NG SIK KAI v. LUI WING LOK t/a WING WAH OIL SHIP CO.

DCPI 62/2019

[2020] HKDC 14

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 62 OF 2019

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JUDGMENT

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1.  This is a personal injury claim. The plaintiff worked as a deckhand on the defendant’s fuel barge (“Yue Tai”) and was injured in an accident on 26 October 2012.

2.  The related EC claim has been settled on 2 March 2017 for HK$474,000.

Liability

The plaintiff’s case

3.  The plaintiff’s case is that he and two colleagues, namely Chung Chi Keung (the captain) (“Chung”) and Ho Kam Pui (the mechanic) (“Ho”), were on duty on 26 October 2012 on board Yue Tai.

4.  Yue Tai left its usual berthing next to the fuel boat “Kai Tak” (a sort of “mothership” for the refuelling operation) and set sail for a “client” boat seeking to refuel. At around 11pm, it was moored alongside the “client” container barge for refuelling. The plaintiff went abroad the container barge to locate the oil inlet for refuelling operation. He was not wearing any safety helmet.

5.  The sea condition was rough and the two barges were bumping against each other. The plaintiff claimed that whilst he was standing on the deck of the container barge, a roughly 1.2 metre section of the metal railing suddenly broke off and became detached completely. The section flew up like a missile from below and hit the plaintiff’s right side of his face near his ear and back of his head. He heard a “bang” and lost consciousness.

6.  When he came by, he was surrounded by the crew of the container barge. Within 1-2 minutes, the marine police arrived and he was helped to cross back to Yue Tai and then onto the Marine Police boat where he gave his statement. He was then taken to shore and to Queen Mary Hospital A&E Department.

The defendant’s case

7.  The defendant’s case is that, in summary, the refuelling operation during which the accident occurred was not authorised by the defendant thus the plaintiff was not injured during the course of his employment. Secondly, there were adequate safety training and equipment available for the plaintiff.

The refuelling operation

8.  The defendant, Mr. Lui (“Lui”), claimed that for any refuelling operation, there was a “standard procedure” :-

i)  The intended purchaser would contact the defendant by telephone. After negotiation and agreement on the type, quantity and price of fuel, method of payment etc., the defendant would then notify the crew to get ready.

ii)  All the orders would go through the defendant. The crew were forbidden to make any deals themselves as the oil price would fluctuate every day.

iii)  When ready, the purchasers would call the fuel barge directly to give them the name of the ship and co-ordinates.

iv)  When the client ship was located and with the fuel barge moored alongside, the captain of the client ship would board the fuel barge to discussed the order, and the captain of the fuel barge would call the defendant to confirm the order before the refuelling operation would commenced.

v)  Afterwards, the captain of the fuel barge would issue an invoice for the captain of the client ship to sign.

vi)  Payment would usually be settled within 10-15 days.

9.  Lui has been contacted by a new client to arrange to refuel two “Hung Shun Tat” (“Hung”) container barges to take place around 25 and 26 October 2012.

10.  However, on 25 October 2012, after refuelling of the first Hung barge, there was a price dispute after refuelling.

11.  Lui instructed the crew of Yue Tai not to release the Hung barge until payment. Lui said that the payment was finally made directly via bank transfer (instead of the usual settlement within 15 days) so the crew was instructed to release the Hung barge, but there was some delay. Lui had specifically instructed his crew not to deal with Hung further.

12.  As such, Lui did not instruct Yue Tai to perform any refuelling procedure on 26 October 2012.

13.  However, when Lui called Ho the next day at around 11pm (for an arrangement to restock oil), he was surprised to hear that Ho told him that he was busy with the mooring lines and had to call back.

14.  Lui wondered why Yue Tai needed to be moored given that there should be no refuelling operation that day. When Ho did not call back, Lui called again and Ho said that the plaintiff was injured.

15.  Lui suspected that this was an arrangement between the crew and another client ship, possibly the second Hung barge, to sell some “excess fuel” to make a secret profit behind his back. Lui said there was a name for such deals within the profession: “curry stock”.

16.  Much time in court has been used for witnesses to explain how “excess fuel” came about: e.g. how fuel was stocked by weight at 15 degrees C but sold by volume at “ambient temperature” (thus there would be a volume expansion effect), or how “excess fuel” could remain in the outlet pipes after each refuelling etc.

17.  However, how “excess fuel” came about is not important, suffice to say that all parties agreed that this phenomenon occurred (and indeed recorded in the ship document as “自來”)

18.  In view of his suspicion, Lui asked for return of the invoice booklet from Yue Tai and also found suspicious evidence (page 378 of Trial Bundle B). Each invoice with the booklet would consist of 3 sheets of paper: a white top sheet (usually to be given to the client), a blue middle sheet (to be sent to the defendant company for accounts purposes) and a pink sheet to be left as a copy in the invoice booklet.

19.  According to Lui, it was usual that whenever an invoice needed to be voided, all 3 sheets would be kept with a cross written on the top sheet. However, on inspection of the relevant invoice booklet, Lui found a “voided” invoice between the invoice for the first Hung barge (for the refueling the day before the accident) and the invoice dated 27 October 2012 for taking up fuel from Kai Tak. For this “voided” invoice, the top two sheets were missing.

20.  Lui suspected that these showed that there was secret refueling: he suspected that the top sheet was given to the “client”.

21.  The defendant suggested that the reason for voiding this invoice was because the three words “公司收” was accidentally imprinted onto this invoice from the previous invoice. However, this would not explain why the whole invoice needed to voided: one might only need to cross those words out. Further, it would not explain why the top two sheets were missing.

22.  The defendant also argued that if the accident happened before refuelling was performed, why was there a need for releasing the top sheet as an invoice.

23.  I would think that Lui was not present at the time of the incident so we only have the evidence from the plaintiff and Ho. There may well be good reasons why both claimed that the accident happened before any secret deal was done and, presumably, any secret profit has been made.

24.  In addition, Lui also requested an audit of available fuel on Yue Tai (by re-pumping the fuel to Kai Tak through the meters) and found that the amount of “excess” fuel was abnormally higher than the amount usually declared by the crew in the records.

25.  The impression, of course, was that the crew routinely under-report on the amount of “excess fuel” so that they can profit from secret “private deals”.

26.  The defendant’s witness, Ho, gave evidence that he had received a phone call from a “client ship” on 26 October 2012.

27.  Evidence regarding the identity of this “client ship” is somewhat muddled: Ho in his witness statement admitted that the phone call was from another Hung barge, and despite the instructions from the defendant the day before, Ho still proceeded with the deal. Lui claimed that despite his questioning, Ho and Chung were evasive and not cooperative, and it was not until late September 2016 that Ho finally admitted that the crew members took up an order from another Hung barge on the day of the accident. Nevertheless, in court, Ho claimed that he was not told of the name of the “client ship” during the telephone order, and that he could not now remember the name of the “client ship”.

28.  In any case, Ho admitted that the “client” initially asked for “several tens of tons” of fuel. Ho told them that he would need the defendant’s approval but he could sell them a little fuel, about “3 tons or so” and the client agreed.

29.  Ho admitted that this was a deal to sell “excess fuel” behind the defendant’s back and that all 3 crew on Yue Tai, including the plaintiff, knew about this deal. Ho also admitted that such “secret profit” practice was known to all the crew members.

30.  Whatever Ho said in court, it could clearly be inferred from the evidence that this must be the second Hung barge. The reason why Ho told them he could “sell them a little fuel” was because this would be a “private deal” in view of the defendant’s specific instruction that (despite there being a previous order for two Hung barges to be refuelled) they should not deal with Hung again.

31.  Yue Tai then set sail to the client ship’s given co-ordinates without any instructions from the defendant. Unfortunately, the defendant called Ho just at the moment when he was busy berthing Yue Tai against the client ship, and Ho admitted in court that he inadvertently “let it slip” that he was busy with the berthing lines and needed to call back later, thus arose the suspicion of the defendant.

32.  Against this, the plaintiff’s evidence was essentially that he knew nothing: he was only a deckhand and only did what he was told. He claimed that he could not remember the incident with the Hung barge the night before, that he was only told by Ho on the night of the accident that they had work. He raised anchor and did not ask further. He did not know that this was for a “secret profit” deal and indeed, that he was not aware of any practice to sell fuel secretly or the term “curry stock” (although, as stated above, he admitted that he was aware of the “excess fuel” phenomenon).

33.  I found that unconvincing. The plaintiff’s claim was that he acted essentially like a human robot: he only did what he was told and shut himself away from anything else. He did not see, did not hear and did not know much about anything outside his own work routine.

34.  On the whole, I find Lui’s evidence convincing and his suspicions based on such are logical. Ho might be criticised for failing to “tell the entire truth” (for reasons one might speculate), but what one could infer from his evidence would essentially fit with Lui’s evidence: that there was a practice of “secret profit” deals which appeared to be prevailing. I cannot see how all the “suspicious” records, the incident with the first Hung barge, and of course the circumstances of how an untimely telephone call led to the exposure of the deal, not to mention the term for such deals: “curry stock” etc., could all be “drummed up” retrospectively to fit the defence.

35.  Further, the plaintiff has been working on fuel barges on and off for over 30 years, has been working with the defendant on board Yue Tai for 3-4 years before the accident. The plaintiff has been working with essentially the same team of sailors when the whole operation was bought by the defendant so they know each other for a long time. Yue Tai has a crew of 3 on each shift. The plaintiff spent some 96 hours on each shift living and working on board Yui Tai with the 2 other crew. His work was an integral part of the refuelling operation: raising anchor, tying mooring lines, connecting fuel pipes, checking fuel tank levels, balancing the fuel tanks and monitoring the refuelling process etc.

36.  I find it entirely unbelievable that 2 of the 3 crew could keep such practice of unauthorised refuelling operations (and profits of such) in total secret from the 3^rd crew for years, especially when the 3^rd crew, that is, the deckhand, performed an integral part of the refuelling procedures: checking fuel tanks etc. and was indeed aware of the “excess fuel” phenomenon.

37.  It is of note that the plaintiff did not deny that Yue Tai was on a “secret profit” deal at the time of the accident. He did not adduce any evidence as to what he saw, heard or in any way noticed that it should have been a proper, authorised operation. It was his case that he simply did not know anything and was only “following orders”.

38.  As such, I would accept that the accident had occurred during a refuelling operation not authorised by the defendant. Thus, I find as a question of fact that although the plaintiff was technically “on duty” or “on shift” at the time, he was not injured during the course of employment (Cheng Ho Kee & Others v Secretary of Justice [2006] 9 HKCFAR 705; Fong Anne v Hong Kong Adventist Hospital HCLA 33/2009; Li Hoi Shuen v Man Ming Engineering Trading Co. Ltd [2006] 1 HKLRD 84).

39.  I also accept Ho’s evidence that the plaintiff must be aware of this “secret profit” deal. Indeed, I would think he was likely to be involved in it. However, given the findings of the court, whether the plaintiff was aware of the “secret profit” deal or not might be, arguably, irrelevant.

The accident

40.  It was the plaintiff’s case that he was hit by a 1.2-metre-long metal railing, broken off from the client barge and travelling like a projectile upwards and hitting him on the area of his right ear and back of the head.

41.  However, the plaintiff’s evidence was inconsistent. The initial QMH records showed that he “fell on same level” with “no loss of consciousness” (Discharge Sip of QMH, page 282 of Trial Bundle). The A&E medical report also stated that “he fell on ground” (page 184 of Trial Bundle).

42.  In addition, in the Report of Marine Incident dated 27 October 2012 (page 334 of the Trial Bundle), Chung, as the captain of Yue Tai, also stated that (as I translate): “It could be because of big waves, he accidentally fell on the deck of the ship causing injury to the back of the head and to the right side of the face. He was conscious….”

43.  During his evidence in chief, the plaintiff sought to explain this by saying that he was in fact unconscious. When he recovered consciousness, he was confused and loss his memory. It was only when he talked to Chung a few days later that Chung mentioned “it could be a metal rod.” He then recovered his memory and told the doctor (but the doctor evidently did not correct the medical records).

44.  On further questioning, the plaintiff admitted that he only saw a black shadow coming at him. He had a mere glimpse of the shadow so he could not react to avoid it. Then he heard a bang and lost consciousness. He also admitted that when he woke up, he did not see any metal railing or rod on the deck or any missing sections on the ship’s railings, nor was he told about or shown any broken metal railing / metal rod found by anyone (e.g. the crew of the client ship or the marine police who came after the accident).

45.  The plaintiff then changed his story and claimed that he had in fact already recovered some memory of the accident before Chung told him that “it could be a metal rod”. But he admitted that he did not asked Chung further whether he actually witnessed the accident. He said that he assumed that Chung did.

46.  Even more strangely, the plaintiff then claimed that, at a later conversation, Chung told him that he did not know how the accident happened.

47.  It is important to note that plaintiff’s case was that he only glimpsed a black shadow coming at him. As such, that would have been his memory even if his memory had “fully recovered”. He would not have any memory of actually seeing any “metal rod” because none was ever found nor shown to him.

48.  Therefore, the plaintiff would need to rely on Chung’s statement that “it could be a metal rod” as evidence to support how the accident had happened. As such, one would expect that the plaintiff would very concerned as to why Chung said “it could be a metal rod” previously and why he then changed his story.

49.  However, the plaintiff admitted that he did not ask Chung for further clarification.

50.  I find this totally illogical.

51.  Indeed, it would have been very strange for Chung to state in a report on 27 October that it could be an accidental fall, then within a few days allegedly told the plaintiff that “it could be a metal rod” and then later allegedly said he did not know how the accident happened.

52.  In any case, the plaintiff agreed that Chung never specifically told him that the accident was caused by a metal rail breaking off and flying like a projectile. He admitted that Chung only said “it could be a metal rod”.

53.  Further, from his statement in the Report of Marine Incident (written the day after the accident), Chung clearly did not witness the accident. Even if Chung ever suggested to the plaintiff that “it could be a metal rod”, it could only be one person’s speculation and open to any sort of interpretation. Of course, Chung was not called to give evidence to explain why he said that, if he said it at all.

54.  On further questioning, the plaintiff admitted that he himself assumed that it was a broken rail simply because “the shadow” came from below, although he has never seen such accident (i.e. a metal rail completely breaking off and flying like a projectile after being bumped by a fender of another ship) before.  

55.  As such, the plaintiff’s case on how the accident had happened is no more than a flight of imagination unsupported by any eye witness accounts, physical evidence, or even his own memory. The alleged statement from Chung should have been crucial but the fact that the plaintiff did not bother to pursue Chung further might at least raise a suspicion that the plaintiff has all along knew that this was not truly what happened, and he was “drumming up” an accident scenario to make a case against the defendant.

56.  As such, I find that the plaintiff an unconvincing witness and failed to prove that the accident, on balance of probability, happened as he claimed. He may well have a “slip and fall” accident (and perhaps even hit his head on a metal railing as he fell), but this is not his case.

Duty of care and causation

57.  According to the plaintiff, the accident was caused by a section of a railing on a foreign vessel suddenly breaking off and with enough force to fly upwards like a projectile, hitting the plaintiff more or less unseen and without any chance of him avoiding it. Even by his own evidence, this was clearly a “freak” accident on board a foreign vessel which the defendant had no knowledge about.

58.  This is a negligence claim: it is for the plaintiff to produce evidence to show that the defendant has fallen below the standard of care and how such has caused the accident.

59.  However, the plaintiff has failed to produce any evidence as to what specific safety measurement (for example regarding operation in rough seas) there should be, and how the failure to implement such a measurement has caused the “freak” accident as pleaded.

60.  A lot of trial time was spent on the extent of all types of safety equipment, trainings etc. provided by the defendant. But the plaintiff failed to plead precisely what safety equipment or training could have prevented such a “freak” accident.

61.  For example, much was said about the fact that the plaintiff was not wearing a safety helmet at the time of the accident. However, the court has not heard any evidence as to how a safety helmet might provide any protection in the circumstances: common sense would suggest that whilst a safety helmet might offer protection from things falling from above upon the wearer’s head, one would question what protection it might provide against a metal rod flying up from below, with the point of contact evidently at the area of the right ear and back of the head. These areas appeared not to be covered or protected by the safety helmet (from photographs shown to the court at trial). Other safety measures like provision of life vest, fire fight trainings etc. were clearly irrelevant to this accident.

62.  The only “safety issue” that may be relevant is whether there were any safety measurements regarding operations in rough sea conditions. This issue may also be relevant even if the plaintiff’s case was a “slip and fall” accident. (I note that there was no dispute that the plaintiff was wearing anti-slip shoes at the time.)

63.  Lui claimed that he had always informed the crew members that during rough sea conditions, they would need to find calm water and if not, they should abandon the procedure.

64.  Ho denied that any of the crew had a supervision role over another. It would be up to the crew to discuss and decide amongst themselves: if the sea was too rough for mooring alongside the client ship, then they should abandon the operation. There was no evidence that any such discussion took place at that night. Ho admitted that the sea condition was rough at the night of the accident but since they were able to moor alongside at the night of the accident, the operation could proceed, and they have operated in rougher conditions than that.

65.  In Cook v Square D Ltd (CA) [1992] ICR 262, Farquharson LJ stated:

“It is clear that in determining an employer’s responsibility one has to look at all the circumstances of the case, including the place where work is to be done, the nature of the building on the site…the experience of the employee…the experience…the nature of the work…the degree of control the employer can reasonably exercise…and the employer’s own knowledge of the defective state of the premises…”

66.  In Lam Ka Lok Louis v Swire properties Management Ltd HCPI 914/2003, Suffiad J stated:

“The law does not require an employer to treat its workers, in the carrying out of their everyday normal jobs which do not entail any special risk or damage by the workers, as thought they were kindergarten pupils who if not told, would not be aware of the kind of common everyday risks that a reasonable person should be aware of.”

67.  In Winter v Cardiff Rural District Council [1950] 1 All ER 819 at 822, Lord Oaksey stated:

“In my opinion, the common law duty of an employer is to act reasonably in all circumstances…he…should give adequate directions as to the system of work or mode of operation, but this does not mean that an employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion…”

68.  It is common sense that sea conditions and refuelling operation situations must be highly variable: the direction, height and length of any waves, the strength and direction of any wind, the possibility of shelter from sea and wind, the orientation the boats are moored, the deck heights and displacement of the boats, the design and the resistance of the boat hulls to motions at sea, the number, sizes and shapes of fenders between the boat etc.

69.  I find that the defendant has given some general reasonable “common sense” advice but, given the above, I fail to see how any more specific or detailed safety guidelines would be helpful or, indeed, possible: it should surely have been the decision of the plaintiff, exercising his own judgment as a seasoned sailor, to assess the condition at the time and exercise his discretion on whether he could perform his duties or not. The plaintiff did not give any evidence that he had assessed that the sea to be too rough, and that he had discussed his concern with the other crew. His case appeared to be again that he was like a human robot, he only did what he was told. I would not accept that this might in any way reflected the reality and would prefer Ho’s evidence.

70.  In conclusion, I find that the plaintiff has failed to prove that the accident had happened as alleged, and even if it had, the plaintiff failed to show that the accident was caused by any failure in safety measures, training etc. on the part of the defendant, and in any case, I find that the accident did not occur during the course of employment.

71.  I would therefore find the defendant not liable for the injuries of the plaintiff.

Quantum

72.  Having found the defendant not liable, the court will nevertheless assess quantum for the sake of completion.

PSLA

73.  The plaintiff was taken to Queen Mary Hospital A&E with a 2cm laceration over near the right ear and a scalp haematoma at the back of the head, with tenderness on left shoulder. He was fully conscious with no neurological deficit. CT scan showed no intracranial lesion. He was treated with suturing of the laceration.

74.  The plaintiff complained of right hearing loss, vertigo and tinnitus. CT performed on 28 October 2013 showed fracture of the right temporal bone and right lateral wall of the sphenoid sinus. He later developed right facial nerve palsy and was transferred to the ENT department. The facial nerve palsy caused incomplete right eye closure so he was treated with artificial tears and eye padding. He was discharged from hospital on 9 November 2012.

75.  The neurological experts agreed that he had suffered a mild head injury. The ENT experts agreed that the accident caused his right and left hearing impairment (binaural hearing impairment of 2.8%), mild tinnitus, dizziness and mild facial nerve impairment. According to the single expert ophthalmologist, his mild facial nerve palsy causes incomplete right eye closure and exposure keraopathy (treated with eye lubricants). The plaintiff also suffered from adjustment disorder due to the accident and the injuries.

76.  According to the various joint expert reports, the plaintiff still has mild right facial nerve palsy (with paresis and involuntary twitching of right facial muscles), right-sided hearing loss with intermittent tinnitus and post-concussional syndrome (intermittent headaches, dizziness, subjective impairment of memory, irritability and insomnia), blurred vision, dryness and irritation of the right eye.

77.  Although the neurologists agreed that the plaintiff suffered from a mild head injury, it was clear that this was complicated with some relatively mild degree of permanent disabilities e.g. hearing loss, dizziness, tinnitus, facial nerve palsy (causing “dry” eye problems etc.).

78.  The injury in this case is less severe than Chan Chin Shun v Yau Sin Chung HCPI 90/2005 and may be more in line with Wong Leung Chi v Luen Fat Civil Engineering Ltd & Anor HCPI 975/2002. Overall, I think this should be just below the lower end of the “Serious Injuries” category. Following Chan Ho Kan v Mo Man Ho HCPI 777/2014, I think the award under this head should be HK$500,000.

Pre-trial loss of earnings

79.  There is no dispute that the plaintiff had a total of 561 days of sick leave. There is also no dispute that the plaintiff received a fixed monthly salary of HK$11,500 with monthly bonus of HK$320.

80.  The main disputes concerned whether there were food and travel allowances.

81.  The plaintiff claimed that there were HK$2,050 food allowance and HK$300 transportation allowance. These were denied by the defendant.

82.  I note that in the Form 2 signed by the plaintiff dated 1 December 2012, there was no entry under “food allowance / value of food provided freely by the employer”, and no entry under “other items” (page 325 of Bundle B of Trial Bundle). The only entry filled in was “HK$11,500” under “basic salary”.

83.  Further, there was a daily ledge on Yue Tai which did not show any travelling allowance that the plaintiff allegedly took from the petty cash box.

84.  On the other hand, there were entries of HK$3,000 per month as “food” in the daily ledger. The defendant’s case is that the crew share the expenses for meals and this was for the share of the defendant’s son, although the defendant’s son did tend to be more generous given his position.

85.  Having considered all the evidence, I find that the defendant had provided some supplement to food expenses, so I would allow HK$1,000 for food allowance.

86.  I find that the monthly salary plus allowance should be HK$(11,500 + 320 +1,000) = HK$12,820.

87.  The pre-trial loss of earnings (including MPF) during the sick leave should be HK$12,820 x 12/365 x 561 x 1.05 = HK$248,272.47

88.  The experts have different opinions as to the plaintiff’s ability to return to his pre-accident job. Dr. Brian Choa (defendant’s neurology expert) opined that he could. Dr. Yu Yuk Ling (plaintiff’s neurology expert) also opined that he could, but with compromised work capacity: he should avoid working on barges in rough seas. Both ENT experts agreed that he could not return to his previous job but yet, both ophthalmology experts thought that he could from the ophthalmological point of view.

89.  Having assessed all the evidence, I am of the view that the job nature of a deckhand working on shifts for refuelling operation at sea is such that working on barges at rough seas could not be avoided. The ENT experts no doubt were concerned about his dizziness spells under such circumstances. As such, I do not think that the plaintiff could return to his pre-accident job.

90.  I note that the plaintiff has been working as a service attendant at Tuen Mun Hospital earning on average HK$10,253 per month. But he did not start this job until 24 October 2017, more than 3 years after his sick leave has finished on 10 May 2014.

91.  The plaintiff claimed that he was suffering from psychiatric problem during this period so he could not resume work. However, if he was seeing any psychiatrists or psychologists during this time, none appeared to have granted any further sick leaves. Further, there was no expert psychiatric evidence before the court that supported that his psychiatric problem, if any, would have prevented him from working at the time.

92.  As such, I would think that the plaintiff could have taken a similar job within about 2 months after the sick leave expired.

93.  Thus the pre-trial loss of earnings from 10 May 2014 to trial date should be:

HK$(12,820 x 64 x 1.05) - HK$(10,253 x 62 x 1.05) = 861,504 – 667,470.3 = HK$194,033.70

94.  Thus, his total pre-trial loss of earnings (including MPF) should be HK$(248,272.47 + 194,033.70) = HK$442,306.17.

Loss of future earnings

95.  The plaintiff was 49 at the time of the accident and is 56.8 years old at time of trial. Assuming that he will retire at 65, the multiplier should be 8.4 according to the Personal Injury Tables Hong Kong 2016.

96.  His future loss of earnings should be HK$(12,820 - 10,253) x 1.05 x 12 x 8.4 = HK$271,691.28

Loss of earning capacity

97.  I would allow roughly 3 months of earnings for any disadvantage that the plaintiff might have in the open labour market, say, HK$30,000.

Special damages

98.  The parties have agreed that this should be HK$12,974 as claimed.

99.  Summary:

	HK$
PSLA	500,000
Pre-trial loss of earnings	442,306.17
Future loss of earnings	271,691.28
Loss of earning capacity	30,000
Special damages	12,974
Sub-total:	1,256,971.45
Minus EC settlement sum	(474,000)
Total:	782,971.45 (plus interest)

100.  There would be interest at 2% per annum for general damages from the date of the Writ to the date of judgment and there be interest at half judgment rate per annum for special damages and pre-trial loss of earnings from the date of accident to the date of judgment.

Order

101.  As I find that liability is not established, I give the order that the plaintiff’s claim be dismissed with an order nisi that the plaintiff shall pay the costs of this action to the defendant, to be taxed if not agreed, with certificate for counsel.