the silence of one party in face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party, may be either reduced or nullified."

23. In the present case, the 1st Defendant relies on the evidence of the 2nd Defendant and Mr Lau and on his counsel's submissions. Nethertheless, nothing could have been simpler than for him to have entered the witness-box and denied pushing the Plaintiff. If necessary, I would have been prepared to say that his failure to do so did in some positive way make it easier to accept the Plaintiff's evidence. But on the view which I have formed, that is not necessary. Simply proceeding on the whole of the evidence which I have received, I find that the account given by the Plaintiff to be reliable. I accept his account and reject the accounts given by the 2nd Defendant and Mr Lau.

24. Once the Plaintiff's account is accepted, there is no difficulty in concluding that he had been assaulted by the 2nd Defendant with punches. That alone would entitle the Plaintiff to succeed against the 2nd Defendant. For that alone, however, I have no evidence which would enable me to award the Plaintiff anything more than nominal damages.

25. But the Plaintiff claims substantial damages against both Defendants. As to what he must show in order to do so, the legal position is, I hold, as follows. Where in the course of an incident a plaintiff is punched by one defendant, and is then pushed by another defendant and falls to the ground sustaining injuries in respect of which he claims substantial damages against both defendants, he is entitled to such damages against both defendants if, but only if, the push was part of a joint enterprise of both defendants.

26. The first question now is whether the 1st Defendant pushed the Plaintiff causing him to fall. I accept the Plaintiff's evidence that he felt himself being pushed from behind, that he fell as a result of the push and that, while on the floor, he turned around and saw the 1st Defendant standing there. There is no evidence from any source that anybody else was standing in a position where he could have pushed the Plaintiff. The Plaintiff's evidence that the 1st Defendant was standing in such position was not contradicted or explained by any evidence from the 1st Defendant himself. Upon a careful consideration of all the circumstances, I have come to the conclusion that it is more probable than not that the Plaintiff fell as a result of a push and that it was the 1st Defendant who pushed him.

27. Was that push part of a joint enterprise of both Defendants? The incident seems to have been a brief one. Again upon a careful consideration of all the circumstances, I have come to the conclusion that it is more probable than not that the push was part of a joint enterprise of both Defendants. On my view of the facts, there is no question of the Plaintiff contributing to his own injuries.

28. I find for the Plaintiff against both Defendants on liability for the damages flowing from the injuries resulting from the fall. I hold them both jointly and severally liable to him. Now I turn to quantum.

Quantum

29. Damages are claimed under four heads. Two are agreed, namely pre-trial loss of earnings of $226,264.00 and special damages by way of travelling expenses at $564.00. Interest under these two heads is also agreed, namely at the rate of 4.36% from 1 October 1998 until judgment and thereafter at the rate of 8.72% until payment.

30. The two heads of damages which are not agreed are, first, damages for pain and suffering and loss of amenities and, secondly, damages for loss of earning capacity. For the former, the Plaintiff suggested a sum of $350,000.00 while the Defendants submitted that the sum should be not more than $150,000.00. In respect of the latter, the Plaintiff suggested a sum of $100,000.00 while the Defendants submitted that no award at all should be made.

31. As far as interest for the pain and suffering and loss of amenities is concerned, it is agreed that it should be at the rate of 2% from the date of the writ, i.e. 18 October 2000, until judgment and thereafter at the rate of 8.72% until payment. No interest is claimed in respect of loss of earning capacity since that head looks entirely to the future.

32. I am aware of the two important points on damages for the tort of battery brought out in the judgment of Woolf J (as he then was) in W v. Meah [1986] 1 All ER 835 at p. 942 a-e. First, awards of damages for battery must bear a proper relationship to the awards of damages which the courts make in more conventional personal injury cases e.g. motor accident claims brought in the tort of negligence. Secondly, it is sometimes appropriate to award aggravated damages in respect of battery claims, but even then any award of aggravated damages should be moderate.

33. Whether there should be any award of aggravated damages depends of course on all the circumstances. In W v. Meah the plaintiffs were two women. One of them had been raped by the defendant, and the other had been subjected to a vicious sexual assault by him. In those circumstances, it was obviously appropriate to award them aggravated damages as Woolf J did. In the circumstances of the present case, however, I do not think that the Plaintiff suffered materially more than he would have if his injuries had been inflicted in say a motor accident. His counsel, correctly in my view, expressly declined to ask for aggravated damages on his behalf. The award which I propose to make in respect of pain and suffering and loss of amenities will not include aggravated damages.

34. The Plaintiff's injuries and their medical consequences are set out in a number of medical reports the contents of which are agreed. These reports are Dr Au Ka Kau's reports dated 16 May 2001 and 19 July 2001 and Dr Chun Siu-yeung's report dated 29 December 2001. I need not recite the contents of these reports.

35. As I have said, the Plaintiff suffered a fracture of the right patella. The hospitalisation, surgery and physiotherapy necessitated by this was as follow: the Plaintiff spent a total of about 5 1/2 months in hospital; he underwent four operations; and he received physiotherapy as an out-patient for about 16 months.

36. I turn to summarize the medical evidence of particular relevance to pain and suffering and loss of amenities. When the Plaintiff was examined on 10 May 2001 by Dr Au, the findings as to abnormality upon that examination were tenderness over the medial aspect of the right patella, impairment of the movement of the right knee, and the motor power of the knee joint being weaker on the right side. Dr Au reported that there was residual right knee pain and stiffness. He also reported that the Plaintiff's impairment was permanent and that, since his right patella is totally displaced, he has a higher chance to develop osteoarthritis of his right patella-femoral joint in the future.

37. On 19 July 2001, Dr Au, upon the request of the Plaintiff's solicitors, provided further information on the risk of osteoarthritis. He said that it is difficult to quantify the risk by giving a percentage. Nor, he said, could he predict when osteoarthritis would occur. He said that the risk would be higher if the Plaintiff were to engage excessively in strenuous activities that require frequent bending of the knee e.g. squatting, kneeling, climbing stairs, climbing slopes and cycling. The risk would be lower, he said, if the Plaintiff were to confine himself to sedentary activities. He said that the same considerations apply to the timing of the development of osteoarthritis. He said that usually osteoarthritis will present itself as pain and stiffness of the affected joint which, in most cases, could be controlled by modifying activities and taking pain-killers. He went on to say that in those cases in which the symptoms became uncontrollable and intolerable, a total knee replacement operation may be indicated, the cost of such procedure being about $80,000. I should mention, however, that no claim is made in respect of such an operation.

38. Dr Chun examined the Plaintiff on 28 December 2001. He reported that the Plaintiff complained of pain at the knee only when the weather changes, of tiredness after walking for long, and of residual stiffness of the knee. Dr Chun's physical findings included mild muscle wasting of the Plaintiff's right thigh and mild residual stiffness of his knee. Dr Chun found that the fracture had united in good position, that the Plaintiff's condition is static and that no further treatment is required.

39. Each counsel has referred me to a number of past awards. I have found these of assistance, some more than others. At the end of the day, each case must ultimately depend on its own facts. Compared to the plaintiffs in other cases with some comparable features, this Plaintiff has had to endure a rather long period of hospitalisation, a good deal of surgery and a considerable period of physiotherapy as an out-patient. His permanent disability and continuing pain is not nearly as great as in many of the cases which the courts have come across, but they are by no means slight. And there is a risk of osteoarthritis. This risk is difficult to assess, as such risks often are, but should nevertheless be reflected in the award. It will be remembered that Dr Au reported that the risk of osteoarthritis would be lower if the Plaintiff were to confine himself to sedentary activities. Unfortunately it would appear that the Plaintiff has no training or experience in sedentary work.

40. Mr Wright for the Plaintiff, drawing particular attention to the Court of Appeal's decision in Yu Kwok Wing v Lee Tim Loi [2001] HKCU 404 where $350,000.00 was awarded for pain and suffering and loss of amenities, submitted that the appropriate award under that head in the present case would be one between $322,000.00 and $345,000.00. On the whole of the evidence, the past awards to which each counsel drew attention and the submissions which each of them made, I assess the award to the Plaintiff for pain and suffering and loss of amenities at $300,000.00.

41. I turn now to loss of earning capacity. What I have said about the medical evidence when dealing with pain and suffering and loss of amenities has relevance to loss of earning capacity too. In addition to the aspects of the medical evidence which I have already dealt with, I would quote the last paragraph of Dr Au's first report:

"Mr Lee has already return back to work in his previous post. Yet if he wants to change his present job in the future, with the present degree of disability, Mr Lee fit for job of light or sedentary in nature, e.g. office assistant, messenger, cashier, security guard, car park attendant etc."

42. Mr Wright for the Plaintiff suggests an award of $100,000.00 for loss of earning capacity. Ms Wong for the Defendants submits that no award should be made under this head. She cited the Privy Council's decision in Chan Wai-tong v Li Ping-sum [1985] HKLR 176 where Lord Fraser of Tullybelton said this at p. 183 A-E:

"Counsel for the respondent submitted that she was entitled to at least a conventional award under this head, without any evidence being required. But that submission rests on a misconception. A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk- see Moeliker v. A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140 where Browne, L. J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant's age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant's earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant. In the present case there is no evidence at all on these matters. Accordingly their Lordships are of opinion that the sum of $108,000.00 awarded by the Court of Appeal under this head was unjustified and must be deleted."

43. Naturally I accept that statement of the relevant principles. The question is one of applying them to the circumstances of the present case. Before doing so, I think that it helps to understand the circumstances in which the Privy Council held that there was no evidence on which to make an award for loss of earning capacity in that case. As to this, one has to note the paragraph of the Privy Council's judgment immediately preceding the paragraph which I quoted above. The earlier paragraph (at pp 182F-183A) reads:

"The third question is whether the Court of Appeal was entitled, in the circumstances of this case, to make an award for loss of future earning capacity. This item of loss was not pleaded. It was not mentioned in the judgment of the learned Master, and it was admittedly not raised in argument before him. There is some authority for the view that loss of future earning capacity is included in general damages and does not need to be specially pleaded - see British transport Commission v. Gourley [1956] AC 185, 206 per Lord Goddard, where however the point was not in issue and had not been the subject of argument. It may be that it is not essential to plead this head of damages, but their Lordships consider that as a matter of good practice it ought, as a general rule, to be pleaded in order to give fair notice to the defendant. A more important matter is that the item was not raised in argument before the Master who assessed damages, and it was therefore never considered by him. That being so, it could only be in some highly exceptional circumstances that the claim could properly be considered and upheld by the Court of Appeal. No such circumstances exist here. What seems to have happened is that the respondent, who had been refused legal aid for her appeal to the Court of Appeal, drafted her own notice of appeal, and appeared before the Court of Appeal in person. In the notice of appeal she included a claim for loss of future earning capacity and supported it with averments which amounted to rather vague evidence that she had lost a chance of employment at a salary that was higher than she was then earning. Their Lordships were informed that counsel for the appellants objected to the admission of this "evidence", upon which the respondent had of course not been cross-examined, and that counsel's objection was sustained by the Court of Appeal. Once that evidence, such as it was, had been excluded, there was in their Lordship's opinion no evidence at all on which the Court of Appeal would have been entitled to hold that the respondent suffered any loss of earning capacity in the future."

44. In the present case, the Plaintiff had two jobs at the time of the accident, and has now again got two jobs. At the time of the accident, he was a general worker with Gianna Company Ltd working from 8:00 a.m. to 5:00 p.m. and a watchman at Yick Tin Building at Tin Wan from 6:30 p.m. to 6:30 a.m. the following morning.

45. At the present time, he is again working as a general worker with Gianna company Ltd and again he has another job as a watchman from 6:30 p.m. to 6:30 a.m. the following morning, this time at Yally Industrial Building at Wong Cheuk Hang.

46. The risk of a man's injuries preventing him from holding down or doing two jobs like that is in my judgment very much greater than the risk of his injuries preventing him from holding down or doing one job. Working two jobs the way the Plaintiff does is no easy thing even for a man in the best of health, and I am satisfied that there is a real and substantial risk that his disabilities will prevent him from keeping up that sort of exceptionally strenuous working life.

47. In Yu Kwok Wing v Lee Tim Loi (supra) at page 8, Keith JA made an award for loss of earning capacity after recognising that assessing the extent of the risk was "highly speculative" and then proceeding to do the best he could. I feel that I should do the same.

48. On the evidence, the Plaintiff is earning $6,300.00 per month with Gianna Company Ltd and $6,150.00 per month from his watchman's job. That means a total of $12,450.00 per month. Mr Wright for the Plaintiff suggests a figure of $100,000.00 on the basis that it represents about eight months' salary which he says is the appropriate reflection of the risk. Since I am proceeding on the difficulty which the Plaintiff would have in continuing to hold down or do two jobs, I think that it would be more appropriate if I took his watchman's salary rather than both the salaries combined as a monthly figure. As to why I take his watchman's salary rather than his general worker's salary, I do so because it seems to me that his watchman's job is his extra and less stable job.

49. As far as the eight months suggested by Mr Wright is concerned, I consider it to be distinctly on the low side once one is proceeding on only one of the jobs. In my view, even 12 months would be slightly on the low side. 12 x $6,150.00 is $73,800.00. Since a rounder figure more accurately reflects the nature of such an award as this and since I regard 12 months slightly on the low side, I propose to round this figure up to $75,000.00. I award $75,000.00 in respect of loss of earning capacity.

50. In the result, I award damages to the Plaintiff against both Defendants thus:

51. As agreed, interest on those sums of $226,264.00 and $564.00 will be at the rate of 4.36% from 1 October 1998 until judgment and thereafter at the rate of 8.72% until payment. As also agreed, interest on that sum of $300,000.00 will be at the rate of 2% from 18 October 2000 until judgment and thereafter at the rate of 8.72% until payment. There will of course be no interest on that sum of $75,000.00

52. I make an order nisi for costs in favour of the Plaintiff against both Defendants, and order legal aid taxation of the Plaintiff's own costs.