WONG KWEI PIU v. CHOW CHI CHEUNG t/a SUN LEE CO

DCEC 1082/2017 & DCPI 2318/2017
(Heard Together)

[2022] HKDC 437

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1082 OF 2017

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IN THE MATTER OF AN APPLICATION BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2318 OF 2017

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BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.  On 18 February 2016, the 59-year old employee (Wong Kwei Piu (“Piu”) of a recycling company, Chow Chi Cheung (“Chow”) trading as Sun Lee Company (“Employer”), fell from a height of 3 meters from a collapsed wooden platform while at work. He sustained injuries to his right chest.

2.  On 17 May and 19 October 2017, Piu, through his former Legal-aid assigned solicitors, Messrs Burke & Co (“Burke”), issued against the Employer respectively an Application for employees’ compensation (“EC Action”) pursuant to the Employees’ Compensation Ordinance[1] and a writ for damages (“PI Action”).

3.  On 24 August and 28 November 2017, interlocutory judgments were entered by consent respectively in the EC and the PI Actions.

4.  Despite the entry of the interlocutory judgments in both Actions at an early stage, the EC Action was not settled but was litigated in tandem with the PI Action all the way to trial. More unsatisfactorily is that it was not until 25 May 2021 when this court expedited the matter directing that the joint psychiatric medical expert report adduced in the PI Action be used in the EC Action could the combined trial of the assessment of quantum of both Actions be set down at the adjourned hearing on 14 September 2021.

5.  By the time of the trial, Piu had changed his Legal-aid solicitors 4 times in both Actions: from Burke to Huen & Partners, then Ellen Au & Co, and lastly to H Y Leung & Co LLP, the present solicitors.

6.  At the trial, Piu was represented by his Legal-Aid assigned counsel, Mr Tim Wong, and the Employer by counsel Mr Maurice Chan who appeared together with counsel, Mr Leon Ho (Mr Chan and Mr Ho are jointly referred to as “Counsels”).

B. A PRELIMINARY MATTER: DISCLOSURE OF AN INTERIM PAYMENT ORDER IN THE EC ACTION

7.  After the conclusion of the assessment hearing and the lodging of the parties’ written submissions, this court accidentally found in the trial bundle[2] Piu’s solicitors had lodged, an interim payment order dated 3 November 2020 of HH Judge Leung (“IP Order”) granted in the EC Action. By the IP Order, the Employer was ordered to pay $100,000 to Piu as an interim payment, which payment was further ordered to be paid out from the sanctioned payment.

8.  Since the provisions of O 22, r 25(2), the Rules of the District Court, prohibit the communication of a sanctioned payment to the trial judge “until all questions of liability and the amount of money to be awarded have been decided”, this court therefore immediately informed the parties of this matter and directed them to lodge written responses. Their attention was particularly drawn to the question of recusal.

9.  In their written responses, the parties urged this court to continue dealing with the EC Action as they believed that no prejudice would be caused by the disclosure of the IP Order.

10.  I agree with the parties’ submissions, and do not consider that a recusal is needed in this case.

11.  A breach of O 22, r 25(2) does not automatically lead to recusal of the trial judge, who retains a discretion in deciding whether the disclosure of a sanctioned payment makes “a fair trial impossible and whether justice demands that he recuse himself”: See Elijah Saatori v Raffles Medical Group (Hong Kong) Ltd.[3]

12.  A pertinent fact of the IP Order is that it has only disclosed the fact of the sanctioned payment but not the amount. Thus, the amount of the sanctioned payment has not been communicated to this court. I am therefore of the view that the fact of a sanctioned payment having been made would have nil prejudicial effect in this trial of the assessment. On the other hand, a recusal would cause substantial incurring of extra costs and yet further delay. Having taken into account the parties’ positions, and most importantly that no prejudice would likely be caused to either party, I therefore consider that the continuation of the assessment of compensation is just in the circumstances.

C. INJURIES AND TREATMENT

13.  Piu’s medical treatment recorded in the medical reports, notes and records were admitted as agreed evidence. The following expert medical reports were ordered to be adduced as evidence without calling the makers:-

(i) The joint orthopaedic expert report of Professor Kumta (engaged by Piu) and Dr Chun Siu Yeung (for the Employer) dated 24 August 2017 (“JOR”);

(ii) The singe joint cardiothoracic surgery expert report of Dr Cheung Hing Chuen Henry (“Dr Cheung”) dated 16 December 2019 (“SJCR”); and

(iii) The joint psychiatric expert report of Dr Wong Chung Kwong (for Piu) (“Dr CK Wong”) and Dr Peter Yu (for the Employer) (“Dr Yu”) dated 16 August 2021 (“JPsyR”).

14.  At the Accident and Emergency Department (“A&E”) of Princess Margaret Hospital (“PMH”) to which Piu was admitted, the doctor found him to have suffered “tenderness over right upper back, abrasions over right thigh”, and fractured right 7^th to 9^th ribs, and was prescribed with analgesics.[4] Upon his discharge from the A&E on the same day, Piu travelled to Shenzhen, Mainland China, and stayed with Ms Zheng, his then girlfriend.

15.  On 10 April 2016, Dr Thomas Leung, whom Piu had consulted as from 24 February 2016, found from the X-ray he carried out on Piu the presence of pleural effusion at Piu’s fractured right ribs. Piu was then referred to the Department of Surgery of PMH.[5] After Piu was admitted there the next day, he was hospitalized for 4 days for pleural tapping.

16.  On 13 May 2016, Piu was examined by Dr Peter Tio, the orthopaedic doctor appointed by the Employer’s insurer. The X-ray conducted on that day showed “residual effusion and healing ribs fractures”. Dr Tio found Piu had localised pain at the right lower ribs with good air entry and full range of motion. He opined that Piu had made an overall improvement of over 50%.[6]

17.  On 22 July 2016, Piu was examined by Dr David Cheng (a specialist in orthopaedics & traumatology) engaged by the Employer’s insurer. Dr Cheng found that Piu had full chest expansion with normal air entry. The X-ray revealed that the pleural effusion had largely regressed, and that the 7^th to 9^th right rib fractures had healed satisfactorily. However, complaint of shortness of breath during severe exertion was reported.[7]

18.  Between 20 May and 19 August 2016, Piu had altogether received 13 private physiotherapy treatments at Allied Health Rehabilitation Centre.[8] The private physiotherapist reported that Piu was found to have subjective pain when carrying a heavy load but objectively, the swelling, tenderness and pain around the fracture site was found to have been reduced.

19.  On 12 September 2016, Dr Yeung Man (“Dr Yeung”) of Sunshine Medical Centre, the private doctor Piu consulted for his alleged persistent pain on his chest wall, referred Piu to the pain clinic of PMH.[9]

20.  From 14 September to 19 October 2016, Piu received occupational therapy services at the Occupational Therapy Department of PMH. At the work rehabilitation assessment on 14 September 2016, Piu’s “Overall Matching of Work Demand & Current Capacity” was recorded as “Not match, with significant degree of limitation”. The same findings were recorded for the assessment on 19 October 2016.[10] Piu’s overall work capacity was stated to be not-matched with his pre-accident job, and he was advised to change job with lesser physical demand.[11]

21.  On 2 June 2017, Piu attended a review assessment by the Employees’ Compensation (Ordinary Assessment) Board (“MAB”). In the certificate of review in the prescribed Form 9 (“Form 9”) issued on 16 June 2017, Piu’s injuries were stated to be “fracture of right 7-9^th ribs resulting in right chest wall and neck residual pain”. The MAB assessed the permanent percentage loss of earning capacity (“LOE”) at 1.5%; and entitlement of 3 periods of absence from duty, totalling 429 days:-

(i) from 18 February to 2 March 2016;

(ii) from 17 March to 10 August 2016; and

(iii) from 8 September 2016 to 2 June 2017.

22.  On 28 July 2017, the joint orthopaedic experts examined Piu and found that his fractures at the right 6^th to 8^th ribs had healed and reached maximal medical improvement. They did not find Piu’s neck pain that he complained of was related to the accident. They opined that the reasonable sick leave periods should only be limited to periods (i) and (ii) stated in the Form 9 above. They opined that Piu was fit to return to his pre-accident employment, and that he suffered 1% LOE.[12]

23.  On 7 February 2018, Piu was referred to the Department of Anaesthesiology of PMH for his “left neck and shoulder pain”.[13] Piu altogether received 3 trigger point injections on 29 March 2018,[14] 13 December 2018[15] and 6 June 2019.[16]

24.  From 3 April to 25 June 2018, Piu had another round of physiotherapy treatments at PMH.

25.  On 18 April 2019, a CT scan of Piu’s thorax at St Teresa’s Hospital was conducted. In the report of the said CT scan (“Teresa Scan”), old healed fractures of the right 6^th through to 12^th ribs[17] were reported.

26.  On 19 June 2019, upon the referral by Dr Yeung, Piu privately consulted Dr Clarence Lee (“Dr Clarence Lee”), a specialist in respiratory medicine. Dr Clarence Lee referred Piu to the government’s SKC Psychiatric Specialist Clinic after he diagnosed Piu with having “depressive symptoms with chronic insomnia, vague suicidal thoughts and financial constraints”.[18]

27.  On 21 October 2019, Piu was examined by the cardiothoracic surgery expert, Dr Cheung. In the SJCR, Dr Cheung opined that Piu’s complaint of chest wall pain was a direct result of the accident but the pain he had complained of was disproportionate. However, he did not find that Piu’s complaints of neck and shoulder pain and shortness of breath were related to the accident.

28.  Dr Cheung believed that Piu’s reported symptoms were not exaggerated but were more due to his severe distress than the result of exaggeration or malingering. He agreed with the observations by Dr Clarence Lee that Piu’s subjective pain complaints might have been psychosomatically related, and recommended him to seek psychiatric consultations.

29.  On 23 March 2020, Piu received psychiatric treatment from the government’s West Kowloon Psychiatric Centre (“WKPC”) of Kwai Chung Hospital. Since then and throughout 2021, Piu had been regularly followed up there at intervals of about 2 to 3 months.[19]

30.  Whilst seeking treatment from WKPC, Piu also concurrently sought private psychiatric treatment. On 21 May 2020, he consulted a private psychiatrist, Dr Yan, and later Dr Tsang Fan Kwong (“Dr Tsang”) on 25 May, 1, 8, and 19 June 2020, and from October to December 2020. Dr Tsang diagnosed Piu with having suffered from Major Depressive Disorder (“MDD”).[20]

31.  On 23 June 2021, Piu was jointly examined by the psychiatric experts, who diagnosed Piu with having suffered from a mild degree of MDD.

D. THE WITNESSES

32.  There were altogether three witnesses who testified at this combined trial: Piu himself and his 2^nd wife, Ms Zheng; and Chow of the Employer. All the 3 witness statements of Piu,[21] and each of the witness statements of Ms Zheng and Chow were ordered to stand as evidence-in-chief.

D.1 Piu’s evidence

33.  Piu was born on 6 August 1956, and is now 65. At the time of the accident, he was getting divorced from his 1^st wife. Before Piu got married to Ms Zheng in September 2018, Ms Zheng lived in Shenzhen with the couple’s 6-year-old son.

34.  Piu stated that he was greatly affected by the injuries he sustained from the accident. He became easily irritable as a result of his worries about his health and financial matters. In the beginning of 2018, Piu and Ms Zheng briefly broke up before they made up and later got married in Hong Kong.

35.  Piu had a long-standing employment relationship with the Employer going back to 1982. After several years working for the Employer, Piu left the employment but re-joined it in 1995. Since then he had continuously been working for the Employer until he met the accident. Piu stated[22] that before the accident, he was paid $18,000 basic monthly salary. In addition, he also received double pay of $18,000, and a bonus of $10,000 if the Employer made profit. In his oral testimony, Piu further stated that shortly before the Chinese New Year on 8 February 2016, he had received on 30 January 2016 one-month’s double pay and $10,000 bonus. Piu therefore claimed that his monthly average earnings before the accident were $20,000.

36.  Piu stated that after the accident, he could only do less physically demanding jobs such as to work as a security guard. In May 2017, he had in fact obtained a Category “A” and “B” security guard permit.[23] After the accident, he had also worked part-time as a packing worker of kitchen accessories for a friend, Mr Hui. He worked 5 hours a day at $40 per hour until Hui’s factory was closed down in 2018.[24]

37.  In October 2017, Piu had requested Chow to let him resume employment doing lighter duties. Piu said that when Chow turned down his request, he felt very pained.

38.  Piu testified under cross-examination that towards the end of 2020, he had worked for “Chan Keung” (陳強) for 1 or 2 days, sorting out rubbish. He stated that he could handle the job because it was largely automated. There was no fixed payment, and he could not recall how much he had received. He remembered having been paid $700 and at times instead of payment, he was given presents.

39.  Upon further probing by counsel, Mr Chan, on the total number of days he worked, Piu stated that due to the influence of the psychiatric medications, his memories were hazy (“懵懵懂懂”) and he could not be sure. He was however adamant that it would not have been 4 months as Mr Chan suggested.

40.  Upon questioning by this court, Piu stated that he had probably received from Chan Keung altogether $5,000 to $6,000.

41.  Piu said that the accident had affected him physically and emotionally. He did not accept that his neck and shoulder pain was not related to the accident. Piu stated that had the accident not happened, he would have been able to get a full-time job such as a security guard. He was living on social benefits.[25]

D.2 Ms Zheng’s evidence

42.  Ms Zheng was a PRC resident. She met Piu before he divorced his first wife. After she gave birth to their son, she worked as a part-time sales girl earning about RMB$2,000 per month. She stated that after Piu’s accident, she no longer worked but stayed home to look after Piu and the son. Ms Zheng also stated that Piu could not sleep well, and his mood had completely changed. Piu’s temper became so bad that she had briefly left Piu in the beginning of 2018 before they made up and got married later in the same year.

43.  She stated that Piu’s mood had affected their marital relationship.

D.3 Chow’s evidence

44.  Chow is one of the partners of the Employer. At the time of the trial, he was 71. His other partner called Cheng Shu Li (transliteration) was 73, who Chow stated that had only come back to work occasionally. Chow testified that he used to be closely involved (“親力親為”) with heavy-duty work (“粗重嘢”). However, due to his age, he only had helped out by doing lighter duties in the past 1 or 2 years. However, his long-standing employees, such as “Chan Ho Keung” (transliteration) and “Black-boy Ming (黑仔明)” were only in their 50s.

45.  Chow testified that the nature of the Employer’s re-cycling business roughly involved the collection of re-cycled materials which needed to be weighed once they were collected. Unless the materials were light weighing about 2 to 3 kg, they were mainly recycled by machines. The collected waste paper would be compressed to paper bundles weighing about 300 to 400 kg. These compressed paper would be taken to a push cart which would be pushed by 1 or 2 workers.

46.  Chow accepted that Piu was a good worker during the many years he worked for him. Piu’s duties prior to the accident included collecting, weighing, dismantling, and compressing recycled materials which were mainly metal, copper pipes, machines, clothes, paper and plastic. Occasionally, he needed to drive a 5.5-ton truck to deliver the recycled metals to a factory for sale.

47.  As for Piu’s pre-accident earnings, Chow stated that Piu was never paid double pay, but would sometimes be paid bonuses ranging from several thousand to $10,000 or a bit more before the Chinese New Year.

48.  Chow stated that when Piu requested, in October 2017, the resumption of the employment, he told Piu that he needed to discuss this with his partner before giving him a reply within one month. Chow said that as he and his partner were concerned with Piu’s litigations against them in relation to the accident, they had decided not to accede to Piu’s request. Chow also stated that Piu then told him that he had decided not to come back to work for him. Chow said he then believed that Piu had resigned, assuming that he would find other work as he had already got a security guard permit.

E. OTHER EVIDENCE

49.  The Employer had engaged Verity Consulting Limited (“Verity”), an investigation company, to conduct surveillance on Piu. The Employer disclosed in the Supplemental List of Documents filed on 8 May 2020 Verity’s Surveillance Reports dated 11 August 2016 (covering surveillances on 25 and 26 April, 21 May and 22 July 2016); 6 April 2017 (covering surveillances on 27 October 2016, 2 February and 2 March 2017); and 25 August 2017 (covering surveillances between May and August 2017).

50.  The surveillances mainly concerned Piu’s physical activities – going out and about, walking up and down the stairs without holding any handrail for more than 30 minutes[26] on some occasions.

51.  The relevancy of the surveillance evidence however has been overtaken by the event of Piu’s abandonment of, at the beginning of the trial, the part of his pleaded case in relation to neck and shoulder complaints and disabilities. With Mr Wong’s further confirmation that Piu’s claim was not based on walking disabilities or physical mobility, I am of the view that the probative value of the surveillance evidence had substantially negated. There is therefore no need to further elaborate on this evidence.

F. ISSUES AND THE EVALUATION OF EVIDENCE

52.  Apart from an agreed amount of $193,500[27] that Piu received as an advance payment, almost every single issue in these proceedings was vigorously contested throughout.

53.  It is trite that when assessing the overall truthfulness of a witness, this court should, apart from observing the demeanour of a witness, also take into account all the undisputed or indisputable evidence (documentary or otherwise).[28]

54.  Overall, I am most impressed by Chow, whom I have found to be a completely honest witness, and I accept his evidence. As for Piu, I have reservations as to the truthfulness of his evidence. Whilst I will refrain from stating categorically that he was a dishonest witness, I have however found that some of the material parts of the evidence were not corroborated, and tended to have been either exaggerated or not credible. Hence, should there be any differences of evidence between Piu and Chow, I prefer Chow’s.

55.  Ms Zheng’s evidence on Piu’s medical treatment is largely hearsay, and I place no weight on it. Her evidence about Piu’s mood is substantially similar to that stated by Piu. I find this part of the evidence credible as it is supported by the medical expert evidence. I accept it.

G. FINDINGS ON INJURIES

56.  According to the medical treatment summarized in Section C above, Piu’s symptoms and complaints were mainly pain and discomfort on his chest, neck and shoulders; shortness of breath; and depression. Since the complaints in relation to neck and shoulders were abandoned at trial, Piu’s pleaded disabilities according to the Amended Re-Revised Statement of Damages (“ASOD”) filed on 11 January 2022 are:-

(i) Pain over the right chest wall, which was aggravated by prolonged walking for over 30 minutes, sleeping on the right side, lifting heavy object of more than 30 kg for 8-10 minutes: §2(3)(a);

(ii) Shortness of breath on exertion with tolerance limited to 3 to 4 minutes of walking on slope: §2(3)(b);

(iii) Difficulty with straight arm lifting: §2(3)(g); and

(iv) MDD.

57.  The pleaded disabilities therefore consist of orthopaedic, cardiothoracic and psychiatric injuries, which will be discussed in turn below.

G.1 Orthopaedic injuries

58.  There is little dispute that Piu had suffered fractured ribs on the right side, which were complicated by pleural effusion.

59.  What is in dispute is the number of ribs that had been fractured and the location. In the medical note of the A&E of PMH (see §14 above), the fractured ribs were stated to have been the 7^th to 9^th ribs. However, in the JOR, they were only confined to the 6^th to 8^th ribs: JOR §§62 and 78.[29]

60.  Yet, in the Teresa Scan, there is a reference to old “healed fractures to the right 6^th through to 12 ribs”.[30]

61.  Accordingly, the number of the fractured ribs is the same (3 ribs) for both the A&E report and the JOR, and they only differ in location. On the other hand, the number of the fractured ribs reported by the Teresa Scan is double the number of either of the A&E report or the JOR, and also covers a much bigger area of the rib cage. Piu sought to rely on the Teresa Scan while the Employer contended that the finding in the JOR should be preferred.

62.  In my view, the most important matter in this assessment is to determine the totality of the impact the rib fractures had on Piu and the extent of the disabilities resulting from them. Hence, the disputes on the number and the location of the fractured ribs are not material.

63.  Nonetheless, I believe that the Teresa Scan is more accurate as it is the most recent examination. Based on the result of the Teresa Scan, I’d be inclined to find that the fractured ribs were the 6^th to 12^th ribs. I believe that the doctor in PMH, the orthopaedic experts, and even Dr David Cheng engaged by the insurer (see § 17 above) might have missed out the hairline cracks on the X-rays due to the reason stated by Dr Cheung in the SJCR that “the undetected fractures were hairline cracks and not displaced, so that it may easily be missed on a simple PA film. Delayed bleeding after rib fractures is not uncommon”.[31]

64.  A discussion of Piu’s injuries should begin with the results of the examinations carried out by Dr Peter Tio in May 2016 and Dr David Cheng in July 2016 (see §§16-17 above). By that time, Piu had already been discharged from PMH for pleural tapping. According to Dr Tio’s report, I find that in May 2016 Piu had not yet completely recovered from the injuries of the fractured ribs. However, his condition two months later was markedly different. By July 2016, the X-ray examination result, according to the medical report of Dr David Cheng,[32] shows that the fractured ribs were already satisfactorily healed. I believe that when Piu was examined by the orthopaedic experts one year later in July 2017, Piu’s residual symptoms caused by the fractured ribs were likely to have been diminished.

65.  In the circumstances, I agree with the findings made by Professor Kumta and Dr Chun in the JOR at §84 that Piu had recovered well from his chest injury. At that time, Piu’s neck pain he allegedly experienced 4-5 months after the accident was already noted but it was opined to have been not related to the accident. They were therefore correct in excluding the said complaint when providing their opinions. Having considered Piu’s abandonment of the shoulder and neck complaints, and the medical evidence discussed above, I consider that the joint opinion of the orthopaedic experts is reasonably held and accept their opinion. I adopt the opinion of the orthopaedic experts and find that Piu was able to return to his pre-accident job. The sick leave periods in the total number of 161 days[33] were reasonable; and the LOE to be 1%. Since the ending date for sick leave period (ii) (see §21 above) was 10 August 2016, it is almost 6 months as conceded by Counsels for the Employer.

G.2 Cardiothoracic injuries

G.2.1 Admissibility of the evidence of the cardiothoracic surgery expert

66.  Dr Cheung was jointly engaged by the parties to examine Piu’s cardiothoracic condition which Piu alleged to have developed after the accident.[34]

67.  Before discussing the findings and opinions of Dr Cheung, it is necessary to firstly deal with the contentions raised by Counsels in their closing submissions (at §33) about the admissibility of Dr Cheung’s opinion. It was contended that since Dr Cheung’s expertise was only in the field relating to lungs, he was not qualified to give an opinion on a chest injury, the injury Piu had.

68.  Mr Wong asked this court not to accept Counsels’ contentions[35] and submitted that Dr Cheung’s expertise included the areas on heart and chest.

69.  I am puzzled by these contentions on admissibility, especially when they were only raised at the late stage of Counsels’ closing submissions. It should be noted that as early as 3 September 2019, Master Peony Wong granted leave to the parties to adduce cardiothoracic evidence at trial and to instruct Dr Cheung of “Cardiothoracic Surgery specialist and an expert to be nominated by the Defendant [(the Employer)] to conduct a joint medical examination on the Plaintiff [(Piu)]”.[36]

70.  Further, by the order of this court dated 14 September 2021, when setting both of these Actions down for trial, I ordered, among others, that the SJCR compiled by Dr Cheung be adduced as evidence without calling Dr Cheung.[37]

71.  In light of the orders that I have referred to above, the issue of admissibility is effectively all water under the bridge. Notably, from the order dated 3 September 2019 made by the Master, Dr Cheung was in fact instructed by the Employer. Hence, I believe that the Employer would have been satisfied with the expertise of Dr Cheung when doing the nomination. I find it wholly inexplicable that Counsels would have seen it fit to advance the objections in their closing submissions. According to the declaration Dr Cheung signed in the SJCR, he declared that his report and medical opinion were provided in his capacity as a “specialist in cardiac and thoracic surgery”.[38] I therefore agree with Mr Wong’s submissions that Dr Cheung has medical expertise in the field relating to heart and chest. I hold that the evidence of Dr Cheung is admissible.

G.2.2 Dr Cheung’s findings and opinions

72.  Piu was examined by Dr Cheung on 21 October 2019, more than 3 years after the accident. Upon examination, Dr Cheung found that Piu’s fractured ribs were well healed without any impairment on his lung functions.[39] In the SJCR, Dr Cheung noted 4 items of complaints mentioned by Piu at the examination, namely:-

(i) right chest wall pain;

(ii) left neck and shoulder pain;

(iii) shortness of breath on exertion; and

(iv) insomnia.

73.  As Piu has already withdrawn his complaints in relation to neck and shoulder pain, item (ii) is no longer relevant. The only relevant items are therefore (i) right chest wall pain, (iii) shortness of breath on exertion; and (iv) insomnia. Items (i) and (iii) are cardiothoracic injuries, which Dr Cheung documented extensively.[40]

74.  For item (i), right chest wall pain, it was reported that Piu still complained bitterly of diffuse and severe pain over the entire right chest wall after standing for less than 30 minutes or sitting for an hour or two. Piu told Dr Cheung that the pain had affected his sleep, and he constantly felt tired. As a result, he was not able to do any kind of work.

75.  For item (iii), shortness of breath on exertion, Piu told Dr Cheung that he needed to stop and rest for a while before he could reach his home on the 5^th floor. For item (iv), Piu claimed that he could only sleep for 3-4 hours every night.

76.  In his examination, apart from some mild diffuse tenderness at the right side of the chest wall around the 4^th to 9^th ribs, Dr Cheung could not find any abnormalities[41] either on Piu’s chest walls or the respiratory system. He opined that only the complaint of pain on the right chest wall was a direct result of the accident, but not the shortness of breath: SJCR at §7. Dr Cheung found that the pain Piu still complained of was disproportionate to the actual physical injuries caused by the accident, and therefore believed that it was likely related to psychosomatic disorder.

77.  Hence, Dr Cheung opined that the permanent disability caused by the accident was the fractured ribs resulting in chest pain: SJCR at §16. Nonetheless, the combination of the chest wall pain (related to the accident) and Piu’s other neck and shoulder problems (not related to the accident) led Dr Cheung to opine that Piu would be unlikely to be able to resume any manual labour: SJCR at §8. Dr Cheung took the view that Piu’s sick leave should cover the period when he was still under active treatment, which was up till mid-2019: SJCR at §13. The LOE was opined to be at 5%: SJCR at §17.

G.2.3 Discussion

G.2.3.1 Dr Cheung’s conclusions on sick leave and % LOE rejected

78.  Counsels for the Employer asked this court to reject Dr Cheung’s opinion that Piu was unable to resume work. They stated that since Dr Cheung formed his opinion on the basis of Piu’s alleged orthopaedic and psychiatric conditions, but not cardiothoracic conditions, his opinion was therefore flawed.

79.  Counsels also suggested that Dr Cheung had failed to have regard to Piu’s exaggeration of symptoms when arriving at his conclusions. They stated that the intensity of the chest wall pain Dr Cheung recorded at the SJCR was shown to have been more than the time when he was examined by Dr Chun and Professor Kumta. This, Counsels contended, was a clear sign of exaggeration and fabrication of symptoms that Dr Cheung had failed to take into account.

80.  Since Dr Cheung had reviewed a large number of medical records and notes before examining Piu, I believe that he was in the best position to evaluate the genuineness of Piu’s symptoms. I find that Dr Cheung had taken great care to review Piu’s medical records. His prudent approach can be seen from the discerning decision in not repeating another CT thorax scan after a relatively recent Teresa Scan and the scan by Hong Kong Health Check & Medical Diagnostic Group Limited in June 2019. I also note that he had carefully discerned the issue of the disproportionality of Piu’s chest wall pain complaint to the injury that he had suffered. All in all, I am satisfied that Dr Cheung was acutely alive to the inherent risk of symptom exaggeration and the issue of malingering, which can be evidenced by the observations he set out at the concluding paragraph of the SJCR (§19):-

“I conducted a long interview with the patient and also secretly observed him while he was in the waiting room. I sincerely believe that the Plaintiff [(Piu)] is distressed and showed no signs of malingering or exaggeration of his alleged symptoms.”

81.  For these reasons, I accept Dr Cheung’s conclusion on the question of exaggeration that Piu’s complaints to him were genuine, but nonetheless reject his opinions in relation to sick leave and the percentage of LOE for the following reasons.

82.  As stated in §76 above, apart from the residual chest wall pain, Dr Cheung had not found any other symptoms or complaints that were related to the accident. Dr Cheung also found that the fractured ribs had healed after the resolution of the effusion in April 2016, and that “well healed multiple rib fractures” did not cause “obstructive airway diseases”: SJCR at §2. Thus, I find his opinion that Piu’s sick leave should be up till mid-2019 when he was under ongoing treatment clearly cannot be supported by these findings. I believe that his conclusion had likely been substantially influenced by Piu’s other complaints unrelated to the accident including shoulder and neck pain. Since Dr Cheung had not excluded the unrelated symptoms when providing his opinion in relation to Piu’s ability to resume work, the percentage of LOE of 5% and the sick leave period, I cannot accept his opinion in relation to these matters.

G.2.3.2 Court’s assessment of the reasonable sick leave and % LOE?

83.  In assessing the reasonable sick leave and the appropriate percentage of LOE, I need to examine all the evidence.

84.  As outlined in Section C above, since the accident, Piu has been receiving medical treatment involving multiple medical issues. The medical records show that several months after the accident, Piu also received treatment for the neck and shoulder problems, which Mr Wong had conceded only at the trial as not being related to the accident. As a result of the late concession, the medical evidence and Piu’s evidence adduced in the trial were bound up with evidence not just relating to the chest injuries (fractured ribs) caused by the accident, but also to other non-accident related medical issues.

85.  A massive conflation of evidence is therefore evident throughout this trial. I find Piu had a high tendency to attribute almost all of his alleged discomfort to the accident. The number of disabilities that Piu narrated in the 1^st Witness Statement of June 2017 (at §§11 & 79) is a good illustration of such tendency. In it, Piu alleged that he suffered injuries to his “neck, ribs, lungs and internal injury and also [his] back” with disabilities to his right ribs, problems with lungs, pain in the neck, problems with eyesight in his left eye, and the slight numbness in the right arm and hand. Apart from the ribs, and perhaps the lungs which might have been relevant to the accident, the other complaints are plainly unrelated or unsupported by the consultation notes from PMH to be discussed in §§86-87 below before he gave the 1^st Witness Statement.

86.  According to the medical notes of PMH[42] on 11 August, 8 September, 24 November and 22 December 2016; and 2 February and 2 March 2017, not only do they not support Piu’s complaints of problems with eyesight or numbness in the right arm and hand as stated in the 1^st Witness Statement, they show that the chest pain (caused by the fractured ribs) was improved and mild. The treatment Piu was provided during this time was largely related to his more serious complaints of back and neck pain. Notably at the consultation on 24 November 2016, Piu complained of “persistent right back pain and neck pain” and “pain on extension of neck” alongside with pain “over left posterior neck and posterior right chest wall”.[43]

87.  As evidenced by the consultation records on 22 December 2016[44] and 2 February 2017,[45] I find that Piu’s residual chest wall pain and tenderness would have substantially diminished by January 2017 at the latest. This is because by 2 February 2017 and afterwards,[46] the recorded complaints in the consultation notes were mainly relating to back and neck issues.

88.  The conclusion I reach above is further supported by Dr Cheung’s observations that Piu’s complaints of chest wall pain was disproportionate to the ribs injury, and he believed that they were more likely attributable to psychosomatic problems rather than cardiothoracic issues. Hence, I find that by January 2017, Piu’s ongoing treatment was unlikely to have been related either to orthopaedic or cardiothoracic symptoms but to some other symptoms relating to neck, shoulders and back and the psychosomatic issue, which later developed.

89.  As clearly reflected in the 1^st Witness Statement, Piu, probably due to the pain and discomfort caused by a host of medical conditions (which are largely unrelated to the accident), appeared to have not been able to discern the causes for the various symptoms that he experienced, and therefore had the tendency to conflate them. In fact, Piu in his testimony still insisted that his neck and shoulder pain was caused by the accident notwithstanding the abandonment of these complaints from his case. From an examination of the medical evidence discussed above, I believe that the 3 shots of trigger point injections Piu received at the Pain Clinic were most likely in relation to his neck and shoulder pain rather than symptoms related to the accident (see §23 above). Thus, when Piu was examined by Dr Cheung, the pain he exhibited was probably genuine, but it was (as Dr Cheung has found) mostly unrelated to the chest.

90.  At the trial, I found Piu’s tendency of conflation persisted. I do not believe that it was true when he stated in his testimony that he still felt pain on the ribs and the chest and that he had low breathing capacity (“唔夠氣”). The medical records discussed above simply do not support this.

91.  For the reasons stated above, I find that Piu’s ongoing complaints of pain and the medical treatment after January 2017 are unlikely to have been related to orthopaedic or cardiothoracic symptoms. Accordingly, his sick leave for his residual chest pain should be up till January 2017 (see §87 above), with the first 6 months overlapping with the sick leave that I have allowed for orthopaedic disabilities.

92.  As for the LOE, the medical evidence clearly shows that the fractured ribs had healed by April 2016, with little impairment on Piu’s lung functions. Dr David Cheng’s examination on 22 July 2016 (see §17 above ) , and the findings of the treating doctor at PMH on 11 August 2016[47] both confirm that Piu’s air entry was found to be normal. After having considered the JOR and the SJCR, I am clearly of the view that Piu’s orthopaedic and cardiothoracic disabilities caused by the fractured ribs in fact overlapped. In the absence of any evidence that the cardiothoracic injuries have affected his earning capacity beyond the time after rib-fractures had healed, I do not think that Piu has suffered any additional LOE over and above the percentage that has been found by the orthopaedic experts. I do not find Piu suffered any additional LOE in connection with cardiothoracic disabilities.

93.  In conclusion, based on my finding in §91 above, I assess Piu’s reasonable sick leave up till January 2017, and for assessment purpose up to 17 January 2017.

G.3 Psychiatric injuries

G.3.1 The JPsyR

94.  Piu’s psychiatric treatment and the diagnosis of MDD have already been discussed above (see §§26-31 above). The psychiatric experts jointly opined that as a result of the accident, Piu suffered and would continue to suffer from a mild degree of MDD on a long-term basis.[48] They opined that Piu had received appropriate and effective psychiatric treatment by Dr Tsang, and Piu had reached maximal medical improvement: JPsyR at §§89 and 99-100.

95.  The experts however differ in their opinions in relation to sick leave periods; Piu’s ability to resume work; and the percentage of LOE. For sick leave, Dr CK Wong opined a period of 12 months from 25 November 2019 to 24 November 2020, which was 6 months before and 6 months after Piu was first treated by Dr Tsang on 25 May 2020: JPsyR at §103.

96.  On the other hand, Dr Yu recommended sick leave of 6 months from 23 December 2019 to 22 June 2020, which was 3 months before and 3 months after the first attendance at WKPC on 23 March 2020: JPsyR at §106(c).

97.  As for the possibility of Piu to resume employment, Dr CK Wong remarked that due to the number of challenging stressors that Piu faced, his prognosis was guarded. Piu would continue to suffer from a mild degree of MDD despite the end of the litigation. He opined that Piu’s LOE caused by the MDD was 5%: JPsyR at §104. Dr Yu however opined that Piu was able to return to his pre-accident job despite suffering from a mild degree of MDD on a long-term basis. He assessed the LOE at 3%: JPsyR at §106(d).

98.  As for future treatment, Dr CK Wong recommended Piu to continue with psychiatric treatment by Dr Tsang for one year after the litigation: JPsyR at §§109-110; while Dr Yu did not believe private treatment was required, and Piu should continue with the treatment at WKPC which had provided Piu with appropriate and effective treatment since March 2020: JPsyR at §111.

G.3.2 Was the finding of MDD reliable?

99.  Counsels for the Employer contended that the findings of MDD by the psychiatric experts are unreliable.[49] It was suggested that the experts’ adoption of the psychiatric diagnostic manual “DSM-5”[50] was not a reliable methodology as it was largely based on the subjective mental state of Piu, who was prone to gross exaggeration.

100.  These contentions can be quickly disposed of as I find Counsels’ submissions are only bare assertions without any merits. The medical evidence adduced before this court overwhelmingly shows that Piu was diagnosed as having suffered from MDD. The diagnostic manual DSM-5 is commonly used in the field of psychiatry for assessing mental related diseases. Counsels were unable to refer to any evidence that provides for a more reliable or preferable methodology of assessment to support their arguments. As a matter of fact, I find little disagreement between the experts on the diagnosis. I also do not think Counsels were seriously disputing the diagnosis. Their real contention, in my view, is rather on the issue of causation to which issue I will next discuss.

101.  To conclude, I accept the experts’ diagnosis and find Piu suffered from MDD.

G.3.3 Was the MDD caused by the accident?

G.3.3.1 The arguments

102.  Apart from the diagnosis, Counsels for the Employer also challenged the reliability of the experts’ opinion that Piu’s MDD was caused by the accident. They stated that the experts’ attribution to Piu’s physical injuries and the 5 stressors[51] stated in the JPsyR (at §88) as the sufficient causes of Piu’s development of MDD was flawed.

103.  Counsels stated that when Piu was examined by the orthopaedic experts in 2017, his prognosis was already satisfactory. They contended that since the examination by the joint psychiatrists took place more than 3 years after the examination by the orthopaedic experts, Piu’s physical injuries and symptoms must have been resolved. They therefore suggested the experts’ conclusion on causation was problematic.

104.  Apart from contending that the physical injuries as being insufficient to support the experts’ opinion on causation, Counsels also argued that Dr CK Wong’s reliance on the 5 stressors was based on “false premises”. They criticized that the stressors were either untrue (such as financial stress) or lack sufficient connection with the MDD (such as the stressors in relation to Piu’s worries about future livelihood and litigation).

105.  Counsels also contended that one of the stressors, the litigation stress, should not be accepted as an attributable factor to Piu’s development of MDD: Hung Sau Fung v Lai Ping Wai & Anor.[52] Relying on a passage (§64) in Hung Sau Fung, Counsels stated that a tortfeasor will only be liable if a claimant has adopted an abnormal sick role in not getting proper treatment when a defendant has prolonged resistance to a rightful claim. It was suggested that in this case there was absolutely no resistance to Piu’s claim as the Employer admitted liability very early on.

106.  Counsels also referred to a Canadian case of Leblanc v London Life Insurance Co,[53] a judgment of the Superior Court of Justice in Ontario, in suggesting that the litigation stress that experts have included as one of the causative factors should be excluded as part of the vicissitudes of life.

107.  Mr Wong submitted that a positive prognosis made by the orthopaedic experts was a separate matter and it had nothing to do with the ongoing litigation anxiety Piu suffered as a result of the accident, leading to the development of Piu’s MDD. A relapse of a psychiatric condition as a result of anxiety generated by ongoing litigation could be regarded as a new cause related to the tort: see Lai Yuk Shim v Hung Ling Kwok (Practice Note),[54] at §§7-8.

108.  Mr Wong submitted that Counsels’ arguments were not supported by any expert opinion, and that their contentions about litigation stress were therefore clearly untenable in light of the remarks made by Bharwaney J in Lai Yuk Shim (supra) referred to above.

G.3.3.2 Findings

G.3.3.2.1 Causation

109.  I have found above that Piu had suffered pain caused by a host of medical issues. As I have already referred to Dr Cheung’s observation regarding the lack of signs of malingering, I have no basis to believe that Piu’s symptoms he complained of were not genuine. Hence, I find that the experts’ evaluation was based on genuine physical symptoms.

110.  A tortfeasor must take his victim as he finds him. If the physical or psychological symptoms of a victim are in the nature of “unconscious exaggeration” (unintended, which may relate to a recognized psychiatric disorder) as opposed to “conscious exaggeration or malingering” (which involves deliberate feigning or exaggeration of injuries), a tortfeasor will be liable for the full consequences from the accident, albeit that they are wholly unexpected and unforeseen.[55]

111.  The court went on to state that if it is found that a genuine complaint by the patient and one for which there is no organic basis, it should not be regarded as deliberate malingering and deliberate dishonest exaggeration. It is a condition called “functional overlay”, a concept elaborated in Digby v Essex County Council [1994] PIQR P53 referred to by Bharwaney J in Hung Sau Fung at §58.

112.  The court in Leblanc (supra) excluded the claimant’s mental stress associated with the litigation process in assessing damages and as an attributable factor to the illness for her claim for disability benefits. The Canadian court took the view that mental stress “is inherent in any dispute that cannot be resolved by the parties without the intervention of a court”.[56]

113.  I do not find Leblanc advances Counsels’ arguments. Quite apart from the fact that I do not think this case binds this court, litigation stress that Leblanc excluded only belongs to 1 of the 5 stressors Dr CK Wong identified in the JPsyR, in addition to physical injuries he opined as also one of the constituting causes of Piu’s MDD (see f/n 51). According to the JPsyR, the experts opined that Piu’s development of MDD was not caused by one isolating stressor of litigation stress, but by a number of stressors that were inflicted on Piu as a result of the accident.

114.  After having considered the medical evidence, I find that the views of the psychiatric experts about the adverse mental psychological effect of the accident on Piu was substantially corroborated by the opinion of Dr Cheung and the medical evidence referred to in Section C. I believe that the instance of break-up with Ms Zheng Piu mentioned in the evidence is probably due to the immediate adverse impact on Piu’s emotional state after the accident. I therefore accept the experts’ evidence in relation to Piu’s mood.

115.  Piu had been working for the same Employer for a long time before he met the accident. Hence, it is quite natural for Piu to have great attachment to this long-standing employment. Piu’s deep attachment to his pre-accident employment can be seen in his reaction when he mentioned the refusal by the Employer to let him return to work. I saw him break down in tears when he said that he felt very painful. The loss of his pre-accident employment would have naturally caused him mental anguish.

116.  Given Piu’s personal background (that he had a second marriage with a younger son) and age, and particularly the protracted litigation of quantum assessment, I find that Piu would have likely been subject to anxieties about a host of matters as Dr CK Wong stated in the JPsyR. On the evidence, I believe that Piu’s personal and family life, work prospects and financial situation had been adversely affected in many ways after the accident. These matters, according to Dr CK Wong, are stressors, which are capable of constituting “sufficient causes” for Piu’s development of MDD.

117.  Pertinently, I am unable to find any compelling reason as to why this court should not place weight on and accept the opinion and findings jointly provided by both psychiatric experts that Piu’s MDD had been caused by the accident: JPsyR at §112(c). The Employer adduced no evidence to support Counsels’ contentions against these opinions. On the contrary, I find that there is ample evidence that it is more likely than not that Piu had been mentally affected by the stressors mentioned in the preceding paragraph. In the circumstances, I accept the opinion of the experts and find that Piu had suffered MDD as a result of the accident.

118.  As discussed in §§26, 28 and 76 above, Piu’s complaints were found to have no organic basis. Thus, I find Piu’s complaints of pain were more likely to have been a case of “functional overlay” without any “conscious exaggeration or malingering” as discussed in Hung Sau Fung.

119.  Despite the Employer’s early admission of liability in these proceedings, the present litigation process, for whatever reason that was not immediately apparent to me, was indeed unduly long. In my view, it is a fact, as Dr CK Wong has stated, that Piu had suffered from the long and distressing effects of litigation. As Rogers VP stated in Lam Pui Yi Anita v Secretary for Justice [2011] 1 HKLRD 56[57] where the plaintiff had adopted an abnormal sick role: “[44] …as a result of an accident and what followed from that, that the plaintiff has suffered loss because she was unable to work because she had involuntarily had serious symptoms, such as pain and restriction of movement, and was not malingering or dishonest about it… [46] …the chain of causation from the original accident has not been broken…”. I’d therefore be inclined to find that the chain of causation has not been broken.

120.  In the circumstances, I find that Piu’s MDD was caused by the accident and the Employer, according to Hung Sau Fung, should be liable for the damage caused to Piu.

G.3.3.2.2 Sick leave and LOE

121.  As stated above, the experts held different opinions on these matters.

122.  According to the consultation summaries of WKPC, Piu started receiving treatment at WKPC on 23 March 2020.[58] Out of the 5 consultations Piu attended on 23 March, 18 May and 3 August 2020; and 18 January and 29 March 2021, except on two occasions on 18 May 2020 and 29 March 2021 when Piu was not granted any sick leave, he was granted sick leave for the other three consultations.

123.  Whilst receiving treatment in the public sector, he also concurrently received private treatment from Dr Tsang from 25 May 2020 until December 2020. In Dr Tsang’s report dated 21 June 2020,[59] Dr Tsang found that after Piu’s treatments at WKPC, his condition was improved by 20% to 30% with better sleep: §50 of Dr Tsang’s report, and continued improving after he was treated by Dr Tsang. In his supplemental report dated 24 December 2020[60] at §§7-8, Dr Tsang stated that Piu had better sleep and the mood remained low. He opined that Piu had moderate depression. As Piu was found to have an unsatisfactory response to combined/adjunct drugs treatment, Dr Tsang recommended Piu to try Transcranial Magnetic Stimulation (TMS) Therapy.

124.  Notwithstanding their differences, both experts however agreed Piu’s sick leave should have commenced sometime before he started receiving psychiatric treatment, i.e. towards the end of November 2019. Having considered the medical evidence discussed above, I accept the experts’ view that Piu should be entitled to sick leave before he started receiving psychiatric treatment. As noted in §26 above, in June 2019, Dr Clarence Lee had already diagnosed Piu with suffering from depression. It is there reasonable to adopt an earlier commencement date as suggested by Dr CK Wong, i.e. as from 25 November 2019.

125.  As to when the reasonable sick leave for Piu’s MDD should end, I do not accept Dr Yu’s opinion that it should end in June 2020. The medical evidence shows that after June 2020, Piu was still actively receiving treatment both privately from Dr Tsang and in the public sector at WKPC. As shown in the consultation summaries of WKPC above, Piu was still granted sick leave by WKPC on 3 August 2020 and 18 January 2021 notwithstanding the refusal to grant Piu sick leave by the treating doctor at WKPC on 18 May 2020 (see §122 above). Since Piu was still undergoing psychiatric treatments in both private and public sectors in May 2020, I find that the refusal of WKPC in granting Piu sick leave was at odds with the overall psychiatric medical evidence, and I therefore place no weight on that refusal. After having considered all the evidence in the round, I find that the end date of November 2020 opined by Dr CK Wong is more reasonable. I find that by that time, Piu’s MDD was reasonably managed and Piu was well enough to resume gainful employment as evidenced by Piu’s disclosure under cross-examination (see §38 above) that Piu worked for Chan Keung towards the end of 2020.

126.  In the circumstances, I’d be inclined to find that the reasonable end date was around November 2020. Similarly, for easy computation, I adopt the date of 24 November 2020. I therefore find that the reasonable period of sick leave should be 1 year from 25 November 2019 to 24 November 2020.

127.  By the time Piu was examined by the joint psychiatrists, Piu’s MDD was of a very mild degree as shown in the JPsyR. Hence, I reject Dr Tsang’s recommendation that Piu was in need of TMS, as well as Dr CK Wong’s recommendation for Piu to continue receiving treatment with Dr Tsang after the end of these proceedings.

128.  As for the effect the MDD had on Piu’s working capacity and his ability to return to his pre-accident employment, I prefer the opinion of Dr Yu as I find his opinion was based on a much more comprehensive examination of the medical evidence. Hence, I adopt Dr Yu’s opinion and find that Piu’s percentage of LOE to be 3% and that his ability to return to his pre-accident employment was not affected by the mild MDD.

G.4 Conclusion

129.  The summary of the findings is tabularized below:-

Types of Injuries	Sick Leave	% LOE	Ability to resume pre-Accident job
Orthopaedic	6 months 18 February -17 August 2016	1	Yes
Cardiothoracic	6 months overlapping with above, and continued until 17 January 2017	Nil	Yes
Psychiatric	12 months 25 November 2019 – 24 November 2020	3	Yes

130.  Based on the above summary, I find that Piu should be entitled to sick leave from 18 February 2016 to 17 January 2017 (“Period I”) for his orthopaedic and cardiothoracic injuries in the total of 11 months, and 12 months for the MDD from 25 November 2019 to 24 November 2020 (“Period II”). The total sick leave is therefore 23 months. The aggregate percentage for LOE is 4%. Piu’s ability to return to his pre-accident employment was not affected by the injuries he suffered in the accident.

H. ASSESSMENT OF DAMAGES IN THE PI ACTION

H.1 Pain and Suffering and Loss of Amenities of Life (“PSLA”)

131.  In the ASOD, Piu claimed an amount of $800,000 for PSLA, averring that Piu’s active life was in disarray after the accident, leading to a deterioration of his relationship with Ms Zheng.

132.  In Mr Wong’s closing submissions, the above amount was reduced to $450,000. The following authorities were relied on, but with particular emphasis on authorities (i) and (x):-

(i) Chung Chun Man v Chow Wai Kin & Ors;[61]

(ii) Lai Kam Wah v Wing & Kwong Co Ltd;[62]

(iii) Li Yik Wing v Secretary for Justice;[63]

(iv) Chau Kwai v Lee Chiu Fan and Anor;[64]

(v) Iau Kau Ih v Wan Kei Geotechnical Engineering Co Ltd & Ors;[65]

(vi) So Shu Keung Sammy v Tam Tak Fong & Anor;[66]

(vii) Lily Tse Lai Yin & Ors v Incorporated Owners of Albert House & Ors;[67]

(viii) Joan Carol Boivin v Wong King Yin & Anor;[68]

(ix) Sin Kin Man v Hsin Cheong Construction Co Ltd;[69] and

(x) Gaby Anderson v Wui Yip Co Ltd & Ors.[70]

133.  For the Employer, $350,000 was initially suggested for PSLA, relying on Chan Chi Ming v Sze Hing Sang & Anor,[71] Lam Wai Chun v Tam Chi Wai & Anor,[72] Wong Yeung Chui Yee v Citybase Property Management Ltd & Ors[73] in Counsels’ opening submissions. The contended sum was later reduced to $300,000 in Counsels’ closing submissions.

134.  In my view, the awards made in the previous decisions are only of limited value as the level of award is always fact sensitive. In assessing the appropriate amount for this head of damages, this court ultimately needs to take into account “the cumulative impact of the disabilities on the life of the victim”.[74]

135.  In light of my findings on causation in Section G.3.3.2.1, Counsels’ submissions that the psychiatric elements should be excluded in the assessment must be rejected. I find that Piu’s MDD had caused him mental anguish, and affected his overall enjoyment and amenities of life.

136.  In accordance with the categorization of the types of injuries defined in Lee Ting Lam v Leung Kam Ming,[75] I’d be inclined to find that Piu’s injuries belong to the bottom end of the lowest category of the 4 types of categories of disablement - the “Serious Injury” category, which covers “those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example…bad fractures leaving recurrent pain”.[76] The range of award for this category has been revised to $566,000 to $764,000.[77]

137.  I do not find the authorities that Mr Wong relied on support his suggested level of award, and neither of the authorities (authorities (i) and (x)) that he particularly emphasised are relevant. In Chung Chun Man, the amount of PSLA awarded was $350,000. In that case, notwithstanding that the plaintiff similarly suffered from psychiatric disabilities, it is however noted that his physical injuries were much more serious. His injuries were not just multiple fractured ribs, but right pneumothorax and right lung contusion, and lacerations of the liver, the spleen and the right flank of the abdomen. He was hospitalized for 16 days.

138.  Gaby Anderson’s injuries were also much more severe than Piu’s. She was found to have permanent whiplash injuries. Her persistence and permanence of the “neck pain” was found to have marred her general activities and enjoyment of life. Her psychiatric condition was found to be 5% of impairment before treatment but 1-2% after proper treatment. Her injuries were found to be within the “Serious Injury” category. By contrast, I find Piu’s chest fractures and residual pain were resolved within 12 months without permanent pain. His MDD was found to be mild and has a comparatively milder impact on his general activities and amenities.

139.  In my view, the impact of the physical injuries on the 91-year-old in Wong Yeung Chui Yee (supra) is comparable to Piu with the exception that Piu’s MDD was well managed and he did not require to be accompanied when going out as required by the former. After having applied the necessary upward adjustment to the award, the court awarded $430,000 for PSLA in that case.

140.  Having considered the cases of Wong Yeung Chui Yee (supra) wherein the plaintiff’s injuries were more serious than Piu’s, and all of the authorities both parties cited, I consider that an appropriate award for PSLA should be $400,000, and I so order.

H.2 Pre-Trial Loss of Earnings

141.  It is well-settled that a court is not bound by the sick leave certificates an injured claimant was granted.[78] Based on the conclusions I have reached in Section G.4 above, I believe that Piu’s entitlement to pre-trial loss of earnings should not be based on the sick leave he was granted but on the finding I made above, which is a total of 23 months. Piu’s pleaded case of continuous and uninterrupted total loss of earnings must therefore be rejected.

142.  In addition to sick leave, Mr Wong also urged this court to allow extra 6 months for Piu’s recuperation so that he was able to look for an alternative employment: Iau Kau Ih (supra at §39). It was suggested that during this period Piu suffered partial loss arising from a suitable alternative employment such as security guard, which monthly wages were $12,942.[79]

H.2.1 Period I

143.  Piu should be entitled to pre-trial loss of earnings of 11 months for Period I. I however do not find there is sufficient evidence to support Mr Wong’s submissions for additional time for recuperation.

144.  According to the medical evidence, by the end of Period I, Piu had already completed 13 sessions of physiotherapy and also occupational services (see §§18 & 20 above). I believe that Piu should have reasonably recovered to have enabled him to re-engage in gainful employment. In this respect, I find that Piu was very evasive about his work situation. According to the JOR (at §§45-46), Piu had helped a friend to do a packing job for 10 to 20 days before he was examined by the orthopaedic experts, and did not do any work after 22 June 2017.

145.  Contrary to the information stated in the JOR, Piu however denied under cross-examination that he was paid hourly. Instead, he alleged that Mr Hui would only give him something like $300 only if he was pleased (“鍾意”) or just gave him money for meals (“食飯錢”).

146.  It is plain that Piu was extremely coy about his earnings. The evidence about the period when he worked for Mr Hui and the payments is conflicting.

147.  In the circumstances, I do not find this part of Piu’s evidence credible. In the absence of any credible evidence to support Mr Wong’s submissions on damages for recuperation, I’d be disinclined to make any award for recuperation.

148.  Hence, the pre-trial loss of income for the period of 18 February 2016 till 17 January 2017 calculated at the agreed monthly amount of $18,000 is:-

$18,000 x 11 months = $198,000.

H.2.2 Period II

149.  As for the second period of 12 months in relation to Piu’s sick leave for MDD, Piu’s testimony about working for Chan Keung is important as it goes to the heart of Piu’s credibility in relation to his working ability. Significantly, this part of the evidence concerning Chan Keung was only disclosed for the first time during cross-examination.

150.  Counsels made severe criticisms of Piu’s credibility. It was suggested that not only had Piu provided no explanation for the concealment of his work with Chan Keung, Piu’s late disclosure of Chan Keung clearly shows that Piu was an evasive witness and should be disbelieved. They pointed out that the evidence about Chan Keung has clearly exposed Piu’s lies made to his treating psychiatrists,[80] as well as the psychiatric experts[81] that he was unable to do any work because of his alleged mental condition.

151.  Counsels contended that Piu’s pleaded case[82] that he “has not been able to resume work as a driver/general worker from the date of the Accident” was therefore baseless.

152.  I agree with Counsels’ criticisms of Piu’s evidence on his working ability. Apart from the inconsistency in relation to his work with Mr Hui (see §146 above), I also find Piu’s evidence in relation to the effect of his mental condition on his working ability untrue.

153.  Pertinently, Piu’s earnings of about $6,000 were never disclosed until this court sought clarification from Piu. Inevitably, the concession through Mr Wong of a deduction of $6,000 from the pre-trial loss of earnings had to be made. For the same reason of the lack of credible evidence, I’d also disallow any damages for recuperation. Hence, the total loss of earnings during the 12 months of sick leave for Piu’s MDD is:-

($18,000 x 12 months) - $6,000 = $210,000.

H.2.3 Total amount

154.  Of the total amount of $408,000 ($198,000 + $210,000), Piu should also be awarded the loss of the 5% MPF, which is in the total sum of $20,400 ($408,000 x 5%).

155.  I therefore award a total sum of $428,400 ($408,000 + $20,400) for pre-trial loss of earnings.

H.3 Future Loss of Earnings

156.  Piu will be 66 in August this year. In the ASOD, Piu pleaded that he would have, but for the accident, continued with the same job until 75. He averred that the accident has rendered him only capable of doing a less physically demanding job, which pays him around $12,773 (in accordance with the “Quarterly Report of Wage and Payroll Statistics, March 2021”).

157.  Applying a multiplier of 8.13, Piu claims a partial loss of $509,946.12 computed as follows:-

[($18,000 - $12,773) x 12 months x 8.13] together with the loss of 5% MPF of $25,497.31.

158.  However, the multiplier of 8.13 as pleaded was no longer pursued. On behalf of Piu, Mr Wong suggested that as evidenced by Chow’s testimony, Piu should have, but for the accident, been able to work until the similar age as Chow, 71. Mr Wong therefore urged this court to adopt a multiplier of 4.93 after a discount of –0.5%, relying on Chan Pak Ting v Chan Chi Kuen & Anor.[83]

159.  This claim was vigorously contested. In their contentions, Counsels suggested that no award should be made as Piu has failed to prove any future loss of earnings. They contended that Piu did not have any medical and expert evidence to support this claim. Piu, given his age, would not have been expected to continue to work beyond 65.

160.  To succeed in this award, Piu would have to prove firstly that the accident had rendered him unfit to resume his pre-accident employment. However, as discussed in §130 above, I do not find that was the case. The medical expert evidence overwhelmingly shows that Piu would not have been prevented from resuming his pre-accident job by the injuries caused by the accident. While there might be a possibility that other physical symptoms and complaints caused by the neck and shoulders might have indeed rendered him incapable, Piu cannot rely on them to support his claim.

161.  Hence, it is irrelevant whether Piu would have continued working beyond 65 as I do not find that the disabilities he suffered as a result of the accident have impacted on his future working ability.

162.  In any event, according to Chow’s evidence, the reason that Piu could not return to his Employer to work was the Employer’s concern with Piu’s claims brought against them.

163.  I therefore decline to make any award under this head.

H.4 Loss of Earning Capacity

164.  In the ASOD at §6, Piu averred that as a result of the injuries and disabilities caused by the accident, he would be “thrown into the labour market in the future because of his disabilities”. He claimed damages for $216,000, which was calculated with reference to the loss of one year of his pre-accident wages.

165.  On behalf of Piu, Mr Wong submitted that the court should compensate Piu’s additional risk of suffering from longer periods of unemployment between jobs owing to his handicap in the labour market. It was submitted that a sum of $80,000 (being equivalent to 4 months of Piu’s average monthly income) should be awarded for the loss of earning capacity , citing Moeliker v A Reyrolle & Co Ltd[84] and Lau Ho Ming v Wong Pak Ho.[85]

166.  It was contended that Piu should not be entitled to an award under this head. It was suggested that Piu was not able to prove that he would have been able to work for the Employer beyond 65. Notwithstanding that Chow had stated in his evidence that he and his partner were working beyond 65, it did not follow that it would necessarily have also been the case for Piu. Counsels suggested that Piu, due to the other health issues not related to the accident, would have unlikely been able to work as a recycling worker beyond 65.

167.  Piu needs to prove, on the balance of probabilities, that there was a substantial or real risk that he would lose his pre-accident employment in the future as a result of his injury caused by the accident, and be at a disadvantage in obtaining comparable employment: see Moeliker (supra).[86]

168.  According to Chow’s description of the nature of the Employer’s recycling business, and Piu’s description of his pre-accident duties, I find that a large part of his work was quite physically demanding. In my view, the fact that both Chow and his partner still worked does not advance Piu’s argument that but for the accident, he would have continued working in a similar job until 70. Being the bosses, Chow and his partner unquestionably could choose the type of the work they wanted to do whereas ordinary employees like Piu would not have the same degree of freedom. According to Chow, other workers were only in their 50s. Thus, there is no evidence supporting Piu’s averment that he could have worked beyond 65.

169.  From the evidence discussed above, Piu was suffering from severe neck and shoulder pain that was not related to the accident. Hence, as Counsels have correctly stated, the neck and shoulder pain would have likely prevented Piu from continuing to work beyond 65.

170.  In the circumstances, I do not find that Piu has proved that there was a substantial or real risk that he would lose his pre-accident employment in the future as a result of his injury caused by the accident. His claim for this award is declined.

H.5 Special Damages and Expenses

H.5.1 Arguments

171.  In the ASOD, Piu claimed a total sum of $85,000, comprising of $60,000, $15,000 and $10,000 respectively for medical, travelling and tonic food expenses.

172.  In his closing submissions, Mr Wong enclosed a “Schedule of Medical Expenses” (“New Schedule”), with an enumeration of 199 itemized expenses for the period from 24 February 2016 to 27 September 2021. The total amounts respectively under each of the columns of “Medical Expenses”, “Other Expenses” and “ECC” are stated to be $69,604, $158,075 and $20,230.

173.  The New Schedule, according to Mr Wong, was a summary of the expenses contained in a trial bundle entitled as “Bundle of Medical Expenses”, which Mr Wong had mistakenly thought was trial bundle “K” when it should have been bundle “J” (“Bundle J”). In the New Schedule, the items were numbered in accordance with the same pagination number of the documents in Bundle J. Although the amount for medical expenses in the New Schedule exceeded the pleaded amount of $60,000, Mr Wong stated that Piu was content to be bound by his pleading, and to restrict the amount to $60,000.

174.  As for tonic food, Mr Wong urged this court to allow $10,000, referring to Kings Light Industrial Ltd v Lo Wai Keung[87] and To Wei Kei v Vickcore Engineering Ltd & Anor,[88] which confirmed that a nominal amount for tonic food could be awarded when there were no receipts in support.

175.  Counsels were extremely critical of the late lodging of the New Schedule. This elicited a written response by Counsels’ lodging of their supplemental submissions. Irrespective that the supplemental submissions were lodged without any direction from court, I believe that it is fair, given the lateness of the New Schedule, to allow the lodging of the supplemental submissions.

176.  In their supplemental submissions, Counsels took great exception to Mr Wong’s reliance on the New Schedule, and urged this court to reject it. They contended that the New Schedule was served so late that they were deprived of an opportunity to have the items properly examined during the trial. They stated that the unindexed Bundle J was messy, non-chronological and non-categorized.

177.  Counsels pointed out that apart from the confusing arrangement of the documents in Bundle J, the New Schedule was so badly prepared that made analysis and scrutiny difficult. Not only did the items contain no pagination reference to Bundle J, they were also not arranged in chronological order, and there was duplication of items (e.g. it consisted of two Item Nos 60, 61, 62, 68, and three Item Nos 69). Furthermore, the periods of expenses covered by the New Schedule (from 2 March 2016 (Item 60) to 27 September 2021 (Item 142)) is different to the period covered in trial bundle “G”[89] concerning “Schedule of Sick Leave, Medical and Travelling Expenses”, which covered the period from 18 February 2016 to 25 June 2018 (“Schedule G”).

178.  In any event, Counsels stated that the total amount stated in the New Schedule ($69,604 for medical expenses, $158,075 for other expenses, totalling $227,679) exceeded the pleaded amount of $85,000. Counsels also pointed out that while the pleaded amount is less than the amount shown in the New Schedule, it is however higher than the amount shown in Schedule G. In Schedule G, the total amount for medical expense is $10,360, travelling expenses up to 25 June 2018 was $2,453, totalling $12,813, which is much lower than even the pleaded sum of $75,000.

179.  Counsels therefore contended that Piu was not entitled to be awarded medical expenses after he had recovered from his ribs injuries in 2016. The travelling expenses of $15,000 pleaded in the ASOD are excessive and unsupported by evidence. As for the claim for tonic food, Counsels suggested that Piu produced scant evidence. They submitted that where there is no evidence as to the advisability or suitability of nourishing food to assist the recovery of the injured person, only a nominal sum should be allowed for tonic food: Yu Ki v Chin Kit Lam & Anor.[90]

180.  The Employer suggested a total sum of $15,000 for all the three heads of special damages.

H.5.2 Discussion

H.5.2.1 Medical and Travelling expenses

181.  Based on my findings above, Piu should only be awarded reasonable medical and travelling expenses for Periods I and II.

182.  For Period I, I think it is only necessary to refer to the table of expenses in Bundle G without any need to consider the New Schedule as the table in Bundle G has already covered the entire Period I. Accordingly, the calculation of relevant expenses should start from Item 1 (18 February 2016) to Item 55 (22 December 2016).[91]

183.  Having looked at the amounts in a broad-brush manner, I consider all the medical and travelling expenses (including those incurred for private consultations with Dr Thomas Clinic) to have been reasonably incurred. I will allow them in full.

Item No	Medical expenses ($)	Travelling expenses ($)
1	700	24
2-6	1,900 (380 x 5)	500 (100 x 5)
7	380	0
8	340	100
9	380	14
10	400	14
11	60	14
12-13	0	50[92]
14	60	14
15-21	0	175[93]
22	60	14
23-28	0	150[94]
29	60	14
30-31	0	50[95]
32-35	240 (60 x 4)	56 (14 x 4)
36	0	25[96]
37	100	14
38-43	360 (60 x 6)	84 (14 x 6)
44	100	14
45-50	360 (60 x 6)	84 (14 x 6)
51	45	14
52	100	14
53	45	14
54-55	120 (60 x 2)	28 (14 x 2)
Total	5,810	1,480

184.  For Period I, I award $5,810 for medical expenses, and $1,480 for travelling expenses.

185.  For Period II, I do not think that I can rely on Schedule G as the period it covered ended on 25 June 2018, which is not within Period II. Despite the criticisms by Counsels of the messiness of the New Schedule, which criticisms in my view are entirely correct, I think it will be necessary to refer to the New Schedule in this exercise. After having carefully compared the items in the New Schedule with the medical receipts in Bundle J, I find that they were indeed a summary of the medical expenses.

186.  According to the New Schedule, Items 1 to 9 (from 25 May 2020 to 21 November 2020), consultation expenses of Dr Tsang, are within Period II. As discussed in §30 above, Piu’s mental condition was the most serious during this time, I therefore consider these private psychiatric consultation expenses to be reasonable and allow Piu to recover them. It is noted that after Item 9, Items 10 to 20 (from 28 November 2020 to 24 May 2021) are also expenses for consultation with Dr Tsang. Having regard to the contents of Dr Tsang’s reports (see §123 above), I think it would be wholly artificial to strictly adopt a cut-off date with reference to the sick leave entitlement that I have found above. As I have stated above, the specification of the commencement and ending dates was solely for computation purpose. I consider that it would be reasonable to allow Piu to recover private psychiatric expenses until the end of December 2020, which private consultations in my view were reasonable. Hence, I will allow Piu to recover medical expenses for Items 1 to 13. As for the other expenses incurred in 2021, I believe that they were unreasonable. By 2021, Piu had been receiving psychiatric treatment concurrently in the private and public sectors for more than 6 months. I consider that the ongoing private psychiatric treatment of Dr Tsang was unreasonable, and I disallow the recovery of the expenses for such treatment.

187.  Based on the amounts stated in Items 1 to 13 of the New Schedule, I allow a total amount of $21,810[97] for private psychiatric treatment.

188.  As for the other items that I have identified within Period II, they are Items 24; 48; 55 to 58; 91 to 92; 106 to 108; 109; 110; 113 to 115; 117 to 122; 130 to 135; 139 to 140; 143 to 155; 156; 159 to 172; 173-174; 175; 177; 178 to 187; 195 to 197 and 199.

189.  There is no need to consider the items that I have underlined above as no expenses had been incurred. Hence, the only remaining items that I need to deal with are Items 24; 48; 55 to 58; 109; 156; 173-174; 177 and 199.

190.  I disallow Items 24 and 48 as the receipts show that they were not for psychiatric consultations.

191.  Items 55 to 58 are expenses paid to Dr Yan Kam Sun in the total sum of $2,690.[98] Having examined the receipts, I consider that they were reasonably incurred in connection with Piu’s MDD, and should be allowed. In allowing the recovery of these expenses of Dr Yan, I have considered that they were incurred also during the period when Piu was treated privately by Dr Tsang. However, after having carefully examined the dates of the consultations, I do not find there is any overlap. Hence, I allow them in full.

192.  For the remaining items of Items 109; 156; 173-174 and 177, the receipts show that they did not relate to psychiatric treatment, and I disallow them. I also disallow the sum of $10,075 for Item 199, which is the expense for “Yan Chai Hospital Board So Kai Sing Dental Clinic”, an unrelated item of expenses.

193.  Since there is no evidence placed before me in connection with the travelling expenses having been incurred for this period, I am unable to make any award for travelling.

194.  Thus, I award a total sum of $30,310 ($5,810 + $21,810 + $2,690) for medical expenses and $1,480 for travelling expenses for Periods I and II.

H.5.2.2 Tonic Food

195.  In the absence of evidence to support the suitability of nourishing food to assist Piu’s recovery, I will apply the principle of Yu Ki (supra) and award a nominal sum of $5,000.

H.5.3 Total award for special damages

196.  Accordingly, I award a total of $ 36,790 ($30,310 + $1,480 + $5,000) under this head.

H.6 Care and Attention

197.  In the ASOD, Piu claims a sum of $10,000 for the care and attention by Ms Zheng.

198.  In support of Piu’s claim under this head, Mr Wong submitted that Piu should be awarded for the value of services provided by Ms Zheng even if the latter’s services were rendered voluntarily and gratuitously: Kot Yik Kam v Kwok Kam Hung & Anor[99] and Lee Suk Yin & Ors v National Insurance Company Limited representing the estate of Ngai Chung Lit, deceased.[100]

199.  It is noted that this item of claim was not included in Mr Wong’s opening submissions, and it was only referred to in his closing submissions. In the result, Counsels for the Employer might have been lulled into believing that Piu no longer pursued this claim, and therefore did not make any submissions on it.

200.  In my finding, Piu’s circumstances are different to the facts of the cases Mr Wong cited. In Kot Yik Kam (supra), the injured plaintiff had a very young child. As the result of the accident, she could not take care of her child and her mother therefore was required to take care of the child (see §§51-52). In Lee Suk Yin (supra), an award was made for the value of the services of a family member in taking care of the injured plaintiff during hospitalization; and the services of a domestic helper after the latter’s discharge from the hospital.

201.  Piu’s situation was entirely different to that of the plaintiffs mentioned in the cases above. Before her marriage to Piu in September 2018, Ms Zheng lived most of the time in Sheng Zhen with their son, and Piu did not stay with her on a full-time basis. After the marriage, the family of 3 only then started living together in Hong Kong. There is however no evidence that Ms Zheng was required to devote full-time care to Piu because of the injuries that he suffered from the accident. I am therefore not persuaded that this claim is proved, and make no award for this item.

H.7 Future Medical Expenses

202.  In the ASOD, Piu claims a sum of $18,000 for future psychiatric medical expenses of one year. However, Mr Wong has not included this item of claim in any of his written submissions. Hence, in any event, based on my finding in §127 above, I do not find that this head of claim is proved. I believe this claim is not pursued, and no award will be made.

I. SUMMARY OF DAMAGES IN THE PI ACTION

203.  The total amount of damages I award for the PI Action is therefore as follows:-

(A)	PSLA	$400,000
(B)	Pre-trial loss of earnings	$428,400
(C)	Future loss of earnings	Nil
(D)	Loss of earning capacity	Nil
(E)	Special damages	$36,790
(F)	Care and attention	Nil
(G)	Future medical expenses	Nil
		________
	Total	$865,190

204.  By the proviso to s 26(1), which stipulates that “any damages awarded against an employer in an action at common law…shall be reduced by the value, as decided by…Court…of any compensation which has been paid or is payable” awarded for employees’ compensation, the damages that I have awarded for the PI Action in the sum of $865,190 shall therefore be reduced by the value of the compensation for the EC Action.

J. ASSESSMENT OF COMPENSATION IN THE EC ACTION

J.1 Piu’s monthly earnings pursuant to s 11

J.1.1 Parties’ positions

205.  The monthly earnings for the purpose of computing the amount of compensation under ss 9 and 10 are disputed. Piu averred in the Application filed in the EC Action that his monthly earnings immediately preceding to the accident and the average 12-months’ earnings before the accident were both around $18,000 with “benefits”.

206.  According to the “List of Earnings” the Employer filed in the EC Action, Piu’s monthly earnings for the immediate 8 months before the accident was $18,000, whilst those in the 9 to 12 months prior to the accident were $16,000 per month. According to Piu’s MPF Statement (“MPF Statement”) for the period between 1 July 2015 to 30 June 2016,[101] Piu was paid monthly earnings in arrears at the last day of each calendar month. Before the accident, Piu was last paid his salary of $18,000 on 31 January 2016.

207.  Mr Wong urged this court to accept Piu’s evidence that his earnings were inclusive of double pay and bonus of $10,000. It was submitted that Chow only admitted the bonuses under cross-examination. This admission, Mr Wong stated, conflicted with the Employer’s case that Piu was on a fixed monthly income of $18,000.

208.  Mr Wong also stated if Piu were indeed paid monthly earnings of a fixed amount of $18,000, the MPF Statement would have shown a monthly 5% contribution of $900. Yet, in the MPF Statement, the Employer’s MPF contributions for the months of June and July 2015; and March 2016, were not $900 but $945. Mr Wong therefore submitted that the MPF Statement served to corroborate Piu’s case that his monthly earnings were more than $18,000.

209.  In his submissions, Mr Wong stated that Piu’s pre-accident monthly earnings should be calculated on the basis of Piu’s monthly salary of $18,000, a double pay of $18,000 and bonus of $10,000, making a total sum of $46,000 ($18,000 + $18,000 + $10,000).

210.  Since Chow had agreed in his testimony at trial that Piu had been paid bonuses before the Chinese New Year, Counsels on behalf of the Employer, no longer maintained the Employer’s pleaded case of $18,000. Having taken into the bonus into account, Counsels suggested that the appropriate amount should be $18,800, which was based on Chow’s evidence that Piu was paid a bonus at the Chinese New Year of around $10,000 before the accident. As the amount of bonuses paid to Piu, according to Chow’s evidence, varied from a few thousand dollars to $10,000 odd dollars, Counsels therefore rounded down the $10,000 to $9,600, and averaged it by 12 months to arrive at an average monthly bonus of $800.

J.1.2 Discussions

J.1.2.1 Section 11: Method of calculating earnings

211.  Section 11 states that:-

“(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings—

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

212.  Since Piu had worked for the Employer for more than 12 months before the accident, s 11 above is therefore applicable.

213.  It is not in dispute that Piu’s monthly salary was fixed at $18,000. The contentions are mainly in relation to the alleged double pay and the method of computation.

214.  Insofar as Piu’s allegation of the double pay of $18,000 is concerned, I find that Piu adduced no evidence to support his claim. It is important to bear in mind that the nature of double pay is entirely different to that of a bonus payment, the former is contractual while the latter is discretionary. Hence, had Piu indeed been paid double pay, such payment should have been reflected in the MPF Statement with a corresponding 5% MPF contribution of $900. However, the extra amount of $45 MPF contributions for the 3 months stated in the MPF Statement do not add up to anywhere near $900. In the absence of the corroborative evidence, I do not find that Piu’s earnings included double pay.

215.  Parties have adopted quite different methodologies for computing the amount of $10,000 bonus. If computed according to Mr Wong’s methodology (see §209 above), Piu’s pre-accident earnings would have been $28,000 ($18,000 + $10,000).

216.  On the other hand, the Employer’s approach of averaging the $10,000 for the whole 12 months would yield an additional amount of $833 to be added to Piu’s pre-accident earnings, which would therefore be at a total sum of $18,833 ($18,000 + $833).

217.  In my view, in determining the correct way of calculating the bonus, it is necessary to find the date when Piu would have likely been paid his bonus before the accident. The evidence between Piu and Chow in this regard was in conflict. Piu’s version was that the bonus was paid together with his monthly salary, which would have been on 31 January 2016, which payment date is also found to have corroborated with the same payment date of the $900 MPF contribution as shown in the MPF Statement.

218.  According to Chow’s version, however, the Employer would usually, by convention, distribute bonuses on the eve of the Chinese New Year. Thus, when Piu received the bonus, it was probably on 7 February 2016.

219.  I prefer Chow’s evidence as I find Chow’s version more in line with Chinese customs. By tradition, Chinese workers would usually stop work around the day before the Chinese New Year before taking a relatively longer than usual break during the festive period of the Chinese New Year. As can be seen from the MPF Statement, the monthly salary of $18,000 was always paid on the last date of each month. As bonus is discretionary by nature, I believe that it is more logical that the bonus would have likely been paid separately from the regular monthly salary payment. I therefore find that before the accident, it is more likely that Piu received a bonus on 7 February 2016, and not on 30 January 2016.

220.  Since Piu’s bonus was paid on 7 February 2016, and Piu’s earnings for the month prior to the accident were paid on 30 January, the bonus was therefore, according to s 11(1)(a), not part of the earnings “for the month immediately preceding the date of the accident”.

221.  I therefore reject Mr Wong’s submissions.

222.  As s 11(1)(a) is inapplicable, the alternative method of calculation under s 11(1)(b) falls to be considered. This is by computing an employee’s earnings “in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer”. Having regard to the nature of the bonus and my findings above, I consider s 11(1)(b) is applicable as it is the fairest way of computation in the circumstances. Hence, Counsels’ methodology of averaging the total amount of bonus of $10,000 for the past 12 months should be adopted. I therefore find that Piu’s monthly earnings were $18,833. This amount is in fact by and large consistent with the gross amount of earnings that Piu stated in his 1^st Witness Statement (see §35 above).

J.2 Section 9 Compensation

223.  Applying the total percentages of LOE (see §§129-130 above), which are in the aggregate of 4%, and the statutory “multiplier” of 48 for Piu’s age, the total amount of the s 9 compensation is therefore $36,159 ($18,833 x 4% x 48).

J.3 Section 10 Compensation

224.  Based on the findings I made above (see §130 above), Piu’s total periods of absence from duty was 23 months. Thus, his s 10 compensation is:-

$346,527 ($18,833 x 4/5 x 23 months).

225.  The sum of $346,527 should be reduced by the conceded income of $6,000 Piu received from Chan Keung, making the net total of $340,527.

J.4 Appeals against Form 9

226.  Both parties have appealed against the Form 9 assessment. In light of my findings, Piu’s appeal against Form 9 should be allowed.

J.5 Section 10A Compensation

227.  There is an overlap with the medical expenses that I have already assessed for the PI Action above. Unlike the PI Action, which requires Piu to prove reasonableness, there is no such requirement in the EC Action so long as the medical expenses Piu had incurred were in respect of the medical treatments of his injury caused by the accident. The daily maximum rate for expenses incurred after 9 February 2018 was $300, and $200 before that day.[102]

228.  According to the two periods of sick leave this court found Piu was entitled to, I therefore need to calculate the s 10A compensation for Periods I and II.

229.  Despite Mr Wong’s New Schedule that includes a summary of the s 10A medical expenses in its fifth column, I do not find it at all helpful. I find the entire summary chaotic, and cannot rely on it.

230.  Neither have Counsels assisted this court by showing how the amount of $4,610 they contended as the maximum amount was calculated.

231.  In the circumstances, this court will have to do its own calculations, using the information stated in Section H.5.2 above.

232.  Similarly, for Period I, I will base the assessment on Schedule G I refer to above, applying the applicable daily maximum rate during this period. Therefore, the expenses should be Items 1 to 55 in Schedule G. Apart from those items that had nil expense, I have set out in the table below the amount for each item.

Item No	Date	Amount Claimed ($)	Amount Allowed ($)
1	18.02.16	700	200
2	24.02.16	380	200
3	02.03.16	380	200
4	09.03.16	380	200
5	16.03.16	380	200
6	23.03.16	380	200
7	31.03.16	380	200
8	31.03.16	340	0 (see 7 above)
9	10.04.16	380	200
10	11.04.16	400	400[103]
11	28.04.16	60	60
12-13	13.05.16 & 20.05.16	0	0
14	26.05.16	60	60
15-21	27.05.16 – 24.06.16	0	0
22	30.06.16	60	60
23-28	30.06.16 – 05.08.16	0	0
29	11.08.16	60	60
30-31	12.08.16 & 19.08.16	0	0
32	26.08.16	60	60
33	08.09.16	60	60
34	14.09.16	60	60
35	19.09.16	60	60
36	20.09.16	0	0
37-38	21.09.16	160	160
39	23.09.16	60	60
40	26.09.16	60	60
41	28.09.16	60	60
42	03.10.16	60	60
43	05.10.16	60	60
44-46	07.10.16	220	200
47-50	14.10.16 – 16.11.16	60 each item	240
51	17.11.16	45	45
52	20.11.16	100	100
53	21.11.16	45	45
54	24.11.16	60	60
55	22.12.16	60	60
Total			3,690

233.  For Period II, the daily maximum rate for medical expenses is $300. Based on the findings above and by referencing to the New Schedule, applying the daily rate of $300, the amount allowed is tabularized as follows.

Item No	Periods	Amount Allowed ($)
1-13	25.05.20 – 19.12.20	3,900 (300 x 13)
55-58	21.05.20 – 25.09.20	1,200 (300 x 4)
Total		5,100

234.  The total amount of s 10A compensation is therefore $8,790 ($3,690 + $5,100).

K. SUMMARY OF COMPENSATION IN THE EC ACTION

235.  Accordingly, the total amount of assessed compensation is as follows:-

(A)	Section 9	$36,159
(B)	Section 10	$340,527
(C)	Section 10A	$8,790
	Less:  Advance payment	$193,000
		________
	Total:	$192,476

L. COSTS

L.1 PI Action

236.  For the PI Action I grant the usual order on a nisi basis that the defendant (the Employer) do pay the plaintiff (Piu) the costs of the assessment, including all costs reserved and certificate for counsel only for trial, to be taxed if not agreed. For the avoidance of doubt, I grant no certificate for counsel for the Checklist Review hearing (“CLR”) that counsel attended. Since I do not find any complexities in this case, I do not think attendance by counsel is reasonable. It baffles me that Mr Wong had attended several CLR on the assignment of the Director of Legal Aid.

237.  I order that the plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

L.2 EC Action

238.  The PI and the EC Actions in these proceedings are what commonly known as parallel proceedings, which require practitioners to have particular regard to the need for procedural economy and saving costs and expenses. In a Postscript (at §1) in the case of Rukhsar Begum v Native English Center Ltd t/a The Green Lounge,[104] a judgment of this court, which is also similarly in the nature of parallel proceedings, I stated as follows:-

“Parallel employees’ compensation and common law proceedings

1. Owing to the stipulation stated in proviso to s.26(1) requiring a common law award [to] be reduced by the amount of any statutory compensation which has been paid or is payable, practitioners should be vigilant to ensure that parallel proceedings are conducted in the most cost effective and procedurally economic manner, particularly when the parties in an employees’ compensation action and the related common law action are the same and are represented by the same firms of solicitors.”

239.  In this case, the issue of liability of both Actions was in fact resolved in the very early stage of the proceedings. Hence, there is even a more compelling reason for expediency. It would have been much more desirable that the EC Action could be disposed of at the earliest opportunity either by settlement (e.g. by the acceptance of sanctioned payment) or else by a staying of the EC Action unless the solicitors for Piu held a reasonable belief that the compensation in the EC Action would likely exceed the amount of damages to be awarded in the PI Action. This clearly is not the case.

240.  From the long protracted way these proceedings were conducted, I am clearly of the impression that the parties, especially the solicitors for Piu, have conducted the proceedings in total disregard of the guidance I refer to above.

241.  In this case, due to the circumstances described in Section B above, I am aware of the sanctioned payment having been made in the EC Action. By virtue of the provisions of s 26, I therefore believe that there is nothing to be gained for Piu not to have accepted the sanctioned payment after interlocutory judgment in the PI Action had been entered.

242.  Notwithstanding, and despite the multiple changes of solicitors, Piu was granted Legal Aid to vigorously proceed with the EC Action with full throttle that resulted in no obvious financial benefits for him.

243.  In the circumstances, I believe that it is appropriate to disallow Piu’s costs after 28 days of the last sanctioned payment.

244.  Thus, I grant an order nisi that the respondent do pay the applicant’s costs of assessment up till 28 days from the last sanctioned payment. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

245.  As for the costs of and occasioned by the inappropriate inclusion of the IP Order in the trial bundle, I believe that it was entirely the fault of Piu’s solicitors. I therefore order Piu to pay the Employer’s costs.

M. CONCLUSION AND ORDERS

M.1 The EC Action

246.  Judgment be entered against the respondent (the Employer) in favour of the applicant (Piu) for the total sum of $192,476.

247.  There be a costs order nisi that the respondent do pay the applicant the costs of the EC Action up till 28 days from the last sanctioned payment, thereafter there shall be no order as to costs.

M.2 The costs of the inclusion of the IP Order

248.  There be a costs order nisi that the applicant do pay the respondent the costs of and occasioned by the inclusion of the IP Order, to be taxed if not agreed.

M.3 The PI Action

249.  Judgment be entered against the defendant (the Employer) in favour of the plaintiff (Piu) for the total sum of $865,190. By the proviso to s 26(1), the amount of $865,190 shall be reduced by the EC compensation of $192,476. Thus the total damages as reduced are in the sum of $672,714 ($865,190 - $192,476).

250.  There shall be interest on the amount of PSLA of $400,000 at 2% from the date of the writ (19 October 2017) to the date of judgment; and on the amount of the pre-trial loss of earnings of $428,400 and special damages of $36,790 at half judgment rate from the date of accident (18 February 2016) to the date of judgment.

251.  There be a costs order nisi that the defendant do pay the plaintiff the costs of the proceedings with certificate for counsel, except there shall be no counsel certificate for CLR.

M.4 Taxation and variation of nisi costs

252.  The costs for both the EC Action (including the costs order in §248 above) and the PI Action to be taxed if not agreed. Piu’s own costs be taxed in accordance with the Legal Aid Regulations.

253.  The costs orders nisi made above will be made absolute 14 days from the handing down of this judgment if no application is made to vary them.

254.  Lastly, I will ask my clerk to provide a copy of this judgment to the Director of Legal Aid for his attention in relation to my observations in §§4-5 and Section L above.

DCEC 1082/2017:

DCPI 2318/2017: