IMRAN v. INTRAFOR HONG KONG LTD

HCPI 434/2020

[2023] HKCFI 2032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 434 OF 2020

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J U D G M E N T

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1.  This is the plaintiff (“Imran”)’s claim against the defendant (“Intrafor”), his then employer, for personal injury allegedly resulting from an accident at work in a construction site on 27 April 2019. Both liability and quantum are in dispute. Imran has had legal aid until February 2022. He appeared in person at the trial.

THE ALLEGED ACCIDENT

2.  Prior to working for Intrafor, Imran has worked in various jobs for over a decade since coming from Pakistan to Hong Kong. By the time of the alleged accident, Imran was 45 years old, and had been a general construction labourer in the employ of Intrafor for nearly 5 years.

3.  In the morning of 27 April 2019, Imran was working at a hospital construction site at No 118 Shatin Pass Road, Chuk Un, Kowloon (“the Site”). He was teamed up with Mr Leung Siu Keung (“Leung”) to conduct ground drilling work at the Site by using a Standard Penetration Test (SPT) hammer to be fixed to a drill casing of a drill rig machine. Leung was the operator of the machine and Imran assisted.

4.  The SPT hammer has two ends, a head and a tail. According to the photographic evidence, the length of the hammer should exceed a normal man’s height and carry some weight. There is no dispute that it was lying horizontally on the ground right before the operation in question. The operation involved first attaching the head of the hammer to the drill rig machine by a hoisting rope/wire. The operator would operate the drill rig machine to hoist the hammer by its head up and vertically to where it would be fixed to the drill casing. To keep the hammer stable without swinging while hoisted above the ground, Imran would strap a canvas band around the tail of the hammer, and then hold the two ends of the band with his hands to guide the tail of the hammer while its being hoisted. At one point in the course of such operation, Imran fell backward to the ground. Leung came to his assistance, and Imran was eventually sent to the hospital.

LIABILITY

The dispute

5.  There is dispute as to how Imran came to fall.

6.  The pleaded case of Imran is that at the time, he was in a half squat position using the canvas strap to lift up the hammer tail. After walking a few steps forward, the screw head of the hammer tail came off from the canvas strap which he was holding, causing him to lose balance and fall backwards onto the ground.

7.  Negligence, breach of employer’s duties and statutory duties were pleaded. The existence of the duties on the part of Intrafor not to be negligent and as the employer both under the statute and the common law is not disputed. The dispute is how the accident happened and, if it happened as alleged, whether Intrafor was in breach of its duty.

8.  On the basis that the accident happened as alleged, Intrafor is said to have failed its duty to put in place a safe system of work, including adequate instruction and supervision, competent manpower, risk assessment and precaution as well as safe access and place of work. In respect of safe access and place of work, whilst it is pleaded that the ground was wet, sandy and contained gravels, Imran did not actually run his case or adduce evidence suggesting that he either slipped or was tripped as a result of such condition of the ground in the course of the hammer hoisting operation.

9.  The case of Intrafor is that first and foremost, Imran did not, as he was not required to, lift up the hammer as alleged in the operation. Further, Imran fell at the moment when the hammer tail was yet to be hoisted above the ground by the drill rig machine. In other words, the hammer tail was still touching the ground. It is also denied that the screw head of the hammer tail come off from the canvas strap which Imran was holding. According to Imran himself after he has fallen, he felt dizzy at the time. Hence Intrafor’s denial of liability. Alternatively, in the event that it is found to be liable, Intrafor alleges contributory negligence against Imran for failing to care for his own safety in the course of the operation.

The evidence

10.  Imran gave evidence[1]. So did Leung.

11.  The principles governing the assessment of credibility of witness are often cited. The court will consider the inherent probability and consistency of the evidence as well as testing the evidence against the undisputed evidence and contemporaneous documents: see for instance Hui Cheung Fai and Another v Daiwa Development Ltd and Others HCA1734/2009 (8 April 2014) at §§77 to 79 cited by counsel for Intrafor.

12.  Imran’s evidence as per his witness statement was in line with his pleaded case. However, two things must be noted.

13.  First, there was as mentioned no actual attribution of his fall to the condition of the ground of the Site where he was working at the time. More significantly, he sought to change his case in his oral evidence. According to him in court, contrary to his pleading and witness statement, the reason for his fall was not that the screw head of the hammer tail coming off from the canvas band which he was holding. He was adamant that it did not. Instead, Imran alleged that it was the canvas band which he strapped around the hammer tail which came off. That caused him to lose balance and fall.

14.  This is a significant aspect of Imran’s case of how the accident happened. In his statement to the loss adjuster of Intrafor’s insurer in September 2019, Imran indeed suggested that it was the canvas band which he was holding suddenly came off from the hammer tail, and hence his loss of balance and fall. If not earlier, such statement was formally disclosed in discovery of documents in February 2021, which was 5 months prior to the filing of Imran’s witness statement. With that, and if it has always been Imran’s case that the accident happened as a result of the canvas band which he was holding suddenly coming off from the hammer tail, one would be curious about how his witness statement would have been put together for a different version, particularly when Imran was then legally represented. Further, no attempt to correct has been made until he came to testify at the trial.

15.  That said, the new version in fact aligns with Intrafor’s case that the screw head of the hammer tail did not come off in the operation. I am prepared to proceed on the basis that this becomes the common ground as a matter of fact.

16.  The second thing to note is that whilst Intrafor’s pleaded case is that Imran fell because he felt dizzy, it becomes clear from the evidence of Leung that that was no more than what Imran allegedly told Leung when the latter came to Imran’s assistance after noticing his fall. From where he was at the moment, Leung did not in fact witness that Imran was struck by sudden dizziness and fell. That said, it remains the burden of Imran to prove how the accident happened as he now alleges.

17.  On the basis of what Imran now says, has Imran discharged his burden of proving that the accident happened as result of the alleged breach of duties on the part of Intrafor? I would answer in the negative.

18.  First, there is dispute as to whether Imran was lifting up the hammer tail in the first place as alleged. Leung was adamant in his evidence that Imran was not required to manually lift up the hammer from the ground. Indeed, all the evidence suggests that it was the drill rig machine which Leung operated that would hoist the hammer by the rope/wire attached to the hammer head. Considering the evidence, I also wonder how it came to be necessary for Imran to help lifting up the hammer by its tail at the same time when the equipment with some weight was being hoisted by its head by the drill rig machine.

19.  In court, Imran asserted that the hammer was some 5 metres away from the drill rig machine, and hence the need for him to lift up the hammer tail. Whilst his case has always been that he had to lift up the hammer by its tail in the course of its hoisting, that he had to do so also for the reason that the hammer was some 5 metres away from the rig machine was nowhere mentioned in his statement to the Labour Department, the insurer adjuster or his witness statement.

20.  Leung was not shaken at all in the relatively brief cross examination. On balance, I do prefer his evidence, and reject Imran’s case that he was at the time of the accident expected to or in fact did manually lift up the hammer by its tail while the hammer was being hoisted by its head.

21.  Second, what Imran was supposed to do was to hold the two ends of the canvas band strapping the hammer tail to ensure the hammer would be steady when it was being hoisted above the ground. According to Imran, the weight of the hammer would have certain exertion on him when he was holding the two ends of the canvas band guiding the hammer tail during the hoisting. Judging from how the work was done and the photographs, I would accept that Imran would be expected to hold tight the two ends of the canvas band in order to retain the hammer from swinging during hoisting. However, Leung’s evidence was that Imran fell when the hammer tail was still touching the ground[2]. That was when the hammer was yet to be hoisted above the ground. On balance, I prefer the evidence of Leung to that of Imran in this respect.

22.  Third, the accident happened because the canvas band strapped around the hammer tail suddenly came off, causing Imran to lose grip and balance. Was such an accident caused by Intrafor’s breach in failing to ensure the operation was safe at the time? All the circumstances considered, I conclude in the negative.

23.  The arrangement for a worker to keep steady and to guide the hammer was apparently a design partly to eliminate the risk of danger caused by the sway of the hammer during the hoisting by the drill rig machine. There is no evidence suggesting that such design per se was prone to accident particularly if the hammer was yet to hoisted above the ground.

24.  Imran was an experienced worker. According to him, he knew, and in fact demonstrated to a new co-worker, how to unscrew a drill casing fixed at the drill rig machine and how to reinstall the drill casing and fix the hammer to the drill casing right before the operation in question. There is no suggestion or independent evidence that the manner of keeping steady the hammer tail by way of strapping the canvas band around it was not reasonably safe. Nor is there evidence to suggest any risk that the canvas band would come off the hammer tail easily or suddenly. There is no evidence that similar accident has ever happened.

25.  Imran dictated how to strap the canvas band around the hammer tail at the time. Objectively all that took was for Imran to ensure that the canvas band was strapped around the hammer tail tightly and to hold the two ends of the band tightly in the operation. There is no suggestion or evidence that such operation would have called for specific training or instruction. Objectively, that was the kind of task which could be reasonably entrusted to the worker assigned to execute.

26.  The accident happened when the canvas band suddenly came off the hammer tail, which Imran was responsible for strapping around it in the first place. In the above circumstances, I am not satisfied that Intrafor should be to blame for that.

27.  Even assuming that I am somehow wrong in finding the lack of breach of duty on the part of Intrafor which caused the accident, I would have tended to find material negligence on the part of Imran in contributing to his accident in that he was primarily responsible for ensuring that the canvas band was properly and tightly strapped around the hammer tail and that it would not come off suddenly. Not less than 40% share of responsibility for causing the accident would have been allocated for that.

28.  Imran fails to discharge his burden of proving liability.

QUANTUM

29.  For completeness, I proceed to consider the quantum.

30.  Imran claims total damages in excess of HK$4,000,000.

Injuries and medical treatments

31.  Imran was sent by ambulance to the hospital. Ambulance record of his complaint about hip and right hand pain is noted. Medical examination upon admission revealed tenderness over left lower back and minor right wrist contusion with tenderness. X-ray of the lumbosacral spine showed features suspicious of fracture of L4 transverse pedicle.

32.  Subsequent physical examination at the Orthopaedics & Traumatology Department (“O&T”) showed local tenderness at the lumbar region but no neurological deficit. X-ray of the lumbosacral spine showed L5 pars defect and anterior displacement of L5 over S1. He was treated conservatively with analgesics and physiotherapy, and was discharged on 10 May 2019.

33.  On 2 July 2019, CT scan of Imran’s lumbosacral spine was performed, which confirmed the L5 pars defect bilaterally. He then claimed to have significant residual back pain and leg pain which limited walking tolerance to less than 30 minutes.

34.  Follow up at the O&T began on 8 July 2019.

35.  On 18 November 2019, MRI of the lumbar spine of Imran revealed the follows:

(1)  Mild-to-moderate lumbar spondylosis with mild lumbar scoliosis;

(2)  Mild-to-moderate anterolisthesis of L5 on S1 caused by bilateral displaced pars defect;

(3)  Posterior annular tear at L4/5 and L5/S1;

(4)  Severe left L5/S1 exit foraminal narrowing severely compressing the left exiting L5 root; and

(5)  Moderate right L4/5 lateral recess narrowing without compression of associated descending L5 root.

36.  On 9 January 2020, Imran complained about further reduction in walking tolerance to 15 minutes and the need for a walking stick. As the MRI of the lumbosacral spine showed diffuse bulging disc at L5/S1 level causing compression of nerve roots bilaterally, surgical intervention was arranged. His condition was static.

37.  Follow up at the O&T continued until the end of October 2020.

38.  On 7 April 2021, posterior decompression, instrumentation and spinal fusion were performed and completed uneventfully. There was substantial improvement, leaving minimal post-surgery residual back and leg pain.

Joint orthopaedic examination

39.  Imran was jointly examined by orthopaedic experts Dr Wong Chin Hong (engaged on his behalf) and Dr Henry Ho (engaged on behalf of Intrafor) on 22 February 2021. The experts rendered their joint expert report dated 27 May 2021.

40.  The following complaints of Imran during the joint examination were recorded:

(1)  There was constant low back pain, more on the left side. He could feel pain on the right side when the left side pain increased in intensity.

(2)  Low back pain increased and radiated down to the left lower leg after he walked for more than 10 minutes.

(3)  Low back pain also increased while walking upstairs for more than 10 steps, while bending forward or while standing for more than 15 minutes.

(4)  Numbness of the left leg, including pins and needles, which radiated down to toes.

(5)  Left leg pain increased after walking for more than 10 minutes or sitting for more than 40 minutes.

(6)  Lower limbs fatigue after walking for more than 10 to 15 minutes.

41.  The following findings were recorded upon the joint physical examination:

(1)  He could walk without aid but with mild limping. He could not walk on tip-toes or on heels. He was incapable of single leg standing by the left leg, but could do so by the right leg. He could squat down half way, but complained of low back pain.

(2)  Lordosis was present on his back. There was tenderness over midline of the back and from right lower back down to right posterior thigh. The range of movement of the back with complaint about low back pain was recorded. The results of the simulation tests (vertex compression, pelvis-trunk rotation, shoulder compression and shoulder elevation) were all positive.

(3)  Marked discrepancies in straight-leg raising test was recorded. The power of lower limbs was largely maintained but with complaint about back pain. Sensation of the right side was normal, but the sensation of the left side was reduced by 60% over the whole left lower limb. Reflexes of the knee and ankle were normal. The girth of the midcalf of right and left legs was similar.

42.  The experts also viewed the surveillance recording of Imran’s activities on 3 days in January 2021 and 1 day in late February 2021. No strenuous physical activities or heavy weight lifting were depicted. That said, as the experts observed, Imran was able to walk at a normal pace without limping. His gait and walking stride were normal. He carried an umbrella, but he switched it from right to left hand from time to time, and could even walk with the umbrella off the ground on some occasions. That was manifestation that he did not have to rely on the umbrella for support. He could walk up stairs. He could board a minibus. He could carry a plastic bag with grocery in his hand. He could bend his body forward and sideways, and to reach out to shelves to pick up his groceries as well as to pick the same from the shopping trolley and to place them on the counter at the cashier. He could pull open the main gate of a building with his left hand and lift his umbrella with his right hand and entered the building normally. Movement of body and limbs as well as back posture appeared to be normal and did not project any physical disability. Counsel for Intrafor also counted the duration of continuous standing position which Imran managed without observable signs of pain on various occasions ranging between 10 and 30 minutes and occasionally beyond 30 minutes.

43.  As mentioned, the experts found the presence of 4 positive Waddell’s signs, which suggested sub-optimal performance on the part of Imran in the simulation tests. Dr Ho observed that a number of inconsistent findings including all the positive simulation tests and the generalized rather than dermatomal sensory loss or myotomal weakness of the left lower limb. Such global neurological deficit could not be explained by the severe compression of just the left L5 exiting nerve root at the left L5/S1 foramina. These inappropriate signs supported the presence of non-organic symptoms and exaggeration. Even Dr Wong opined that the positive Waddell’s signs and 60% sensory loss over his whole left lower limb were suggestive of over-expression of symptom and signs. In other words, exaggeration of symptoms was their common finding.

Pre-existing condition

44.  Both experts opined that the mild lumbar spondylosis with limbar scoliosis, anterolisthesis of L5 on S1, the bilateral L5 pars defect and the left L5/S1 exit foraminal narrowing were all pre-existing. However, Dr Wong opined that the posterior annular tear at L4/5 and L5/S1 could have been precipitated by the fall accident. He opined that Imran would have been able to continue working for another 10 to 15 years without developing his present state but for the fall accident. In other words, Dr Wong found the pre-existing condition of Imran to have been asymptomatic by the time of the accident, which would have remained so for another decade but for the accident.

45.  On the contrary, Dr Ho opined that Imran’s symptoms were typical of spinal stenosis secondary to spondylolisthesis at the L5/S1 level which were present even prior to the date of the accident. Support was found from the record of Imran’s attendance at the hospital 1 month prior to the accident for his left buttock pain. Imran attended the hospital in the evening of 31 March 2019, complaining about left buttock plain for 1 day. Dr Ho viewed that as a typical presenting symptom of his pre-existing condition as there was no record of such pain having been precipitated by any prior injury by that date. Dr Ho also noted that the only site of pain which he complained about and recorded in the ambulance record on his way to the hospital mentioned above was his (left) buttock, which overlapped with his pre-existing pain site. Hence the expert’s opinion that Imran’s present symptoms and condition on his left buttock was due to his pre-existing L5/S1 spondylolisthesis which was already symptomatic even prior to the accident.

46.  Dr Ho opined that the pre-existing condition would have brought about the present condition of Imran in any event even without the accident. Specifically, the MRI scan showed severe left L5/S1 foraminal narrowing and severe compression of the exiting left L5 nerve root as a result of the spondylolisthesis and its associated changes of spinal degeneration. The compression was not caused by the injury.

47.  By the order of the court dated 14 January 2022, the parties were supposed to call their respective orthopaedic experts to give evidence at the trial. That is understandable, in view of the different opinion of the experts on issues concerning Imran’s pre-existing condition. However, Imran’s legal representation status changed upon the discharge of his legal aid in the month following that order. The cross examination of the medical experts would have been fairly and meaningfully conducted only on the basis that the relevant expert evidence of both experts would be tested at the hearing. At the case management conference and the subsequent pre-trial review hearing before this court, Imran was given the opportunity to confirm whether he would call Dr Wong to testify at this hearing pursuant to the previous direction of the court. Upon understanding that he had no intention of doing so, I considered that to be material change in circumstances which no longer justify insisting Dr Ho to nevertheless testify at the hearing. I therefore gave leave on 2 November 2022 for the medical expert report to be adduced without calling the experts, notwithstanding the previous direction.

48.  Now it is for the court to assess the evidence, medical expert evidence being part of it, and to make findings in respect of whether Imran indeed suffered from the physical disabilities, pain included, as alleged: see Hung Sau Fung v Lai Ping Wai and Another [2012] 1 HKLRD 1 at §45. As to the bearing of pre-existing condition of a plaintiff on the assessment of damages, it was explained in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958. There are 3 scenarios:

(1)  The first is where the plaintiff was almost certain to have gone through life unaffected by the condition and in such a case the defendant would be liable for all damages caused.

(2)  The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the plaintiff’s present state, and in such a case it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.

(3)  The third is where the present condition would certainly have occurred at some stage in any event, and in such a case clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.

49.  Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take into account the risks in the assessment of general damages. The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high. This will depend on the circumstances of the case and whether the symptoms of the pre-existing condition had occurred through natural progression or as a result of the accident or both. When assessing the damages for future loss of earnings, the conventional approach is to apply a reduced multiplier on account of the future loss associated with the plaintiff’s pre-existing condition.

50.  Considering all the evidence, I am skeptical about the reliability of Imran’s complaints and performance during the joint medical assessment. Exaggeration of symptoms and pain was the experts’ common finding. It is clear that the medical experts observed that Imran’s low back condition should be much better than what he projected.

51.  On the issue of Imran’s pre-existing condition, the major difference between the experts is whether the radiological finding of posterior annular tears at L4/5 and L5/S1 was precipitated/aggravated by the accident. Dr Wong described that as no more than a possibility but without giving sufficient reason. There is insufficient medical evidential basis for Imran to convince this court that that was more probably than not the case as a matter of fact. On the contrary, Dr Ho explained that the annular tears, together with ligamentum hypertrophy, facet joint arthrosis resulting in compression of the left l% exiting nerve root and encroaching on the right L5 exiting nerve root, were classic radiological findings, and P’s symptoms were typical of spinal stenosis secondary to spondylolishthesis at the L5/S1 level. He opined that Imran’s condition was 90% attributable to his pre-existing condition.

52.  A crucial premise of Dr Wong’s opinion was that he found the pre-existing condition of Imran to have been asymptomatic prior to the accident. However, his joint report with Dr Ho contained their common reference to the medical history of Imran that he attended the hospital on 31 March 2019 when he complained about left leg and left lower back pain as well as history of pain over the left buttock for 1 day. That overlapped with the site of injury and pain in the present accident. That reinforced the objective medical basis for Dr Ho’s opinion that Imran’s pre-existing conditions were already symptomatic by the end of March 2019. Dr Wong somehow left that pre-accident episode out of mention in his opinion, notwithstanding its obvious bearing on the issue.

53.  In court, Imran had the opportunity of addressing the above issue. His denial of the accuracy of such medical record however cannot gain much mileage for him, in view of the other factual evidence. In his statement to the Labour Department in June 2019, Imran himself stated that he slightly felt back pain a month prior to the accident. He also explained that he attended the hospital on that occasion merely because his wife urged him to do so. However, he would not have complained about his condition that caused his wife to respond that way, and he would not have agreed with his wife to go to the hospital in the evening of that day, had he in fact felt no pain as a matter of fact.

54.  When it came to his closing submission, Imran, apparently through his daughter, wrote extensively to explain what caused his hospital attendance on 31 March 2019 mentioned above. It was asserted that there was another accident and injury at work which caused him pain. Hence his attendance to the hospital on that day. It was bare factual assertion never recorded or raised in any form prior to and during the trial. There is absolutely no legitimate basis for entertaining assertions made in such a manner. If anything, the Labour Department’s reply to the former solicitors for Imran back in August 2020 confirmed that he did not have any other employees’ compensation claim prior to the present accident. Much would have been explored in terms of factual, medical and medical expert evidence, had such assertion been made properly and responsibly.

55.  Considering the degree of the pre-existing condition against that of the injury caused by the accident as found by the experts, I am satisfied that there exists abundant basis for finding that the present condition of Imran was largely attributable to his pre-existing condition instead of the injury from the accident. Dr Ho opined that Imran’s condition falls into the third category of the Chan Kam Hoi categorization mentioned above. In view of the above discussion, I prefer that to the opinion of Dr Wong.

56.  Considering Dr Ho’s opinion, counsel for Intrafor suggests that not less than 70% discount should apply to any award for the pre-trial loss, including the general damages for pain, suffering and loss of amenities as well as damages for pre-trial loss of earnings, as Imran has been experiencing the impact of his pre-existing condition both prior and subsequent to the accident on 27 April 2019. I also accept that.

Working capacity

57.  Amongst other things, Dr Wong considered that Imran would be at risk of further worsening of his low back condition if he returned to heavy manual work. He therefore recommended that Imran would be better suited for alternative jobs which would not demand repeated movement of his back and heavy lifting, for instance processing worker, petty office assistant or watchman.

58.  However, Dr Ho opined that the prognosis of Imran was excellent for any possible minor soft tissue back injury from the accident. He observed that there was very good muscle bulk in both lower limbs of Imran, which was corroborated by his normal mobility captured in the surveillance video recording. The x-ray showed normal lumbar lordosis, which indicated absence of muscle spasm and there was no external sign of injury after the accident. The soft tissues of Imran’s back had recovered and he should be able to return to normal duty as a construction site worker. It was only due to his pre-existing condition that Imran would continue to have pain in his left buttock radiating to his left lower limb as well as back pain, which was symptomatic even prior to the accident.

59.  I prefer the assessment of Dr Ho as more in line with the above discussion of the evidence.

60.  Imran was given sick leave from 27 April 2019 to 6 January 2021. There is dispute as to its reasonableness. It is trite that sick leave certificates are not conclusive evidence of when a patient is able to go back to work: see Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd CACV 172/2004 ([2005] HKEC 1077) at §9; Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at §18.

61.  Contrary to Dr Wong, Dr Ho opined that the minor soft tissue back injury, which was attributable to the accident, would have warranted sick leave for not more than 4 weeks. Counsel for Intrafor submits that the reasonable sick leave should not exceed 8.4 months beyond 9 January 2020 in any event on the basis that Imran’s condition was expressly recorded to be static. Indeed, that was also when Imran was considered to be stable for assessment by the Medical Assessment Board (“MAB”) for the purpose of employees’ compensation. Nevertheless, sick leave continued apparently to cover the time until MAB assessment and its possible postponement due to COVID-19. Repeated continuation of the sick leave thereafter was seemed to be premised on similar basis instead of Imran’s actual condition. That defies reasonable understanding.

62.  As will be discussed below, Imran’s testimony in respect of his working capacity after the expiry of sick leave also shed no favourable light on him in terms of mitigation of damage. The fact is that he has since the accident been unemployed up to the date of this trial. According to him, he would wait until he subjectively feels better.

Pain, suffering and loss of amenities (“PSLA”)

63.  Imran claims HK$550,000 which Intrafor argues to be grossly exaggerated. Counsel refers to the following authorities as comparables:

Tam Kwok Man v The Kowloon Motor Bus Co. (1933) Ltd HCPI 755/2001 (11 July 2003)

Ansar Mohammad v Global Legend Transportation Ltd HCPI 1057/2007 (9 July 2010)

Lau Chiu Wah v Kwong Key Construction and Engineering Ltd and Others HCPI 581/1998 (28 April 2000)

Poon Kwok Wing Ernest v Airport Authority Hong Kong HCPI 305/2004 (18 November 2008)

Tam Yuen Hoi v 陳牧成 and Others HCPI 983/2001 (1 August 2003)

64.  All the circumstances considered, I would accept the proposed discounted award of HK$80,000 under this head.

Loss of earnings and MPF

65.  The pre-accident monthly income of Imran in the sum of HK$27,568.50 is agreed.

66.  All the evidence considered as discussed, I accept counsel’s submission that sick leave of say not more than 9 months would be reasonable. Imran’s loss of income plus MPF entitlements would have been HK$27,568.50 x 9 x 1.05 = say HK$260,522. Discounted on account of the pre-existing condition, the award would have been HK$78,157.

67.  The fact was that Imran has never contacted Intrafor for exploring resumption of work suitable for him. Whilst he claimed in court that he has tried to look for jobs, he also claimed that he could not work for more than a few hours a day. He claimed to be not feeling well enough as of now, but would try to find jobs such as shopkeeper or watchman once he feels better. He claimed that his condition by now was not even 50% better than that immediately after the accident. That contradicts the observations of both the treating doctors and both experts as discussed above.

68.  In my judgment, after the reasonable sick leave period for his minor tissue injury attributable to the accident, Imran should have been capable of resuming his pre-accident job. If ever feeling unable to do so, that would have been due to his pre-existing condition which was already symptomatic by the time of the present accident. No further loss of income after reasonable sick leave discussed above should be attributed to the accident and Intrafor.

Loss of earning capacity

69.  In the light of his minor injuries and his recovery from that, there is no issue of any real and substantial risk that Imran will lose his job or suffer disadvantage in the labour market attributable to the accident on 27 April 2019.

Special damages

70.  Medical expenses in the sum of HK$2,695 is agreed. Traveling expenses of $1,000 is claimed. I would have allowed HK$700 as a reasonable lump sum. As to the tonic food expenses of HK$5,000, I would have allowed HK$1,000, which Intrafor agrees. Total miscellaneous special damages would have been HK$4,395.

Summary

71.  Had liability been established, the quantum of damages would have been as follows:

PSLA	HK$80,000
Pre-trial loss of earnings (+MPF)	HK$78,157
Miscellaneous special damages	HK$ 4,395
Total:	HK$162,552

72.  Taking into account the employees’ compensation in the sum of HK$500,000 received by Imran in June 2020, his claim, even if successful on a full liability basis, would have yielded nil award.

ORDER

73.  Imran commenced the present action after the receipt of his employees’ compensation, and, as now found, fails to establish liability. The claim is therefore dismissed with costs to Intrafor to be taxed, if not agreed. Imran’s own costs up to the discharge of his legal aid certificate shall be taxed in accordance with legal aid regulations. The costs order is nisi, but will become absolute without further order of the court, in the absence of application within 14 days to vary.