BETWEEN LIMBU DHARAMARAJ v. ISS ADAMS SECUFORCE LTD AND ANOTHER

DCPI 1568/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1568 OF 2011

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DECISION ON APPLICATIONS MADE PURSUANT TO ORDER 22 RULES OF THE DISTRICT COURT

1. The Plaintiff in these proceedings claimed against the 1^st Defendant, his former employer, for damages he had suffered from an accident which occurred in the course of his employment. Both liability and damages were argued and the matter was listed before this court for decision.

2. After hearing evidence and submissions, it was decided on 19 December 2012 that the 1^st Defendant was liable to pay damages for a sum of $87,368.21; and that by an order nisi the Defendant was to pay the Plaintiff’s costs.

3. By way of a summons dated 28 December 2012, the Plaintiff applied to vary the above costs order nisi, the terms asked for are as follows:

(i)   Costs of the Proceedings from 1 December 2010 on indemnity basis to be taxed if not agreed; and

(ii)   Enhanced interest on the 1^st Defendant’s costs at a rate not exceeding 10% above judgment rate.

4. The reason in support of the application is mainly that the Plaintiff had done better in trial than his sanctioned offer made on 3 November 2010 (“the Offer”). The Offer was to expire in 28 days on 1st December 2010. It was said that the 1^st Defendant having failed to accept the Offer would now have to bear the consequences on costs and interest prescribed under rule 24, Order 22 of the Rules of the District Court, Cap. 336 H.

5. Knowing that the ground taken by the 1^st Defendant in opposition is that the Offer was not a sanctioned offer under Order 22 (“Sanctioned Offer”) as Order 22 r. 5 (7)[1] was not complied with, Mr Leung sought assistance from two authorities: Mitchell and others v James and others [2004] 1 WLR 158; and Sunbeam Investments Limited v The Incorporated Owners of Villa Veneto LDBM 370/2007. In Mitchell v James non-compliance of CPR rule 36.14, the English counterpart of Order 22,  was considered to be technical and would not cause unfairness “with the defendants having legal advisers and there being no evidence that the defendants were misled”; and that the failure does not nullify the effect of the offer. This approach was adopted by HHJ Wong in Sunbeam Investments Limited. Mr Leung submits that this line of holdings should be followed in the present case.

6. The 1^st Defendant opposes to this argument. Mr Gidwani representing the 1^st Defendant relied on comments of Poon J in Montio Ltd v Tse Ping Shun Ltd (unrep., HCA 757 of 2009 [2012] HKEC 232) and those of Saunders J in Kwok Chun Wing v 21 Holdings Ltd [2011] 3 HKC 542. Like what had happened in the present case, in those two cases, the “sanctioned offer” made had failed to set out the necessary provision as prescribed under r.5 (7).

7. In paragraph 9 of his judgment, Poon J said this:

“ Sanctioned offers are part of the new regime introduced by CJR to encourage litigants to take positive settlement seriously and avoid unproductive and expensive prolongation of the proceedings. Such offers enable a plaintiff to make an offer for settlement of his claims, wholly or partially. Serious consequences may follow from the sanctioned offer. If the defendant rejects it and the plaintiff does better at trial, he may have to pay indemnity costs and enhanced interest of the sum awarded. Since it is the plaintiff who seeks to invoke the new rules to protect his position, he must strictly comply with all the mandatory requirements when he purports to make a sanctioned offer. It does not lie in his mouth to say that his failure to do so is only a technical slip or the defendant is legally represented and hence must know what the requirements are. The plaintiff has a positive duty to fully comply with the rules in the first place in order to make his offer a valid sanctioned offer. I therefore rule that the Offer is not a sanctioned offer within the meaning of Order 22.”

8. Mr Leung further contends that pursuant to Order 22 r.2 (4) a party can make an offer to settle in whatever way he chooses, so even if it is found that the Offer was not a Sanctioned Offer this court can still make orders giving effect to those consequences specified under Order 22. Order 22 r.2 (4) provides that :

“Nothing in this Order prevents a party from making an offer to settle in whatever way he chooses, but if that offer is not made in accordance with this Order, it does not have the consequences specified in this Order, unless the Court so orders.”

9. Mr Gidwani submits that if this court finds that the Offer was not a Sanctioned Offer, there is no other settlement offer which this court may consider under Order 22.r.2(4). Mr Gidwani argues that since the Offer was said to be “without prejudice” and without any express reservation of the right to refer to the letter on the issue of costs should the claim subsequently proceed to judgment^[2], it was neither a Calderbank nor an open offer.  He draws my attention to the authorities showing that Saunders J has found in Kwok Chun Wing a Calderbank offer while Poon J finds an open offer in Montrio. In the circumstances, Mr Gidwany submits that, Order 62 (5) is the only relevant provision the Plaintiff could resort to in asking this court to exercise discretion on costs. However this application was not made on basis of those factors listed out under Order 62. 

10. Having heard submissions and read those relevant authorities referred to me by the parties, I do not agree that the omission could be ignored when the requirement has been so clearly set out in Order 22 r 5.  I do not agree with Mr Leung that the omissions were worse in Montrio and Kwok Chun Wing.  I am of the view that the omission of r 5(7) is serious.  I follow the decision of Saunders J and Poon J and I am of the view that there should be strict compliance of the rules on the part of the Plaintiff if they meant to make a Sanctioned Offer. Without setting out the provision under Order 22 r 5 (7), the Offer did not provide a mechanism for the 1^st Defendant to accept after expiry of prescribed period. The Plaintiff said that since the Defendant was legally represented they should know their right under the rule. I do not see the force behind this argument because when the Plaintiff was legally represented, they should know compliance with the rule is important. For these reasons, I find that the Offer was not a Sanctioned Offer and I do not think the Plaintiff could rely on the Offer to ask for entitlements pursuant to Order 22 r 24. The provision under Order 22 r.24 (4) has not been effectively triggered.

11. As to whether the Plaintiff could rely on Order 22 rule 2(4) to ask this court to exercise discretion in the Plaintiff’s favour, Mr Leung agrees that the letter was not a Calderbank. He has tried to persuade me that it was an open offer but I could not agree with him on this as the letter was clearly marked as “without prejudice” but with no express reservation of right to disclose the same when issue on costs is to argue. In the circumstances, I find no basis to exercise my discretion as Saunder J and Poon J had done in Kwok Chun Wing and Montrio respectively.

12. Although there has been argument on whether the court should consider enhanced interest rate on costs where the Plaintiff had produced no evidence showing that there was out-of-pocket money paid to the solicitors by him or whether the modified approach suggested by Lam J, as he then was, in Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd [2010] 3 HKLRD 273 should apply in the present case, the argument should now become academic as I have found that the Plaintiff had failed to bring the Offer within Order 22. 

13. For completeness however, I would say that if I were to make a ruling I would not find in favour of the Plaintiff in the circumstance of the present case. In Shih Pik Nog v G2000 (Apparel) Ltd [2011]4 HKLRD 121 in para 17 Bharwaney J says this:

“In my judgment, save for legally aided parties, it is incumbent on the party seeking interest on costs, be that party a plaintiff or a defendant, to state, in his supporting affidavit, the amount of disbursements, costs, and costs on account paid to his solicitors during the period commencing from the lst date of acceptance up to the date of the supporting affidavit, and the date(s) of payment. Upon sight of this information, the court can either refuse to or make an order for enhanced interest on the actual amounts of disbursements, costs, and costs on account paid during the relevant period, and the court can award interest either at the full rate from the actual dates of payment or adopt the modified approach of Lam. The former approach would be suitable for cases where there have only been a few payments and the latter approach for cases where there have been multiple payments spanning a long period of time.”

14. Bharwaney J has further stated in para 18 that

“The matter was not argued before me and may have to be decided in an appropriate case. However, I would indicate my agreement with Waller LJ who stated in § 23 of his judgment in KR v. Bryn Alyn Community (Holdings) Ltd that the court has power to award enhanced interest on costs to parties who are publicly funded and who may obtain an award of enhanced interest costs and disbursements which have been incurred but not yet paid or fully paid. ……….. However, the fact that publicly funded plaintiffs may be able to obtain an award for enhanced interest on costs incurred but not yet paid or not yet fully paid by the Director of Legal Aid does not, in my judgment, justify an order for enhanced interest on costs incurred but not yet paid by privately funded parties.”

15. The Plaintiff is not asking for enhanced interest on costs for the period when the Plaintiff was legally aided. I am of the view that it is important for the Plaintiff to prove out-of-pocket expenses already paid to his solicitors.

16. As to enhanced interest on the judgment sum, Mr Leung after some brief attempts concedes that the Plaintiff has no right to argue as it was not set out in the Summons.  I would not make any ruling on this.

Conclusion

17. Mr Leung argues for and on behalf of the Plaintiff that the Offer was a Sanctioned Offer despite of its technical departure from the prescribed form, and that if I do not find in favour of the Plaintiff on this, I can still exercise my discretion under Order 22 r 2(4).  Having considered the circumstances of the present case and the holdings in the authorities referred to me, I find that the Offer was not a Sanctioned Offer and I see no basis for me to exercise my discretion under Order 22 r 2(4) in the Plaintiff’s favour. The Plaintiff’s Summons is dismissed.

Costs

18. I do not see any reason to depart from the usual order that costs should follow the event.  There will be an order nisi that the Plaintiff do pay the 1st Defendant’s costs of this application and such costs are to be taxed if not agreed. This order nisi shall become absolute if no application is made to vary the same within 14 days from date of this order.

DCPI 1568/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1568 OF 2011

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JUDGMENT

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Background

1.  The 1^st Defendant carries on the business of security and guarding. The 2^nd Defendant is the occupier of the premises relevant to these proceedings. The Plaintiff was the employee of the 1^st Defendant at the time of an accident which took place on 21 November 2008 at 5:40pm (“the Accident”).  The Plaintiff said that due to the Accident he had sustained injuries. He had claimed compensation under Employees Compensation Ordinance and had accepted a sanction payment for an amount of $50,000 taking into consideration of various periodical payments made prior thereto. He now claims against the 1^st Defendant for its being negligent and thus causing him injuries.

2.  The 1^st Defendant defended the claim saying that there was no negligence on the part of the 1^st Defendant and if there were any, the Plaintiff’s own negligence had contributed to cause the Accident.   It was further said that the Plaintiff had not been truthful in stating the cause of the incident and had therefore failed to make out his claim.

3.  Leave had been granted to the Plaintiff to discontinue the claim against the 2^nd Defendant on 2 November 2010. The present hearing was against the 1^st Defendant only.

The Plaintiff’s Case

4.  It is not disputed that at the time of the Accident the Plaintiff was assigned by the 1^st Defendant to work at the premises of the 2^nd Defendant (“the Premises”) as a security guard guarding the main entrance. He was not a regular guard there but only served as a relief. One of his duties at the Premises was to operate a metal gate at the entrance (“the Main Gate”), basically to open and to close as situation so required. Immediately prior to the time of the Accident, the Plaintiff opened the Main Gate to allow a motor cycle to leave the Premises and after that he was to close the Main Gate. As he was trying to pull the Main Gate to close, he said that it got stuck and when he applied extra force to pull, it suddenly slid out, ran over his right foot and trapped it underneath. As a result he lost balance and fell on his right side causing the right side of his body to land onto the concrete floor and he was seriously injured. The Plaintiff therefore sustained injuries to his right ankle, right shoulder and right side of his back.   

Whether accident did occur as claimed by the Plaintiff

5.  Mr Gidwani for the 1^st Defendant said that as shown by the   CCTV recording, the Accident clearly did not happen in the way as alleged by the Plaintiff. Mr Gidwani highlighted the following parts for my attention:

1.     The Main Gate did not get stuck when the Plaintiff was pulling it to close;

2.     There was no incident that Main Gate suddenly slid out and ran over the Plaintiff’s right foot;

3.     There was no incident that the Plaintiff’s right foot was trapped underneath the Main Gate;

4.     The Plaintiff did not fall on his right side of the body, if he did fall, which was denied, he fell on his left side. 

Mr Gidwani submitted that in those circumstances, the court should not find the 1^st Defendant liable on a set of facts different from what had been alleged by the Plaintiff. It was further submitted that the Plaintiff had faked the fall because one could see that the Plaintiff fell before the Main Gate came into contact with the Plaintiff.

6.  The Plaintiff did not agree to the above contentions. He said that the Main Gate did get stuck, but it was only outside the scope of the camera so the CCTV recording did not show this part.

7.  Before I go on, it would be helpful to know the particulars of the Main Gate. According to the 1^st  Defendant the size of it was about 20 ft in length and 8 ft in height. It was meant to fence off the whole width of the entrance to the Premises when it was closed. The Main Gate with its dimension and weight was supported by some metal frameworks built near its bottom on the side facing the Premises, which the parties had been referring them to be the horizontal member. The Main Gate was on wheels to run on a pair of rails which were about 2 feet apart from each another. Wheels were built both underneath the Main Gate itself and the horizontal member.  The Main Gate would have to be operated manually by either being pulled or pushed to move on the rail towards the direction as intended by the one operating it, either to open or to close.

8.  It was common ground that one of the major duties for the security guard taking that position at the Premises was to operate the Main Gate as necessary to allow vehicles to ingress or egress. It was not a very complicated task.

My Finding

9.  I have the benefit of watching the CCTV recording, clip no. 6 is relevant. From the CCTV recording it was obvious that there was no incident of the Plaintiff’s right foot being trapped underneath the Main Gate. It was also obvious that the Plaintiff fell on his left instead of on his right. It could also be seen that the Main Gate did not get stuck. I do not agree with the Plaintiff that this part was not caught by the camera of the CCTV, I could see from the CCTV recording that at the material time, he opened the Main Gate to allow a motor cycle to leave the Premises but he did not open the Main Gate very wide. One could still see part of him even he went outside of the scope of the CCTV camera.  It could be seen that he appeared again very soon as he was walking back pulling the Main Gate to close. This happened almost in no time.

10.  I however do not agree with the 1^st Defendant that it showed the Plaintiff losing balance before his body came into contact with the Main Gate. In fact from the CCTV recording, the Plaintiff was walking between the pair of rails pulling the Main Gate. He was walking slightly sideways so that to make one step ahead, he would have to move his right leg across his left, then his left leg would step forward to gain support, and then he would move his right leg across his left again, he repeated that about 6-7 times as he advanced by about 7 steps. On his last step before he fell,  he was about to lift his right foot across his left foot again, his right foot was however slightly too slow and the Main Gate which was still moving came into contact with his right ankle. He then lost balance and fell. He reached out his left hand towards the ground intending to get some support and his left thigh and left side of his buttocks landed on the ground.  He let go his grip with his right hand on the Main Gate at the time he fell. I agree that the Plaintiff was not knocked off by the Main Gate with force, I however do not agree that the fall came before any contact with the Main Gate. I find that the Plaintiff fell because his right ankle was hit by the Main Gate and his left foot was not in a good position to give him support to gain balance. So although there were inaccuracies or even exaggerations on the Plaintiff’s allegation on how he fell, I find that he fell at the time he was closing the Main Gate as his right foot was hit by it.

Was the 1st Defendant Negligent

11.  Particulars of negligence were pleaded in the Statement of Claim. There are altogether 10 items of them, from failing to provide a safe working system to failing to give adequate warning or warning signs.

12.  The 1^st Defendant had called two witnesses to give evidence. One was Mr Gurung the guard in charge at the Premises, the other was Mr Thappa the training officer. Much had been relied on by the 1^st Defendant that instructions had been given in a Post Standing Order issued in October 2008 to the Plaintiff when he was assigned to hold the guard post in the Premises. In page 5 instructions in relation to the Main Gate is this:

“Ensure the gate is always closed while not on operation. As the gate is to be handled manually, great care must be taken regarding the personal safety. If the gate cannot be handled smoothly or any malfunction is observed, all security guards must report the matter immediately to the Management.”

13.  When the two witnesses saw the CCTV and the manner in which the Plaintiff pulled the Main Gate to close, they were both of the view that the Plaintiff should not have positioned himself right in front of the Main Gate and moved on the same track with it as there was a risk that he would be hit by the Main Gate. They both said that he should have walked by the side of the Main Gate when he pulled it to close to avoid the risk. When asked whether the Plaintiff was informed of this before hand, both replied in the negative. Mr Thappa however said that the security guards had been instructed not to walk backward when pulling the Main Gate to close.

14.  I am of the view that the 1^st Defendant could not exonerate itself by relying on the Post Standing Order. I am of the view that with a Main Gate of this size, the guards including the Plaintiff should have been given specific instructions as to where they should position themselves when operating on the Main Gate.

15.  Further, there was actually no handle on the Main Gate for the security guards to hold on to when pushing and pulling. The Plaintiff was holding on to one of the metal bars of the horizontal members which seemed to be a convenient part to hold on to when operating the Main Gate. The horizontal members were built on the inner side of the Main Gate and were extending by about 2 feet at the bottom. This had made it difficult for the guard to walk along the inner side the Main Gate to push it to close. So unless the guard went out of the Premises and walked alongside the Main Gate on the outer side, the option left would be for him to walk immediately in front of the Main Gate between the two rails. This position was said to be risky by Mr Garrung and Mr Thappa of the 1^st Defendant. I am of the view that had the 1^st Defendant carried out thorough risk assessment and had given specific instructions to the guards as to how to position themselves when operating the Main Gate especially when pulling it to close, the Plaintiff would not have been injured.

16.  From the above, I am of the view that the Plaintiff has proved that the 1^st Defendant had failed to carry out risk assessment for the potential hazards that would be associated with the opening and closing of the Main Gate.  I also find that the 1^st Defendant had failed to provide adequate training to the Plaintiff. I am of the view that had the Plaintiff not positioned himself immediately in front of the Main Gate and walked sideways in cross steps, the incident would not have happened. I find that the 1^st Defendant was negligent and should be liable for the injuries suffered by the Plaintiff.

Contributory Negligence on the part of Plaintiff

17.  The 1^st Defendant relied on a CCTV recording to support its contention that the Accident was partly caused by the Plaintiff if not wholly. It was emphasized by Mr Gidwani that to open and close the Main Gate was a very simple task and the Plaintiff should not have suffered injuries had he been paying sufficient attention to what he was doing.  I have the benefit of viewing the recording. I cannot agree with Mr Gidwani’s submission that the Plaintiff was not paying sufficient attention. From what I can see in the CCTV recording, the Plaintiff was not otherwise occupied when he was pulling the Main Gate to close. He was not talking to other people or speaking on the phone. He was not distracted by anything that happened in the course of his pulling the Main Gate to close. One might however criticize him for not exercising good discretion when he positioned himself immediately in front of the Main Gate when pulling it and thus had imposed the risk on himself. The Plaintiff had been asked whether he could stand by the side of the Main Gate to push it to close instead of standing in front of it.  According to the Plaintiff one could not stand by the side of the Main Gate and push it to close. But this is not true. In fact one could stand on the side of the Main Gate without the horizontal members and push it to close. It would have been  possible if one walked along the outer-side of the Main Gate when pushing or pulling it to close.  I find that as an operator of the Main Gate, the Plaintiff should also have assessed the situation to see whether it would be safe to walk immediately in front of the Main Gate when pulling it to close. I find the Plaintiff also negligent.   I find that he is to be responsible for 20% of the cause of the Accident.

Quantum

18.  It would be helpful if I make my finding on the injuries before I start with assessment on quantum.

Complaint of the Plaintiff

19.  The Plaintiff said he had suffered injuries to his lower right limb, right shoulder and lower back. He was sent to Pok Oi Hospital by an ambulance. According to Dr Chan of Tuen Mun Hospital, he saw the Plaintiff on 26 November 2008 in the AED. The Plaintiff’s chief complaint was right shoulder pain. He also complained of low back pain and right ankle pain. He was treated and given some oral analgesic and a painkiller injection. He was discharged with 5 days sick leave. Follow-up treatments and physiotherapy treatments were carried out in Tuen Mun Hospital. His follow-up treatments were later taken up by clinics. An MRI scan was carried out on 8 April 2009. He was granted sick leave for about 1 year from 21 November 2008 to 21 December 2009.

20.  On 23 November 2009, the Plaintiff was examined by Dr. Wong Chin Hong and Dr. Lam Kwong Chin for the purpose of these proceedings. It was said that he was walking in a limping gait and still complained of persistent low back pain and right thigh pain, such pain had increased with various modes of strain which had got worse by 20-30% despite treatment. He also complained that there was tenderness in his right ankle. He agreed that there was no problem with the shoulder. After review of medical reports and examination on the Plaintiff the two doctors came to the same conclusion as follows:

  i.  Right shoulder: the injury in 2008 should be a shoulder sprain with soft tissue injury and had recovered well (page 218).

  ii.  Spine: They did not find any neurological deficit and no lumbosacral nerve root impingement in the MRI scan．The back pain should be of a minor degree. They found exaggeration or functional overlay on the part of the Plaintiff in his complaint. There was no muscle wasting, sensory loss or diminished reflexes in his lower limbs. These should be usual signs in a genuine spinal root involvement (page 220).

iii. Right ankle: no external deformity or swelling was found on the right ankle; there was no detectable collateral laxity and the ankle movement was satisfactory; no significant structural damage was found.

iv.  No further institutional treatment would be required as the Plaintiff had reached maximal improvement in the injuries; According to the joint medical report,

v. No permanent disability caused by the right shoulder sprain; the impairment caused by the back condition is 1 to 2% of whole person and 0.5-1% impairment caused by the condition in the right ankle, the combined impairment is 1.5% to 3%

PSLA

21.  According to the Plaintiff, at the time of trial, he still had persistent pain on right ankle and right back. He could not walk without a stick for over 15 minutes. He found it difficult to walk on stairs. Due to his back pain, he had to wear a broad belt to help him.   

22.  The Plaintiff claims $200,000 under this head. In his Revised Statement of Damages, he complained that he could no longer play volley ball or to enjoy other sports; and he was unable to sleep well due to persistent pain over his right ankle and lower back. He did not mention his not being able to enjoy sports in his witness statement nor did he mention this in court. In light of the medical evidence set out in the above, I am satisfied that the Plaintiff had suffered soft tissue injury to his right shoulder, back and ankle at the time of the accident. I however reject the Plaintiff’s saying that there was still persistent pain in the lower back and ankle to the extent as he had alleged. I accept the findings in the joint medical report and I accept the opinion of Dr Wong and Dr Lau that the subject injury would have minimal adverse effect on his activities of daily living (page 222).  

23.  After studying the authorities which Mr Gidwani has helpfully referred me to, I am of the view that the situation of the Plaintiff is no more serious than that of the Plaintiff in Lau Chu Wing and Law Wing Shing & Others DCPI 1839/2007. In reaching his conclusion that $120,000 was an appropriate award under this head, Au J accepted that the Plaintiff had residual pain in the neck and back which occasionally affects his daily activities such as washing activity and prolonged sitting; and intermittent dizziness. He rejected his complaint of general weakness over his body and inability to enjoy sports including basketball game. I am of the view that an award of like amount, ie, $120,000, is appropriate quantum in the present proceedings under this head.  

Loss of income

Pre-trial

24.  The Plaintiff was not working at the time of the trial. He was granted sick leave for about 13 months since the Accident (21 November 2008 to 21 December 2009 inclusive). Mr Gidwani submitted that the granting of the sick leave did not mean that the Plaintiff should be entitled to loss of earnings for that period. Dr. Lam was of the opinion that sick leave up to 6 months should be adequate in the situation of the Plaintiff and Dr Wong said that it was reasonable to grant leave from work while the patient was undergoing treatment, he agreed that that the Plaintiff should be encouraged to return to work force as soon as the work environment and his physical conditions allow him to do so.  I notice that the Dr Lam did not challenge the opinion of Dr Wong in this regard and  I am of the view that Dr Lam’s saying is ambiguous and could not assist the court. However in the circumstances that the Plaintiff was actually granted sick leave by qualified doctors who had examined him before certifying sick leave, and that Dr Wong’s opinion was on a review of medical findings before him and he did not challenge the validity of the sick leave already granted, I accept that those sick leave already granted should stand as the basis in assessing the pre-trial loss of earnings.

25.  I however do not find any reasons for the Plaintiff’s not working since expiry of sick leave on 21 December 2009 until today. If he had made some attempts to look for a job, I may give credit to the Plaintiff for this. His saying was that he would go back to work when his physical condition allowed him to do so but he was never ready before trial and therefore during the time he had never made any attempt to find a job. In other word, he was not ready so far. I do not accept his such saying, that was not what the experts had said in the joint report.  Even his own expert did not explicitly say that he was not ready to go back to work and that was November 2009. I am of the view that the pre-trial loss of earnings should be 13 months.

Future loss of Earnings

26.  The Plaintiff is now 42. It has been set out in the Revised Statement of Damages that he would work until he attains 65 yeas of age and thus a multiplier of 14.9 is claimed on his behalf. It is also said that on the basis that he could resume work as a car-park attendant with an approximate salary of $6,000 per month, the future loss would be $737,625 if no promotion is taken into account.

27.  In reliance on the joint medical reports, Mr Gidwani asked me to reject the claim by the Plaintiff. He submitted that the doctors were of the opinion that there had been exaggerations on the symptoms and that the Plaintiff had plainly adduced no convincing evidence to explain why he did not or could not go back to same job since the expiry of his sick leave on 21 December 2009. He pointed out that what the Plaintiff had said in the witness box was that he did not have the confidence to go back to work. I accept Mr Gidwani’s submission that that there was evidence before the court that he was able to return to the same work，that there had been exaggerations in his injuries, and that 2 years had elapsed since the expiry of his sick leave and he had made no attempt to find a job.  I agree with Mr Gidwani that the claim under this head should not be allowed.  

Loss of earning capacity

28.  Mr Gidwani submitted that no claim under this head should be allowed. The medical findings of the two doctors in this regard was that the Plaintiff should be able to return to work as a security guard with Dr Wong qualifying his opinion by saying that the Plaintiff would need to modify his job to reduce heavy exertion and lifting and he might need to take short breaks after walking or standing for 30 minutes. (page 222)

29.  In my judgment I would allow a sum equivalent to 3 months’ income for him as it may take him a little longer time to find a job in the labour market.

Special Damages

30.  The 1^st Defendant complained that there were no invoices to support the claim under this head. It was however submitted by Mr. Gidwani that any award to be made under this head should not exceed $4,875 as particularized by the Plaintiff in a table listing out all the medical consultations. I am minded to allow the medical expenses in the sum of $4,875. The expenses on nourishing food was not supported by a single shred of evidence and the Plaintiff did not tell me what nourishing food he had consumed, thus there would be no award of compensation under this item.   As to travel expenses, again there were no receipts produced. There should not be any difficulties in obtaining invoices if he had taken taxi to and from clinics for treatments and consultations. If he was taking a bus, there would be no receipts. I make an award on the basis that he was taking a bus and I allow $10 dollars for each consultation. There had been 67 consultations. The award for this is thus $670. 

Conclusion

31.  Upon hearing evidence of the plaintiff and viewing relevant reports, and for reasons set out in the above, I came to the conclusion that the grant of sick leave for about 13 months was appropriate, there should not be loss in future earning and finally I allow an amount equivalent to 3 months’ income for loss of earning capacity.

32.  From the above, I find that the 1^st Defendant should be liable to the Plaintiff, the damages assessed by me under various heads amount to a total sum of $ 298,081.96. After taking into account 20% contributory negligence; money paid as salary and EC compensation, the 1^st Defendant would have to pay the Plaintiff $ 87,368.21 for compensation in these proceedings.

Costs

33.  Costs normally follow the event. The 1^st Defendant shall pay the costs of the Plaintiff, such costs are to be taxed if not agreed. This is an order nisi and shall become absolute unless application is made to vary the same within 14 days.