Chong Leung Sung v. Chau Kai Keung and Others

HCPI000709/1998

HCPI 709/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 709 OF 1998

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Coram: The Hon. Mr. Justice Jackson in Court

Dates of Hearing: 2, 3, 4 and 22 of November 1999

Date of Handing Down of Judgment: 13 December 1999

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J U D G M E N T

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1. The Plaintiff who was born on 10th October 1940 and who is now aged 59, had been employed in the construction business for some 16 years prior to and up to the 19th October 1995 when he was aged 55. During that period he was regularly called upon to operate pneumatic drills as part of his employment.

2. In February 1995 the Plaintiff commenced employment with the 1st Defendant as a construction worker and on 19th October of that year he was employed as such at a site in Connaught Road West/Des Voeux Road West in Hong Kong where excavation work was taking place prior to the construction of a new building.

3. This excavation work which involved, inter alia, the removal of old underground concrete pillars on the site, had been underway for some months prior to the 19th October, by which time the excavated area had gone down to a depth of about a 3 storey building. The excavated area, or hole in the ground, was protected by newly inserted steel piles around its circumference and as the excavation progressed it was necessary to remove from those inserted piles accumulations of soil, earth and concrete to prevent such falling into the excavated hole as it got deeper.

4. As the excavation progressed and the hole got deeper it was the Plaintiff's duty to use a pneumatic drill to remove - and to level - the concrete piles or pillars which had been used to support the previous building prior to its demolition.

5. On 19th October, whilst the Plaintiff was using the drill for this purpose, a large amount of soil and other material fell from above and struck him on the head and on the near upper part of his torso around his shoulders and neck. A helmet which he was wearing was broken by the falling material which material had been lodged in between the newly inserted steel piles. According to his evidence the Plaintiff, his fellow workmen and his foreman or supervisor, were aware of the fact that this material was lodged overhead in the steel piles and although efforts had earlier been made to remove it, it proved impossible to remove. Also according to his evidence the Plaintiff and those working with him at the base of the excavation had previously been told by the foreman to be watchful of the lodged material.

6. Further in his evidence before me, the Plaintiff said, as regards that warning, that he could not continue with his drilling at the base of the excavation site and, at the same time, keep a watch on the material, but being conscious of its presence on the 19th October 1995 he asked another worker to keep an eye on it whilst he (the Plaintiff) continued with his assigned task using the pneumatic drill.

7. As a result of the fall of the soil and other material (which he estimated to weigh between 1-2 tons) upon the Plaintiff, he suffered injuries.

The Plaintiff's claim

8. By writ of summons issued on the 8th July 1998 as amended on 15th August 1998 the Plaintiff alleged, inter alia, that the 2nd Defendant was the principal contractor responsible for the construction site where he was working at the time of the accident: that the 1st Defendant was the sub contractor of the 2nd Defendant; that the 2nd Defendant was responsible for the site within the meaning of the Construction Sites (Safety) Regulations Cap.59; that both the 1st and 2nd Defendants were the occupiers of the site for the purpose of the Occupiers Liability Ordinance Cap.314; and that the Plaintiff was a visitor to that site within the meaning of that Ordinance.

9. Further it was alleged that it was an implied term of the Plaintiff's contract of employment with the 1st Defendant, and it was the duty of the 1st Defendant, to take all reasonable precautions for the safety of the Plaintiff while he was carrying out his duty and, not to expose him to any risk of damage or injury of which the 1st Defendant knew or ought to have known, and to ensure that the Plaintiff's work place was safe, and that by reason of the accident the 2nd Defendant was in breach of its statutory duty.

10. As to that alleged breach, the particulars pointed to the 2nd Defendant's alleged failure to take preventative measures as required by Regulation 39 of the Construction Sites (Safety) Regulations.

11. Further, or in the alternative, it was alleged that the accident was caused by the 1st and/or the 2nd Defendants' breach of their common law duty of care under Section 3 of the Occupiers Liability Ordinance Cap.314 and/or by reason of the negligence on the part of the 1st and/or 2nd Defendants, their servants or agents.

12. In yet a further alternative it was alleged that the accident was caused by the 1st Defendant's breach of the implied terms of the contract of employment between the Plaintiff and the 1st Defendant.

13. [As to certain of the particulars supplied in support of these allegations of breach of statutory duty, of negligence and of breach of implied terms I can state now that, on the evidence before me during the trial, any suggestion that the steel piles circumventing the site were in some way of themselves inadequate in height can be discounted. That was plainly not the case. The material which undoubtedly fell onto the Plaintiff was material which I am satisfied had stuck to, or been lodged between, the steel piles as they were driven into the ground. During the trial this fact was shown not to be in issue; the material had not fallen from above the top of the steel piles.]

14. In an amended statement of claim the Plaintiff alleged that a short time after the accident and, as a direct result of it, he suffered neck pain and dizziness and he was granted sick leave from 19th October 1995 to 5th November 1997. At the time of issue of the writ of summons the Plaintiff complained of loss of grip in his hands; tenderness over the neck and limited neck flexion and rotation. He claimed to be suffering from a 9% impairment of the whole person and a loss of earning capacity of 15%.

The Defence

15. In their amended defence the Defendants admitted the specified implied term of the Plaintiff's contract of employment with the 1st Defendant and the 1st Defendant's duty to take reasonable precautions for the safety of the Plaintiff.

16. The Defendants, however, denied that the accident was caused by a breach of statutory duty on the part of the 2nd Defendant; by a breach of common duty of care and negligence by the 1st and/or 2nd Defendants or by a breach of implied terms by the 1st Defendant as alleged in the amended statement of claim.

17. Further, or in the alternative, the Defendants alleged that the accident was caused or contributed to by the negligence of the Plaintiff.

18. Particulars given in support of that allegation included the assertion that the Plaintiff was under a duty as part of his employment to remove earth sand or other material trapped in the steel piles and that, having failed to do so, he was, at the very least to some extent, the author of his own misfortune.

The Trial

The Plaintiff's evidence

19. The Plaintiff himself gave evidence before me and he called Dr. Philip Wen Chee Mao. The only witness to give evidence for the Defence was Dr. Arthur Chiang.

20. During the course of his evidence the Plaintiff told me of the nature of his employment and how the accident came about on 19th October 1995. He referred to the material which fell onto him as being made up of hard earth and concrete and weighing, in his estimation, 1-2 tons. He said the fall broke his helmet and knocked him to the ground. He said he felt dizzy after the impact but that he managed to stand up and make his way to hospital where he was treated and discharged. He said that on 23rd October he returned to the hospital because he was suffering neck pain, and he was admitted to the surgical ward of the Ruttonjee Hospital where he stayed until his discharge on 27th October. Thereafter he received follow up treatment at that hospital until 12th June 1996.

21. The Plaintiff said that during the period of follow up treatment he suffered persistent dizziness and neck pain, and he attended the orthopaedic clinic where physiotherapy was applied and analgesics were prescribed.

22. He said that he was granted sick leave from 19th October 1995 to 5th November 1997 and that he still continues to attend hospital every six months for 'follow up' treatment.

23. The Plaintiff said that he is unable to work at all due to the weakness in his hands; the neck pain in region of his shoulders, and the stiffness in his back.

24. As to the accident itself the Plaintiff told me in chief that his job at the construction site had been to use the pneumatic drill to remove the old concrete foundations and that he had been doing that since the excavation began, some months beforehand. He said that his foreman (or supervisor) was aware of the material which was stuck between the steel piles, and that he had said that it should be removed; but despite the best efforts of other casual workers on the site, whose job it was to remove that material, it could not be done. The Plaintiff said that it was not his job to remove the material; that nobody had instructed him to cease working until it had been removed, and that no steps were taken to 'fasten in' the material to prevent it from falling.

25. At this stage in his evidence the Plaintiff said that there had been a time when his foreman (supervisor) had told him, and another worker, to remove the lodged material, but that that was a few days after the excavation work had commenced - some months earlier - when the steel piles were first driven into the ground.

26. When asked by his counsel, Mr. Wright, about his present physical condition the Plaintiff said that he was still in pain and that he felt that his condition was worse than it had been previously. He said that prior to the accident he had experienced none of his present ailments such as the pain in his neck and in his back, and his dizziness.

27. Also, in chief, the Plaintiff told me that had it not been for the accident he would still be doing the kind of work in which he had been engaged in 1995. When asked how long he would have expected to continue that work had not the accident occurred the Plaintiff replied:

"until the day that I die, because my children are so young".

It is not, I think, in issue that his 4 children are aged about 8, 11, 13 and 15 respectively.

28. Cross-examined by Mr. Sakhrani, for the Defendants, the Plaintiff agreed that he had been using a pneumatic drill in the course of his employment for some 16 years, and that such use creates vibrations.

29. When asked if he knew which worker in particular was responsible for removing the lodged material, the Plaintiff replied that there were 8-10 workers who were supposed to do that, but he was not one of them although he had shared the responsibility for doing that work at a much earlier stage of the excavation.

30. The Plaintiff then told me that on the day of the accident his foreman (supervisor) had not been present, but that nonetheless he was told each and every day what his duty was - which was to break up the concrete foundations with the pneumatic drill.

31. He said that both his foreman and the contractor knew of the lodged material; that he had spoken to them about it, and that he appreciated that the use of the pneumatic drill might cause the material to shift. That is why he had another worker behind him keeping a look out.

32. The Plaintiff agreed that he had not, since the accident, registered with the Labour Department to find work because, so he said, he would not be able to work.

33. He said that when he now attends hospital he does so every 6 months; that he is, on those occasions, examined by a doctor which examination is thorough and lasts for about an hour because of the tests carried out on his fingers, hands and shoulders and indeed on each part of his body which is painful.

34. Reexamined about his present condition the Plaintiff told me that he suffers most from the pain and stiffness at the back of his neck. He said that his grip is very feeble, and that although he can use his hands around the house it is very painful for him to do so.

35. As to his lower back the Plaintiff said that he suffers a little pain in the early part of the day and, if he walks any distance that aggravates it. He added that that pain in his back would not prevent him from doing the work that he was doing in 1995. What prevented that was the pain in his shoulders and neck.

The Medical Evidence

36. On the day of the accident the Plaintiff went to TANG SHIU KIN hospital where it was noted upon examination that:-

"i) There was no lesion on scalp

ii) There was no tenderness on neck

iii) X-ray on skull and neck - no lesion seen

He was treated and discharged. The following treatment were given:- pain-killer."

37. On 23rd October 1995 the Plaintiff was admitted to the Surgical Department of Ruttonjee hospital where it was noted that he complained of persistent dizziness and neck pain and that examination revealed that he was neurologically stable.

38. A medical report states that

"He was followed up regularly from 10 October 1995 to 19 April 1996.

During the follow-up period, he had persistent dizziness and neck pain. X-ray neck showed marginal osteophyte at the sixth and seventh cervical spine.

He was referred to Orthopaedic Clinic, Queen Elizabeth Hospital. He was given physiotherapy and analgesics.

He was no longer seen in our clinic after 19 April 1996. Sick leave was given from 23 October 1995 to 13 March 1996 and 15 March 1996 to 12 June 1996."

39. A report from the Queen Elizabeth hospital dated 27 June 1997 reads as follows:-

"Mr. Chong was first seen in our SOPD Clinic on 17 April 1996, being referred from Ruttonjee Hospital for persistent neck pain. Neck pain started after an industrial injury on 19 October 1995.

Clinically, there was tenderness over cervical spine and limited range of movement. Otherwise there was no neurological signs. X-ray showed mild degenerative change only.

He was initially managed conservatively with NSAID and physiotherapy. Then he was referred to occupational therapist for work hardening programme, since October 1996.

He was last followed up on 25 June 1997, on occupational therapy, with residual pain.

A degree of permanent disability was expected and can be assessed by Medical Assessment Board of requested."

40. A further report from that hospital dated 17 November 1997 stated, inter alia, that:-

"He was last seen on 5 November 1997 when there was still residual neck pain limiting his working tolerance.

Sick leave was granted from 17 April 1996 to 4 November 1997 inclusive from our department."

41. In March 1998 the Plaintiff was examined by Dr. Wen-Chee Mao. In a report dated 24 March the doctor said, inter alia, that:-

"A Medical Board held on the 19th January 1998 gave him a 7% loss of earning capacity due to head and neck injuries leading to residual neck pain and stiffness.

His main complaint is that of pain and stiffness of the back and neck and he is unable to work because of lack of strength.

Examination shows that the grip in his right hand is 20 lbs compared 20 lbs in the left hand both of which are probably too low for a person who has been working with pneumatic drills.

There is some tenderness over the neck.

Forward flexion of the neck is possible up to 30°when pain occurs.

Backward flexion is possible up to 50°when he gets pain.

Left lateral flexion is 30°.

Right lateral flexion is 20°.

Left rotation is possible up to 30°.

Right rotation is possible up to 45°.

He thus has a total of 9% impairment of the whole person due to loss of full movements of his cervical spine.

Movements of the shoulders although slightly affected on the left side are all within normal limits.

X-rays of the cervical spine show that the vertebral alignment is within normal limits. The disc spaces and vertebral heights are largely preserved. No fracture or dislocation is seen and a mild degree of vertebral marginal lipping is noted.

I am of the opinion that Mr. Chong had suffered some form of compression and twisting forwards of the neck when the heavy objects struck his head and neck which was protected by a workman's helmet. There is no sign of any fracture of any of the cervical vertebrae and all the damage must have been to the soft tissues at the back of the neck and perhaps to some extent there was some compression of the nerve plexus in that part of the body. I would say that there is a remote possibility of Mr. Chong recovering some of his strength with further physiotherapy but this remains to be seen. Certainly, I do not think that he is able to return to his former work. He should be able to do anything within his present strength....... He should be able to work for instance as a messenger or a caretaker.

He has a 9% impairment of the whole person.

His loss of earning capacity is estimated at 15%."

42. In November 1998 Dr. Arthur Chiang Si Chung wrote a report following his examination of the Plaintiff in September of that year.

43. In that report Dr. Chiang expressed the view that there was mild inter-segmental stiffness in the mid cervical spine but that no wasting of the muscles in his upper limbs was noted.

44. Inter alia, as to the Plaintiff's neck, Dr. Chiang noted limitation in flexion, extension and rotation but in relation to the Plaintiff's reflexes there was no abnormality and his muscle power in his upper limbs was unaffected.

45. Dr. Chiang, in that report commented that, inter alia, the Plaintiff may have suffered a prolapsed cervical disc but that that had resolved. He went on to say that - and I quote from the report -

"At this stage, with respect to the neck condition, I think there may not be significant neck symptoms on performing the daily activities and the light to moderate amount of manual work activities.

He may have to avoid prolonged heavy manual work with constant handling of very heavy tools and working in the stressful postures, for preventing a late future relapse.

The permanent impairment in relating to the neck injury was estimated using the Guides to the Evaluation of Permanent Impairment by the American Medical Association as a reference and was as follows:

The whole person impairment for the lower cervical disc prolapse with mild residues = 7%. "

46. As to the loss of earning capacity the doctor was of the opinion that, and again I quote from his report:-

"The neck had recovered satisfactorily, but with the need to prevent a late future relapse of the resolved disc prolapse, he may not be able to return to the pre-injury job. He could work in the lighter form of manual jobs, e.g. odd jobs in the construction site, a light duty casual labourer in interior decoration and as a cleaner.

The need to work in the lighter duty jobs would be partly contributed by the back ailment. If without the neck injury, the back symptoms would have reduced his capacity as a general construction site worker with the need to use pneumatic drills.

The percentage loss of earning capacity as arising from the neck injury is suggested to be at about 15%."

47. In the course of writing this report Dr. CHIANG also said this:-

"In this examination, it was noted that the neck condition was quite satisfactory and the essential findings were as follows:

a). There was no significant inter-segmental stiffness of the cervical spine, and was supported by the presence of a good lordosis in the cervical spine x-rays.

b). The range of motion of the neck was reasonably preserved.

c). There was no weakness in both upper limbs with respect to the motor supply of the cervical nerve roots.

d) The sensation of the upper limbs showed no obvious deficits.

e). The reflexes were normal.

The above would strongly suggest that the prolapsed lower cervical disc, which might have been present after the accident, had resolved.

48. In a further report dated 7th May 1999 Dr. CHIANG commented as follows:-

"The degeneration of the cervical spine as noted in the examination on 28 September 1998 is mild and should not be aggravated by the accident.

With respect to the degree of degenerative changes and the symptoms in the back noted in this examination, and given that he had not been involved in heavy manual work activity* since the accident, the degeneration was very likely to be present before the accident.

If without the accident, with this degree of degenerative changes which is likely to develop more symptoms gradually, he would have to stop working in the pre-injury type of job, and have to change to lighter duty jobs about 5 years earlier than the average worker in this group of jobs.

* when resting, the progression and increase in symptoms with a degenerated back is likely to be slow, and when working continuously in heavy manual job, the progression would be faster."

49. In a report dated 28 May of this year Dr. Mao had this to say:-

"At present his main complaint is still that of pain and stiffness in the neck and loss of strength in both arms.

Examination shows that there is still spasm of the neck muscles posteriorly.

Forward movement of the neck is only possible up to 30° (normal would be 60°) ........ Backward flexion is possible up to 40° only (normal is 75°)..........

Left flexion is 30° (normal is 45°).

Right flexion is 20° (normal is 45°).

Left rotation of the neck is up to 45° compared to a normal of 80°.

Right rotation is 45° compared to a normal of 80°.

When he is told to look at right angles to the wall, either left or right, he tends to move the whole body and shoulders instead of just moving the neck because of difficulty in his neck movements. He thus has a total of 8% impairment of the whole person for loss of full movements of his cervical spine. This is 1% less than my previous findings in my report of the 24th March, 1998.

Back movements are within normal limits.

However, the grip in the right hand is only 20 lbs. This is the same that he had before. The grip in the left hand is now 30 lbs as compared to a previous grip of 20lbs.

In my opinion, he has therefore a 60% loss of strength in both hands.

X-rays show that the bony alignment of the apophyseal joints and the intervertebral joints are within normal limits but flexion and extension views show significant limitation to the range of movement. There is a relative loss of lordosis and mild degenerative changes with osteophytes seen at the C4/5, C5/6 and C6/7 levels.

Considering the fact that formerly he was able to work with pneumatic drills, he must have suffered a major catastrophe to the strength of his right and left arms.

I do not think that Mr. Chong suffered any serious injury to his back.

I do not think that Mr. Chong's condition can improve very much although he may be able to work later on as a messenger."

50. In a report dated 10 September 1999 - as it were in response - Dr. CHIANG had this to say:-

"My examination was performed on 28 September 1998, which was relatively close to the time of Dr. Mao's current examination, and at this relatively stabilized stage, the condition with respect to the neck injury would unlikely have changed obviously during the period between the above 2 examinations.

The testing of the motor power of the upper limbs revealed satisfactory strength. This was further evaluated by taking reference to the other clinical findings, the radiological finding, the history since the accident and the nature of the pathology sustained.

All these, when viewed together, did not support the relatively substantial weakness in both hands as observed in Dr. Mao's examination.

I wish to maintain my view that the neurological status of the upper limbs was satisfactory.

Dr. Mao might not have considered the degenerative aspects of the neck and back, and the scoliosis of the spine as discussed in my 1st report. I wish to maintain my view on the affection of the job capacity by the pre-existing components.

51. On 15th October 1999 Dr. Mao had this to say:-

"In my report of the 28th May, 1999 I had also examined him for the strength of both hands relating to the grip in which I had found that he had a 60% loss of strength in both hands. I enclose a copy of the upper extremity impairment for loss of strength taken from "The Guides to the Evaluation of Permanent Impairment - Fourth Edition" of the American Medical Association. This grip is a test actually of the functional efficiency of the hands in toto. It allows the estimation of the ability of use of the hands after an injury. Dr. Arthur Chiang has carried out other tests but this he has not carried out.

With the strength as found in my report of the 30 lbs in the left hand and 20 lbs in the right hand, there is little doubt that it is a far cry for his ability to manage the use of pneumatic drills. This amount of loss of strength cannot be attributed to Dr. Chiang's suggestion that this is due to degenerative aspects of the neck and back."

52. In Dr. Mao's opinion, if the Plaintiff had not been involved in the accident on 19th October 1995 he would have been able to carry on doing the same type of work until he was aged 62 or 63. Dr. Chiang's view was that, because of degeneration the Plaintiff could not have carried on that type of work beyond the age of 60.

The submissions of counsel

53. I have been greatly assisted in this case by the most able arguments of counsel both for the Plaintiff and for the Defendants. Hopefully I do no injustice to those arguments by seeking here, as concisely as I can, to summarise them in relation to both liability and to quantum.

Liability

54. For the Plaintiff Mr. Wright submits that given that there was no evidence on behalf of the Defendants, and if I accept the evidence of the Plaintiff, then it must follow that liability is established upon the bases of negligence; breach of occupiers liability; breach of contract and breach of statutory duty. Mr. Wright also submits that the Plaintiff's conduct has not been shown to have been causative of his own injuries. He argues that only the Defendants had the power or the authority to take all steps necessary to guard against the danger presented by the hanging debris, and that it was simply not good enough to leave the Plaintiff to his own devices having told him to keep an eye on the potential danger.

55. For the Defendants Mr. Sakhrani submits that the Plaintiff was the author of his own misfortune in that, being aware of the potential danger, he continued to operate his pneumatic drill which probably had the effect of working loose the debris so that it fell onto him. Mr. Sakhrani also calls into question, on the evidence of the Plaintiff, whether or not the Defendants, or their agent in the form of the foreman or supervisor, were aware of the potential danger and, if so, what instructions were given to the Plaintiff about it.

56. On the question of any breach of Regulation 39 of the Construction Sites (Safety) Regulations Chapter 59 Mr. Sakhrani has sought to argue that such regulation does not apply to the undertaking in which the Plaintiff was engaged.

57. In relation to his submission that the Plaintiff was the author of his own misfortune Mr. Sakhrani argues that at the very least the Plaintiff contributed to his own misfortune to a degree of about 20-30%.

Quantum

58. As to quantum Mr. Wright submits that it is of crucial importance in this case to bear in mind that whatever the medical experts may say about the Plaintiff's condition, it is his own factual evidence concerning his personal circumstances which should take precedence over any forecasts of his likely employment in the years following the accident.

59. Mr. Wright seeks to emphasise that on the evidence, as opposed to any medical hypotheses, the Plaintiff had no history (at the time of the accident) of any pain to, or medical condition, of his neck or his back, and nor had he any weakness of grip. After the accident, and as a direct result of it, the Plaintiff reports severe pain and stiffness in the neck muscles and nerves, reduced range of neck movements and considerably weakened grip.

60. Mr. Wright suggests that in a nutshell what separates the parties is the degree of weakness of the Plaintiff's ability to grip with both of his hands, and he dealt with this matter - as did Mr. Sakhrani - in considerable detail in his closing address to me.

61. Mr. Wright also seeks to lay emphasis upon the evidence of Dr. Mao that whilst the Plaintiff's back stiffness and pain could be caused by age degeneration, such could be aggravated by injury to his neck.

62. Putting matters succinctly Mr. Wright suggests that even on Dr. Chiang's medical analysis the Plaintiff is handicapped to a serious extent by his injury, and what I have to decide is the degree of that handicap.

63. In his closing argument Mr. Wright told me that whereas at the commencement of the trial it was his view that if a full multiplier of 5 years was to be given there would be no future loss of earning capacity, he was no longer of that view and that such an award would indeed be appropriate in the circumstances of this case.

64. For the Defendants Mr. Sakhrani has argued in relation to quantum that whereas in his view Dr. Mao's evidence was general, vague and unconvincing, that of Dr. Chiang clearly demonstrated that he had evaluated the Plaintiff's injury having regard to accepted medical literature concerning the distribution of nerves and nerve roots at the cervical spine. Mr. Sakhrani took me through that evidence and other medical evidence in detail in his closing address.

65. In doing so he laid emphasis upon Dr. Chiang's doubt that 2 tons of debris had in fact fallen directly onto the Plaintiff and his doubt about the effectiveness of the grip test carried out by Dr. Mao.

66. Mr. Sakhrani also sought to lay emphasis upon Dr. Chiang's evidence that the condition of the Plaintiff's neck was quite satisfactory and that his neck movement was quite good.

67. As to the condition of the Plaintiff's back Mr. Sakhrani submitted that Dr. Mao had not examined the X-ray showing degeneration, and whilst he agreed that heavy work would accelerate that degeneration and could possibly cause it to become symptomatic in time and affect the Plaintiff's work capacity, the doctor had not applied his mind (as Dr. Chiang had done) to the affects of this upon early retirement.

68. In conclusion Mr. Sakhrani argued that the Plaintiff had failed to mitigate his loss by not seeking lighter employment at the expiry of his two years sick leave. He suggested that, on the evidence, the Plaintiff could and should have sought employment, for example as a messenger or a caretaker, after November 1997. Mr. Sakhrani suggests that whilst the Plaintiff's evidence is that he is incapable of going back to any form of work at all, that is not borne out by the medical evidence. He also argues that upon the authorities if there is to be a total loss award there cannot be, in addition an award in respect of future loss of earning capacity.

Conclusion

Liability

69. I reject the argument that Regulation 39 has no application to this case, as I do the argument that the Plaintiff was the author of his own misfortune either wholly or in part. The Plaintiff succeeds in full on liability.

Quantum

Pain and Suffering and Loss of Amenity

70. Having had the advantage of seeing and hearing the Plaintiff during the course of this trial, I am in no doubt whatsoever that he is not exaggerating his condition including the limits to the movement of his neck; his pain and his weakness of grip. I accept his evidence that his inability to work is due to his neck pain and not the pain in his lower back. I do not accept for one moment that the condition of the Plaintiff's neck is 'quite satisfactory'. It is patently nothing of the sort. Given the condition of his neck I am not in the least bit surprised that the Plaintiff has felt up to the present completely unable to hold down a job of any kind, including that of a messenger or a caretaker. I can only express the hope - and it is no more than that - that in time that situation will change for the better.

71. General damages will be $350,000.00.

Pre-trial loss of earnings

72. The Plaintiff's monthly earnings at the date of the accident were $17,778.00 for a 28 day month. I accept the Census and Statistics Department figure of $874.50 per day for a pneumatic driller in June 1999 and I also accept that, given the economic down turn, 24 working days per months is reasonable which gives a figure of $20,988.00.

73. As I have already indicated, I do not accept that the Plaintiff could have been employed in lighter work since November 1997.

74. Thus the calculation for the pre-trial loss of earnings is as follows:-

$17,778 + 20,988 ÷ 2 X 49 = $949,767.00

Pre-trial expenses

75. I make an award under this head as originally claimed and agreed - i.e. $12,333.00

Future loss of earnings

76. I take a multiplier of 3 years from the date of Trial.

20,988 X 36 months = $755,568.00

Future loss of earning capacity

77. I make no award under this head.

Summary

There will therefore be judgment for the Plaintiff for $1,797,674.00.

78. I make an order nisi that the Defendants do pay the costs of the Plaintiff such costs to be taxed if not agreed. The Plaintiff's own costs will be taxed in accordance with legal aid regulations.

Representation:

Mr. J. Wright instructed by Messrs Boase Collen & Collins, Solicitors for the Plaintiff

Mr. A.K. Sakhrani instructed by Messrs Deacons, Solicitors for both Defendants