Yeung Tung Sang v. Jamsart Cleaning Service Co Ltd

HCPI 826/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 826 OF 2001

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HCPI 827/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 827 OF 2001

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(Consolidated pursuant to the Order of Master B. Kwan dated 28th February 2002)

Coram : Before Deputy High Court Judge Fung in Court

Dates of hearing : 28-30 April 2003, 7 May 2003 and 22 May 2003

Date of handing down judgment : 17 October 2003

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J U D G M E N T

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The plaintiff is suing Jacqueline Lam ("Lam") for damages for personal injuries from an assault by Lam in pushing him off a ladder. The plaintiff is also suing his employer Jamsart Cleaning Services Company Limited ("Jamsart") for breach of duty in exposing him to unnecessary risk of injury, and/or failing to prevent the danger to him in relation to his fall from the ladder.

2.Interlocutory judgment has been entered against Lam in default of notice of intention to defend. What remains for Lam is the question of quantum. Lam was absent during the trial. The two actions were tried together.

I. Liability

Plaintiff's case

3.The plaintiff was a cleaning worker employed by Jamsart. On 21 January 2001, at about 6 a.m., the plaintiff was deployed to work outside Fei Fei Hot Pot Restaurant in Wanchai ("the Restaurant"). The Restaurant was on Jaffe Road between Marsh Road and Tonnochy Road. The plaintiff was assigned to clean the signage about 7 feet above the front entrance of the Restaurant. The signage was about 26 feet wide. There were four Chinese characters "Fei Fei Hot Pot" reading from left to right. Facing the signage, the first character "Fei" was near Marsh Road, and the last character "Pot" was near Tonnochy Road.

4.The plaintiff was up on a 6 foot A-shape folding wooden ladder provided by Jamart. He was straddling the two sides of the ladder and his feet were on the fourth rung. He was facing the signage and cleaning the character "Pot". He noticed a man and a woman (later identified to be Lam) quarrelling. He did not pay attention to them and continued working. The next thing the plaintiff knew was he fell down the ladder. There was no one to hold the ladder for him while he was working.

5.The plaintiff relied on part of the oral evidence of his supervisor Michael Levi Lei ("Lei"): Lei said he first noticed Lam and the man on the opposite pavement at the corner of Jaffe and Marsh. They were making loud noises. They crossed Jaffe Road diagonally towards Tonnochy Road. Lei saw Lam grab the man's clothes, throw her handbag at the man, throw banknotes at the man three times. They were pulling and pushing each other and they moved to a taxi parked just beyond the right end of shop front of the Restaurant near Tonnochy Road. Lam jumped and stood on the bonnet of the taxi. The man pulled Lam down and she lied on the bonnet. They got entangled and both skidded onto the ground. The man got up and pulled Lam up. They continued pulling and pushing in front of the taxi. Suddenly, Lam gave a loud cry and rushed to push the ladder. The plaintiff fell with the ladder onto the ground.

6.The plaintiff also relied on Lei's police statement which had been confirmed by him in evidence:

"I saw the wooden ladder, after being pushed, closing and falling onto the ground. At the same time I saw Yeung Tung Sang falling from the ladder onto the ground as well."

7.On 13 July 2001, Lam pleaded guilty before a magistrate for inflicting grevious bodily harm on the plaintiff.

8.The plaintiff's primary case is that in the circumstances, the disorderly conduct of Lam and the man presented a danger to him and Lei failed to prevent the danger to the plaintiff by holding the ladder and/or asking him to come down.

9.The plaintiff's secondary case was that the ladder was not a safe equipment in the circumstances. There was no brace to fix the two sides from folding inwards. There was only a piece of string connecting the two sides to stop it from opening too far. Had there been a brace fixing the two sides, the ladder would not have closed before it fell.

Jamsart's case

10.Jamsart's case is that the act of Lam in pushing the ladder was not reasonably foreseeable. Further, the statement in Lei's police statement that the ladder had closed before it fell was misrecorded.

11.There is a dispute as to the position of the ladder. Lei said the plaintiff was cleaning the first character "Fei" instead of "Pot", and the ladder was closer to Marsh Road and further away from the parked taxi.

12.Lei said he had been standing at the parking meter near the first character "Fei". He could look through the glass panel into the Restaurant where his other workers were working, and at the same time was in a position to give assistance to the plaintiff, if necessary. He said he was concerned with the behaviour of Lam and the man and observed them to see whether they would come over to endanger the plaintiff on the ladder. However, he said it was not necessary to warn the plaintiff nor to hold the ladder as:

(a)	he thought Lam and the man were merely flirting intensely and were not violent;
(b)	they were a long distance (about 18 to 19 feet) away from the plaintiff;
(c)	after the entanglement on the taxi, they were moving away from the plaintiff;
(d)	Lam's act in dashing to the ladder was unpredictable.

13.There is also a dispute as to whether there were yellow plastic panels to warn pedestrian to keep away from the slippery floor. Lei said there were, while the plaintiff said although some panels were purchased recently, they were not displayed.

14.Lei said the reference to the closing of the ladder in his police statement was misrecorded. He never told the police that the ladder closed first before it fell.

Assessment of the evidence

15.Photographs taken by the police at the scene were produced. They showed the position of the ladder in relation to the Restaurant, and they did not show any yellow warning panels. These photographs were taken in the afternoon of the day in question but there was no evidence to show whether the scene had been preserved intact in the meantime. I take the photographs as mere illustration only but not showing the state of the scene at the material time.

16.I do not find Lei to be a wholly credible witness:

(a)	he said he was standing near the parking meter so that he could look into the Restaurant. In fact, at the parking meter, his view of the inside of the Restaurant was blocked by some posters on the glass panel, while if he were standing further right from the parking meter, he could look into the Restaurant through the glass doors of the entrance;
(b)	he tried to downplay the behaviour of Lam and the man as intense flirting while they were in fact behaving disorderly and aggressively in a public place;
(c)	he exaggerated his encounter of the sort of behaviour of Lam and the man by saying that he had seen it many, many times before in Wanchai, while in cross-examination he admitted it occurred rarely;
(d)	he said his concern for the danger of the plaintiff was allayed because Lam and the man were moving away from the ladder, while in fact they were moving closer to the ladder instead.

17.As to the police statement, Lei initially confirmed in-chief the contents were true. During cross-examination, he said the part relating to the closing of the ladder before it collapsed was misrecorded. The statement was given in the evening of the accident, and Lei said his memory was still fresh then. He had made amendments to other parts of the statement and initialled them. I reject Lei's evidence that the statement was misrecorded.

18.I find the plaintiff to be a credible witness. Although he said Lei was not around when the accident occurred, it is understandable that he might be mistaken as he was concentrating on his work.

Findings

19.From the accepted evidence, I made the following findings:

(a)	the plaintiff was cleaning the last character "Pot" when the accident occurred, and that ladder was over 1 private car's length closer to the parked taxi than at the first character "Fei";
(b)	the plaintiff heard some noises initially but he concentrated on cleaning the signage;
(c)	the act of Lam and the man was forceful and aggressive as opposed to intense flirting;
(d)	Lei did have concern that the behaviour of Lam and the man might endanger the plaintiff;
(e)	at all material times, Lam and the man were getting closer to the ladder instead of away from it;
(f)	the ladder closed first before it fell;
(g)	there was no yellow warning panels on the ground.

Whether Jamsart is liable?

20.There is no dispute that an employer is under a duty to take reasonable care for their employee's safety. The test is whether the employer has taken reasonable precautions in all the circumstances, paying a proper regard to the risks.

21.Jamsart's defence was two fold:

(a) the accident was caused by the unpredictable act of Lam;

(b) it was caused wholly and/or contributed to by the plaintiff's own negligence.

22.As to the act of Lam, Mr. Ismail for the plaintiff submitted that the commotion of Lam and the man was within a very short distance of the ladder and they were moving closer to the ladder. The risk that the stability of the ladder might be disturbed by their movement and pushing and pulling was reasonably foreseeable. The precise manner of how the ladder was actually toppled was of no consequence.

23.Mr. Ismail referred to the decision of the House of Lords in Jolly v Sutton Borough Council [2000] 1 WLR 1082. A rotten boat was left abandoned on Council land. The plaintiff and a friend, aged 14 and 13, used a jack and some wood to prop up the boar to repair it. The boat fell off the prop and crushed the plaintiff. The trial judge found for the plaintiff, but reduced the damages for 25% contributory negligence. The English Court of Appeal allowed the Council's appeal on the ground that although it was foreseeable that children would play on the boat and be injured, it was not foreseeable that they would prop up the boat and be injured by falling off the prop, and the plaintiff's accident was of a different kind from anything the council could reasonably have foreseen.

24.Lord Steyn disagreed with the observation of Lord Woolf MR in the Court of Appeal casting doubt on Lord Reid's speech in Hughes v Lord Advocate [1963] AC 837 as being difficult to be reconciled with the approach in The Wagon Mound No. 1 [1961] AC 388.

25.In Hughes v Lord Advocate, the defendants left a manhole uncovered and protected only by a tent and paraffin lamp. A child climbed down the hole. When he came out he kicked over one of the lamps. It fell into the hole and caused an explosion. The child was burn. The child was burn. Lord Reid said at pp 845 and 847:

"So we have (first) a duty owned by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident, and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way."

"This accident was caused by a known source of danger, but caused in a way which could not have been foreseen, and, in my judgment, that affords no defence."

26.The relevant passage in The Wagon Mound No. 1 is per Viscount Simonds at p 425:

"If, as admittedly it is, B's liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened - the damage in suit?"

27.In Jolly v Sutton Borough Council, Lord Steyn held at p 1090:

"But this is to take one sentence in the judgment in The Wagon No. 1 out of context. Viscount Simonds was in no way suggesting that the precise manner of which the injury occurred nor its extent had to be foreseeable. And Lord Reid was saying no more. The speech of Lord Reid in Hughes v Lord Advocate is in harmony with the other judgments. It is not in conflict with The Wagon Mound No. 1. The scope of the two modifiers - the precise manner in which the injury came about and its extent - is not definitively answered by either The Wagon Mound No. 1 or Hughes v Lord Advocate. It requires determination in the context of an intense focus on the circumstances of each case: see Fleming, Law of Torts 9th ed (1988) pp 240-243."

28.Lord Hoffman also said at p 1901:

" It is also agreed that the plaintiff must show that the injury which he suffered fell within the scope of the council's duty and that in cases of physical injury, the scope of the duty is determined by whether or not the injury fell within a description which could be said to have been reasonably foreseeable. Donoghue v Stevenson [1932] A.C. 562 of course established the general principle that reasonable foreseeability of physical injury to another generates a duty of care. The further proposition that reasonable foreseeability also governs the question of whether the injury comes within the scope of that duty had to wait until Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound) [1961] A.C. 388 ("The Wagon Mound No. 1") for authoritative recognition. Until then, there was a view that the determination of liability involved a two-stage process. The existence of a duty depended upon whether the injury of some kind was foreseeable. Once such a duty had been established, the defendant was liable for any injury which had been 'directly caused' by an act in breach of that duty, whether such injury was reasonably foreseeable or not. But the present law is that unless the injury is of a description which was reasonably foreseeable, it is (according to taste) 'outside the scope of the duty' or 'too remote'.

It is also agreed that what must have been foreseen is not the precise injury which occurred but injury of a given description. The foreseeability is not as to the particulars but the genus. And the description is formulated by reference to the nature of the risk which ought to have been foreseen..."

29.Mr. Ismail submitted that notwithstanding the injury was caused by the unpredictable act of third party, it did not necessarily absolve the defendant from liability. He referred to the decision of Cheung J (as he then was) in Wong Wai Ming v Hospital Authority [2000] 4 HKC 330. The plaintiff was a psychiatric nurse employed by the defendant at a psychiatric centre. He was injured by the assailant throwing sulphuric acid at him. The assailant was a psychiatric patient registered with another hospital. She had visited the centre before and made complaints about the doctors at the centre. On the day of the incident, the assailant started making complaints again. She became agitated and began to throw sulphuric acid on persons around her. The plaintiff was injured while trying to scatter the crowd. There was evidence that the defendant actually knew there had been other incidents of violence at the centre before, and that the assailant was actually mentally unstable. Cheung J said at p 337 that one must judge the likelihood of harm with reference to the state of knowledge which could be attributed to the defendant at the time of the occurrence. Given the nature of the centre and other incidents of violence, the defendant was held to know or ought to have known there was a real risk of injury of the visitors to the centre towards the staff working there. The defendant was liable for failing to take precaution to safeguard the plaintiff from the risk of injury. The decision was upheld by the Court of Appeal ([2001] 3 HKLRD 209).

30.In this case, Jamsart's supervisor Lei was present at the scene of the commotion and Jamsart had knowledge of all the circumstances. Lei was actually concerned that the behaviour of Lam and the man might endanger the plaintiff. Given the nature of the behaviour, the movement and distance between Lam and the man and the plaintiff, the risk of disturbance posed by the pushing and pulling and movement of Lam and man was reasonably foreseeable. Further, given the design of the ladder that it had no brace to secure the position of the two sides, a fortiori, the defendant had to take reasonable precaution to safeguard the plaintiff from falling. It is not important that the ladder was toppled by a deliberate push by Lam as opposed to an accidental contact during their pushing and pulling.

31.I find that Jamsart was in breach of duty in failing to take reasonable precaution to ensure the ladder was not toppled by the movement of Lam and the man. Lei could simply hold the ladder or to ask the plaintiff to come down while the commotion last.

32.Mr. Lim for Jamsart submitted that the plaintiff heard the commotion and was the best judge of his own safety. It either means the act of Lam was so unpredictable that it was not reasonably foreseeable, or that the plaintiff was contributory negligent.

33.I have found that the plaintiff ignored the commotion as he was concentrating on his work. It is quite understandable as his supervisor was somewhere around.

34.In General Cleaning Contractors Ltd v Christmas [1953] AC 180 at p 187, Lord Jowitt cited with agreement what Denning LJ (as he then was) said in the Court of Appeal:

"You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which his employers expected him to do it and, if they had taken proper safeguards, the accident would not have happened."

35.Also in Machray v Stewarts and Lloyds Ltd [1964] 3 All ER 716, McNair J said at p 721F-G:

"On the other hand, when I find a workman, an employed man, adopting a course of conduct not for the sake of saving him trouble but in order to get on with his employer's business, and when I find that he had been prevented from doing the work in the way in which he would have preferred to do by the employer's breach in not providing him with the proper tackle, I am very slow to put any blame on him."

36.I find Jamsart is liable for the injuries sustained by the plaintiff without any reduction for contributory negligence.

II. Quantum

Injuries and treatment

37.The plaintiff was born on 31 December 1969. He was 31 at the time of the accident on 21 January 2001, and 33 at the time of trial. He is right handed.

38.The plaintiff lost consciousness and was in coma for 4 days after the accident. He had a right epidural haematoma, right subdural and right subarachnoid haematoma and swelling of the brain. Emergency operation was done to remove the blood clots. A second operation was done to remove the left subdural haematoma. He was mechanically ventilated until 25 January 2001.

39.After recovery of consciousness, the plaintiff was disoriented in speech and could not recognise his wife. His level of consciousness gradually improved after 4 weeks from accident. On 9 February 2001 he was transferred from the hospital to rehabilitation centre. He then had a mild degree of confusion, with weakness in constructional ability, mental calculation and language repetition. Physically, he had a mild degree of weakness in his lower limbs and slightly impaired walking balance. On 6 March 2001, elective cranioplasty (i.e. restoration of skull bone) was done. He was discharged on 9 March 2001. He was granted sick leave until 25 February 2002.

40.The plaintiff still has the following complaints:

(a) frequent headaches and mild dizziness;

(b) poor recent memory;

(c) easily agitated and frequent bad mood;

(d) numbness and weakness in right arm;

(e) depressed right skull and surgical scar and self-consciousness.

41.Dr. Yu Yuk Ling, expert in neurology for the plaintiff said the plaintiff had made good recovery. Dr. Yu said there was no reason to doubt the pain of the plaintiff. The plaintiff's score for the Mini Mental State Examination was 26 out of 30 as he could not do the series 7 subtraction. This is a mildly lower score as with his age and education, he should have a full score. Dr. Yu gave a 13% combined permanent impairment of whole person (PIWP) for headache, vestibular disturbance, mental state impairment and emotional impairment. Based on the methodology by Dr. JF Annegers' "A Population-Based Study of Seizures after Traumatic Brain Injuries" (The New England Journal of Medicine, January 1998), there is a 16.7% 30 year cumulative risk of developing post-traumatic epilepsy, compared with 2% chance of epilepsy for the normal population.

42.Professor Peter Lee, psychological expert for the plaintiff said the plaintiff was mildly depressed. There is no reason to doubt his complaint of fear of height. He had residual afflictions of fatigue, malaise and irritability which hopefully would remit further over time.

43.Dr. Edmund Woo, expert in neurology for Jamsart agreed that the plaintiff had a severe head injury but recovery was good. There is residual headache but dizziness without vertigo disequilibrium is mild. There is mild cognitive dysfunction and impairment of whole person as such is only 2%. There is no official provision for headache for PIWP but he has taken that into account. There is no treatment for cognitive dysfunction, and headache can be treated by analgesic. There was no physical handicap of climbing ladder as the plaintiff could climb some height but Dr. Woo could not exclude psychological fear.

44.Dr. Woo accepted that there is a risk of epilepsy following severe head injury. But the risk is highest for the 1st and 2nd year. So far, there was no such occurrence for the plaintiff. He disagreed with Dr. Annegers method of adding up the annual risk from the 1st to 30th year as the number of years up to the time of assessment where no epilepsy has occurred are irrelevant. He disagreed that the risk is 5 times above the normal population, and he reckoned that it should be 2 to 3 times higher. Dr. Woo also said that there is no need for preventive care unless and until epilepsy occurs.

Employment history

45.At the time of the accident, the plaintiff was employed by Jamsart as a high demand cleaning worker. The basic wage was $9,300 with additional overtime and bonus. The average earnings claimed were $12,593 per month.

46.The plaintiff resumed work with Jamsart on 6 March 2002. The plaintiff said his wages were on the high side as his job required working at height, i.e. climbing to signages on 1/F . After the resumption of work, he had developed a fear of height and could no longer climb to 1/F and could only climb to about 6 feet. He had headache and dizziness from time to time and had to take an odd day off.

47.In August 2002, the plaintiff was asked to sign a new contract with Jamsart's associate Cheong Lai Cleaning Service Limited ("Cheong Lai"). He basic wage was reduced to $8,000 and there was no bonus. The plaintiff needed the job and he agreed.

48.On 29 August, 2002, the plaintiff contracted flu and rang up for sick leave. On 1 September, he was still sick and rang up Lei. Lei said he needed not return to work as he was always sick.

49.During the period of resumed work at Jamsart/Cheong Lai, the plaintiff only earned $42,150 in total or $7,025 per month.

50.On 3 October 2003, the plaintiff obtained another job with Cheung Kee Cleaning company ("Cheung Kee"). This involves sweeping and polishing floor without climbing. He is only paid $4,800 per month.

51.Lei disputed that the plaintiff was dismissed. He said the plaintiff was absent without leave.

52.The plaintiff had medical certificates showing that he had upper respiratory tract infection on 1 and 2 September 2002. Besides, he had no ready alternative employment then and the plaintiff was paid much less for the next job. I accept the plaintiff's evidence that he was dismissed. I find that the cause of the plaintiff's dismissal was a drop in productivity as a result of the accident.

Pain and suffering and loss of amenities (PSLA)

53.Mr. Ismail suggested that the case has the combined factors of physical, psychological and cosmetic aspect and is borderline between the categories of serious and substantial injury and the figure is no less than $650,000.

54.Mr. Lim suggested $200,000 and referred to cases in support based on 2% PIWP. Dr. Woo said that 2% was based on cognitive impairment while he had also somehow taken into account headache. I find that this assessment overlooked the composite factors suggested by Mr. Ismail.

55.Dr. Woo accepted that both Dr. Yu and his assessment of PIWP are within the range of 1 to 14%, where the patient retains the ability to perform most activities satisfactorily.

56.Assessment of PSLA is not a pure mathematical exercise of comparing percentages of PIWP. I find that the plaintiff's daily activities are not generally affected to any substantial degree safe as to ability to climb ladder (which will substantially be taken into account in the damages for loss of earnings). I take into the following factors in assessing the damages for PSLA :

(a)	the plaintiff had a severe head injury;
(b)	he was in coma for 4 days and gradually recovered consciousness over a month;
(c)	he has undergone 2 operations to remove blood clots and 1 operation to restore the skull bone;
(d)	there is mild cognitive impairment;
(e)	the plaintiff retains most pre-accident functions except he has psychological fear of height in climbing above 5 feet;
(f)	he still suffers from headache, mild dizziness, and mild depression;
(g)	his right arm is weaker and he is right handed;
(h)	he has a surgical scar and depressed skull and is self-conscious of that;
(i)	there is a risk of developing post traumatic epilepsy.

57.I have been referred to cases by Mr. Ismail where PSLA of $600,000 or above were awarded. In those cases, the plaintiffs suffered reduction of degree of mobility and require treatment for the rest of their lives. They are more substantial injuries than the present case.

58.In Ip Shuk Hing v Yuen Yuk Wai & anor HCPI 216/1999 (date of judgment 11 August 2000) per Deputy Judge McMahon (as he then was) referred to in Tse Ngan Heung v Lo Sin Tak & anor HCPI 565/1999 (date of judgment 10 January 2002) cited by Mr. Ismail, the plaintiff there, a 42-year old woman, had a traffic accident and sustained physical injury to her right knee involving a hairline fracture of the small bone called Gerdys tubercle and also received a blow to her head which resulted in a haematoma and loss of consciousness. The judge found that she suffered minor degree of permanent disability in her right leg, an overall mild degree of Post Concussion Syndrome and Post Traumatic Stress Disorder, mild to moderate cognitive deficit, mild level of symptoms of headache, instability and dizziness, insomnia and anxiety. An award of $300,000 was made for PSLA.

59.In my assessment, the award for PSLA should be $450,000.

Loss of pre-trial of earnings

60.Jamsart disputed the average monthly wage of $12,593 as the plaintiff had to work on every working day in order to receive the hard working bonus. Be that as it may, $12,593 is the average figure taking from the List of Earnings for January to December 2000 filed by Jamsart. I find that the average monthly earnings at the time of accident were $12,593.

61.Jamsart submitted that even if the accident had not occurred, the plaintiff could not hold on to the high wages as there was downward trend in the wages. The replacement worker was only paid a basic wage of $6,800 per month. Other new employees in September 2002 were paid basic wage of no more than $7,800 and they were younger and fitter, also they possessed driving licence.

62.I have found that the plaintiff was dismissed for loss of productivity as a result of the accident. I also find that his reduced earnings during the resumption of employment at Jamsart/Cheong Lai was due to his loss of productivity as a result of the injuries.

63.Although the plaintiff had to work at height of 1/F, he did not belong to the specialist category of workers which had to work at great height, e.g. on suspended gondola. Given the relatively lack of security in of the type of cleaning job the plaintiff used to hold, he is not immune from the general downward trend in wages.

64.I accept that since September 2002, the basic wage for plaintiff's pre-accident job should be between $6,800 and $7,800. Even so, the new recruits earn about twice the statistical wages of ordinary cleaners. There will be overtime and bonuses additionally. As best as can be, I assess the median wage after the September 2002 until trial as $10,500.

65.The assessment for pre-trial loss of earnings is as follows:

(a)	Sick leave period (21/1/01 - 5/3/02)
	$12,593 x 13.5 months = $170,005.50
(b)	Resumed employment at Jamsart/Cheong Lai (6/3/02 - 31/8/02)
	$12,593 x 6 months - $42,150 = $33,408.00
(c)	Job hunting between Cheong Lai and Cheung Kee (September 2002)
	$10,500 x 1 month = $10,500.00
(d)	Present employment with Cheung Kee (October 2002 to mid-October 2003)
	($10,500 - $4,800) x 12.5 months = $71,250.00
	Total: $285,163.50

Loss of future earnings

66.Mr. Ismail suggested that the appropriate multiplier is 16. Mr. Lim submitted that the plaintiff was able to return to pre-accident work and there is no loss. I have ruled that there is a loss of productivity by reason of the plaintiff's fear of height. I find there is loss of future earnings by reason of the disability to work at height of 1/F.

67.As the wage trend has more or less stabilised, I adopt the medium wage of $10,500 as in the case of pre-trial loss. I find the relevant multiplier to be 16. The deduction for present/notional earnings is $4,800.

68.Hence, the loss of future earnings is ($10,500 - $4,800) x 12 months x 16 = $1,094,400.00.

Loss of Mandatory Provident Fund (MPF) entitlement

69.The date of the accident is after the introduction of MPF. The usual percentage of employer's contribution is 5%. The loss is application to the losses of pre-trial and future earnings. Hence, the award is $68,978.00.

Loss of earning capacity

70.Mr. Ismail suggested $300,000 and Mr. Lim suggested $50,0000.

71.The plaintiff's post-accident job is the most basic type of cleaning. He has been able to hold on to such kind of job without much interruption. The sort of handicap he may face in the labour market upon a change of employment is his lack of confidence upon the consciousness of the surgical dent and general bad mood. Over his remaining working life, I assess the damages to be $75,000.

Future medical expenses

72.The plaintiff has asked for costs of private neurological consultation of $14,000 over 5 years to monitor post-traumatic epilepsy.

73.Although there is some debate as to extent of the risk of developing post traumatic epilepsy, both Dr. Yu and Dr. Woo agreed there is a higher risk than normal people. So far, the plaintiff has shows no sign of developing epilepsy.

74.Dr. Woo said that there is no prevention of epilepsy by periodical consultation. Be that as it may, the plaintiff did have a severe head injury with brain surgery. It is now only 2 1/2 years afterwards. I find that neurological follow up for 5 years reasonable. Even if prevention is not possible, regular check up and early detection is still beneficial and reasonable. I shall allow $14,000.

Other special damages

75.The agreed award is $6,208.60.

The award

76.In summary, the award is as follows:

(a)	PSLA	$450,000.00
(b)	Loss of pre-trial earnings	$285,163.50
(c)	Loss of future earnings	$1,094,400.00
(d)	Loss of MPF entitlement	$68,978.00
(e)	Loss of earning capacity	$75,000.00
(f)	Future medical expenses	$14,000.00
(g)	Other special damages	$6,208.60
	Less: Employees' Compensation	($319,342.00)
		-----------------
	Total:	$1,674,408.10
		==========

77.Judgment is entered against Jamsart and Lam in the sum of $1,674,408.10.

Interest

78.Interest at half judgment rate will be awarded on special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment. Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

79.I shall make an order nisi that Jamsart and Lam do pay to the plaintiff costs of the respective actions. The plaintiff's own costs shall be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. A. Ismail instructed by Messrs Szwina S.K. Pang & Co. (assigned by D.L.A.) for the Plaintiff.

Mr. Patrick Lim instructed by Messrs Ip. Kwan & Co. for the 1st Defendant 2nd Defendant, in person, absent.