Koah Ming Ming v. Secretary for Justice Acting on behalf of Transport Department and Others

HCPI 180/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 180 OF 2005

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Before: Hon Fung J in Court

Date of Hearing: 21 to 24 April, 20 May and 14 October 2009 and 28 January 2010

Date of Judgment: 9 June 2010

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J U D G M E N T

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1.The Plaintiff is claiming damages against the 1^st, 2^nd and 3^rd Defendants for personal injuries sustained at work. The trial is on both liability and quantum.

2.The 1^st Defendant has issued Third Party proceedings against the 2^nd Defendant, but has discontinued Third Party proceedings against the 3^rd Defendant.  The 1^st and 2^nd Defendants have filed notices of contribution against each other.

3.The solicitors for the 3^rd Defendant have obtained leave to cease to act.  The 3^rd Defendant is absent at the trial.

I.       LIABILITY

Introduction

4.In 1997, the 1^st Defendant awarded to the 2^nd Defendant the contract to install a computerized vehicle examination system at its Kowloon Bay Government Motor Vehicle Examination Centre (“Centre”).  The 2^nd Defendant sub-contracted the installation of computers to Realtech Contracting Services Ltd.  The Plaintiff was an installation worker of Realtech.  The 3^rd Defendant was the cleaning contractor for the Centre engaged by the 1^st Defendant.

5.The Plaintiff sustained injury to his back from a slip and fall while working at the Centre on 25 February 2002.

6.The Centre was for testing of goods vehicles and trucks, both new and old ones.  

7.There were 9 lanes at the Centre, and 3 stations of examination along each lane. 

8.Station 1 was for visual examination of the body.  Engine oil leak would be observed.

9.At station 2, the examination involved a “check-ware”, a device to perform sideway and/or back-front stretch (by 4 inches) of the front wheels for measuring the laxity of the axle.  The 2 front wheels were rested on 2 metal plates, and the plates were moved in opposite directions slowly by a pneumatic mechanism.  Only used vehicles would require the check-ware test.  The engine was stopped during the testing.

10.At station 2, the lane had an open pit where the examiner could go down via a staircase and tunnel to examine the base of the vehicle.  The check-ware was on either side of the pit on ground level.

11.The staircase and tunnel were near the rear end of the pit, and the check-ware at the front end.

12.Thereafter, the vehicle drove onto station 3 (15 to 20 m away) for braking test.  The front and/or back wheels are driven onto a set of rollers which set the wheels in motion at 4 to 6 kph whereby the brake is applied.

13.The Centre did not do any repairing, not even dismantling of the engine or parts of the vehicle for examination.

14.The major works including the installation of brake rollers were completed in 2001.  Lane 5 was handed back to the 1^st Defendant.  Thereafter, residual and/or supplementary works were done.

15.The scene of the accident was at station 2 of lane 5.  At the material times, the computer itself is yet to be installed in lane 5.

16.On the day in question, lane 5 has been used for testing of vehicles until 4 pm.  Thereafter, the Plaintiff went to the tunnel of lane 5 to install the computer cabinet and wire ducting.

17.The accident happened at about 6:30 pm and all staff of the Centre had left.  Only the Plaintiff and his co-worker Mr Yeung Hin-chee (PW2) were present in the Centre.

18.The 3^rd Defendant’s cleaning contract provided for cleaning and scrubbing of the compounds, yards and garages.  As a matter of practice, the 3^rd Defendant’s cleaners would do the cleaning between 7:30 am and 10 am in the morning.  No cleaner from the 3^rd Defendant was stationed in the Centre thereafter, and they might be called by the 1^st Defendant’s staff as and when necessary.

19.The 1^st Defendant’s watchmen would also provide cleaning twice daily of the yard outside of the lanes.

20.If there were oil leaks, the staff or the watchmen of the Centre would normally clean it up.  If the slick were extensive, they would place a cone there and ask the 3^rd Defendant to send someone to clean it up.

Contractual provisions between the 1^st and 2^nd Defendants

21.The General Conditions of Contract for Electrical and Mechanical Engineering Works between the 1^st and 2^nd Defendants provides, inter alia, that:

“20(1) The [2^nd Defendant] shall throughout the progress of the Works take full responsibility for the adequate stability and safety of all operation on the Site other than those of Specialist Contractors and utility undertakings and have full regard for the safety of all persons on the Site. The Contractor shall keep the Site and the Works in an orderly state appropriate to the avoidance of danger to all persons.

…

22(1) The [2^nd Defendant] shall, except if and so far as the Contract otherwise provides, indemnity and keep indemnified the [1^st Defendant] against all loses and claims for injury or damage to any person or property whatsoever, other than surface or other damage to land or crops on the Site, which may arise out of in consequences of the execution of the Works and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto.

…

Provided that:

(a) the [2^nd Defendant’s] liability or recompense the [1^st Defendant] under sub-clauses (1) and (2) of this Clause shall be reduced proportionately to the extent that the act or neglect of the Engineer or the [1^st Defendant], their respective agents or employees shall have contributed to the damage, loss or injury;

(b) …

26          The [1^st Defendant] shall not be liable for or in respect of any damages or compensation payable at law in respect of or in consequences of any accident or injury to any workman or other person in the employ of the [2^nd Defendant] or any sub-contractor save and except an accident or injury resulting from any act or default of the [1^st Defendant], his agents or employees and the [2^nd Defendant] shall indemnify and keep indemnified the [1^st Defendant] against all such damages and compensation, save and except as aforesaid and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto.”

Plaintiff’s case

22.The Plaintiff said he installed the cabinet and wire ducting for the computer at the tunnel of station 2 of lane 5.  He said the tunnel had no power socket and the power cord had to be plugged in on ground level near the left check-ware of lane 5.

23.After installation, the Plaintiff picked up the power drill and cord from the tunnel and walked along the pit and put them on ground level over the pit near the left check-ware of lane 5.  He then went back to the tunnel and took a box of tools (weight 10 to 20 lb) and went up the staircase to ground level.  He carried the box and walked 10 odd steps.  Just before reaching the left check-ware on lane 5, he slipped on some oil slick and sand grains and fell down on his buttocks and could not move.

24.The Plaintiff said during the time he worked at the Centre, he had seen old heavy vehicles being driven over the pit in lane 5, and the check-ware would splatter the oil and sand onto the ground.  The pits, the tunnel as well as ground level had oil and sand from time to time.

25.He also saw oil and sand being splattered by the brake roller at station 3.  Those sand grains could have been be carried along by shoes.

26.The normal sand grain would be about the size of a Chinese green pea (i.e. 5 to 6 mm), and the oil slick about the size of 10¢ to $1 coin.

27.Mr Yeung (PW2), the co-worker, said that there was a thin layer of half dry and wet substance on the ground, something that could not be swept or washed away.

1^st Defendant’s case

28.Mr Alan Yuen (DW1), second-in-charge of the Centre, said the old vehicles would normally be fixed up before they were examined and there was no repair work causing leak.  The vehicles were not laden (with sand or otherwise) during examination.

29.The check-ware only stretched slowly and did not involve any shaking or moving of the vehicle (notwithstanding what it’s Chinese name “篩板” or “shaking board” might suggest), and he never saw oil or sand being splattered onto the lane by the check-ware.  In any case, even if there were any oil leak, it would have dropped onto the pit instead.

30.The motion of the brake rollers was slow (4 to 6 kph) without splattering oil or sand onto the lane.  At most, some rubber debris would come off the tyres at braking test.

31.Nevertheless, Mr Yuen admitted there might be some oil and sand in the Centre.  He said some vehicles would leave a few drops of oil, no worse than in a car park, and they would stay for much shorter time than in a car park.  If the oil leak exceeded 75 mm (or 3 inches) in diameter within 5 minutes at station 1, the vehicle would fail the visual examination and not proceed to stations 2 and 3.

32.Even if there were oil leak, the worker at the examination lane would clean it straight away to avoid inconvenience to himself.  If the oil leak were larger than 6 inch in diameter, they would either call the cleaner from the 3^rd Defendant to come straight away, or mark the area with traffic cones for later cleaning.

33.On the day in question, lane 5 was only used for examination of 10 new vehicles. As check-are examination was not required for new vehicles, they did not stop at station 2.  Hence, it would be highly unlikely for sand and oil to be found on the check-ware at lane 5.

34.Mr Yuen said the tunnels were lighted, covered with anti-slip paint, and with electricity sockets.  The staircase was also covered with anti-slip paint, and the distance between the tunnel and staircase and the left check-ware of lane 5 is too long for oil and sand to be carried over.

35.Mr Bruno Cheng (DW2), Government engineer, said at the time of the accident, the 2^nd Defendant had finished installation at the lanes 1 to 5 and finishing off lanes 6 to 8, and lane 5 had already been handed back to the 1^st Defendant for operation.  But Mr Yuen said whenever work is to be done to a lane, occupation would be handed back to the contractor.

2^nd Defendant’s case

36.The 2^nd Defendant denied that it was the occupier at the place where the Plaintiff fell.

37.The 2^nd Defendant did not call any evidence.  It relied on DW2 evidence that lane 5 was handed back before the accident, and the Plaintiff’s work place was the tunnel which was a different place from the check-ware of lane 5 where he fell.

38.It also relied on DW1’s evidence that during 1997 to 2002, the 1^st Defendant had never asked the 2^nd Defendant to clean up the Centre so long as the 2^nd Defendant did not make it more dirty.

Issues

39.(1)     Whether the accident happened in the manner alleged by the Plaintiff;

(2)    If there were any oil and sand on the site, whether it was substantial and dangerous or de minimis;

(3)    Whether the Plaintiff had any contributory negligence by going to the pit as a trespasser and making the shoes more greasy than otherwise;

(4)    Whether the 2^nd Defendant was an occupier of lane 5 on the date of the accident;

(5)    Regardless of completion of work on lane 5, whether the 2^nd Defendant had the contractual duty to keep the lane clean of dirt let over by the 1^st Defendant’s operation in order to avoid danger to others;

(6)    Whether the 1^st Defendant could reply on the indemnity clause in the contract against the 2^nd Defendant where the 1^st Defendant was also at fault;

(7)    Whether the 3rd Defendant’s duty covered the cleaning of lane as and when it was made dirty?

(8)    Whether the Plaintiff was guilty of any contributory negligence?

(9)    Apportionment of liability;

(10)  The point on Occupational Safety and Health Ordinance (Cap. 509) was no longer relied on by Ms To, for the Plaintiff.

Assessment of evidence

40.Mr Shum, for the 1^st Defendant, submitted that the Plaintiff’s evidence had deviated from his pleaded case, and/or he was not a credible witness, and his version of the accident could not be believed:

(1)    The Plaintiff’s pleaded case was that he slipped on oil and/or sand under foot and fell at the check-ware, but his evidence was that he fell 1 to 2 steps before stepping on the check-ware;

(2)    The Plaintiff said in his statement to the loss adjuster was that he had probably fallen because his sports shoes had carried some oil slick from the floor of the basement, which is inconsistent as to where the oil and sand had come from;

(3)    The Plaintiff stated in his witness statement (adopted in-chief) that the Centre was for repair of vehicles but in fact there was no repair at all, hence, he was trying to paint a more greasy picture of the Centre;

(4)    The Plaintiff leapt on the mistake by Mr Shum that the check-ware was a “shaking board” and said he saw oil and sand being splattered by the check ware, but when told that the check-ware would only stretch but not shake, the Plaintiff admitted that he did not actually see the splattering but thought it was a possible;

(5)    The Plaintiff also said it was possible that a faulty roller had splattered the oil and sand, but when told that the roller was at station 3 some distance from station 2, he then said he did not know which roller was broken, and it was possible that someone had carried the sand grains and oil stain across to lane 5;

(6)    The Plaintiff’s description of the oil slick was much more substantial than his witness Mr Yeung;

(7)    In the notification of an accident by the employer dated 1 March 2002 (Form 2), it was stated that the Plaintiff sprained his trunk in the accident, but he denied telling his employer that;

(8)    The Plaintiff told Dr Danny Tsoi, the orthopaedic expert for the 3^rd Defendant, that his buttocks landed on the ground first in the fall and he repeated this in-chief, but he demonstrated that it was his spine and not buttocks had landed first;

(9)    When asked why he did not also bring the carton of tools along the pit and put it together with the drill and power cord on ground level, he said carrying everything in one go would be too heavy, and he did not want to make another dangerous trip because the pit was greasy with sand grains, but he contradicted himself that the ground level of lane 5 was over 10 times more greasy than the pit;

(10)  The surveillance tape shows that he is exaggerating his back problem (which will be referred to later).

41.In Waghorn v Geroge Wimpey & Co Ltd [1968] 1 WLR 1764, 1771A-F, it was held that:

“Since the version of facts found was not just a variation, modification or development, but was something new, separate and distinct and not merely a technicality there had been so radical a departure from the pleaded case as to disentitle the plaintiff to succeed, for if his case had been pleaded in accordance with the facts found, the defendants’ preparation and presentation would have been different.”

42.It could not be gainsaid that the Plaintiff’s evidence was not all satisfactory.  He changed between falling at the check-ware, then falling one to two steps before it, then stepping on the check-ware before falling. He also offered explanations based on his own ideas and surmises,

43.However, I do not find the discrepancy fatal.  It is not so much that he was one or two steps away, but it has always been his case that he slipped on oil and sand, rather than the slippery surface of the check-ware.  In any case, the discrepancy did not make the Defendants’ preparation or presentation of their defences any different.

44.I am prepared to accept that the Plaintiff is merely bolstering an otherwise just cause on liability.  In coming to this conclusion, I take into account the following:

(1)    DW1 admitted the possibility of oil and sand on the ground;

(2)    PW2 supported the Plaintiff that there was a thin layer of oil and sand at the place of falling;

(3)    The 3^rd Defendant’s cleaners only did cleaning between 7:30 am and 10 am and there was no cleaner at the Centre thereafter, and any cleaning would have to be done by vehicle examination or the watchmen;

(4)    Sometimes, the oil would be left for the cleaners next morning;

(5)    The accident happened at 6:30 pm where the Centre was closed and only the Plaintiff and his co-worker remained and the lighting on the ground level must not have been too bright.

Hence, I find that Plaintiff did slip and fall at the oil and sand at the check-ware of lane 5 as pleaded.

Liability of the 1^st Defendant

45.Mr Shum submitted that the duty of care is a reasonable and not absolute one.  The Plaintiff could never expect a factory surface like a tennis lawn (see Waghorn v George Wimpley supra at 1772D).

46.He submitted that PW2 said there was a only a thin layer of half wet and dry substance that could not be swept or washed away.  It was impractical to expect the surface of a vehicle centre to be immaculate.

47.With respect, what I gathered from the tenor of PW2’s evidence is not that he tried to play down the extent of the oil and sand, but rather as an explanation of why the Plaintiff had fallen.

48.Granted the floor of a vehicle examination centre is not expected to be immaculate, nevertheless it must be save against slipping.  Thin layer of semi-wet oil and sand may be particularly dangerous.

49.I find the 1^st Defendant has breached its duty in negligence and/or as occupier, in that:

(1)    Any oil and sand must have come from the operation of the Centre;

(2)    Admittedly there is the possibility of oil and sand remaining on the ground;

(3)    The Centre was open until 4 pm but the cleaners were only stationed between 7:30 am and 10 am in the morning;

(4)    Ad hoc cleaning, if any, had to be done by the examination worker or watchmen which was outside their normal duties;

(5)    The Plaintiff was allowed to work until 6:30 pm after closing of the Centre and the lighting must not have been too bright.

Hence, I find the 1^st Defendant liable.

Liability of the2^nd Defendant

50.Mr Chan, for the 2^nd Defendant, submitted that the 2^nd Defendant was not an occupier of the place of the accident:

(1)    Lane 5 was given back to the 1^st Defendant before the accident;

(2)    The Plaintiff’s place of work was at the tunnel and not lane 5;

(3)    There was no cause for the Plaintiff to go over to the pit of lane 5 and the Plaintiff’s explanation that there was no power point in the tunnel is simply incredible.

51.Mr Chan referred to Creed v J McGeoch & Sons Ltd [1955] 1 WLR 1005, 1010 per Ashwoth J, where the defendant contractor was held to be the occupier only of the length of the road under construction but not the land flanking the road.

52.In Tam Kam Fai v Michael J design Ltd & ors HCPI 347/2005 per Recorder Kowk SC, it was held that the 2^nd defendant was not the occupier of a canopy not directly within the place of work but keys had to be obtained from the management for access.

53.Further, Mr Chan submitted that the Plaintiff’s work did not involve any oil leak, and the 2^nd Defendant was under no duty to clean the oil and sand left over by the 1^st Defendant’s operation. 

54.It was submitted the Plaintiff lied about the lack of power socket in the tunnel.  It was wholly unnecessary to pluck in for power on the ground level near lane 5, hence, to go to the pit and the check-ware.

55.As a matter of principle, there can be more than one occupier of the premises, and each case depends on its facts and especially the nature and extent of the occupation or control exercised by the defendants.

56.On the power socket point, I find the Plaintiff had lied about the absence of power point in the tunnel.  Be that as it may, it was neither here nor there that he chose to pluck in on ground level first before going down to the tunnel.  It was not an adventurous trip to cut some corners.

57.Workers are not automatons bound to take the shortest distance between two fixed points.  It would be reasonably hoodwinked to say that the Plaintiff was a “trespasser” at the pit or lane 5.

58.The relevant facts against the 2^nd Defendant include:

(1)    The Plaintiff was permitted to remain in the Centre when it was closed for the 1^st Defendant’s operation but kept open for the work under the contract undertaken by the 2^nd Defendants;

(2)    The place of accident (lane 5 check-ware) was very close the place of work (lane 5 tunnel);

(3)    It is nothing extraordinary for the Plaintiff to use a nearby power socket and the particular route to and from the tunnel.

59.Hence, I find the 2^nd Defendant liable as occupier and principal contractor.

Liability of the3^rd Defendant

60.The 3^rd Defendant’s terms of engagement was to provide cleaning between 7:30 am and 10 am.  I do not find that the 3^rd Defendant had sufficient control of the Centre at 6:30 pm to become an occupier.

61.The question is whether the oil and sand were left over from inadequate cleaning.  DW1 said only new vehicles were examined on lane 5, suggesting the dirt was old, but PW2 said the dirt was half wet.  On the balance, I find that the dirt was left there after the cleaning in the morning.

62.Hence, I find the 3^rd Defendant not liable.

Contributory negligence

63.It is possible that the Plaintiff might have walked on the greasy pit before the fall.  However, the fact remains that he only fell at the oil and sand at the check-ware of lane 5 and not on otherwise clean surface.

64.I do not find any contributory negligence by the Plaintiff.

Apportionment of liability

65.I find the 1^st Defendant more culpable than the 2^nd Defendant:

(1)            The oil and sand were left over from the operation of the 1^st Defendant only;

(2)    The inadequate provision of cleaners was the making of the 1^st Defendant.

I apportion liability between the 1^st and 2^nd defendants as 85% and 15%.

Indemnity

66.Mr Shum submitted that cl. 20(1) placed the duty to keep the site free from danger on the 2^nd Defendant, and under cl. 22(1) and cl. 26, the 2^nd Defendant shall indemnify the 1^st Defendant of any loss.

67.Mr Chan submitted that the indemnity is subject to exception:

(1)    Under the proviso to cl. 22, the 2^nd Defendant’s liability to indemnify the 1^st Defendant shall be reduced proportionately to the extent the 1^st Defendant had contributed ton the damage;

(2)    Cl. 26 provided that the 1^st Defendant shall not be liable save and except an accident or injury resulting from any act or default of the 1^st Defendant.

68.Mr Shum submitted that if a clause in a contract is followed by a later clause which destroys the effect of the first clause, the latter clause is to be rejected as repugnant and the earlier clause prevails (see Lewison on The Interpretation of Contracts (4^th Ed, 2006) para. 9.09).

69.As a matter of principle, a contract must be read in the whole to ascertain its main object. 

70.In Smith & ors v South Wales Switchgear Ltd [1978] 1 All ER 18, the House of Lords held that the party in whose favour the indemnity clause was made (the proferens) was entitled to indemnity against the consequence of his own negligence or that of his servants only where the indemnity clause contained an express provision to that effect or where the words of the clause in the ordinary meaning were wide enough to cover negligence on the part of the proferens.

71.In Chan Kong Shui v New Gas & Company Shinryo (Hong Kong) Ltd HCPI 343/2000 (6 August 2001), Suffiad J said at para. 19 that:

“I bear in mind that a fundamental consideration in the construction of exemption or indemnity clauses, it is inherently improbable that one party to the contract should intend to exempt or indemnify the other party from the consequences of the latter’s own negligence. The intention to do so must therefore be made perfectly clear in the clauses relied upon for otherwise the court will conclude that the party to be exempt or indemnify was only to be relieved from liability in respect of damage occasioned by causes other than negligence for which he is answerable.”

72.I find that the 1^st Defendant’s right of indemnity against the 2^nd Defendant is not absolute but subject to or at any rate proportionately reduced by the 1^st Defendant’s own negligence in causing the damage or injury.  As the 1^st Defendant’s apportioned liability exceeds that of the 2^nd Defendant, the 1^st Defendant is not entitled to any indemnity.

73.Hence, the 1^st Defendant’s claim of indemnity is dismissed.

II.      QUANTUM

Background

74.The Plaintiff was born on 28 September 1962, aged 40½ at the accident, and nearly 48 now.

75.After the accident, the Plaintiff was sent to the A&E of United Christian Hospital.  Physical examination showed tenderness over L3, full power in all 4 limbs and intact sensation.  X-ray and CT scan showed collapse of L3 with anterior wedging.  He was treated with thoraco-lumbrosacral orthosis (braces).  He received follow-up and physiotherapy.

76.His current complaints are:

(1)    Lower back pain;

(2)    Increased lower back pain upon fast walking;

(3)    Unable to walk or sit for more than 30 minutes;

(4)    Numbness in lower limb upon sitting for over 30 minutes;

(5)    Straight leg raising of 60° on both legs with buttock pain.

77.It is agreed that the L3 compression facture would have caused impairment to the pre-accident job of installation worker.

78.The Plaintiff has been unemployed since the accident because it was too painful for him to work.  He made 3 job attempts: he worked for half a day as decoration worker in 2005; as messenger for 2 hours in 2007; and as casual worker in 2008 but could not lift weight of 8 kg.

79.There is surveillance video tape evidence against the Plaintiff.  He was observed on 25 April 2008 from about 7:10 to 7:40 pm, in a restaurant and on the Light Rail Transit.  He was seen sitting with his right leg on top of the left thigh in a flat position for 10 minutes and vice versa for 10 minutes.  Apart from occasional wriggling of the toe, he appears to be at ease with no sign of discomfort or fatigue.  He repeated such positions on LRT.  He could also open his legs wide at 90°.

80.On 26 April, he was seen walking with normal gait on the street for about 15 minutes.

81.The Plaintiff said he wriggled his toes due to numbness, but agreed he did not massage his legs as he would need to.  He insisted that he had massaged his lower back pain on the street but agreed none was shown in the tape.  He said he laid one leg flat on the other thigh to relieve leg pain, but agreed that would cause more serious pain to the spine.

82.Without doubt, the Plaintiff has exaggerated his back pain.

Pain, suffering and loss of amenities

83.The claim is $350,000.  The parties have cited cases on persistent low back pain, varying from $200,000 to $350,000. 

84.As I have found the Plaintiff to be exaggerating his back pain, his subjective evidence on greater pain cannot be accepted.

85.Hence, I award PSLA at $200,000.

Loss of pre-trial earnings and MPF

86.The Plaintiff was earning $9,000 per month before the accident.  Sick leave period of 18 months was agreed.

87.Hence, sick leave pay and MPF is

$9,000 x 18 months x 105% = $170,100.

88.For the rest of the pre-trial period, it is conceded that the Plaintiff should have resumed alternative gainful employment, such as cashier, caretaker, store keeper and/or watchman.  The wage range is between $5,000 and $7,500 per month.

89.The wage range is reasonable, depending on the ability of the employee.  As I have rejected the Plaintiff’s exaggeration on pain, there is no reason why the Plaintiff should not be making $7,500 per month.

90.Hence, post-sick leave loss of pre-trial earnings and MPF is

($9,000 - $7,500) x 73 months x 105% = $114,975.

91.Total loss of pre-trial earnings and MPF is $285,075.

Loss of future earnings and MPF

92.The Plaintiff and the 2^nd Defendant agreed the multiplier is 10, and the 1^st Defendant suggested 9.  I shall adopt 10 and reduce it to 9.5 for the time between trial and the handing down of judgment.

93.Hence, loss of pre-trial earnings is

($9,000 - $7,500) x 12 months x 9.5 x 105% = $179,550.

Loss of earning capacity

94.As I have rejected the Plaintiff’s exaggerated claim of pain as an excuse for being bone idle, there is no inherent condition why the Plaintiff should suffer from any loss of earning capacity qua alternative lesser employment.

Special damages

95.The award has been agreed at $30,000.

Summary

96.In summary, the awards are:

PSLA	$200,000
Loss of pre-trial earnings and MPF	$285,075
Loss of future earnings	$179,550
Loss of earning capacity	Nil
Special damages	$30,000
Total	$694,625
Less: Employee’s Compensation	($230,090)
	$464,535

Interest

97.Interest at half judgment rate is 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% is awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate.

Costs

98.I shall hear counsel as to costs, if necessary.

99.I thank counsel for their submissions.

Ms Doris To, instructed by Messrs Cheung Wong & Associates, for the Plaintiff

Mr Edward Shum, instructed by Department of Justice, for the 1^st Defendant

Mr Daniel K K Chan, instructed by Messrs Winnie Mak, Chan & Yeung, for the 2^nd Defendant and the 1^st Third Party

The 3^rd Defendant in person, absent