Chung Tat Ho v. Au Hoi Lam Sub-contractor Ltd and Another

HCPI000472/2003

HCPI 472/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.472 OF 2003

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Coram: Hon McMahon J in Court

Dates of Hearing: 22 - 23 July and 27 August 2004

Date of Judgment: 6 September 2004

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J U D G M E N T

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THE ACCIDENT

1.This action arises out of an accident at the now 48-year-old plaintiff's place of work on 23 June 2000.

2.The plaintiff was then employed by the 1st defendant, who was a subcontractor of the 2nd defendant, as a formworker on a building construction site in Kwai Chung where the 2nd defendant was the principal contractor.

3.The plaintiff in the course of his work on the morning of the accident had been operating a hand held rotary saw to cut sheets of plywood so as to use them as formwork for the purposes of containing poured concrete.

4.During the morning, the hand held saw operated by the plaintiff came into contact with his left index and middle fingers. The left index finger was badly damaged and eventually required amputation above the proximal phalanx. The middle finger was lacerated but fully recovered.

LIABILITY

(a) The pleadings

5.The plaintiff by his writ alleges primarily that the accident was caused by a defect in the hand held saw he was using at the time of the accident. He claims, inter alia, that the defendants failed to provide him with a safe system of work and had provided him with an unsafe saw which the defendants had failed to ensure was properly maintained and thereby were in breach of their statutory, common law and contractual obligations to him.

6.The defendants, by their joint defence, dispute that the saw was defective and further or in the alternative claim the plaintiff's injuries were caused wholly or in part by his own negligence or were contributed to by reason of his own negligence.

(b) The issue

7.The fundamental issue on liability arising during the course of the evidence was how the injury to the plaintiff's fingers had in fact occurred.

8.At the time of the accident, the plaintiff was working alone. The only direct evidence as to what had happened at the time of his being injured was his own.

(c) The evidence

9.He said that earlier that morning before the commencement of work, when he had been checking the rotating saws to be used by his team of four to five workers he had discovered one of those to be used had a defective blade guard. He had then told Kwan Yau Shing ("Mr Kwan"), an employee of the 1st defendant who was responsible for maintaining the equipment provided to the 1st defendant's workers, that the saw was defective but Mr Kwan had told him to use it for the time being and that he would look at it later.

10.The plaintiff then continued with his work and he and his team used the defective saw. The saws the team used were identical in appearance and could not be distinguished. According to the plaintiff there were only two usable saws available to his team including the defective one. After he returned from his morning break, he said he picked up a saw and continued working.

11.He said there came a point of time when he had finished cutting a piece of wood and attempted to place the saw on a platform behind him. At that time he had released the "trigger" which was the power control for the saw so the power was off. The blade however, according to the plaintiff, would have continued spinning for some time. The blade guard, which was spring loaded should have extended itself around the spinning blade once the saw was retracted from the formwork it had been cutting. But as the plaintiff was putting the saw on the platform behind him the saw "bounced up" and struck his left hand injuring his fingers.

12.The plaintiff in his evidence said the only reason the saw would have reacted in the way it did when he put it down was because the steel rotating blade was exposed and struck the surface of the platform propelling the saw onto his left hand.

13.He said he did not check to see if the blade guard had extended fully around the blade before he put the saw down. The guard was at the under part of the saw and was not immediately visible when looking down at the saw. But he believed the only reason the blade could have struck the surface of the platform was because the guard had not fully extended. He thought, therefore, he had been using the defective saw.

14.He agreed that in the course of using the saw that morning and at the time of his injury he had been wearing cotton gloves.

15.When cross-examined by Mr Loughran for the defendants a different factual scenario was put to the plaintiff.

16.It was suggested to him at one stage that it was not a mere coincidence that his left index finger had been injured by the saw blade, but that he had simply allowed the blade to stray too close to that finger as he was operating the saw and that the gloved finger had been caught by the rotating blade and drawn into the saw and been injured in that manner. The plaintiff denied this.

17.The defendants also called only one oral witness. That was Mr Kwan.

18.Mr Kwan said he worked for the 1st defendant at the time of the accident and was responsible for maintaining the equipment issued to the 1st defendant's workers.

19.He said on the morning of the accident no one told him that one of the issued saws had a defective guard but that much later that day, in the evening, another worker had brought a saw to him which had a bloodied glove jammed between the guard and the blade of the saw so as to be only partly visible and so as to have "distorted" and "burst open" the safety guard.

20.The next day he said he repaired the saw. He removed the glove and after noticing that the bloodied areas of the glove were on the finger and palm parts he threw it away.

21.He said there were plenty of saws available at the site, and definitely a saw available for each worker. He knew the plaintiff and was adamant the plaintiff had not spoken to him about a defective saw on the morning of the accident.

22.He denied giving evidence so as to help the 1st defendant. He said he no longer worked for the 1st defendant and had no interest in the case. He had only known the plaintiff since the plaintiff started work at the site some 10 days before the accident.

(d) Assessment of the evidence

23.If Mr Kwan's evidence about finding the glove jammed up into the workings of the saw was correct, then the sequence of events as described by the plaintiff in his evidence cannot have been correct. That is because according to the plaintiff the saw in no way remained in contact with his hand after injuring it. He said the glove which he agreed he had been wearing at the time of the injury remained on his hand until it was removed after the ambulance personnel had arrived.

24.I found Mr Kwan's evidence convincing. No apparent motive existed for him to lie. His reply to the effect that as he was no longer employed by the 1st defendant he had no interest in the case and had told the truth in itself had the ring of truth. He gave his evidence in a concise and practical manner and was a compelling witness. I do not think his evidence of throwing away the trapped glove he found in the saw he was given, rather than alerting the Labour Department, to be incredible as Mr Wong for the plaintiff suggests. Mr Kwan was not a part of the Labour Department investigation. His job was simply to repair damaged equipment. He would not have known at that time that the existence of a glove in the saw would assume some importance during this trial.

25.His evidence that the plaintiff did not approach him that morning and complain about a defective safety guard is supported by the plaintiff's own failure to mention to the Labour Department investigators that he had found one of his teams' saws to have a defective lower blade guard when interviewed on 19 July 2000.

26.In that interview, the plaintiff was asked and answered :

"Question 7:	Did you know whether the guard of the circular saw that you used had any problem, for example, whether it could quickly flicked back to cover the blade?
Answer 7:	I didn't know. The saw that I used before I had tea did not have any problem. I did not know whether I used the same saw afterwards."

27.That was a golden opportunity only a month after the accident for the plaintiff to bring to the attention of the Labour Department investigator that which he now remembers some four years later as to noticing that one saw of the two working saws he says his team were using that morning had a defective lower blade guard and that he had brought that to the attention of Mr Kwan. He did not do so.

28.In my judgment that significantly undermines the credibility of the plaintiff on that matter.

29.Other aspects of the plaintiff's evidence were contradicted by what he had told the Labour Department investigator in his statement. In his evidence he eventually said he had seen the saw "bouncing up". But at Question and Answer 4 in that statement he had said he had not noticed the saw bouncing up after it had been put down.

30.Such inconsistencies may be somewhat trivial. But they form part of a picture of considerable uncertainty in the plaintiff's evidence as to how the accident had occurred. By itself that may not be surprising, considering the speed and trauma of industrial accidents involving machinery. But taken in conjunction with Mr Kwan's evidence and the medical evidence I have mentioned below, I am satisfied that the plaintiff's evidential inconsistencies and uncertainties are illustrative of his unreliability as a witness.

31.I reject the plaintiff's evidence as to how the accident happened. In my judgment, whilst there is no doubt that he was injured by the saw he was using, he had exaggerated and fabricated material and substantive parts of his evidence so as to reduce his own perceived fault and increase that of the defendants.

32.I accept the evidence of Mr Kwan to the effect he was given a saw to repair on the evening of 23 June which had a bloodied glove jammed in it.

33.That saw must have been the one the plaintiff had been using. There is no realistic possibility of any other saw on the site coming into contact with a bloody glove on the same day. That means the fears of Mr Mak, the Labour Department investigator, that the hand saw he photographed as being the one involved in the accident may not have been the correct saw, were justified.

34.In any event, had in fact the saw photographed by Mr Mak been the one involved in the accident that would not have assisted the plaintiff, and indeed would have, in very large measure, in any event destroyed the plaintiff's case for the simple reason that Mr Mak had inspected that saw on the day of the accident and found its safety guard to be in good working order. In other words, once Mr Kwan and Mr Mak's evidence is accepted, their observations as to the condition of the two saws mean that the condition of neither saw is consistent with the plaintiff's version of events.

35.I might add two further things. Mr Kwan's evidence as to his finding of the glove in the saw, in my view, is supported by the medical evidence which in the agreed reports of Princess Margaret Hospital describe the injury to the plaintiff's left index finger as a "severe crush injury" with a fracture of the middle phalanx. That description on its face is more consistent with the gloved finger of the plaintiff being dragged into the works of the saw rather than being partially cut or severed by a passing rotating blade.

36.Further, the "coincidence" of the plaintiff's left index finger being the part of the plaintiff's body primarily injured by the saw is certainly something to be taken into account.

37.It is that finger which in the course of operating the saw would perform a variety of tasks that could bring it into proximity with the saw blade. It does seem somewhat remarkable that the saw would jump over two feet so as to strike that particular finger as the plaintiff asserts.

38.The contact between the saw and the plaintiff's fingers was such as to cause by far the most injury to the index finger. That also seems somewhat supportive of the assertion by the defence that the saw came into contact with the plaintiff's fingers while he was operating the saw, rather than the plaintiff's case that the saw landed, in passing, on his left hand after "bouncing up" some two feet from a platform behind him. The injury to the middle finger comprised lacerations to the right side of that finger.

(e) Finding

39.The most probable occurrence on all of the evidence before me including the location and nature of his injuries, the bloodied glove inside the workings of the hand saw and the construction and nature of that saw is that at some stage whilst in some way using the saw the plaintiff's gloved left hand index finger, together with his middle finger, was dragged into the saw blade and injured.

40.Mr Loughran has urged upon me with considerable force that there is no evidence once the plaintiff's evidence is rejected as to how or in what way the plaintiff was using the saw at the time of the accident, and that accordingly whether the glove on the plaintiff's hand caused or contributed to the plaintiff's injuries and in what degree is a matter of speculation.

41.But on the basis of the location and nature of the injuries and the finding of the glove jammed into the saw, it seems to me that an inference can be drawn that the most probable chain of events was that while in some way using the saw in the course of his work once he had returned from his morning break, the plaintiff had inadvertently and carelessly allowed his fingers to come into contact with its rotating blade. In my view, once such contact had been made the cotton glove the plaintiff was wearing would have ensured his fingers were drawn into the saw.

42.I am satisfied that his hand would not have been dragged into the works of the saw in that way had he not been wearing a cotton glove. Accordingly, regardless of what specific task or action the plaintiff was performing with the saw at that time, a material cause of his injuries was his wearing of a glove on his left hand.

(f) Poon's case

43.Mr Wong for the plaintiff says that on that narrow basis the plaintiff is still entitled to succeed against the defendants.

44.He relies on the judgment of Bokhary PJ in Poon Hau Kei v. Hsin Chong Construction Co. Ltd and Taylor Woodrow International Ltd Joint Venture, FACV18/2003. In that case the plaintiff, a workman who had been clearing wires from the ceiling of Railway Platform 5 at Kowloon Station fell from a height whilst doing so. His case was he had fallen off a ladder, which was inadequate for the job but which was the only equipment provided by his employer defendant. The defendant pleaded, inter alia, in the alternative that the plaintiff had climbed onto a fluorescent light trough to reach the wires and had negligently contributed to his own injuries by doing so.

45.The trial judge found as a matter of fact that the plaintiff had climbed onto the fluorescent light trough and then found for the plaintiff, though with contributory negligence, on that basis. As to the question whether a finding of liability can be made against a defendant on his own case, Bokhary PJ said :

"19. Provided that it does so in a fair manner, a court is entitled to decided in favour of a party on the basis of a scenario that he has not pleaded but his opponent has pleaded. This is a proposition at which I arrive on principle. It is also a proposition supported by highly persuasive authority. In John G. Stein & Co. Ltd v. O'Hanlon [1965] AC 890 at p.910A, Lord Guest said: 'I fail to see how [the defendants] can have been in any way prejudiced when the facts upon which liability was established are those averred in the defences and spoken to by their witnesses in evidence'. Lord Reid (at p.906 C-D), Lord Evershed (at p.907 E-G) and Lord Wilberforce (at p.913E) agreed in terms with Lord Guest's rejection of the defenders' pleading point. And Lord Hodson did so in effect when (at p.907G) he concurred in Lord Reid's opinion."

and later :

"21. Was there any unfairness in the process by which the trial judge reached his findings? In Bank of America v. Chai Yen [1980] 1 WLR 350 at p.353D, Lord Lane, delivering the advice of the Privy Council, said that 'the essence of any rule of procedure must be fairness'. The same is true of any rule of practice.

22. In the present case, the respondent pleaded the light trough scenario as one in which in the appellant caused or contributed to the accident. It adduced evidence to prove - and succeeded in proving - that the appellant had been standing on the light trough. It cross-examined him to the effect that he would be at fault if he had done so. And it addressed the trial judge on the issue of contributory negligence in the light trough scenario. In short, the respondent pleaded and argued that the appellant caused or contributed to the accident in the light trough scenario."

46.In Poon's case, the defence to the Statement of Claim had asserted the specific alternative factual scenario. In the course of evidence that alternative factual scenario had been specifically put to the plaintiff as being what had really happened. Evidence as to the plaintiff admitting to a Labour Department officer that he had climbed onto the light trough was adduced and relied upon by the defendants. In submissions the defence had urged the alternative scenario upon the court.

47.Accordingly, in Poon's case the alternative factual scenario upon which the defendants were found liable was one which had been in their contemplation from the beginning. It was specifically pleaded by them, it was relied upon in evidence and in their final submissions. In those circumstances, there was nothing to suggest the defendants would have been prejudiced in any material way by an allocation of liability upon a finding of fact always asserted and contemplated by them.

48.In the present case, the circumstances are somewhat different.

49.The pleadings do not expressly raise any factual scenario other than that asserted by the plaintiff, i.e. that the defendants supplied him with a defective rotary saw in that its safety guard was faulty. By their defence the defendants deny any negligence or breach of statutory duty on their part and go on to say :

"(4)	Further or in the alternative such injuries loss and damage as the plaintiff may prove were caused wholly or in part by his own negligence or were contributed to by reason of the negligence of the plaintiff." (Emphasis added)."

50.The defendants' pleadings may be said to be general enough so as to encompass an alternative factual scenario involving the plaintiff's hand becoming trapped in the rotary saw as a result of his wearing gloves, though there is no particularisation of that. The particulars provided to the above averment are as follows :

"(1) Failing to use the said circular saw in a safe manner.

(2) Failing to ensure that the blade guard was in place after using the said circular saw." (Emphasis added)

51.In short there is nothing in the defendants' pleadings to suggest the alternative factual scenario of the plaintiff's hand becoming trapped in the saw as a result of him wearing gloves was necessarily within their contemplation, though the terms of the pleadings are wide enough to accommodate that scenario.

52.So far as the evidence is concerned, as I say, Mr Loughran at one stage suggested to the plaintiff that he had allowed the fingers of his left hand to become trapped in the saw while using it. That was a suggestion which was put to the plaintiff in the context of Mr Kwan's yet to be given evidence as to his finding of a glove in the saw.

53.Mr Loughran also relied on in evidence a copy of a government publication titled "Guidelines for the Use of Personal Protective Equipment" issued by the Occupational Safety & Health Council, Hong Kong, which dealt with the specific danger of wearing gloves when operating rotating saws. That document formed part of the defence bundle and was placed in evidence on that basis. Its only relevance was to point out potential fault in the plaintiff having worn gloves whilst he operated the rotating saw. The wearing of gloves itself could only have been relevant in this case on the basis of the alternative scenario put forward by Mr Loughran in cross-examination. The production of the "Guidelines for the Use of Personal Protective Equipment" plainly was meant by the defendants to take the issue of the plaintiff's wearing of gloves beyond one of mere credibility and into the arena of contributory negligence.

54.It is fair then to say that the alternative factual scenario was within the contemplation of the defendants as going to the plaintiff's contributory negligence during the course of the trial and even earlier, at the time Mr Kwan made his witness statement in December 2003.

55.On that basis, in my view, the pleadings and the evidence taken together fall within the principle enunciated by Bokhary PJ in Poon's case subject to one final matter.

56.As Lord Lane said in Bank of America v. Chai Yen (supra), "The essence of any rule of procedure is fairness." Would it be fair to ground liability in the defendants on the basis of the alternative factual scenario presented by them?

57.In the present case, there was no evidence adduced by the defendants as to what training, if any, had been given to the plaintiff as to safety matters generally in the use of rotary saws and specifically as to the dangers of wearing gloves whilst using such saws.

58.Mr Loughran relies on this as a reason why it would be unfair to the defendants to proceed to a finding of liability against them on the basis of the alternative factual scenario which I have found proven.

59.This is evidence which however could have been called by the defendants. No application to call such evidence was made. Apart from Mr Kwan's evidence, all the evidence adduced by the defendants as to liability were the government guidelines which dealt with the dangers of wearing gloves whilst working with rotating saw blades.

60.Once the defendants had it in their contemplation, apparently well before trial, that they would assert a factual scenario going to the plaintiff's contributory negligence whereby the plaintiff's hand was dragged into the saw he was operating because he was wearing gloves, then the issue of what steps the defendants had taken to prevent the wearing of gloves by workmen such as the plaintiff was plainly before them.

61.In those circumstances, it seems to me they could have prepared their case on that basis. I do not think that the defendants are unfairly prejudiced by a finding of liability against them on the case which I am satisfied they have contemplated, advanced before the court and, as in Poon's case, have succeeded in proving.

62.It is true that there was little evidence as to what training if any the plaintiff had been given as to operating the saw and particularly as to operating it without gloves. The plaintiff says he got none, but his evidence in that regard in my view is not reliable. Mr Kwan's evidence was to the effect he did not know whether workers were told not to wear gloves while operating rotating hand saws.

63.I do accept from the plaintiff's evidence however that he had been wearing gloves as a matter of habit. He was quite candid about his wearing of gloves whilst operating the saw. He said he himself provided them, they were not provided by the defendants. In my view his candidity in this regard was more due to his ignorance as to the effect the wearing of gloves might have on liability rather than being reflective of his overall evidence which as I have said was unreliable.

64.The defendants' case was also that the plaintiff was wearing gloves at the time of the accident. I make no finding as to what training or lack of training the plaintiff had received in this regard. I reject the plaintiff's evidence about receiving no safety training and the defendants called none.

65.In my view, I can however go this far. Whatever training the plaintiff had received, there was not sufficient supervision of his work so as to prevent him, as was his habit, wearing gloves during the course of the morning of the accident while he was operating the rotating saw. A finding on that quite narrow basis in my view results in no unfairness to the defendants. I cannot realistically envisage any evidence which could be called by the defendant to contradict that. It is open on the pleadings and in my judgment falls within the parameters of fairness so far as that was dealt with in Poon's case.

66.I am satisfied that the wearing of gloves whilst operating a rotating hand saw was plainly something which, reasonably forseeably, could result in the injuries the plaintiff sustained.

67.And so far as the defendants were concerned that activity was something which in accordance with their duty to provide a safe system of work should have been prevented by adequate supervision, and on the day of the accident so far as the plaintiff was concerned, was not.

68.I find the defendants liable on that basis. I might add that were it not for the principle enunciated in Poon's case I would have dismissed the plaintiff's claim.

THE PLAINTIFF'S CONTRIBUTORY NEGLIGENCE

69.The plaintiff was an experienced formworker. He had been doing that job for more than 20 years. I reject his evidence that he was unaware that wearing cotton gloves whilst operating a rotating handsaw was dangerous. I am satisfied he knew the risks involved.

70.In my view, he had acted quite irresponsibly in providing himself with cotton gloves to wear whilst operating the saw. His rationale for doing so was that he wished to protect his hands from splinters. I place no merit on that, the mild inconvenience of splinters or flying chips striking his hand can form no good reason to wear cotton gloves whilst operating this sort of equipment.

71.The plaintiff was clearly negligent in wearing cotton gloves whilst operating the rotary handsaw. The wearing of gloves, as I have said, was a material cause of his injuries.

72.I apportion to the plaintiff 40% of the responsibility for his injuries.

QUANTUM

73.I turn now to damages.

(a) PSLA

74.The plaintiff claims $480,000.00. That is at the lower end of the "serious" categorisation.

75.I bear in mind that the injury to the plaintiff's fingers occurred to his left, less favoured hand and that the injury to his middle finger which was lacerated badly has completely healed. The eventual loss of half of the index finger on that hand is a significant injury and the injury itself required considerable treatment before amputation, and I am satisfied from the medical report dated 9 July 2003 of Dr Lau Hoi Kuen who examined the plaintiff on 2 July 2003 and found osteoporosis of the remaining bone of the left index finger that it still causes the plaintiff discomfort and residual pain.

76.Nevertheless, I do not think the injury properly falls into the serious category. I have considered the cases provided by counsel. In my judgment, an appropriate award in the present case is $350,000.00.

(b) Loss of earnings

77.At the time of the accident, it is agreed the plaintiff was earning $26,000.00 per month.

(i) Pre-trial (Sick leave period) : 23 June 2000 to 31 July 2001

78.During this period of 13 months, the plaintiff was on sick leave. It is agreed that his damages for this period are $338,000.00 (i.e. $26,000.00 x 13 months).

(ii) Pre-trial (Remaining period) : 1 August 2001 to date of trial

79.That is a period of 37 months. The plaintiff said that following the completion of his sick leave he was unable to get a job until October 2002. He then got a job as a formworker. He said that job lasted for one week only and that he was told there was little work available by that employer. During the week he had found he lacked strength and that when he was nailing the formwork together he had held the nails in his left hand between his thumb and middle finger. His employer had told him he was too slow. He said he tried to find other work at construction sites as a general labourer by asking his friends if they knew of any such jobs being available but was unsuccessful. His friends failed to get back to him. He similarly failed to find any other sort of job.

80.He agreed he was fit for work from July 2001 as a construction worker or for other jobs such as a messenger or office assistant. He agreed he could do the job of a formworker albeit at a slower pace than previously.

81.In this regard at the time of his examination of the plaintiff on 2 July 2003 Dr Lau Hoi Kuen was of the view that the persistent pain in the plaintiff's remaining left index finger stump would make it difficult for him to return to a job such as formworker which requires heavy lifting and requires "a strong and painless left hand". Dr Lau expected the residual pain to be permanent.

82.Dr Danny Tsoi Chi Wah in his report of 30 December 2003 following his examination of the plaintiff on 23 December 2003 (i.e. six months after Dr Lau's examination) was of the view that the plaintiff could resume formworking though with some difficulty. At the time of Dr Tsoi's examination, the muscle wasting and grip strength difficulties in the plaintiff's left arm and hand had returned to within normal ranges. Dr Tsoi was of the opinion that the plaintiff was fit for moderately heavy work.

83.In my judgment, the plaintiff is no longer fit for formworking. He is at too great a disadvantage with persistent pain in his left index finger. He is, however, plainly fit for less intense construction work or other general labouring work.

84.From the schedules of the "Average Daily Wages of Workers engaged in Government Construction Projects" I am satisfied the plaintiff could earn $600 a day as a labourer. That, with a 26-day working month, is $15,600.00 per month.

85.His pre-trial loss of income from 1 August 2001 is therefore [($26,000.00 - 15,600.00) x 37 months]. That is $384,800.00. From that should be subtracted the differential wages he received for his weeks employment as a formworker in October 2002. That differential would have been $10,400.00. That arrives at a total of $374,400.00.

(iii) Post-trial

86.I take a multiplier of 8. In my view that is appropriate for a now 48-year-old formworker. That is a demanding job. A higher multiplier would not be realistic.

87.That arrives at a future loss of earnings of [($26,000.00 - 15,600.00) x 12 x 8]. That is $998,400.00.

(c) Loss of Mutual Provident Fund Scheme benefits

88.It is agreed that the MPF scheme came into operation in December 2000 and so far as the plaintiff is concerned, his employer's contribution was capped at $1,000.00 a month up until the end of the sick leave period in July 2001 (i.e. an 8-month period). Thereafter the loss of benefit is 5% of his loss of earnings.

89.Accordingly the pre-trial loss of MPF benefit is ($1,000.00 x 8) + ($374,400.00 x 5%). That equals $26,720.00.

90.The post-trial loss of MPF benefits is ($998,400.00 x 5%). That is $49,920.00.

91.The total loss of MPF retirement benefits is therefore $76,640.00.

(d) Loss of earning capacity

92.Loss of earning capacity is agreed at $100,000.00.

(e) Special damages

93.These are agreed at $27,217.00.

DEDUCTIONS

94.It is agreed the plaintiff received $437,413.33 as employees' compensation and that should be deducted from his damages. It is agreed that tax not be deducted as it is insignificant after taking into account the plaintiff's tax allowances.

SUMMARY OF DAMAGES

96.I order nisi that interest run at 2% from date of writ to date of judgment on the PSLA award and at 4% on pre-trial loss of earnings, special damages and pre-trial loss of MPF benefits. Interest thereafter and on the balance of damages awarded to be at judgment rate. The plaintiff's contributory negligence responsibility of 40% is to be allowed for in calculating all damages the subject of interest.

97.I order nisi that the plaintiff is to recover 50% of his costs from the defendants, to be taxed if not agreed. The plaintiff's costs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr H.Y. Wong, instructed by Messrs Vincent T.K. Cheung Yap & Co., assigned by the Director of Legal Aid, for the Plaintiff

Mr Paul Loughran, instructed by Messrs Massie & Clement, for the 1st and 2nd Defendants