Lau Ho Ming v. Wong Pak Ho

HCPI 254/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 254 OF 2009

_________________________

BETWEEN

_________________________

Coram : Before Master Marlene Ng in Court

Date of Hearing : 14 September 2010

Date of Handing Down Judgment : 17 September 2010

___________________________

ASSESSMENT OF DAMAGES

___________________________

I. BACKGROUND

1.On 1 April 2007, the Plaintiff was a water/electrical worker employed by the Defendant who allegedly carried on business in the name of Ngai Ming Engineering.  On that day, the Plaintiff was assigned by the Plaintiff to replace a PVC pipe at the toilet of certain premises in North Point, Hong Kong (“Site”).  Whilst the Plaintiff was using a screwdriver to clear up some residues which were attached to the PVC pipe, a small piece of the PVC pipe flew into and injured his right eye (“Accident”).

2.The Plaintiff claims that the Accident was caused by the Defendant’s negligence, breach of contract of employment and/or breach of statutory duties.  On or about 26 March 2009, the Plaintiff commenced the present proceedings against the Defendant to claim for damages for personal injuries and other loss and damages.

3.No notice of intention to defend was filed by the Defendant.  On 30 June 2009, interlocutory judgment was entered against him for damages to be assessed.

4.Throughout the present proceedings, the Defendant has not taken any part, and he has been absent at the hearing of the assessment of damages before me.  The 4^th and 5^th affirmations of service of Hon Shu Min filed on 4 August and 10 September 2010 respectively show that the Plaintiff has served his pleadings, his lists of documents, his witness statement, his expert medical report, the checklist review orders, the notice of appointment for assessment of damages and the assessment bundle on the Defendant.  Mr Sham, counsel for the Plaintiff, has urged me to proceed with the assessment of damages, and I see no reason not to.

5.The Plaintiff is the sole factual witness.  He adopts his witness statement dated 4 August 2009 as part of his evidence-in-chief.  Pursuant to the order of Master Roy Yu dated 19 August 2010, the Plaintiff has also adduced ophthalmologic expert evidence by way of the expert report of Dr Cheung Sek Hong (“Dr Cheung”) dated 22 July 2009 (“Report”).

II.  PERSONAL HISTORY

6.At the time of the Accident, the Plaintiff was 45 years old and he is now 48.  He has received education up to Form 3.  He has been in good health and has not suffered any injury to his eyes prior to the Accident.  His vision has been normal, but he does not drive.

7.Before the Accident, the Plaintiff liked to read and would read the entire newspaper during his leisure time.  He also liked to watch television series, travel around by taking public transport during holidays, visit nearby park, play chess with his neighbours, play mahjong at his friend’s or relative’s home, and play snooker with his friends.

III.  INJURIES AND TREATMENT

8.Immediately after the Accident, the Plaintiff felt discomfort in his right eye and stopped work to take a rest.  The Plaintiff reported to Dr Cheung that there was immediate redness and pain in his right eye but no bleeding. His rested until lunch-time when he went out to buy some eye drops at a nearby pharmacy.  His right eye felt better after instilling self-prescribed eye drops.  Since only 1 day was allotted for renovation work to be carried out at the toilet of the Site, the Plaintiff carried on with his work in afternoon. He managed to do so with difficulty.  By the evening he felt immense pain in his right eye, and went to the accident and emergency department (“AED”) of Yan Chai Hospital (“YCH”) for medical treatment.

9.According to the medical report of YCH’s AED dated 12 September 2007, corneal abrasion over the right eye was detected on examination.  Oral analgesics and eye drops were prescribed, and the Plaintiff was urgently referred to the Eye Clinic (“Eye Clinic”) of Caritas Medical Centre (“CMC”) for assessment and further treatment.

10.On the following day, ie 2 April 2007, the Plaintiff attended CMC’s Eye Clinic and was hospitalised until 11 April 2007 (see discharge slip by CMC dated 11 April 2007).  According to the medical report by CMC’s Eye Clinic dated 27 August 2007, the Plaintiff was found to have “visual acuity of right eye 6/15, left eye 6/7/5, right full thickness corneal laceration, right ciliary spasm and commotion retinae [ie retinal oedema] at superior retina.  Repair of right ruptured eyeball and examination under anaesthesia was performed …… [and] the corneal wound healed uneventfully. ……”  He was prescribed eye drops upon discharge.

11.The Plaintiff attended CMC’s Eye Clinic on 14 and 21 April 2007 and 2, 5, 10, 16 and 26 May 2007. Since June 2007, he was followed up on a monthly basis.  According to the medical report by CMC’s Eye Clinic dated 27 August 2007, the Plaintiff was found “to have right eye visual acuity: 1/60 with right post-operative astigmatism pending for management”.

12.The Plaintiff was admitted to CMC for 1 day for “[operation] on cornea (Removal of corneal stitches RE)” in respect of the diagnosis of “astigmatism (RE)” (see discharge slip of CMC dated 13 December 2007).  He was scheduled for visual field examination on 3 January 200 and follow up on 21 January and 21 February 2008.  Thereafter, he attended CMC’s Eye Clinic every 6 months on 17 November 2008, 18 May 2009 and 16 November 2009 respectively.  According to the Report, he has not been prescribed any further medical treatment for his right eye.

13.The Plaintiff was granted a total of 67 days of sick leave, ie continuous sick leave from 1 April 2007 until 2 June 2007 and thereafter intermittently until 18 November 2009.

IV.  PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

14.Dr Cheung opines that the corneal lacerations of the Plaintiff’s right eye resolved with the formation of L-shaped corneal scars with surrounding corneal opacities in his right eye.  Such lacerations reduce his right eye vision because of corneal opacities, corneal scars and induced irregular astigmatism.  “Cornea is the window of an eye and should be clear. It is a major refracting structure of an eye”.

15.According to the Report, the Plaintiff complains of (a) blurred right eye vision, (b) intermittent grittiness of his right eye, (c) mild right eye photophobia (ie undue sensitivity of an eye to light), (d) seeing “shadows” with his right eye, (e) having to rely mainly on his left eye for visual tasks, (f) impairment of his near vision, eg he has to stop reading after 5 minutes or so.  Further, the Plaintiff complains he has to remove his spectacles (which have been prescribed for correcting refractive errors for his right eye) every 15 minutes or so because of eye discomfort.  He also suffers from redness of his right eye upon wearing contact lens.

16.On balance, I accept the Plaintiff’s evidence that he suffers impairment of right visual acuity which affects his daily life as follows:

(a)    The Plaintiff can only read the characters written in newspapers if he concentrates on the contents, but has had no such difficulty prior to the Accident.  As he has to concentrate his mind and vision for reading, he will feel dizzy and painful in his right eye after reading the newspaper for over 5 minutes, and has to stop.

(b)    As a result of impaired right visual acuity, the Plaintiff goes out less than before.  He cannot make out the bus route number clearly when he waits for bus transport, so he often misses the relevant bus or gets on the wrong bus.

(c)    After the Accident, the Plaintiff has to rely on his left eye to aim his cue stick when he plays snooker or to identify the chess or mahjong piece when he plays chess or mahjong.  So his left eye tires easily, and this affects his leisure and entertainment habits.

(d)    Wearing spectacles helps to improve the Plaintiff’s sight to a limited extent, but it remains difficult for him to see small items clearly.  His ability to judge distance is also affected.

17.Dr Cheung refers to the 5^th edition of Evaluation of Permanent Impairment by the American Medical Association which provides that the best corrected eye visual acuity of 0.5 causes 15% central vision impairment and 3% acuity impairment rating of both eyes, which relates to 3% impairment of the whole person.  According to the First Schedule of the Employees’ Compensation Ordinance Cap.282 (“Ordinance”), 15% impairment of right eye vision equates to 7.5% loss of earning capacity for the purpose of assessing employees’ compensation.

18.Dr Cheung further notes that since the Plaintiff is unable to use spectacles comfortably whereas use of contact lens causes redness of the right eye, the Plaintiff does not wear optical aids most of the time.  Dr Cheung opines that the Plaintiff’s right eye acuity without optical aids to correct for the refractive errors is 0.05, so the Plaintiff suffers from 65% central vision impairment of his right eye which relates to 7% impairment of the whole person as a result of a combination of reduced corneal clarity and induced irregular astigmatism.  But Dr Cheung is of the view that the Plaintiff has normal or near-normal ability to perform activities of daily living with reserve capacity.

19.Dr Cheung suggests that the above disabilities equate to 32.5% of loss of earning capacity.  However, I am bound to disregard his statement of opinion as to percentage of loss of earning capacity (see Tsang Shau Tsan v Wealthy Construction Company Limited CACV 58/2000 (unreported, 5 April 2000) per Rogers JA, Li Wan Choi v Choi Wan Hing & anorCACV 182/2000 (unreported, 15 November 2000) per Rogers VP and Le Pichon JA, and Lai Kwan Ming v Lee Yin Hing trading as King Yip Company & anor HCPI 765/2000, Deputy High Court Judge Lam (as he then was) (unreported, 11 October 2001)).

20.The Plaintiff claims a sum of HK$400,000.00 for PSLA. Mr Sham strongly relies on Sze Ping Chui v Lau Ching Wai HCPI 1051/2001, Master S Kwang (unreported, 27 September 2002) as a comparable authority.  Hence, the facts of that case bear further consideration.

21.In Sze Ping Chui, the plaintiff suffered from a ruptured left eyeball with a 5mm full thickness linear corneal laceration at the visual axis and cataract, and the lens was also damaged.  Urgent operation was done for repair of the cornea with removal of the damaged lens and implantation of intra-ocular lens.  The plaintiff complained of blurring of his left vision, occasional “light reflection” in the left eye, and occasional discomfort and photophobia of the left eye.  His best-corrected visual acuity was respectively 0.3 and 6/18 which corresponded to respectively 65% loss of left eye vision and 70% of normal.  There were myopia and severe astigmatism which resulted from cataract surgery and corneal scar respectively.  Since the plaintiff’s left eye was pseudophakic (ie crystalline lens replaced by intra-ocular lens with more light scattering, greater likelihood of glare, and diminished contrast sensitivity and spherical aberration than a normal eye), there was an additional impairment in visual acuity by 50%.  Taking into account other disabilities such as papillary abnormalities, lens decentration and tilting, and the need to wear strong presbyopic lens, the visual acuity of the left eye was 35% of normal and permanent disability was 65%, which together with 5% disability on account of photophobia, the permanent disability of the left eye was 67% which in turn related to 17% disability of the whole visual system and 16% disability of the whole person.  In that case, the learned Master awarded HK$400,000.00 for PSLA.

22.In the present case, as Mr Sham frankly accepts, the visual acuity of the Plaintiff’s right eye is better than that of the plaintiff’s left eye in Sze Ping Chui.  Further, the Plaintiff here has not undergone any urgent operation for removal of damaged lens and implantation of intra-ocular lens with the aforesaid disabilities associated with loss of crystalline lens and reliance on intra-ocular lens.  The plaintiff in Sze Ping Chui also had additional difficulties such as papillary abnormalities, lens decentration and tilting, and myopia as a result of cataract surgery.  In all, I am persuaded that the plaintiff in Sze Ping Chui suffered more serious injuries than the Plaintiff in the present case.

23.Mr Sham has asked me to take into account (a) inflation since 2002 when the judgment in Sze Ping Chui was handed down and (b) loss to the Plaintiff as a result of his inability to carry on skilled work as a water/electrical decoration worker as a result of the Accident.  I will discuss the Plaintiff’s loss of earnings in more detail below, but suffice to say here that I accept he cannot return to his pre-Accident work as a result of his injuries.  Nevertheless, I also note that even though the Plaintiff has had about 10 years of experience in water/electrical works, he is not a professionally qualified plumber or electrician with requisite licences. Further, Master S Kwang in awarding HK$400,000.00 for PSLA in Sze Ping Chui must have also taken into account the experience of the plaintiff in that case as a plasterer for 15 years, his inability to work at height or to perform outdoor work after the accident, and his reduced work performance and efficiency as a result of eye injury.

24.Mr Sham has a few other cases in his list of authorities:

(a)    In Chan Kwok Ping v Hop Yick Engineering Company, a firm & anor HCPI 1230/1995, Cheung J (as he then was) (unreported, 28 January 1997), the plaintiff’s right eye was injured by corrosive substance resulting in a large corneal ulcer which upon healing formed a vascularised corneal scar.  Visual acuity of the right eye was 3/60 with no improvement on pinhole or spectacles, and visual disability was assessed at 90% in the right eye.  The plaintiff also suffered from right eye recurrent cornea epithelial erosion made worse by band kerpotopathy of the diseased cornea and irregularity of the cornea epithelial surface.  The learned judge awarded HK$420,000.00 for PSLA.

(b)    In Ho Yam Pan v Tse Tak Ling t/a Ken’s Company HCPI 91/1996, Master Chung (as he then was) (unreported, 16 April 1997), the plaintiff’s right eye bled severely when hit by pieces of cutting blade of a machine.  There were severe contused right eye with full thickness laceration of the upper eyelid and severe haemorrhage seen behind the cornea.  After the operation, the right eye vision could not be salvaged and the right eyeball was eventually removed.  The learned master awarded HK$500,000.00 for PSLA.

(c)    In Lee Ping Foon v Li Hoi trading as Hoi Tat Construction & Decoration Engineering HCPI 541/1997, Master Chu (as she then was) (unreported, 21 January 1998), the nail head struck the plaintiff’s left eye whilst he was hammering a nail resulting in a larger corneal laceration.  He had 3 operations and was virtually unable to see because he was totally blind in the right eye with no light perception.  The learned master held there should be an upward adjustment in the award for PSLA to reflect graver consequences, ie the plaintiff’s greater suffering as a result of loss of his only remaining good eye.  A sum of HK$600,000.00 was awarded for PSLA.

25.In my view, the injuries suffered by the plaintiffs in the above cases are much more serious than those suffered by the Plaintiff in the present case, so they do not bear useful comparison.  At the hearing, Mr Sham has disclaimed reliance on Chan To Wai v Rigid Plumbing Ltd & anor HCPI 1334/1996, Wong J (unreported, 27 January 1998) as a comparable authority.

26.Bearing in mind the Plaintiff’s injuries and disabilities, and the effect of impaired right eye vision on loss of amenities in his work and leisure habits, I agree with Mr Sham that the Plaintiff’s injuries and disabilities fall below the “serious category”.  I further agree that the question of how far below is very much a value judgment taking into account all the circumstances and not really susceptible to great elaboration (see Yu Kok Wing v Lee Tim Loi [2001] 3 HKC 314, 318).  In all the circumstances, I consider that an appropriate award for PSLA in this case is HK$370,000.00.

V.  PRE-ACCIDENT WORK HISTORY

27.According to the Report, the Plaintiff has worked at factories, electronic companies etc since he was 18 years old, and has been engaged in refurbishment and renovation work as water/electrical decoration worker since 1997.  So by the time of the Accident, the Plaintiff has been working in the trade for about 10 years.  He has been a holder of the Construction Industry Safety Training Certificate issued by the Construction Industry Council Training Academy, but does not possess any professional qualifications or work licences for plumbing and electricity work.

28.According to a written certificate by 黃偉華 (ie the proprietor of Fu Wah Decoration Co) dated 7 June 2009, the Plaintiff has worked for his company from 1 June 2004 to 4 March 2008 as water/electrical worker at daily wages of HK$500.00 for 26 working days per month with wages paid on bi-monthly basis (ie every 15 days).

29.Since in/about mid-March 2007, the Plaintiff has worked as a water/electrical decoration worker for the Defendant (who subcontracted office renovation work).  His working hours were from 9am-6pm at the daily wage rate of HK$500.00 for about 22-26 working days per month (with normal weekly rest day on Sunday), so his monthly income was about HK$11,000.00 to HK$13,000.00 inclusive of overtime pay and lunch allowance paid on monthly basis.  The Plaintiff’s main duties include changing the drainage pipes of toilets, installing water/electric meters, cutting pipes, setting electric cables, changing lighting ducts etc.

30.At the time of the Accident, the Plaintiff has worked for the Defendant for 11 days.  He was informed that the Defendant has subcontracted a lot of renovation projects, so but for the Accident the Defendant would have required him to continue to work as water/electrical decoration worker on such other projects subcontracted by the Defendant upon completion of the project at the Site.

31.The Plaintiff has disclosed copies of the passbooks of his 2 savings accounts with Bank of China for the periods from 22 October 2005 to 14 March 2007 and from 10 December 2003 to 17 May 2007 respectively.  The passbooks show entries for deposits that vary from HK$1,000.00 to HK$10,000.00 made on an irregular basis.  The Plaintiff explains that prior to the Accident his wages were mostly paid in cash or infrequently by cash cheques.  After he presented the cash cheques for payment, he might retain some part of the cash for personal use and then deposit the balance into his bank accounts, so the deposits in the bank accounts do not fully reflect his full earnings over the periods referred to above.

32.Mr Sham submits and I accept that the Plaintiff’s pre-Accident median monthly earnings were HK$12,000.00 (ie HK$500.00 x (22 days + 26 days) ÷ 2).

VI.  POST-ACCIDENT WORK HISTORY

33.The project at the Site was completed in April 2007, and the Defendant ceased to employ the Plaintiff.  In/about May 2007, the Defendant refused to take the Plaintiff’s telephone calls, and the Plaintiff lost contact with him.

34.The Plaintiff claims (and I accept) that after expiry of his continuous sick leave period on 2 June 2007, he could not resume work or obtain employment due to impairment of his right eyesight.  In/about July 2007, he tried to return to the labour market, but could only find simple miscellaneous work as a labourer, eg removal of rubble from work site, delivery of materials to a particular workplace, etc, at a daily wage rate of HK$350.00 for about 14 working days per month.  The Plaintiff explains he cannot handle electrical works after the Accident because he has difficulty in judging distance and cannot read the small English alphabets in the labels for electrical installations, so there is a real risk of making erroneous electrical connections.  He also cannot carry out plumbing works because he cannot carry out meticulous soldering of pipes which is necessary to ensure there is no water leakage from the pipes.

35.Since July 2007 until trial, the Plaintiff has been employed by Ka Tat Engineering Co (“Ka Tat”) as a miscellaneous labourer.  According to a written certificate by Ka Tat’s 劉成生 dated 17 September 2009, the Plaintiff worked as a miscellaneous worker since 25 July 2007 at a daily wage rate of HK$350.00 for about 10-14 working days per month.  The Plaintiff has given evidence that he has made attempts (but is unable) to secure miscellaneous work from other potential employers.

36.Mr Sham submits and I accept that the Plaintiff’s post-Accident monthly earnings were HK$4,900.00 (ie HK$350.00 x 14 days).

VII.  PAST LOSS OF EARNINGS

37.I find that the Plaintiff’s pre-trial total loss of earnings are HK$59,500.00 (ie $500.00 x 119 days) for 67 days of continuous sick leave and for the period of unemployment from 3 June to 24 July 2007, and his pre-trial partial loss of earnings are HK$267,670.00 (ie (HK$12,000.00 – HK$4,900.00) x 37.7 months) for the period from 25 July 2007 to 14 September 2010.  Thus, the Plaintiff’s total pre-trial loss of earnings are HK$327,170.00 (ie HK$59,500.00 + HK$267,670.00).

VIII.  FUTURE LOSS OF EARNINGS

38.The Plaintiff claims and I accept that a multiplier of 9 is appropriate (see Cheng Kwok Sang v Maxim’s Caterers Ltd [2003] HKLRD (Yrbk) 441, Ho Sik Tung v Lau Kin Sun & anor [2001] HKLRD (Yrbk) 429 and Ching Kam v Au Wing Keung & anor [1999] HKLRD (Yrbk) 356).  Since the Plaintiff can only resume work as a casual miscellaneous labourer after the Accident, his future loss of earnings are HK$766,800.00 (ie (HK$12,000.00 – HK$4,900.00) x 12 months  x 9).

IX.  LOSS OF EARNING CAPACITY

39.The Plaintiff claims to be entitled to an award under this head of claim to cover the risk of facing disadvantages upon being thrown onto the open job market.  Mr Sham submits that an award equivalent to 6 months’ loss of earnings being HK$29,400.00 (ie HK$4,900.00 x 6 months) is appropriate.

40.In Moeliker v A Reyrolle & Co. Ltd [1977] 1 WLR 132, 141, it is said as follows:

“Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market?  I think the question is whether there is a “substantial” risk or is it a “speculative” or “fanciful” risk … …  If the court comes to the conclusion that there is no “substantial” or “real” risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.”

41.In Chan Wai Tong v Li Ping Sum [1985] HKLR 176, 183, Lord Fraser of Tullybelton said as follows:

“…… A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk – see Moeliker v. A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140 where Browne, L.J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant’s age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant’s earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant. In the present case there is no evidence at all on these matters. Accordingly their Lordships are of opinion that the sum of $108,000.00 awarded by the Court of Appeal under this head was unjustified and must be deleted.”

42.Thus, in respect of the considerations to be taken into account to identify whether the risk that a plaintiff will at sometime before the end of his working life lose his current job and be thrown on the labour market is a “substantial” risk or a “speculative” or “fanciful” risk, all sorts of factors will have to be taken into account varying almost infinitely with the facts of the particular case, eg the nature and prospects of the employer’s business, the plaintiff’s age and qualifications, his length of service, the remaining length of his working life, the nature of his disabilities, and any undertaking or statement of intention by his employer as to his future employment.

43.I accept that the Plaintiff’s work efficiency, ability to attend to finer or more meticulous work, his capacity for concentration, and hence his general earning capacity, have been impaired as a result of his right eye injury.  I also bear in mind the following matters: (a) his education and background, (b) the fact that he has worked for Ka Tat for more than 2 years yet he remains a casual miscellaneous labourer paid on the basis of a daily wage rate for the days he actually worked for the company, (c) the difficulties he will face in securing other work if he were to lose such a regular employer albeit on casual basis, (d) his injuries and residual disabilities which are not inconsequential although not within the “serious category”, and (e) the vicissitudes of life.  On balance, I am satisfied that the Plaintiff’s injuries leave a legacy of residual impairment and/or disability that will disadvantage him in holding onto and finding work in future.  Taking into account the above matters as well as the award for loss of future earnings and the length of his service with Ka Tat to date, and following Moeliker and Chan Wai-tong, I award HK$29,400.00 under this head.

X.  SPECIAL DAMAGES: MEDICAL EXPENSES

44.I allow a total sum of HK$2,530.00 for incurred medical expenses which are supported by receipts from CMC as helpfully summarised in a schedule submitted by Mr Sham.  In the Revised Statement of Damages the Plaintiff has claimed a sum of HK$10,800.00 (ie HK$100.00 x 12 x 9) for future cost of eye drops for relief over his working life. I see no reason to reject the same given the Plaintiff’s continued complaint that his right eye often feels dry and/or painful. Thus, a sum of HK$13,330.00 (ie HK$2,530.00 + HK$10,800.00) should be awarded as medical expenses.

XI.  SPECIAL DAMAGES: TRAVELLING EXPENSES

45.The Plaintiff claims a sum of HK$1,000.00 for travelling expenses.  He has attended YCH and CMC on the various occasions specified above.  In the early stages of his recovery when his right eye condition was more acute, it would have been reasonable for the Plaintiff to travel by taxi, and I allow the sum of HK$1,000.00 under this head.

XII.  SPECIAL DAMAGES: TONIC FOOD

46.The Plaintiff claims a sum of HK$1,000.00 under this head. Such claim is unsupported by any receipt.  There is no evidence before me (documentary or otherwise) as to what tonic food has been purchased or consumed.  Only a reasonable sum will be awarded where there is no evidence as to the advisability or suitability of tonic food from any doctor or herbalist or person with medical knowledge.  Following Yu Ki v Chin Kit Lam [1981] HKLR 419 (see also King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54 and Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575) and judging from the nature of the Plaintiff’s injuries and disabilities, I allow a global sum of HK$1,000.00 for his claim under this head.

XIII.  SPECIAL DAMAGES : COST OF SPECTACLES

47.The Plaintiff claims a sum of HK$650.00 under this head, which I find reasonable.

XIV.  EMPLOYEES' COMPENSATION

48.In the Revised Statement of Damages, the Plaintiff admits that he has received HK$1,340.00 as advance payment for medical expenses from the Defendant.  On 8 February 2010 (ie subsequent to the Revised Statement of Damages), H H Judge Lok granted final judgment in favour of the Plaintiff against the Defendant in DCEC 342/2009 for employees’ compensation in the sum of HK$164,817.00 with interest thereon at 4% pa from 1 April 2007 to 8 February 2010 and thereafter at judgment rate (“EC Judgment”).

49.Apart from the advance payment of HK$1,340.00, the Plaintiff has not received any employees’ compensation as awarded by the District Court. Nevertheless, since the Plaintiff is entitled to enforce recovery of employees’ compensation pursuant to the EC Judgment, and in light of section 26(1) of the Ordinance, the value of the EC Judgment ought to be deducted from any damages that may be awarded in this case.

XV.  SUMMARY

50.I summarise the above awards as follows:

	HK$
PSLA	370,000.00
Pre-trial loss of earnings	327,170.00
Post-trial loss of earnings	766,800.00
Loss of earning capacity	29,400.00
Past medical expenses	2,530.00
Future medical expenses	10,800.00
Travelling expenses	1,000.00
Tonic food	1,000.00
Cost of spectacles	650.00
Less employees' compensation	(164,817.00)
	1,344,533.00

51.I therefore grant judgment in favour of the Plaintiff against the Defendant in the sum of HK$1,344,533.00.  Interest is payable on the award for PSLA at 2% pa from the date of the Writ of Summons to the date of judgment herein, and on pre-trial loss of earnings and other special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment.

52.There is no reason why costs should not follow event.  I grant a costs order nisi that the Defendant do pay the Plaintiff costs of the assessment of damages (including all costs reserved, if any) with certificate for counsel to be taxed if not agreed, and the Plaintiff's own costs be taxed in accordance with Legal Aid Regulations.

Representation:

Mr Walker Sham instructed by Messrs Cheung & Yip for the Plaintiff.

The Defendant acting in person and absent.