LEUNG HOI WAI v. PO LEUNG KUK

HCPI 999/2015
[2018] HKCFI 356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 999 OF 2015

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JUDGMENT

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Introduction

1.  The plaintiff, Madam Leung, was an instructor employed by the defendant, Po Leung Kuk (“PLK”) at the Pokfulam Rehabilitation Centre (“the Centre”). In the course of her employment on 31 May 2013, she injured her right big toe when she was handling a folding table at the Centre. For these injuries, she claims damages from PLK.

Background facts

2.  Madam Leung was born in 1979 and was 34 years old at the time of the accident and 38 at the time of the trial of this action.

3.  The following matters mostly pleaded in the Statement of Claim or evidenced by non-controversial documents are not in dispute and are set out here by way of background.

4.  Madam Leung completed her tertiary education. She started her employment with PLK on 30 April 2012 as Instructor (I) at the Centre. She was primarily responsible for rendering 24-hour residential care service to the residents of the Centre (“the Residents”) by shift duties.

5.  The Residents are mentally retarded adults ranging from intermediate to serious grades. There were 46 of them, 23 males and 23 females, at the material times. As an instructor, Madam Leung had to oversee their activities at the Centre, which were usually held in the activity room. The Residents received training in the activity room too.

6.  The activity room has another function. It can be turned into a dining area for the Residents with ten odd small folding tables and tens of plastic chairs set up. There is a door in the activity room leading to a pantry. For the purposes of serving meals to the Residents, there are two bigger folding tables (“Two Large Folding Tables”) placed right outside the pantry against the wall of the activity room. Dishes, rice and soups could be placed on the Two Bigger Folding Tables and they, as with all other small folding tables, are stored inside the pantry when they are not in use. One of them (“the Table”) was involved in the accident.

7.  The pantry could be hazardous to the Residents given the existence of dangerous articles inside and its door is operated by an electronic lock (“the Lock”). The Lock became out of order in the very morning of the date of the accident and the door of the pantry could not be closed and locked automatically. To prevent the Residents from entering the pantry, as a stopgap measure, one of the caretakers of the Centre placed the Table in its upright position outside the pantry. As with all other folding tables used at the Centre, it was of an ordinary type and consisted of a square wooden surface and foldable metal legs with a supporting frame. The Table fell onto Madam Leung and landed on her right foot when she touched it.

8.  Madam Leung was sent to Accident & Emergency Department (“AED”) of Queen Mary Hospital (“QMH”) shortly after the accident. X-ray examination revealed that her right big toe was fractured.

Madam Leung’s case of the accident

Pleaded case

9.  All what Madam Leung says in her pleading about the occurrence of the accident, to which there was no other witnesses, is as follows:

(1)   On 31 May 2013, she was overseeing the activities at the activity room of the Centre.

(2)   Some residents were walking or running around inside the activity room.

(3)   She discovered that one staff member of PLK had placed the Table at the doorway of the pantry in order to block the residents from entering the pantry.

(4)   The Table with its legs folded was placed in an upright position. She feared that the Table would in such a position cause hazard to the residents. She attempted to move it away.

(5)   When she was just touching the Table, it slipped on the floor and fell towards her. It fell and hit onto her right foot. She was injured as a result.

Madam Leung’s evidence

10.  First, in her witness statement, her account of the accident is as follows.

11.  At the material time, the Residents finished their lunch and they stayed in the activity room to spend their leisure time. She found that the Table was placed outside the pantry whilst the door of the pantry was left open completely.

12.  Standing inside the activity room, Madam Leung could see that there were two instructors in the pantry, namely, one Ms Tang and Ms Fong. Ms Fong slightly pulled away one side of the Table from the pantry when she got out the pantry without restoring it to its original position. Madam Leung tried to do so for her to prevent any of the Residents from getting in touch of the Table inadvertently and getting injured as a result.

13.  In doing so, she was standing outside the pantry. When she intended to use her hands to lightly touch the Table, it fell downwards and crushed her right foot. She could not avert the same in time.

14.  Madam Leung makes an important clarification in her witness statement. In her pleading, she avers that the Lock had been out of order for some days before the accident. In her witness statement, she clarifies that the Lock stopped functioning properly in the very morning of the date of the accident and PLK had already made arrangement for the repair of the Lock before the accident.

15.  At the trial, under cross-examination, she gave some material background information and further elaborated her account of the accident.  

16.  First, she explained that the Two Large Folding Tables were normally placed outside the pantry during meal times. The staff members of PLK would place the dishes, rice and soup, if any, onto these two Tables and the Residents would line up near them for distribution of their portions of food and drinks there.

17.  These Two Large Folding Tables and all other smaller folding tables used by the Residents are normally stored at the pantry. During meal times, they would be unfolded and placed in the activity room. The Residents use the folding tables and plastic chairs when taking their meals. When they finish their meals, all the folding tables would be returned to the pantry whilst the plastic chairs would be rearranged in accordance with the activities to be carried out after their meal time.

18.  All of the staff members of PLK including its caretakers and instructors would assist in folding/unfolding the folding tables and returning them to the pantry after use and being cleaned by the cleaners in the activity room. Madam Leung was no exception. As part of the training of their sense of responsibility, under the supervision of the staff members and instructors, those younger and stronger Residents are often asked to assist in the process as well. In doing so, they were invariably accompanied by the staff members because they would never be allowed to enter the pantry on their own. Madam Leung highlights that there were dangerous things such as water boilers, scissors and cooking utensils in the pantry and the Residents should never be allowed to tamper with such items.

19.  As regards the accident, at around 1:00 p.m., Madam Leung had finished her lunch and was in the activity room to assist her colleagues in distributing the medicine among the Residents. The Residents had finished their lunch too and were having their free time in the activity room.

20.  After handling the medicine, Madam Leung wanted to wash her hands in the pantry. She then saw Ms Tang and Ms Fong staying in the pantry with the Table blocking its entrance. Ms Fong left the pantry and she pushed the left side of the Table a bit further away from the pantry to allow herself more room for easy departure from the pantry. However, she did not push the Table back to its original position.

21.  Upon seeing this, Madam Leung worried that the Table might be a hazard to the Residents and that the Residents might enter the pantry with ease. Thus, she went up to the Table facing the pantry and intended to push the Table back to its original position.

22.  Madam Leung could not tell precisely how she handled the Table before it hurt her right big toe. She could only repeatedly say that she only had the slightest touch of the Table with both hands and before she pushed the same or applied any force onto the Table, it fell onto her right foot. Under cross-examination, Madam Leung said that her intention was to lift the Table up with the legs leaving the floor and place it closer to the entrance of the pantry. She also agreed with Mr Chan (together with Mr Ho), for PLK, that the Table only came into contact with her right foot and not any other parts of her body. She confirmed with Mr Chan after a long line of questions that both the lower part of the wooden surface of the Table and its lowest rim came into contact with her right foot.

23.  She recalled that she found out that the door was out of order and could not be closed at around noon time on the material day.

Madam Leung’s pleaded case on liability

24.  By way of particulars of negligence, Madam Leung pleads the following particulars:

(1)   failing to provide a safe system of work.

(2)   failing to provide a safe place of work.

(3)   allowing the staff member of PLK to place the folding table in an upright position to block the doorway of the pantry, of which was liable to fell (sic) and hit people nearby.

(4)   failing to ensure that the folding table was properly put in a safe position.

(5)   failing to give Madam Leung any or any adequate warning of the danger posed by the folding table placing (sic) in such an upright position.

(6)   the staff members of PLK negligently or haphazardly placed the folding table in such a manner which was dangerous to the safety of the people including Madam Leung came close to it.

25.  For her case of breach of statutory duty, Madam Leung pleads that PLK as the occupier of the Centre failed to take all necessary steps to ensure that Madam Leung would be reasonably safe in working at the Centre.

PLK’s case of contributory negligence

26.  PLK has pleaded a case of contributory negligence. The particulars supplied are as follows:

(1)   failing to seek assistance from another member of staff of PLK to help her move the Table.

(2)   failing to hold the Table tightly to ensure that it would not slip.

(3)   failing to apply the skills she learned from safety training on, inter alia, furniture management, and carrying residents to moving the Table.

(4)   failing to prevent the Table from falling by maintaining and/or pushing it back ensure that the folding table was properly put in a safe position.

PLK’s evidence relating to the accident

27.  As pointed out, there was no other eye witness to the accident. The accident was actually captured by the CCTV of the Centre but unfortunately, the video recording has been inadvertently erased and hence is not available. Mr Shum, for Madam Leung, takes no issue about the unavailability of the video-recording.

28.  Before the video-recording was erased, Ms So, Madam Leung’s supervisor at the Centre and the only defence witness, watched the same and was able to demonstrate how the accident occurred. Her demonstration is evidenced by some photos. It can be seen that the body of Madam Leung was very close to the wooden surface of the Table when its wooden surface and its legs were perpendicular to the floor. She grabbed the rims on both sides of the upper part of the wooden surface of the Table with both hands. Somehow the legs of the Table were separated from the wooden surface and went closer to the pantry and the rim of the bottom part of the wooden surface crushed her right foot against the floor.

29.  Her evidence is not challenged by way of cross-examination. I do not think however that Ms So could tell how Madam Leung applied any force onto the Table when she grabbed its sides from the video-recording. Nor can the photos, which depict her demonstration. I bear in mind it was just a demonstration of what Ms So saw in the video-recording and it might not be a perfect replication of the accident.

Analysis on liability

30.  I have little confidence in the evidence of Madam Leung relating to the accident. Two aspects of her case cause me particular concern. First, she gave no explanation as to why in her pleading she said the Lock had been out of order for some days before the accident. The likely effect of the allegation in the pleading is that the pleaded case of negligence could be bolstered and strengthened. PLK should be blameworthy for allowing the Lock to be out of order for some days and being content with a stopgap measure, which was inherently dangerous to the users of the activity room. It begs the question as to why she made this allegation at the very outset when it was clear to her that it was factually incorrect.

31.  Second, I have some doubts as to the true intention of Madam Leung in her touching the Table. In her pleading, the very presence of the Table in its upright position outside the pantry alarmed her. In her view, it would cause hazard to the Resident. Thus she wanted to move it away.

32.  In her witness statement, she explained that she wanted to restore the Table to its original position after Ms Fong pushed its left side a bit further away from the pantry.

33.  In cross-examination, she mentioned for the very first time that she approached the pantry because she wanted to go inside to wash her hands after handling some medicine. When being reminded of her account in her witness statement, she realized that she could not have intended to close the gap between the Table and the pantry if she was going to wash her hand in the pantry. She then maintained that, at some point of time, she gave up her idea of washing her hand and confirmed the account in her witness statement.

34.  Thus, Madam Leung gave altogether three different reasons why she went up to the Table and handled it. I do not find her to be reliable.

35.  This would also affect my assessment of her evidence as to how she actually handled the Table. Madam Leung was positive that she had not yet applied any force on the Table when intending to lift it up.

36.  I am unable to accept her evidence in this regard. I do not think Ms So’s observation of the video-recording and her demonstration depicted in the photos could accurately tell how much force Madam Leung had applied on the Table.        

37.  Madam Leung’s evidence is that the Table had along been in a stable position with its legs firmly planted on the floor when Ms Fong pushed its left side further away from the pantry. The Table did not appear to be shaky. There is no suggestion let alone evidence that the floor was slippery.

38.  I should add that at this court’s request, Madam Leung indicated the position where her hands touched the Table by marking the photos of the Table and it was on the uppermost part of the rims on both sides.

39.  Given this state of evidence, on balance of probabilities, it is more likely than not that it was the negligence of Madam Leung’s handling of the Table that caused the Table to fall onto her right foot. Strictly speaking, her pleaded case that she was trying to remove the Table is not supported by evidence.  I do not believe she merely touched the rims on both sides slightly without using any force. It does not sound convincing that under such circumstances the legs would go away and the wooden surface of the Table would land on her right foot.

40.  Such a folding table is a very common piece of furniture. It is not rocket science that its legs would be separated from the wooden surface if one presses the wooden surface downwards at an angle. Or if one is in the course of lifting the Table up but somehow lose his grip, the lowest rim might touch the floor whilst the legs might go away. Madam Leung told this court that the Table was quite heavy. If she merely held the uppermost parts of the rims on the sides, I am not at all surprised that she might lose grip of the wooden surface when she managed to lift it up a little bit. However, I am reluctant to surmise what the exact cause was. The clear conclusion to me is that on such evidence I cannot accept that the Table fell onto Madam Leung because of the very condition of the Table including its upright position.

41.  In his closing submissions, Mr Shum points out that the reasonable inference is that immediately before Madam Leung touched the sides of the wooden surface of the Table, it had already been prone or susceptible to falling due to the existence of the gap between the wooden surface and its legs. I cannot draw such an inference, particularly in light of Madam Leung’s evidence that the Table looked stable and firmly rooted on the floor before she went up to it.

42.  Madam Leung used to handle the Table, fold the Table and carry it back to the pantry after use. The Residents sometimes did the same albeit accompanied by the instructors. It is not a manoeuvre which demands any special training or instruction at all.

43.  The Table was placed outside the pantry on a temporary basis obviously as a makeshift door to prevent the Residents from entering the pantry. I do not share the view of Mr Shum that it was wrong for PLK to have done so. Any ad hoc measures could cause varying degrees of danger to the users of the Centre if they were themselves negligent. Madam Leung did not touch the Table inadvertently in the course of her work. She made a deliberate attempt to alter the position of the Table but this time she failed. There is also no evidence that Madam Leung had to restore the Table to its original position as a matter of urgency to avert immediate danger. She used to be able to take the Table back to the pantry and so did the Residents on a regular basis. It was merely a mundane and simple task in any view. I am unable to accept that the system of work was in any way unsafe.

44.  Mr Shum refers extensively to the decision of the Court of Final Appeal in Cathay Pacific Airways Limited v Wong Sau Lai [2006] 9 HKCFAR 371 to underscore that the wide scope of nature of “system of work”. However wide the scope is, I am not convinced that in the particular circumstances of the present case, on the evidence of Madam Leung, putting the Table back to its original position could be said to be part of the system of work.

45.  It is true that it may be argued that her system of work involved taking the Table back and forth from the activity room to the pantry but Madam Leung did not carry out this task at the time of the accident. In any event, I am not persuaded that it was an unsafe process.

46.  Mr Chan helpfully draws my attention to the following dictum of Kwan JA in Fong Yuet Ha v Success Employment Services Limited, unreported, CACV 100/2012, 28.12.2012 at §19

“As the passage quoted has made clear, it is a question of fact in each case whether it is necessary for the employer to devise a system of work for the task in hand. The judge decided that in the circumstances of this case, the need for a system of work to be prescribed was not made out. In paragraph 38 of the judgment quoted above, the judge referred to Winter v Cardiff Rural District Council and some of the cases in Hong Kong that applied this case. They were all situations where the court held on the facts that the operation was simple and it was reasonable that the employee could be trusted to exercise his common sense to carry out the operation without the need for the employer to prescribe a system of work or give specific instruction or advice how the task should be done.”

47.  Kwan JA went on to conclude as follows (at §21):

“The judge was correct in holding that in the circumstances of this case, there was no need for the employer to prescribe a safe system of work or give specific advice for such an everyday act that could reasonably be trusted to the common sense of the employee to carry out the task safely. The retrieval of items on the upper shelf was simply not an inherently dangerous act, as contended by Mr Wong.”

48.  I entirely agree with the view of Kwan JA. Moving a folding table is an everyday act and cannot be inherently dangerous. PLK could reasonably expect its employees at the Centre to be able to carry out such a task without any need for specific training, warning or advice.

49.  On the other hand, the mere fact that the Table was placed outside the pantry in an upright position does not turn the activity room into an unsafe place of work. The Table itself could not be a hazard. Even if it is unfolded and placed in the middle of the activity room for dining purposes, one can still bump into it accidentally and hurt himself. It does not mean that the activity room is unsafe or that the Table was dangerous.

50.  I have gone through the remaining particulars of negligence but on my factual findings and conclusion, none of them can be made out.

51.  I cannot accept the allegation that PLK was in breach of the statutory duty to ensure that Madam Leung would be reasonably safe in working at the Centre, either. She was indeed reasonably safe at the Centre and the accident occurred not because of its physical condition.

52.  It follows that the claim of Madam Leung against PLK cannot be established. Even if I had found that liability could be established, given my finding that Madam Leung’s own negligence caused the Table to fall onto her right foot, Madam Leung should have been found guilty of 100% of contributory negligence. In other words, I find that the particulars of contributory negligence are borne out by evidence save the one relating to the alleged failure to apply her skills acquired in the course of her training to her handling of the Table.   

Quantum

53.  In light of my conclusion on liability, it is not necessary to deal with the issue of quantum. I shall, nevertheless, proceed to assess the quantum in case I were wrong in respect of liability and I shall briefly state my conclusions on the various heads of damages claimed. I shall first outline the injuries and treatment of Madam Leung.

Injuries and treatment of Madam Leung

54.  The following information contained in Mr Chan’s opening submissions is well-documented and not in dispute.

55.  After the accident, Madam Leung was sent to the AED of QMH by a car of PLK driven by her colleague. The report of the AED of QMH showed that the right big toe of Madam Leung was swollen, tender and bruised. Radiological study showed a fracture at the proximal phalanx of the right big toe. She was discharged with painkillers.

56.  Madam Leung went to AED of QMH again on 13 June 2013. Physical examination recorded that “toe (range of motion) full” with “mild bruise”. She went there for the third time on 26 June 2013 and the treating doctor made a record of residual pain.

57.  On 11 July 2013, Madam Leung was referred to the Orthopaedic Clinic. The relevant record showed that mild tenderness over fracture site was shown under physical examination and fracture was shown to be healing. Pain was tolerated.

58.  On 1 August 2013, X-ray showed that the fracture almost healed. There was no swelling whilst Madam Leung only had mild pain and tenderness over fracture.

59.  From 13 August 2013 onwards, Madam Leung underwent occupational rehabilitation at the Occupational Therapy Department (“OTD”) of Queen Elizabeth Hospital (“QEH”). She still reported pain at visual analog scale 3-4/10 and that she could stand for 10 minutes, walk for an hour and climb 2 flights of stairs.

60.  On 29 August 2013, the treating doctor at QMH examined Madam Leung and noted that the fracture had healed. On the same day, she showed progress at her rehabilitation assessment at OT of QEH and reported to be able to stand for 30 minutes, walk 3 hours but was unable to kick a football with her right foot. The occupational therapist recorded that Madam Leung was likely to manage certain work tasks if special arrangement is offered.

61.  On 19 November 2013, Madam Leung attended her last occupational therapy session. She reported that she could stand for 1 to 2 hours and walk for 4 hours. Generally speaking, she was making good progress.

62.  On the next day, Dr Lam examined Madam Leung and X-ray revealed that everything was normal. No bony lesion was detected. The orthopaedic experts concluded that by that time her fracture must have healed in good condition and had united.

63.  Madam Leung was granted a total of 567 days of sick leave from 31 May 2013 to 18 December 2014. The Medical Assessment Board (“MAB”) subsequently endorsed all such sick leave.

64.  Madam Leung started working at Hong Kong Lutheran Social Service as a programme worker on 1 April 2015.

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

65.  I can well accept that the accident caused sharp pain to the right big toe of Madam Leung. However, the medical evidence showed that the injury was only minor and the fracture healed completely on 20 November 2013, about 6 months after the accident.

66.  I have perused all the authorities cited by Mr Shum and I accept the submission of Mr Chan that in all such authorities the injuries involved were far more serious than that of Madam Leung. Therefore, they are not helpful at all.

67.  On the contrary, I find the authorities cited by the defence[1] to be relevant and instructive. On such authorities, I could conclude that an award of HK$120,000 would have been appropriate under this head.

Pre-trial loss of earnings (including loss of MPF)

68.  Madam Leung’s monthly salary in the month preceding the accident was HK$15,125.00 It was increased to HK$15,651.00 in May 2013.

69.  Madam Leung had obtained 567 days of sick leave. She was unemployed from 19 December 2014 to 31 March 2015. Her salary was adjusted to HK$17,090 on 1 April 2016.

70.  The parties are divided on two issues, namely, the length of the sick leave and the ability of Madam Leung to return to her pre-injury job.

71.  Mr Shum impresses upon this court that in the absence of any evidence to challenge the validity of the sick leave certificates, the period of sick leave should be above challenge. This was the approach adopted by DHCJ Saunders in Zheng Biao v Kwok Wai Lung, unreported, HCPI 115/2001, 25.6.2004 and Li Wan Kei v Hyundai Engineering & Construction Company Limited, unreported, HCPI 577/2004 per Suffiad J.

72.  In Zheng Biao, DHCJ Saunders had this to say (cited with approval by Suffiad J in Li Wan Kei ) at §33,

“… There is no dispute that throughout the whole of that time he was given appropriate sick leave certificates by doctors, and there is no suggestion that those doctors have acted in any way improperly. While it may well be that a person suffering from the same injuries might have gone back to work earlier, in the absence of any evidence to challenge the validity of the sick leave certificates for the period of two years and five months, upon which Mr Zheng was entitled to rely, I am satisfied that the period of sick leave cannot be challenged. It is right that both orthopaedic surgeons have said that a shorter period would be appropriate, but neither directly questions the validity of sick leave certificates issued.”

73.  The defence takes a different position. Mr Chan submits that I am not bound by the mere issuance of sick leave certificates. He relies on Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210. There, Le Pichon JA giving the judgment of the Court of Appeal had this to say at §18:

“Since the plaintiff’s pre-trial loss of earnings is ascertained by reference to the period during which the plaintiff was prevented by the injuries sustained from returning to work, what has to be ascertained and identified is the length of that period. In my view, that is an exercise that would not require evidence to suggest or imply that those who had granted sick leave to the plaintiff did so improperly. Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award of pre-trial loss of earnings and no other. Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court. As Rogers VP observed in Choy Wai Chung v Chun Wo Construction & Engineering Company Ltd, unreported, CACV 172/2004, 15 July 2005 at § 9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.

74.  I entirely agree with Le Pichon JA. This judgment was handed down well after Zheng Biao and Li Wan Kei and is binding on me. I should follow her approach.

75.  In the present case, I am well aware that both Dr Lam and the MAB endorsed all the sick leave certificates. Dr Lam points out that consideration of sick leave should be individualized. He takes into account the severity of the injury, her need for rehabilitation, her progress with treatment and the pre-accident job demand and agrees with the sick leave certificates as a result.

76.  The expert of the defence, Dr Chun, however, opines that reasonable sick leave should be less than 10 weeks. He opines that in the private sector, patients normally are able to return to work in 3 weeks’ time with non-manual laboring job.

77.  I agree with the defence that Madam Leung has exaggerated her injury and the physical demand of her work. It is noteworthy that Dr Lam also agrees that she exaggerated her symptoms. By 20 November 2013, her toe must have already healed as supported by medical evidence.

78.  Mr Ho, dealing with the issue of quantum for PLK, is right to point out that Madam Leung’s condition inexplicably deteriorated when she was examined jointly by Dr Lam and Dr Chun in June 2016. This is an indication of her exaggeration in my view.

79.  I further accept his submissions that Madam Leung did not turn up for her occupational therapy sessions in November and December 2013 because of her total recovery. I do not accept her explanation that she was sick on such occasions without medical evidence. I am not convinced that the subsequent physiotherapy treatments requested by her can be truly reflective of the actual condition of her right big toe.    

80.  Nor can I be convinced that Madam Leung could not return to her pre-injury employment despite her alleged residual pain. She stresses that she had to be on her feet most of the time and she had to supervise the Residents’ activities both indoor and outdoor. She sometimes had to play soccer with them.

81.  I do not think her toe injury having fully healed still impedes her performance of such duties. I do not think she could not sit on a higher chair during her instructions in the activity room. Her allegation is not even supported by the medical evidence of Dr Lam.

82.  Moreover, as rightly pointed out by Mr Ho, Madam Leung did not even return to the Centre and try to resume her work for one single day. Her assertion that she could not cope with the work demand is not supported by any evidence of actual experience. She made no effort to try to do so at all.

83.  In the circumstances, I agree with the defence that Madam Leung should not be entitled to any further loss of earnings 6 months after the accident. For her pre-trial loss of earnings, I would have only allowed: HK$16,433.55 x 6 x 1.05 (MPF) = HK$103,531.40.

Future loss of earnings

84.  By reason of my conclusion that Madam Leung should be able to return to her pre-injury job, I would not have made an award for future loss of earnings.

Loss of earning capacity   

85.  Madam Leung claims loss of earning capacity in the sum of HK$100,000. For the reasons given above, including my rejection of her allegation of any residual pain, there is no basis for an award under this head.

Special damages

86.  Madam Leung claims medical expenses in the sum of HK$4,880 and travel expenses in the sum of HK$2,950.

87.  For the medical expenses, I am satisfied that they have been actually incurred. I would have allowed her claim in full.

88.  For the travel expenses, there is no receipt and the sum claimed is only a rough figure. Given her attendances to both QMH and QEH for a great number of occasions, I am satisfied that the sum claimed is not unreasonable. I would have allowed this claim in full too.

89.  In summary, if I had found for Madam Leung on the liability issue, the quantum of damages that would have been awarded to her would be as follows:

(1) PSLA	HK$120,000
(2) Pre-trial loss of earnings	HK$103,531.40
(3) Special damages	HK$ 7,830
Total:	HK$231,361.40

90.  Of course against this award, Madam Leung would have had to give credit for any sum she has received as employees’ compensation.

91.  Interest at 2% per annum would have applied to the general damages from the date of the writ to the date of judgment and thereafter at the judgment rate.

92.  For special damages, interest would have been awarded on such damages at half the judgment rate from the date of the accident until the date of judgment.  

Conclusion and orders

94.  For the reasons given above, the claim of Madam Leung must be dismissed in its entirety.

95.  Costs should follow the event. I make an order nisi that Madam Leung should pay PLK its costs of this action including all the costs previously reserved if any. This is a rather simple and straightforward case and the amount claimed is modest. I do not think a certificate for two counsel is justified.

96.  I further order that Madam Leung’s own costs will be taxed in accordance with the Legal Aid Regulations.

97.  It remains for me to thank all counsel for their assistance rendered in this matter.