CHAN LEUNG SING v. NG KEUNG AND ANOTHER

HCPI 3/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 3 OF 2012

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J U D G M E N T

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1.  This is a personal injuries action arising out of an accident which occurred on 6 January 2009 at Hillsborough Court, No 18 Old Peak Road, Hong Kong (“the Site”). 

2.  The background facts, insofar as they are not controversial, can be set out as follows.

3.  The plaintiff was born on 25 July 1953 and was 55 years old at the time of the accident.  He worked primarily as a welder and occasionally as a vault‑ceiling worker. 

4.  On the day of the accident (6 January 2009), he attended the Site to work on the repairing of ceiling at the entrance of the car park to the Site.  He was an employee of the 1^st defendant who, in turn, was a sub‑contractor of the 2^nd defendant who was the principal repair and renovation contractor of the Site.  It was his second day of working at the Site, the first day being 5 January 2009. 

5.  On the first day at work at the Site, he co‑operated with a worker by the name of Michael but on 6 January 2009 Michael was not there and he co‑operated with a worker by the name of “spectacled Keung” (四眼強) (“Keung”). Keung was also an employee of the 1^st defendant. 

6.  The plaintiff’s work at the Site involved removing old aluminium boards from, and installing new aluminium boards in, the ceiling at the entrance to the car park of the Site.  At around 4 pm on 6 January 2009, the plaintiff and Keung were each using an “A‑shaped” ladder on the slope near the entrance to the car park to carry out their work.  Keung’s ladder was on the higher part of the slope and the plaintiff’s ladder was on the lower part.  Keung’s ladder was shorter in height and the plaintiff’s ladder was taller. 

7.  Keung stepped on the fifth rung of his ladder and sat on the sixth rung.  The plaintiff stood on the lower part of the slope and handed an aluminium board to Keung. Keung received the aluminium board with his right hand.  The plaintiff was holding the other end of the aluminium board with his right hand and walking up the ladder, using his left hand to hold on to the side of the ladder. 

8.  After the plaintiff’s right foot had stepped onto the ninth rung, he moved his left foot to the ninth rung on the other side of the ladder and was in the course of getting ready to sit on the tenth rung.  Then Keung suddenly (and without warning) lost hold of the aluminium board.  The aluminium board on Keung’s end fell to the ground.  The weight of the aluminium board dragged the plaintiff to fall also.  The plaintiff lost his balance and fell from the ladder onto the ground.  The right side of his body hit the ground first.  The ladder also collapsed and hit the plaintiff’s right leg when it rebounded. 

9.  As a result of this accident, the plaintiff suffered physical injuries. 

Issues and witnesses

10.  The plaintiff commenced this action on 3 January 2012.  Default judgment was obtained against the 1^st defendant.  Though intention to defend was given by the 2^nd defendant and a full blown Defence was filed, it indicated by its Opening Submissions that it would not contest liability subject only to the following issues:

(1) contributory negligence; and

(2) quantum.

11.  These are therefore the only issues I have to deal with in this judgment.

12.  The plaintiff himself testified as the only witness of fact.  The 2^nd defendant did not call any factual witness.

13.  As to medical evidence, by order of Master Leong dated 26 February 2013 the single joint orthopaedic report of Dr Johnson Lam Chi Keung (“Dr Lam”) dated 4 September 2012 (“the Joint Expert Report”) was directed to be adduced without oral evidence. 

Contributory negligence

14.  I can deal shortly with the contention of contributory negligence. Put shortly, the 2^nd defendant’s argument is that the plaintiff was contributorily negligent because the plaintiff was aware of the hazards and dangers of working at a height and he have asked to be provided with a platform.  However, when he asked the 1^st defendant (his employer) for a platform on the first day of his work, the 1^st defendant said there was none but he could borrow a ladder from the management office.  Against this background, it is contended by the 2^nd defendant that being an experienced workman the plaintiff ought to have persisted with his concerns as to safety and asked for a platform or take other safety measures prior to commencing work on the second day at work. 

15.  I reject the argument of contributory negligence.  It is important to bear in mind the setting.  It is not a case where a number of different ways of doing a job had been entirely left open for the plaintiff and, as between a safe way and an unsafe way, the plaintiff had chosen an unsafe way.  Instead, this is a case where, practically speaking, the plaintiff was given a ladder when he asked for a platform.  In these circumstances it is hard to see what else the plaintiff could do.  Any suggestion that he should resurrect his request for a platform on the second day (and then somehow he would then be able to obtain a platform) is unreal and unsupported by the evidence.  Having asked for a platform on day one, one would have thought that if there was really a platform available on the Site, it would have been readily provided. There was no incentive or motivation by anyone to deliberately withhold the platform from the plaintiff if one were really available.  Alternatively, if a platform did exist somewhere on the Site but had been borrowed by some other people (or temporarily unavailable for some other reason), one would have expected that to be mentioned to the plaintiff when he first asked for it and told to get it later or the next day.  But no one has so told the plaintiff.        

16.  My attention has also been drawn to the fact that in the invitation to tender in respect of this project (and the works order), it was a requirement for the 2^nd defendant to provide a platform.  Had there genuinely been a platform on site (so that if the plaintiff had persisted, he would have got it), one would have expected the 2^nd defendant to produce a witness to say so.  There had, however, been no such evidence.  The natural inference was therefore, and I find, that there was no safety platform on site.   If (as I find) there was no platform on site, I do not think it was realistic (or reasonable) to expect the plaintiff to refuse to work if he was not given one.  Realistically he had to get on with the work and do the best he could, and one cannot blame him for using what he had been given namely a ladder. 

17.  As to the law, in Ng Kam v Sun Wan Company, CACV 38/1988, Fuad VP said:

“ The Plaintiff was that way, not performing his task in a dangerous way to save himself trouble. He was doing it in that way to get on with his employer's business; in a way, as the judge found, that was condoned and tacitly encouraged by his employer. There were safer systems available but they were not ones which, in practice, were used. Indeed as I have mentioned, the chief foreman himself had employed the same method on the evidence accepted by the judge. In these circumstances, I do not think that an employer can be heard to say that this employee was being negligent in carrying out the work in that manner. It seems to me that the approach of Denning, L. J. in the Court of Appeal hearing of the General Cleaning Contractors case which I have read is applicable.”

18.  The words of Denning LJ referred to by Fuad VP were said in the Court of Appeal judgment of the case of General Cleaning Contractors v Christmas but which is set out in the speech of Earl Jowitt in the report of the House of Lords at [1953] AC 180 at 187:

“... it was suggested that the accident might have been avoided if the man had put in a block to prevent the bottom sash coming right down as it did. This was, in effect, a suggestion of contributory negligence. This was negatived by the judge and I agree with him. You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which the employers expected him to do it, and, if they had taken proper safeguards, the accident would not have happened.”

19.  On the facts of this case, I find that the plaintiff was only doing the work in the way which the defendants expected him to do it namely to use a ladder. I do not think he was contributorily negligent by not asking for or insisting on a platform.  I reject the plea.

Quantum

20.  I now turn to quantum. 

21.  The plaintiff was examined by Dr Lam on 30 August 2012.  According to the Joint Expert Report:

(1) The plaintiff suffered multiple soft tissue injuries to the right knee, right ankle and low back.

(2) It was likely that injury to the low back was mild and he had achieved satisfactory recovery from the injury.

(3) Significant residual impairment or disability is not expected. 

(4) Though the plaintiff complained of discomfort in the right shoulder, any right shoulder injury (if indeed present) was likely to be mild and the plaintiff had achieved satisfactory recovery. Significant residual impairment or disability of the right shoulder was unlikely.

(5) It was likely that the plaintiff would have some degenerative changes in both knees before the subject accident though such degenerative changes were rather asymptomatic before the subject accident.  Such degenerative changes were more severe in the right knee.

(6) There was crepitus in both knees, more severe over the right knee. 

(7) Medical treatment received by the plaintiff was appropriate.  Surgery was not required. 

(8) At the time of the examination, the plaintiff’s right knee and right ankle injuries have reached maximal medical improvement.

(9) Considering the mechanism of injury involved and the subsequent clinical picture, the subject accident could cause considerable soft tissue injury to the injured areas.

(10) The plaintiff would not be able to resume his previous work that required rather heavy physical demand on the knees.  Duties that do not require heavy demand on the knees (eg security guard in relatively stationery post, gas station worker) would be more suitable. 

(11) Residual pain in right ankle should be mild and estimated to carry 0.5% whole person impairment. 

(12) For the purpose of Employees Compensation, the plaintiff’s right knee condition should carry 10% loss of earning capacity and right ankle injury should carry 1% loss of earning capacity. 

(13) Lastly Dr Lam opined:

“Apportionment: Dr Lam opines that from the evidences available, it is likely that Mr. Chan suffered from considerable and rather severe soft tissue injury to his right knee, triggering symptoms in the otherwise asymptomatic right knee degenerative arthritis, causing persistent pain and disability in the right knee. Assuming Mr. Chan was indeed rather asymptomatic in both knees before the subject accident, but for the subject accident, considering the degree of degenerative changes in both knees, and considering Mr. Chan’s subsequent development of evidence of left knee (the uninjured knee) symptomatic arthritis as well, I would expect Mr. Chan should be able to enjoy rather painless function in his right knee for about 3-5 years. If Mr. Chan eventually develop symptoms in his right knee due to natural degeneration (which is usually a rather slow and gradual process), but for the subject accident, the symptoms are likely to be milder and more occasional. For the sake of apportionment, based on the evidences available, my estimation is that the subject accident and the pre-existing degeneration should each contribute about 50% to the present impairment and disability in the right knee.”

22.  The plaintiff’s case is that ever since the accident, he had not taken up any employment except for a job which he attended for two hours

23.  The plaintiff was given sick leave till 25 June 2010, which is a total of 528 days.

Pain and Suffering and Loss of Amenities (“PSLA”)

24.  In the original opening submissions of the plaintiff, damages for PSLA in the sum of HK$450,000 was claimed, and the following cases were referred to:

(1) Mahmood Tariq v Kinway Engineering Ltd & Anor, HCPI 149/2006, where a sum of HK$200,000 was awarded on the basis of back sprain and right knee contusion.

(2) Leung Po Chun v Yat Lee Booth - Construction Co Ltd, HCPI 1099/2006, where a sum of HK$220,000 was awarded on the basis of multiple right knee injury causing mild limping.

(3) Au-yeung Miu Sim v Tsang Kwong Wai & Anor [2004] 2 HKLRD 187, where a sum of HK$250,000 was awarded on the basis of multiple injuries including sprained knees and psychotic disorder.

(4) CMY v Tam Siu Wing [2008] 4 HKLRD 604, where a sum of HK$400,000 was awarded on the basis of neck, back and knee injuries with adjustment disorder.

(5) Tong Siu Wai v Poon Wing Fu, [2012] 5 HKLRD 407, where a sum of HK$300,000 was awarded for multiple injuries to back and knee.

25.  In the revised opening submissions of the plaintiff, the claim for PSLA was adjusted downwards to HK$250,000. 

26.  The same claim for HK$250,000 was maintained in the closing submissions.

27.  In the 2^nd defendant’s Opening Submissions, the following comparables were referred to:

(1) Cheng Chi Ming v Li Chau Wan & Anor, HCPI 1028/2002, where the plaintiff fell from a height and suffered the following injuries and received the following medical treatments:

(a)Effusion on right knee.

(b)Tenderness on right knee.

(c)Range of movement “greatly diminished”.

(d)Fracture at right lateral plateau of the tibia of right knee.

(e)Arthroscopy, open reduction, internal fixation and casting were carried out.

(f) The plaintiff was hospitalized for 10 days.

Suffiad J awarded the sum of HK$250,000 (as at July 2005) for PSLA.

(2) Chung Wai Hung v Chung Wai Ming,DCPI 2675/2007, where the plaintiff was a construction worker and suffered injuries while cutting a pipe with a handheld grinder.  He suffered the following injuries and received the following medical treatments:

(a) Deep 7 cm cut wound over the left anterior knee, deep to the proximal tibia with minor crack over the lateral cortex.

(b) Tear of the patella tendon over the left anterior knee.

(c) Operative exploration of the left knee laceration and repair of the patella tendon were carried out.

(d) The plaintiff had to wear a protective knee brace.

(e) The plaintiff was hospitalised for nine days.

Lok J awarded the sum of HK$180,000 (as at July 2008) for PSLA.

(3) Leung Po Chun v Yat Lee Booth - Construction Co Ltd & Anor, HCPI 1099/2006, the plaintiff was a scaffold dismantler and suffered the following injuries:

(a) Osteochondral fracture of right knee.

(b) Residual pain.

(c) Numbness radiating down to left upper limb.

(d) Very mild limping.

DHCJ Carlson (as he then was) awarded the sum of HK$220,000 (as at September 2007) for PSLA.

(4) Mahmood Tariq v Kinway Engineering Ltd & Anor, HCPI 149/2006, where the plaintiff was a construction worker and fell from height.  He suffered the following injuries:

(a) Tenderness at left paraspinal area.

(b) Right knee contusion.

(c) The plaintiff was hospitalised for three days.

DHCJ Gill (as he then was) awarded the sum of HK$200,000 (as at May 2007) for PSLA.

(5) Tsui Hau Kwong v Chau Fung Wan Cheryl & Anor, DCPI1319/2008, where the plaintiff was involved in a traffic accident as a passenger on a taxi and suffered the following injuries:

(a) Back pain.

(b) Laceration on left knee.

(c) No fractures suffered.

(d) He was hospitalised for two days.

The court awarded the sum of HK$100,000 (as at June 2009) for PSLA.

28.  A sum of HK$100,000 was put forward by the 2^nd defendant as the appropriate award for PSLA damages, it being contended that the present case is more akin to the injuries suffered in Tsui Hau Kwong where HK$100,000 was awarded for PSLA.  This was repeated in the closing submissions. 

29.  I have considered the comparables cited by the parties.  I agree with the 2^nd defendant that the injuries suffered by the plaintiff are akin to those in Tsui Hau Kwong. The other cases cited by the parties involve more serious injuries (or injuries to more bodily parts).  In view of the lapse of time between that case and the present, I would award a sum of HK$150,000 as damages for PSLA.

Loss of earnings

30.  To assess the plaintiff’s claim for pre-trial loss of earnings, one has to address the number of days that the plaintiff would have been able to work but was prevented from working (or prevented from earning as much as before the accident) because of his injuries. 

31.  Needless to say, if the plaintiff was in fact working but earning a lower rate, then damages would only be awarded for the reduction in earning the plaintiff had suffered on those working days.

32.  Likewise if the plaintiff could have worked (in the sense that he was physically able to work) but had chosen not to work on certain days, then no damages for loss of earnings would be awarded for those days either.

33.  The accident occurred on 6^th January 2009.  Sick leave has been granted until 25 June 2010 (inclusive), totalling 528 days. The plaintiff’s case is that he had not worked ever since the accident and therefore:

(1) His loss of earnings from the date of the accident to the expiry of sick leave was:

HK$675 (average daily rate between the rate of a welder at HK$800 and the rate of a vault-ceiling worker at HK$550, on the basis that the plaintiff worked both as a welder and a vault-ceiling worker) x 528 x 1.05 (to take account of MPF) = HK$374,220.

(2) His loss of earnings from expiry of sick leave to trial (July 2014) was (assuming no employment):

HK$675 x 26 (assuming 26 days work per month) x 48 x 1.05 (to take account of MPF) = HK$884,520.

In the alternative, assuming notional employment at HK$10,000 per month (and therefore monthly loss of income at HK$675 x 26 less HK$10,000 = HK$7,550):

HK$7,550 x 48 x 1.05 (to take account of MPF) = HK$380,520.

(3) For post-trial loss of earnings, assuming complete unemployment and adopting a multiplier of 3 (based on a retirement age of 65), the plaintiff’s claim is:

HK$825 (adjusted average daily for rate of welders and vault ceiling workers) x 26 x 3 x 1.05 (to take account of MPF) = HK$67,567.5.

Alternatively, assuming notional employment at HK$12,000 per month (and therefore monthly loss of income at HK$825 x 26 less HK$12,000 = HK$9,450), the plaintiff’s claim is: HK$9,450 x 12 x 3 x 1.05 = HK$357,210.

34.  On the 2^nd defendant’s part, it contends that in the light of the nature and extent of the inquiry, the period of sick leave allowed by the doctors was actually excessive but in view of the opinion of Dr Lam (who thought that the period as appropriate) it would agree to the sick leave period. In terms of quantum, in the 2^nd defendant’s opening submissions (which was repeated in closing) it agreed to the following:

(1) Pre-trial loss of earnings for the period 7 January 2009 to 6 July 2009 at HK$550 per day for 22 days per month

= HK$12,100 (per month) x 6 = HK$72,600.

(2) Pre‑trial loss of earnings for the period 7 July 2009 to 25 June 2010 (expiry of sick leave) at HK$600 per day and 22 days per month = HK$13,200 x 6 = HK$79,200.

(3) On top of the sick leave period, the 2^nd defendant is prepared to allow for three more months for the plaintiff to seek new employment.  Loss of earnings for this three month period at HK$13,200 per month would be:

HK$13,200 x 3 = HK$39,600.

(4) The total of the above items added up to HK$191,400.  Loss of MPF on this sum would be HK$191,400 x 0.05 = HK$9,570.

35.  As to loss of earnings upon the expiry of three months from end of sick leave and as to post‑trial loss of earnings, the 2^nd defendant contends that the plaintiff is not entitled to any, because he ought to have been able to secure employment of a more sedentary nature such as security guard or gas station worker three months after expiry of sick leave (if not earlier).  Further, the plaintiff was 60 years old at the time of the trial and that was the appropriate retirement age for construction workers anyway.

36.  As to loss of earning capacity, the plaintiff contends for HK$120,000 and the 2^nd defendant contends that no award should be made.

Evidence as to the plaintiff’s loss of earnings since the accident

37.  There are two issues to be considered:

(1) The period of time over which damages for loss of earnings should be considered.

(2) The rate at which damages should be awarded.

38.  On the first point (period), since the 2^nd defendant has agreed to pay damages up to three months from the expiry of sick leave, my focus is on the period after that three months period.  Sick leave expired on 25 June 2010.  Three months from 25 June 2010 would take us to 25 September 2010. 

39.  The plaintiff’s case is that he has in fact not done any work since the accident except for one job of two hours doing miscellaneous construction work, after which (according to the plaintiff under cross examination) he was fired.  In his second witness statement dated 20 January 2014 the plaintiff described his efforts in seeking employment.  Further, despite Dr Lam’s view that duties that did not require heavy physical demand on knees such as security guard or gas station worker would be more suitable for the plaintiff, the plaintiff stated that because of his perception of pain and discomfort he had not even tried to look for such jobs.

40.  With a view to testing the credibility of the plaintiff’s evidence that he has not done any work after the accident (save for the two hours), the 2^nd defendant put a number of medical records to the plaintiff during cross examination.  The general thrust of these documents is that since the accident the plaintiff had been attending various medical consultations arising out of injury at work during incidents other than the accident in question.  The point made by the 2^nd defendant is that these records showed that the plaintiff must have been working at all material times after the accident. 

41.  For example in a Consultation summary dated 20 August 2010 issued by Dr Wu Tsz Kit of Caritas Medical Centre it was stated that the plaintiff claimed “another IOD [injury on duty] on 06.08.2010, not report to labour department”.  The record was that the plaintiff suffered “left knee injury on 06.08.2010 while at work”.  The plaintiff’s work was described as a “manual worker”. 

42.  The plaintiff was cross examined on this.  He denied that there was such a new injury at work. 

43.  Then he was taken to a report dated 12 October 2010 of the Accident and Emergency Department of Caritas Medical Centre concerning foreign body in the right eye of the plaintiff.  There was a reference by the doctor examining the plaintiff to

“.. FB [I was given to understand that this meant “foreign body”] (metal pieces) during work.”

44.  The suggestion was that the plaintiff was at work that day and suffered injury to the right eye because of foreign body (metal pieces).  Under cross examination, the plaintiff denied that he was at work that day.  He said that he was rubbing his eyes at home and not at work.

45.  He was also asked about a report dated 24 March 2011 of the Accident and Emergency Department of the Caritas Medical Centre concerning injury to his right index finger.  The notation by the attending doctor was

“Right index finger injury and hit by iron … painful and swelling.”

In the same document there was another notation:

“right index finger crushed by heavy object at work at 4 pm.”

46.  When confronted with these notations in cross examination, the plaintiff admitted that his right index finger hurt and he had gone to the Accident and Emergency Department of Caritas Medical Centre but he maintained that the injury was not suffered during work.  He maintained that he did not work that day and he did not say he suffered the injury during work.  When I asked him to clarify how he injured himself if it was not during work, he simply said he had forgotten, that his file was very thick and he always went with his son. 

47.  Lastly in a consultation summary of the West Kowloon General Out Patient Clinic written by Dr Sy Wing Man on 30 July 2011, it was recorded that the plaintiff:

“go to new job today

Check BP check by them

SBP 181 fired him then

Actually known for HT for few yrs, on diet control all along Comm BP 140+ (very occ)”

48.  On the face of them, these remarks suggest that upon the plaintiff attending a new job that day the employer fired him because he had high blood pressure.  When asked about this in cross examination, he simply answered that he had not gone to a new job on that occasion and there was no firing due to high blood pressure. 

49.  The plaintiff submitted that the medical records put to him in cross examination should be read with care because they were written by attending doctors and the plaintiff had no chance to verify the contents.  However, whilst it may be said that one doctor might have made a mistake, when there were four doctors describing four different occasions/injuries and they all used language suggesting that the plaintiff had been working (or attending first day of work), the chances of all four being mistaken are extremely slim.  Doctors have no axe to grind and I am entitled to place weight on their contemporaneous notes and records which suggested that the plaintiff had been working, particularly as the plaintiff had given extremely unsatisfactory explanations and denials in cross examination.

50.  I should add this before I go further.  It may be conjectured that even though the plaintiff did try to work on the isolated occasions in question, because of the incapacity he suffered due to the accident those jobs did not last long at all and so generally speaking the plaintiff was still incapacitated for the entire post‑accident period (save for the odd occasions reflected by the medical records); and the plaintiff gave the denials in cross examination because he thought (erroneously) that to admit to having worked on those occasions would damage his case and to make a false denial would boost his case.

51.  The problem with this is that we operate under an adversarial system and I can only proceed on the basis of the way the parties had testified before me.  The plaintiff was professionally advised and represented.  If there was indeed an “innocent explanation” for the entries in the various records, it would have been open for him to say so in the witness box without any embarrassment.  I cannot “make up” an unarticulated explanation in favour of the plaintiff in this regard.   

52.  On the issue of the period of the plaintiff’s “incapacity”, therefore, I reject the plaintiff’s evidence that he was unable to do any work after the accident or that he had not done any work since the accident.  I find that the plaintiff had the ability to return to employment at least from 20 August 2010 (being the date of the first report mentioned above).  

53.  I should add that the plaintiff may or may not be actually in employment from 20 August 2010 onwards, but that is not what I am concerned with.  I am concerned with the capacity to be employed.  Based on the fact that the plaintiff was in fact in employment on the dates of the medical reports I mentioned above, and in the absence of evidence or a positive explanation on oath from the plaintiff (for example) that those were isolated instances of “aborted attempts” to be re‑employed again, the inference I draw and finding I make is that he had the capacity and ability to be employed from the date of the first of those reports.  If at any point in time he was in fact not employed, that could be because of market forces or his own choice.  In either case the consequence should not be visited upon the 2^nd defendant.

54.  For the sake of completeness, there was a suggestion in his evidence that he had to stay  home to take care of his child while his wife remained in Mainland China and therefore he could not work up to January 2012 (see §11 of his second witness statement).  Even if he had been constrained to stay at home to take care of his son during that period (a suggestion about which I am skeptical, in view of the medical records which showed that he was engaged in employment at various points in time in 2010 and 2011), the reason for any lack of employment was not due to the accident but because of his own family circumstances.  

55.  The above finding of course does not wholly resolve the question of loss of earnings because if, despite his ability to return to employment, he could only earn less than what he had been earning before, he would still be able to claim loss of earnings for the difference.

56.  There is evidence from Dr Lam that employment of a more sedentary nature such as security guard or gas station worker would be suitable for the plaintiff.  It would have been open for the plaintiff to adduce evidence (if any) to the effect that the salary that could be commanded from such employment (notional or actual) is less than the income that he had been receiving prior to the accident.  However, because of the way the plaintiff had chosen to present his case (on the basis of no earning capacity at all after the accident and that he had not even tried to look for such alternative employment) he has not produced any evidence of (say) the average salary of a security guard or a gas station worker.  Put colloquially, in terms of evidence he had “put all his eggs in one basket”, namely the basket of “not employable at all”.

57.  In his closing submissions he does have an alternative case on the basis of notional employment and a figure of HK$10,000 was put forward but there was no reference to any evidentiary materials.  The figure of HK$10,000 was prefaced by “say”, indicating the somewhat arbitrary nature of the choice of this figure.  In the absence of any evidence showing any difference between the income from the “notional alternative employment” and the pre‑existing employment, I shall not award any damages for loss of earnings for the period after 25 September 2010.

58.  This leaves the other question, namely at what rate I should award damages for loss of earnings for the period from the date of the accident to 25 September 2010.

59.  At the time of the accident the plaintiff was receiving a daily rate of HK$550 from the 2^nd defendant as a vault ceiling worker.  However, he claims that he was also able to work as a welder (at a higher rate) and the case put on his behalf at trial is that the going rate for a welder at the material time was HK$800: hence he adopted the average of the vault ceiling worker rate of HK$550 and the welder rate of HK$800 (namely HK$675 per day) as the basis for calculating loss of earnings. 

60.  The plaintiff’s evidence is that he had qualifications to work as a welder and he had past track record of working for a number of contractors such as Fung Cheung Kee, Ho Ming, and Fei Cheong, etc.  However, all transactions were handled in cash and he rarely paid money into his bank account and he had never received any tax demands or returns provided by his employers.  He had no written contracts with such contractors or MPF documents; nor did he have any proof of employment from such employers. 

61.  The plaintiff also claimed that before the accident, normally he would be at work 26 days a month even though sometimes one may finish one job but could not yet secure the next job but that would be a rare occurrence. 

62.  The defendant challenged the plaintiff’s evidence as to rate of pay and days of employment in cross examination.  Having considered the plaintiff’s evidence in its totality I reject his evidence (and the case put on his behalf as to number of working days per month) that when working as a welder he would work a full 26 working days per month. 

63.  The plaintiff was extremely vague and evasive when he was asked specific questions about the occasions when he would really work 26 days per month.  At times he said that he would work 26 days per month when the market was good (旺).  However the market could not be good (旺) all the time.  He was out of work for two weeks prior to taking up the engagement which led to the accident, and when he was asked whether the market was good (旺) during those two weeks he refused to commit and gave evasive answers. When I asked him whether his lack of work during those two weeks was because he wanted to take a rest or because he could not find work, he answered that it was because he could not find work.  At one time he said he would not make any judgment on whether the market was good (旺) or not, but it was the plaintiff himself who brought up this concept in the first place. 

64.  Further, the best way of showing the past pattern of work and earnings would be to produce documentary evidence such as tax returns, bank passbooks or documents provided by past employers.  While I accept that sometimes workers such as the plaintiff may not have very organized financial affairs — income may fluctuate, not all income may be paid into the bank account, salary slips may be missing for a month or two, etc.  However, in the present case, the plaintiff has not presented a jot of documentary evidence about his past earnings.  I do not regard the plaintiff’s explanation (at §10 of his 2^nd Witness Statement) of such wholesale absence of documentary evidence as satisfactory.  Without contemporaneous documents, it is impossible to properly test the veracity of the plaintiff’s oral assertion as to the number of working days and as to daily rate.  And I have already alluded to the unsatisfactory and evasive oral evidence given by the plaintiff above. 

65.  Common sense dictates that because of the nature of the work in question it is unlikely for a worker such as the plaintiff to be employed for 26 days per month on an indefinite basis.  In this regard I am in the good company of DHCJ Hartmann in Lo Wai Shing v Lik Sang Engineering Company Limited, HCPI 15/2012 where he said:

“... I must recognise two things, first, that casual work of this kind is highly unlikely to be available every day of every month on an indefinite basis and second, that the plaintiff is equally unlikely to be able to arrange his affairs so that he is able to take advantage of that work every day of every month.

... In my view, the obvious realities that apply to working as a labourer on a casual basis in a market which over any extended period of time has its ups and downs must tell against the submission made on behalf of the plaintiff that it is reasonable to proceed on the basis that, if it was not for the accident, he would have been able to work indefinitely ... as a casual labourer earning a minimum of $630 per day for 26 days in each and every month. …”

His Lordship went on to hold that 22 days per month was a realistic number.  I reject the plaintiff’s evidence and figure of 26 days and, like Deputy Judge Hartmann, I adopt the figure of 22 days instead.

66.  The same reasoning above applies to the plaintiff’s case that he has (as a welder) earned HK$800 per day and this rate should be adopted in arriving at the average rate he could have earned.  This HK$800 per day figure happened also to be the average rate of welders (actually HK$800.6) published by the Census and Statistics Department for January 2009 (as at April 2014 the rate has become HK$1,254.4 per day). However, there is no contemporaneous evidence that the plaintiff had earned as much as HK$800 per day (or with any regularity) before (whether as a welder or otherwise).  He was in fact very non-committal and evasive when the 2^nd defendant’s counsel tried to probe him further as to the details of his alleged experience of “HK$800 per day as a welder”, resorting to such generalized answers as “depends on what type of work”, “if there was no work that was highly paid, then I would take work that is not highly paid.”  If he had in fact had any significant experience of receiving pay of HK$800 as a welder, he should have little difficulty in recalling (for example) that “I received a rate of HK$800 per hour during that job with XYZ contractor very recently at ABC building”.  If it is indeed true that the plaintiff had been earning anything near HK$800 per day as a welder with any degree of regularity, such figures and data would not be something that the plaintiff could lightly forget. 

67.  I am prepared to accept that the plaintiff was qualified to work as a welder and he had worked in various welding jobs before.  However, in the absence of credible and reliable evidence as to the sort of rates that the plaintiff had been able to command as a welder in the past, I do not think I should speculate any figure or adopt an average figure based on government statistics. Instead, I shall proceed on the basis put forward by the 2^nd defendant namely HK$550 per day from the accident to 6 July 2009 (the date when, according to the plaintiff’s statement of damages, the plaintiff would have been able to obtain work as a welder again) and HK$600 (the lower end of the range of daily rates as a welder put forward by the plaintiff at paragraph 4 of his Witness Statement) from 6 July 2009 onwards.  There is an element of “mix and match” in such a proposal by the 2^nd defendant because it has included an element of the plaintiff’s own case about a welder’s rate (but taking the lower end of the range namely HK$600 instead of the upper end of HK$800).  However, in view of the complete absence of supporting or documentary evidence about the rate of a welder, it would have been potentially open to me actually to adopt the rate of HK$550 (being the only available evidence of daily rate earned by the plaintiff) throughout all material times.  Viewed in this light, the adoption of HK$600 for the post 9 July 2009 period is already to the plaintiff’s advantage and given his own failure to produce contemporaneous evidence of his own earnings as a welder, I do not think he can complain about this.

68.  I will not make any separate award for loss of earning capacity because the element of handicap in the job market and the time that the plaintiff would need to seek new employment after recovery has already been factored into the additional three months damages offered by the 2^nd defendant.

Miscellaneous

69.  The plaintiff has claimed the following items of other expenses:

(1) Medical expenses – HK$820.

(2) Tonic food – HK$10,000.

(3) Travelling expenses – HK$3,000.

70.  The 2^nd defendant agrees to items (1) and (3) but only agrees to HK$5,000 for tonic food.  I regard HK$10,000 as reasonable for tonic food and I would award that sum as well.

71.  The 2^nd defendant submitted that because Dr Lam had opined that the plaintiff had pre-existing degeneration in his knees, for the purpose of apportionment he suggested that the accident and the pre-existing degeneration each contributed 50% to the present impairment and disability in the right knee, any award made in favour of the plaintiff should be discounted by 50%.

72.  I do not accept this submission.    One cannot take the “apportionment” view expressed by the expert in such a mechanical way.    In this connection the Court of Appeal said in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 at 965F-G (per Mortimer VP) :-     

"Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages.  The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high.”

"When calculating the damages for future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence.  This is particularly so when a plaintiff's working life is likely to be limited by a pre-existing condition as in this case."

73.  According to Dr Lam’s observation, despite the pre-existing degeneration, if the accident had not happened he would expect the plaintiff to enjoy rather painless function in his right knee for another 3 to 5 years.  In terms of special damages (loss of earnings), this “3 to 5 years” period covered the period of assessment in question.  In other words, but for the accident, the effect of the pre-existing degeneration would not be felt during the period in respect of which I had awarded damages for loss of earnings.   No deduction is therefore made.    In terms of general damages, I accept the plaintiff’s submissions (referring to Dr Lam’s view) that in the absence of the accident, any symptoms due to natural degeneration would be slow and gradual, milder and more occasional.  In these circumstances it would not be appropriate to reduce PSLA damages to reflect such minimal discomfort and symptoms.

Summary of award

74.  Overall, I make the following awards:

(1) PSLA: HK$150,000

(2) Pre-trial loss of earnings for the period 7 January 2009 to 6 July 2009 at HK$550 per day for 22 days per month:  HK$12,100 (per month) x 6 = HK$72,600.

(3) Pre-trial loss of earnings for the period 7 July 2009 to 25 June 2010 (expiry of sick leave) at HK$600 per day and 22 days per month: HK$13,200 x 6 = HK$79,200.

(4) Three additional months upon expiry of sick leave for the plaintiff to seek new employment: HK$13,200 x 3 = HK$39,600.

(5) Loss of MPF on the above loss of earnings: HK$191,400 x 0.05 = HK$9,570.

(6) Medical fees, tonic food and travelling expenses — as claimed in the plaintiff’s revised statement of damages.

75.  Employee Compensation damages in the amount of HK$220,000 should be deducted from the damages I awarded.

76.  As to interest, interest shall run on general damages at 2% per annum from the date of the writ to judgment.  As to rate for special damages, the parties are agreed that it should be 4% (50% of judgment rate prevailing as of April 2009) from the date of the accident to the date of judgment. 

77.  I also make an order nisi that the 2^nd defendant shall pay the plaintiff’s costs of the proceedings for assessment for damages to be taxed if not agreed, and that the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.