LEUNG KAM v. MAX WEALTH ENGINEERING LTD AND ANOTHER

HCPI 90/2021

[2024] HKCFI 3456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 90 OF 2021

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J U D G M E N T

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1.  This action concerns an alleged injury to the plaintiff (“Leung”) at work in a construction site in May 2018. Leung claims damages against his employer, the 1^st defendant (“Max Wealth”), and the principal contractor, the 2^nd defendant (“Shui On”). Both liability and quantum of damages are in dispute.

THE ALLEGED ACCIDENT

2.  The construction site was situated at Fung Shing Street, Wong Tai Sin, Kowloon (“the Site”). The alleged accident happened on 2 May 2018. By then, Leung had been a construction site worker, and specifically an aluminium form worker, for 5 to 6 years since 2013. He started working as such, amongst other duties, for Max Wealth in 2015 in different construction sites.

3.  On 2 May 2018, Leung was assigned to work on the 4^th Floor of Block C under construction at the Site. The location where Leung was working was divided into grids, and precast concrete slabs would be transported by tower crane and lowered into the grids one by one. Each slab weighed about 1 to 2 tons. Workers on site would guide each slab so lowered by the tower crane to lay flat on the girders of each grid. As the slab might not land properly on the girders, the workers would have to make adjustment manually after it had landed. The workers would use a steel rod[1], and insert one end of it into the gap between the slab edges and the girders. Using the rod as lever, the workers would prise the edge of the slab and/or the surrounding steel obstruction with a view to creating room enough to enable the slab to sink in place by its own weight. By the time when Leung worked at the location on the day, he had been carrying out similar work at the Site for about 10 days.

4.  According to Leung, it was about 5 pm on the day when he was working on a slab already lowered into one of the grids. It was in the middle of his prising motion mentioned above by himself that he sprained his left knee. He attended the hospital for treatment in the following morning.

5.  As a result of the alleged accident, Leung subsequently filed his application for employees’ compensation (DCEC 2614/2019), and in late March 2021 commenced the present action for common law damages. The former was settled soon after the commencement of the latter.

THE CLAIM

6.  Leung attributes his injury to the negligence, breach of statutory duties and common duty as occupiers on the part of the defendants. In the case of Max Wealth, there is also alleged breach of its duties as Leung’s employer contractually and in tort at the time.

7.  In particular, it is said that the defendants failed to arrange for the relevant work to be carried out by machine such as tower crane or other lifting devices instead of manually. Further, when assigning Leung to carry out the work manually, the defendants failed to provide sufficient manpower to assist him or any training or instruction to Leung in respect of how to properly and safely do so. Nor did the defendants provide suitable tools and safety equipment, including safety gloves, shoes and knee brace. The defendants are said to have failed to assess the risk of having Leung to perform the task manually in those circumstances, and hence failing to provide or maintain a safe system of work.

8.  Leung contends that the accident caused serious injury to his left knee, specifically focal osteochondral defect, anterior cruciate ligament (ACL) rupture or near complete rupture, posterior cruciate ligament (PCL) sprain and medial meniscus suspected tear. He was thus incapacitated from resuming his pre-accident job. Since the expiry of his sick leave, Leung has been working as a security guard earning less income than before.

9.  Leung put forward a claim for damages in excess of HK$13 million.

DEFENCE

10.  The defendants put Leung to proof of the occurrence of the alleged accident. It is said that there was no eye-witness, and Leung in fact continued to work until the end of that day without complaint. He first reported the alleged accident on the following day.

11.  If the accident happened in the manner as alleged, the defendants deny breach of duties on their part. They say that the adjustment and levelling of the precast concrete slabs lowered into the grids could not be carried out by the tower crane or other device as alleged. Insofar as the manual task was concerned, Shui On had carried out job risk assessment as well as provided instruction and training on the safety and proper posture at work. It had also arranged staff to inspect and to monitor the works at the location at all material times, but no safety problem in such task had been identified before the accident. In any event, the defendants say Leung was experienced, and the task was simple and could reasonably be left to him to decide how to handle on the spot. The defendants also allege contributory negligence on the part of Leung in causing the accident.

12.  The defendants also dispute the alleged damage. They contend that the accident, if happened in the manner as alleged, caused at most soft tissue sprain to the left knee of Leung. Specifically, the ACL tear and osteoarthritis changes were pre-existing and not the result of the accident. 80% of Leung’s post-injury condition was attributable to such pre-existing condition.

THE WITNESSES

13.  Leung gave evidence.

14.  On behalf of the defendants, Mr Chan Chin Pang (“Chan”), safety officer of Shui On, and Madam Chan Yuk Ping (“Madam Chan”), who was in charge of administration in Max Wealth, gave evidence. The site agent of Max Wealth at the time, Mr Wong Kwok Kei (“Wong”), was not called and therefore his witness statement is disregarded.

15.  The principles governing the assessment of witnesses’ evidence are often cited. Essentially, such evidence will have to be tested against the undisputed and indisputable evidence as well as contemporaneous documents. Its plausibility must be tested both inherently and internally as well as relatively against all the other evidence. See for instance, Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors, HCA 1734/2009 (8 April 2014) (at §§76-82).

16.  In view of the substantial disagreement between the opinion of the parties’ respective orthopaedic experts, leave has been granted to call them to testify at the trial.

17.  As a matter of principle, the paramount duty of expert to assist the court and his opinion being founded on objective basis and evidence need no introduction. In Gurung Romi v Pizzaexpress (Hong Kong) Ltd, HCPI 63/2019 (21 December 2023), this court cited (at §§144-145) the approach of critical analysis of expert evidence explained in Wong Siu Wa v Win Sino Engineering Limited [2018] HKCFI 1663 (at §154). In the context of medical expert evidence, this court mentioned that MRI findings must correlate well with the objective clinical examination findings in order to come to an accurate diagnosis. This happens to be of particular relevance in the present case.

WHETHER THE ALLEGED ACCIDENT HAPPENED AS ALLEGED

18.  There was admittedly no eye witness of the alleged accident.

19.  According to Leung, he was at the time handling the precast concrete slab already lowered flat onto the girders of a grid. As the closest co-worker was busy with his own chores some 10 metres away from him, he proceeded to adjust the levelling of the concrete slab in the manner mentioned above alone. He held one end of a steel rod and inserted the other end of it into the gap between the slab and the girders of the grid. He bent his body slightly with his left leg in the front. Using the rod as lever, he prised back and forth with a view to enabling the slab to sink in place by its own weight.

20.  Much was said in the oral evidence about the posture of Leung at the time as well as the variations in its description recorded in the medical records and asserted in court. Strict terminology aside, his body posture at the time, I find, is better understood by making reference to the photographs depicting what he meant, which Leung also did in his evidence.

21.  Leung claimed that in the course of the prising motion, he heard kind of a “pop” sound at his left knee and felt immediate pain. He stopped for a few minutes, and then resumed the same work until calling the day off at 6 pm. In court, Leung added that he walked more slowly than usual afterwards that day. He headed home without mentioning his injury to any of his co-workers or Wong, his employer’s agent on site.

22.  While at home, Leung felt increasingly disturbed by pain at his left knee despite relief ointment application. He therefore took a taxi for the Accident & Emergency Department (AED) of Yan Chai Hospital (“YCH”) in the small hours of the following day. By the time when he was seen by the doctor there, it was about 6 am of 3 May 2018. He was hospitalised, but was discharged 3 days later on 6 May 2018.

23.  The diagnosis and treatment of Leung have since been documented. As mentioned, such records gave rise to much debate about their interpretation and accuracy.

24.  Insofar as how the accident happened, the AED of YCH recorded that Leung had a sprained left knee while squatting the day before. There was no fall or contusion. Nor was there fracture. The discharge summary recorded Leung’s report of injury at work when he heard a “pop” sound at his left medial side. However he could not recall the injury mechanism. The consultation summary during his follow-up on 18 May 2018 recorded the further information from Leung that there was no twisting motion of the knee at the time of the accident. Similar information was repeated in the report dated 21 January 2019 of Dr Lam Yan Kit, who was arranged by the defendants’ insurer to examine Leung in December 2018.

25.  Form 2 in respect of Leung’s injury at work was filed by Shui On in June 2018. Stated in the form was the report by Leung of pain at his knee (cap) in the course of adjusting the levelling of the concrete slab, which was yet to be verified. That was the state of information available to them at the time from Max Wealth.

26.  The defendants were eventually prepared to make sanctioned payments with a view to settling the related employees’ compensation proceedings commenced by Leung, which were settled upon his acceptance of such payments. That said, insofar as the present action is concerned, the issue of whether Leung suffered injury to his left knee as a result of the motion of prising the concrete slab back and forth as alleged is expressly kept alive. Hence the attention to the apparent discrepancy between the hospital’s record and his case now in respect of the mechanism of injury.

27.  In court, Leung disputed the accuracy of the AED record in that he said he did tell the doctor and nurse that he was prising the concrete slab when he was injured. In other words, not only did the medical officers fail to record the mechanism of injury which Leung told them but they also recorded an incorrect account. That the contemporaneous medical records failed to assist on the mechanism of injury was further picked up when the orthopaedic experts gave their opinion. That included their disagreement in respect of whether and, if yes, what extent of injury to Leung’s left knee could have resulted from the motion of prising the concrete slab back and forth now alleged as the mechanism of injury. This will be discussed in detail below.

28.  However, it should be mentioned that Leung suggested in court that the motion was not merely prising back and forth but also sideway to the left and right. His attempt to demonstrate such motion in the course of his evidence was nothing short of surprising when this was both newly raised and contradicted the record of his denial of any twisting motion of his knee at the time of the injury. No doubt this caused scepticism on the part of the defendants. Understandably so, I say, further in view of his manner of response in the cross examination in this respect.

29.  In his submission, counsel for Leung goes at some length into explaining the alleged inherent and dictionary meaning of what the reference to sprain in the medical records could or should mean. He also attempts to explain as if it is a matter of pure common sense whether twisting of the left leg was involved in Leung’s task at the very time. Neither is helpful, if not beyond reasonable acceptance, in this court’s deliberation.

30.  Counsel for the defendants refer to a number of cases whereby the court resolved on the facts to dismiss the claims respectively on the ground of significant material inconsistency between the assertion and the evidence[2]. However, that each case must be decided in accordance with its own fact needs no introduction, and those cases must be so understood as instances of that.

31.  At the end, complaint about injury must be objectively tested. Upon overall assessment of the evidence of Leung against all the evidence, including the medical evidence discussed below, I am prepared to accept his evidence and find that he felt pain in his left knee at the time when he adopted his alleged body posture as depicted in the photographs prising a precast concrete slab back and forth at the material time. However, I reject his assertion that his prising motion then involved multiple directions, twisting or rotation of his lower limb specifically his left knee. Consideration of the medical evidence further discussed below does not change that.

WHETHER AND, IF YES, WHAT INJURY RESULTED FROM THE ACCIDENT

32.  This is the major dispute.

After the injury

33.  As mentioned, it is Leung’s own case that upon feeling his left knee pain at about 5 pm, he stopped for a few minutes before resuming working on other precast concrete slabs on the site. He managed that until calling the day off at 6 pm. If according to what the orthopaedic experts recorded in their first joint report, namely that the accident, according to Leung, happened at about 4 pm, then he would have had resumed and continued his pre-injury work for more than an hour before the end of his duty on that day.

34.  In court, Leung disputes the accuracy of such record by the experts. He also sought to discount the time further by his alleged early cessation of actual work that day. However, the documents showed that he clocked out and left the Site slightly after 7pm on that day. All those disputed timings aside, it remained the fact that he resumed his work and managed that for at least a non-negligible part of an hour after the pain. It also remained the fact that he saw no need to make any mention of his injury to his co-workers or to report the same to his employer’s site agent.

35.  According to Leung, it was due to disturbance by the left knee pain after having gone home on that day which caused him to go to the AED of YCH in the small hours of the following day, 3 May 2018. He was hospitalised. It is common ground that he reported his condition to his employer later that day.

36.  The YCH medical reports documented Leung’s complaint about pain and decreased range of motion. That the accident involved no fall or contusion could only be information from Leung. Clinical examination revealed left knee tenderness at the medial joint line and minimal to mild effusion without edema, bruise or fracture. Conservative treatment was administered during his hospitalisation. He was discharged 3 days later.

37.  It was the findings of the MRI 2 days after his discharge which brought about the major dispute between the parties. The MRI showed osteoarthritic changes at the left knee. A focal osteochondral defect with surrounding marrow edema was noted at the anterior aspect of lateral femoral condyle. No other bony lesion or abnormal marrow signal was seen. Left knee effusion was noted. The ACL appeared disrupted with loss of fibrillar pattern and increased signal, which was worrisome of complete rupture or at least a very high grade tear. The PCL showed increased signal, suggesting the result of prior sprain injury. The radiologist recommended correlating the imaging findings with the mechanism of injury and physical findings. Suspicious defect was also noted at the lateral aspect of posterior horn of medial meniscus, rendering focal tear difficult to exclude.

38.  The follow-up record in May 2018 recorded minimal effusion and mild tenderness with no instability and much improved pain, which continued to be the case since. Leung had attended about 22 sessions of physiotherapy in 4 months in 2018 and occupational therapy in about a month in 2019. Surgical intervention was ruled out. Leung himself rated his improvement to be about 80% by the end of 2018. His follow up however continued until July 2020, and sick leave until the end of September 2020. He was then referred to assessment by the Medical Assessment Board for the employees’ compensation purpose. The assessment upon review was 2.5% loss of earning capacity.

Orthopaedic expert evidence

39.  Dr Miu Yin Shun Andrew (“Dr Miu”) and Dr Ko Put Shui Peter (“Dr Ko”) were instructed by Leung and the defendants respectively to provide their expert opinion on causation and quantum. They examined Leung in September 2020 and produced their joint expert report dated 19 February 2021.

40.  At the joint examination, Leung complained about intermittent left knee pain, and he would take painkillers 4 to 5 times a month. He presented mild unsteadiness of the lower limb. The experts observed him, and also viewed the previous surveillance recordings, about his use of walking stick with a slight limp. Other than that, he could ambulate independently.

41.  Examination of the left knee revealed no gross muscle wasting, which was verified by comparison of circumferences of both lower limbs. No effusion was detected. Tenderness was noted. Range of motion of both lower limbs was similar. Anterior drawer test and Lachman’s Test (for ACL integrity) were grade 2. Left hamstring contraction was felt, and there was complaint about increase left anterior knee pain. Pivot shift test was negative. X-ray was taken, which showed mild degenerative changes of both knees and significant lateral tilt of both patella (knee cap). They also noted the impression formed by the radiologist from the MRI imaging mentioned above.

42.  Dr Miu opined that except for osteoarthritis, all the features shown by the MRI were most likely the direct result of the accident. As there was no evidence that Leung had suffered previous major injury to his left knee and, for that, medical treatment, what the MRI showed about the ACL condition could not be pre-existing. The mild osteoarthritis was the result of chronic wear and tear, which had been asymptomatic and would have certainly remained so for another 15 years but for the injury on this occasion (ie the first scenario explained in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958).

43.  Dr Ko held a crucially different view. He noted the ACL tear condition of the left knee shown by the MRI. However, he opined that such condition of the left knee and the osteoarthritis of both knees were both pre-existing. Specifically, he opined that the ACL tear condition seen in the MRI could not possibly be an acute and fresh tear of a previously healthy ACL in the accident on 2 May 2018. Even assuming that the accident occurred in the manner as Leung described during the joint examination, Dr Ko found that both the subjective complaint and objective clinical findings from the moment of the injury had been inconsistent with what an acute tear of an otherwise healthy ACL should have entailed. The ACL tear condition could only be chronic and old.

44.  Dr Ko explained that a fresh acute ACL tear would prevent the person from continuing his pre-injury work or sports activity. In the case of Leung (again putting aside the discrepancy in respect of the exact hour on 2 May 2018 when the injury occurred), the fact remained that upon his injury, he resumed his pre-injury work after just a few minutes’ break and continued that until off-duty at about 6 pm.

45.  Dr Ko also explained that an acute and fresh ACL tear typically causes significant effusion with haemarthrosis due to disrupted blood supply and internal bleeding. Hence increasing swelling. As mentioned, the medical records and reports since Leung’s admission until after his discharge invariably stated that there was minimal to mild effusion as well as no haemarthrosis, which Dr Ko considered to be medically and practically almost impossible if the ACL tear was fresh and acute. The MRI within a week of the injury confirmed no haemarthrosis but only effusion which, Dr Ko observed, was fully accountable by the acute exacerbation and/or flaring of the pre-existing osteoarthritis by the sprain injury.

46.  If the focal defect in the lateral femoral condyle had been a fresh condition, it should have been brought about by direct contusion or significant trauma, which did not happen in the present case. Dr Ko observed that the corresponding bone changes to an acute tear of a previously healthy ACL were all lacking in the MRI. The only abnormality related to the injury on 2 May 2018 was the change of signal in the PCL. Dr Ko further noted from the medical records that 2 weeks after the accident, there was already no more effusion, and the anterior drawer test for ACL deficiency was only equivocal with only symptom of mild tenderness over the left medial knee (which was not the location of the focal chrondral defect shown in the MRI). Even the acute exacerbation or flaring up of the arthritis was found to have improved much by the end of June 2018 so that there were near normal range of motion and non-tender joint lines.

47.  Considering the MRI findings together with the objective features, including clinical findings, the signs of ACL tear shown by the MRI, Dr Ko opined, could not possibly be a fresh acute injury on 2 May 2018 but chronic and pre-existing. On this basis, Dr Ko categorised the case of Leung as falling between the second and the third scenario, and leaning more towards the latter, under Chan Kam Hoi (above). Leung would have ended up in his current condition due to his pre-existing condition, and the accident and injury in May 2018 had only advanced that by 1 to 2 years.

48.  The orthopaedic experts had a further opportunity to consider the issue of causation between the injury on 2 May 2018 and the MRI findings of ACL partial tear, chrondral defect and meniscus tear of the left knee of Leung, this time with their attention specifically drawn to numerous medical publications and articles. The experts produced their supplemental joint report dated 5 March 2024.

49.  Dr Ko first rehearsed the medical literature with attention to the approach in diagnosing a suspected case of acute ACL injury. The generally accepted approach is to perform clinical examination immediately or soon after the injury, including observation, palpation, clinical diagnostic test and neurological examination as well as specific tests such as Lachman test, anterior drawer test and pivot-shift test. In most cases, they should provide enough information for definitive diagnosis, which are of equal, and in some cases superior, weight as compared with MRI for diagnosing acute ACL tear. However, where there are further investigative imaging results, they should still correlate with the injury mechanism and the clinical findings. That actually aligns with the approach referred to by this court in Gurung Romi (above). That was also in fact the suggestion made by the radiologist in the MRI report in the present case after setting out his impression.

50.  Referring to some of the medical literature, Dr Miu highlighted that the ACL can be injured or torn in a number of different ways, and the most common mechanism is that of a sudden pivoting or cutting manoeuvre during sporting activity such as football, basketball and soccer. The ligament can also tear due to work injuries or automobile accidents. The amount of pain experienced at the time of the injury is somewhat variable but can be quite severe. Typically, the person is unable to continue play or activity, and has the impression that a significant injury has occurred, though some may have little or no pain. Immediate swelling of the knee develops at the time of injury, within the first several hours, but the extent of swelling can be limited if the knee is immediately iced or splinted. About half of all injuries to the ACL occur along with damage to other structures in the knee, such as articular cartilage, meniscus, or other ligaments. When one injures his ACL, he might hear a popping noise and may feel that the knee gives out from under him. Other typical symptoms include pain with swelling within 24 hours. If ignored, the swelling and pain may go away on its own. However, if one attempts to return to sports, his knee will probably be unstable and he risks causing further damage to the cushioning cartilage (meniscus) of the knee.

51.  Essentially, Dr Miu sought to explain that the features identified in the case of Leung were compatible with the clinical presentation of an acute ACL tear, though some of those features questioned by Dr Ko might vary from case to case. Whilst Dr Miu’s belief that Leung had been carrying out the levering motion involving repeated physical strength and exertions which would cause strain and stress to his limbs on the day in question immediately prior to the injury may sound fair, there are indeed features in the case of Leung pointing away from a fresh and acute tear of a previously healthy ACL on that day, and such features are difficult to neutralise as simply possible variations due to personal circumstances.

52.  First, the mechanism of injury. That acute ACL injury and tear could be caused by work injury could hardly be disputed. That such injury could happen in different manners could not be disputed either. However, the body of medical literature and diagnostic studies clearly tell us that it in any event requires a strong compression force or forceful twisting or rotational motion of the knee joint at the very point of time to cause an ACL tear. Dr Miu did not actually suggest otherwise, though he seemed to be prepared to believe what Leung was doing at the material time could involve such requisite motion or force. That was apparent in his evidence, when he referred to how Leung might have had to apply his body weight to jerk in the prising motion and thus involving possible forceful twisting or rotational motion of the left knee joint or compression within the left knee joint to produce the ACL tear.

53.  To that extent, counsel’s cross examination of Dr Ko with a view to obtaining his acceptance of such view of Dr Miu is neither here nor there. As Dr Ko explained in court, it would nevertheless need a dynamic force to cause the ACL injury and/or the osteochondral injury, and static force would not suffice. Dr Ko noted that there was no corresponding kissing lesion on the other side of the joint surface to signify compressions force or lesion, which would have typically come about upon contusion or hit injury. As found, in handling the precast concrete slab in question, what Leung did was slightly bending his body with his left foot on the front, and prising the edge of the slab back and forth. One does not rule out that force and exertion were involved. After all, there is no real dispute that he suffered injury as a result. However, there was equally his denial of twisting or rotational motion. Nor is there evidence of the kind of sudden pivoting or manoeuvre referred to in the medical literature and explained by Dr Ko affecting his left knee joint at the time.

54.  As to whether or not Leung might have experienced any multi-directional motion of the left knee during his work on the day prior to handling the slab in question, that was never a specific factual contention for exploration and could not be a matter of assumption. It is not Leung’s case that his injury was attributed to such work on the day before he came to handle the very slab in question at the material time.

55.  Second, the incapacitating impact of a fresh and acute ACL tear. Dr Miu highlighted the variable degree of pain and swelling which a person suffering from acute ACL tear might feel on the spot. Some might have little or no pain. Dr Ko did not necessarily disagree. However, both experts agreed that the major problem would be instability, and the injured person might feel as if his injured knee would give way. Hence typically he would become unable to continue the pre-injury sports or activity. One would imagine that would probably be the case particularly where the activity involves manual labour like what Leung was doing at the time. As found, the controversy about the exact time of the day when Leung felt injured aside, his own case is that he resumed his pre-injury work after only a few minutes of break, and continued as such until off duty at about 6 pm. That, Dr Ko found, was quite impossible at the very moment of an acute ACL tear.

56.  Third, and not unrelated to the above, swelling of and effusion within the injured part. What Dr Miu highlighted as possible various degree of swelling of the acute ACL tear site is neither here nor there, when all, also according to him, would depend on whether the swelling was in fact limited by immediate icing or splinting. Other than that, Dr Miu agreed in court that significant swelling was expected within the following hours after such acute injury. That was not the clinical finding recorded by the medical officers attending to Leung. Effusion within the injured site, Dr Ko considered, is the most sensitive marker and hallmark of an acute ACL injury. According to the medical literature, MRI is a very sensitive tool in detecting effusion. Even a normal person’s knee joint may be detected by MRI to be containing effusion. In other words, it is not the existence or not of effusion. Effusion was indeed detected by the MRI in the present case. However, the medical records and reports in this respect suggest that only minimal to mild effusion without haemarthrosis had been present in Leung’s left knee since his admission to the hospital. Nor was there finding of erythema (ie inflammation) or bone bruising. That was beyond what Dr Ko expected to be possible.

57.  Dr Ko accepted that signal change was detected by the MRI, which suggested recent injury. As mentioned, effusion was detected. However, Dr Ko considered that in all the circumstances as known, those can well be explained by the possible exacerbation or flaring up of the pre-existing osteoarthritis in Leung’s knee. Regarding the focal osteochondral defect with surrounding marrow edema detected by the MRI, Dr Ko opined that it was consistent and therefore also explainable by the degenerative changes with focal cartilage lesion.

58.  The medical records and reports suggested that Leung had made admittedly good improvement and recovery from his acute exacerbation and flaring up of his pre-existing arthritis with good range of motion, solid end-point on the drawer test and no instability. Such development by the end of June 2018, Dr Ko was impressed, would have been impossible, had this been an acute ACL tear with all the lesions freshly caused on 2 May 2018.

59.  A major thread running through Dr Miu’s assessment was the report of a pop sound or sensation felt by Leung at the time of his injury. No doubt this was a known common feature of an acute ACL tear. However, one has to be careful about the veracity of such complaint by Leung in the setting of his work environment at the material time. Subjectively that could be more a matter of sensation felt than actual sound heard in such a setting. In that case, such complaint, as Dr Ko observed, was by nature fairly non-specific, which must be subject to verification by and correlating with the other clinical features. In a case of acute ACL tear, such pop sensation would be typical. However, a pop sensation does not necessary prove acute ACL tear.

60.  Another major thread running through Dr Miu’s assessment was the lack of evidence that Leung had encountered a prior accident causing ACL injury and its resultant disabilities. This must be a reasonable angle in the consideration, which this court also mentioned at the trial. However, once it is understood that the state of ACL tear does not necessarily occur as an acute condition but could be a chronic condition over time, it is not unreasonable to perceive such probability in the case of Leung in view of his work history by the time of the injury in the present case. On this basis, what Dr Ko explained in his evidence in this respect, which also applies to the pre-existing osteoarthritis of both knees of Leung, becomes understandable, namely that many individuals with chronic or old ACL injury could indeed continue sports and gainful employment because of adaptive measures and compensatory mechanism by other structures in the knee and the lower limb. As such, Leung’s work as an aluminium form worker in construction sites without record of injury or medical treatment of his left knee in the past per se would not displace the likelihood of his ACL deficiency or osteoarthritis of the knee having been existing prior to the incident on 2 May 2018.

61.  Last, Dr Miu considered that there was strong evidence of meniscus tear as the direct result of the accident. The fact was that the MRI findings showed a suspicious defect at the lateral aspect of posterior horn of medial meniscus, rendering focal tear difficult to exclude. Correlation of the findings with the findings from the clinical examination, as recommended by the radiologist, was necessary. In such exercise, Dr Ko found that there has so far been no definite features of Leung having any meniscus injury or tear.

Finding

62.  The above discussion shows how the experts addressed the various relevant features of Leung’s case and conditions apparently with variation in emphases. As in any case which may not appear to be an open and shut one, the experts may deduce and rationalise on basis and with reasons. What this court is most concerned about is the respective basis and reasons behind the experts’ such exercise. The true state of affairs is a practical matter of fact to be found by this court on the balance of probabilities, which in the present case is based on the injury mechanism as found as well as the clinical findings and medical evidence to be understood with the assistance of the medical experts. This is consistent with the approach explained by the court in Lee Kin Kai v Ocean Tramping Co Ltd CACV 64/1989 (31 January 1990) (at pages 5-6, referring to McGhee v National Coal Board [1973] 1 WLR 1).

63.  On the whole, I find what Dr Ko explained in the exercise to be relatively more compelling than that of Dr Miu in this case. Preferring the evidence of Dr Miu and thus the probability of Leung’s case being somehow exceptional to what one expects in a typical acute ACL injury case in so many material aspects, I find, is not fairly permitted by the evidence and the balance of probabilities. Insofar as the experts differed in their opinion on causation, this court prefers that of Dr Ko to Dr Miu. I find that Leung did sustain injury in the course of his work on 2 May 2018, but it was confined to left knee sprain which might have exacerbated and/or flared up his pre-existing condition including the state of his left knee ACL.

WHETHER THE DEFENDANTS WERE IN BREACH

64.  It is common ground that the defendants were under the general duty not to be negligent, and Max Wealth was also under the duty as the employer to take reasonable care to ensure the safety of Leung at work at the material time.

65.  The state of the site might account for what the workers, including Leung, had to do in the course of the placement of the precast concrete slabs into the grids. However, the alleged failure in the system of work was an activity tort which did not give rise or contribute to the unsafe state of the premises causing the accident. The pleaded cause of claim for occupier’s liability towards Leung as a lawful visitor at the material time therefore lacks the factual foundation. Counsel for Leung accepted that when opening his case.

66.  Reliance is placed on section 6A of the Factories and Industrial Undertakings Ordinance, Cap 59. However, section 19 of the Ordinance makes clear that the Ordinance does not confer a right of action in civil proceedings in respect of a failure to comply with section 6A. In other words, reliance on this Ordinance does not afford Leung with an actionable cause. The Ordinance assists in the measure of what duty of reasonable care entails in an industrial and factory setting. Counsel also accepted that when opening the case.

67.  What remains are section 6 of the Occupational Safety and Health Ordinance, Cap 509 and regulations 23, 24, 27 and 30 of its subsidiary regulations, Cap 509A. The former imposes on Max Wealth as the employer of Leung the duty to ensure the safety and health of employees. The latter provide for the duties of the defendants as persons responsible for the workplace towards Leung in relation to risk of manual handling operation which he was required to undertake at the material time. Effectively, the two co-exist with the same reasonable duty of care under the common law towards the safety of Leung at work: see for instance Lam Wai Chi v Project Concern Hong Kong, HCPI 78/2002 (10 April 2003) (at §48).

68.  To recapitulate, the dispute arising from the parties’ pleaded cases lies in whether as alleged: (i) the adjustment of the levelling of the precast concrete slab should have been done by machine such as tower crane or other lifting device so that manual adjustment would have been avoided altogether; (ii) if not, the defendants had nevertheless failed to provide any or sufficient instruction, training, equipment and manpower to carry out the work.

69.  Regarding the first question, the defendants are adamant that the adjustment of the precast concrete slab upon its placement by the tower crane had to be adjusted manually. Considering all the evidence, I am convinced that that was realistically the case.

70.  Amongst others, the photographs depict not only how the work was carried out but also the state of the slabs and the grids where they landed. Not only did the slabs not come with neat edges, but they also had short bent steel bars protruding from all sides. Likewise, each grid of the site where the slab was supposed to be placed was invariably surrounded by protruding steel bars on all sides. It is common ground that there could be discrepancy in level, some ranging between 80 to 100mm, which required adjustment so that the slab could fit into the grid. The evidence, including what the photographs depict, impresses me that manual adjustment was unavoidable to enable the slab, after being lowered into the grid, to fall in place properly.

71.  One may not rule out the possibility of an entirely different construction and work design which could remove the need for manual adjustment in the process. However, the law regarding the duty of reasonable care and the facts known would not go so far as founding liability for failure to come up with such different construction or work design in the setting as that in the present case.

72.  Regarding the second question, Leung possessed his safety card at the material time. The evidence shows that he attended a 2-hour safety course organised by Shui On in March 2018. The course contents consisted of site safety, personal protective equipment and manual handling, which were also explained by way of the relevant brochures. His real complaint is that he had not been given any training or instruction in respect of how to safely carry out the job in question, namely adjusting the levelling of the precast concrete slabs for fitting the same into the grids on site.

73.  According to Leung, he essentially carried out such work in the manner as the other workers did. That included fetching a similar steel rod from the site for use as lever to prise the slab lowered by the tower crane into a grid. That, the defendants argue, was a simple task which could reasonably be left to be decided as to how to carry out by Leung being an experienced aluminium formwork worker.

74.  All things considered, I do not agree with the defendants. The task in question to begin with was one to handle a precast concrete slab weighing 1 to 2 tons. As manifested by the contents of the safety training brochures mentioned above, the standard instruction for handling weight manually, generally speaking, was not only for the worker to proceed in a proper body posture with proper tools and equipment but also with assistance. Shui On actually conducted a risk assessment of, amongst others, the different stages of the installation of the precast concrete slabs on site in January 2018. For the final stage of the installation, namely manual adjustment of the levelling of the slabs lowered by the tower crane, the assessment report specifically recommended that the worker should adopt the proper body posture as well as proceeding with help. That aligned with the general understanding about safe handling of weight manually. That put on the defendants squarely the duty to ensure that the system of work would not fail in this safety respect.

75.  According to Leung, he was at the time working on his own because the closest worker whom he could have asked to help was some 10 metres away busy with his own chores. The reality, it seems to me, did not permit Leung to assume or decide that he could either stop and wait or alternatively to leave his position to get help when the lowering of slab(s) by the tower crane was in progress. The defendants do not seek to argue otherwise. In the absence of evidence of what the defendants had done to ensure that a worker would not be left alone to proceed with the adjustment of the levelling of the slab at any time, the risk of injury to the worker in the course of work in such manner and alone, I find, was reasonably foreseeable.

76.  According to Chan, he conducted a safety patrol in the vicinity of the site of the accident at about 4 to 5 pm on the day in question, but detected no unsafe situation. However, that does not serve to contradict Leung’s case that there was the time when he was left to carry out the adjustment of the concrete slab without help. Nor is there evidence of what had been done to ensure that that should not and would not happen. To that extent, the defendants failed in their reasonable duty of care in respect of that specific part of the system of work.

77.  In court, Leung added that before the accident, he had complained to Wong, Max Wealth’s site agent, about the risk of carrying out such task by a worker alone. The parties entered into argument as to whether this court should draw adverse inference against Max Wealth from its failure to call Wong to testify, who would have been in a position to rebut Leung’s case. As mentioned, Wong was scheduled to be a witness for the defendants.

78.  I could be brief about such argument.

79.  As a matter of principle, the drawing of adverse inference against a party from his failure to call evidence, which he could have done, is premised on a prima facie state of affairs calling for answer or rebuttal by such a party: see Tjang Siu Thu v Profield Construction Engineering Limited & Anor, CACV 156/2013 (27 May 2015) (citing Wisniewski v Central Manchester Health Authority [1998] PIQR 324).

80.  As a matter of fact, what Leung said about his prior complaint to Wong about the risk of carrying out the task in question by a worker single-handedly was only first asserted in the course of his oral evidence at the trial, notwithstanding dedication of a specific section in his witness statement to particularise the alleged breach on the part of the defendants. Importantly, it is not unfair for counsel for the defendants to categorise such new assertion as casual and equivocal, when Leung himself qualified such so-called complaint as having been reference made only lightly, if not jokingly.

81.  As particulars of breach, Leung also refers to the failure of the defendants to provide proper tool and equipment. The alleged failure of the defendants to provide safety gloves and shoes, in my judgment, is immaterial. Neither is it shown that they had or would have had material bearing on his sustaining injury at work. Nor does it matter whether such were provided to him as, according to him, he was at the material time wearing them, albeit of his own.

82.  It is also alleged that knee brace should have been provided. Throughout the trial, it was unclear precisely what knee brace Leung could be referring to. His witness statement in this respect gives the impression that he was referring to knee pad. His counsel ventures to ask this court to take notice as a matter of common understanding that this is a soft protective device which wraps round the knee for protection against knee injury. I hesitate to agree.

83.  This court acknowledges the extent of initiative expected of an employer in discharge of his duty to devise a safe system of work including the provision of appropriate safety equipment: see the discussion in Pak Sai Ming v JV Fitness Ltd HCPI 1387/2014 (10 September 2019) (at §§12-16). However, even assuming one may argue that reasonable duty may entail the defendants having to perceive and to decide the appropriate type of protection device, that would still have had to depend on the circumstances of the case including the state of knowledge which the defendant did or ought to have possessed about the relevant risk of injury. In this case, it would be the risk of injury to the knee in the course of the prising motion. It would be the burden of Leung to establish such state of knowledge on the part of the defendants.

84.  Whilst I accept, as mentioned, that the task of adjusting the levelling of the precast concrete slab in the manner mentioned manually, particularly when doing so alone, would have entailed the risk of injury, I do not accept that empirically such foreseeable risk must or would most likely have involved that of injury to the knee instead of other parts of the body. Chan testified to the same effect. There is no or insufficient evidence in support of such foresight so as to trigger reasonable consideration of the provision of knee protection device of a type suitable for the purpose.

85.  In any event, these other arguments become immaterial when I do find that the defendants did fail to ensure that the task of manually adjusting the levelling of the precast concrete slab in the manner as mentioned should not be left to be carried out by a worker single-handedly, and thus exposing him to reasonably foreseeable risk of injury in the course. I find that the defendants were in breach, and hence liable for causing Leung his knee injury as mentioned.

CONTRIBUTORY NEGLIGENCE

86.  The contention in respect of contributory negligence on the part of Leung in contributing to his injury at work essentially is premised on the alleged simple nature of the task and his prior similar work experience. It is said that he failed to take reasonable care of himself in carrying out the task.

87.  In view of the findings mentioned above and the fact that Leung was left to carry out the task by himself as well as the absence of allegation or evidence of extraordinary manoeuvre on his part in doing so at the time, I find insufficient factual basis to attribute blame on him for his injury in the course of his work at the time.

POST-INJURY CONDITIONS AND CURRENT DISABILITIES

88.  The treatment and recovery of Leung mentioned above refer. As mentioned, there was no fracture. He was hospitalised for 3 to 4 days. Conservative treatment was given. Amongst them, there were about 22 sessions of physiotherapy over 4 months. Surgical intervention was ruled out, partly out of concern about his diabetic condition and partly because of doubtful utility of surgical operation to rectify the ACL condition and to improve stability. Other than that, there were just orthopaedic follow up until July 2020 without specific treatment programme.

89.  Leung rated his improvement of up to 80% in November 2018, which was objectively reflected by the conclusion of his physiotherapy mentioned above. The examination by the orthopaedic specialist instructed by the defendants’ insurer recorded Leung’s complaint about pain, limping and thigh muscle wasting. Occupational therapy was first given in August 2019, before assessment in September 2019 which suggested his overall work capacity did not match with his pre-injury job demand, and recommended change to job with lesser physical demand. Sick leave was given until September 2020.

90.  During the joint medical expert examination in the same month, Leung still complained about intermittent pain requiring painkillers. The pain would be exacerbated by squatting, climbing downstairs or downslopes, sudden brake during running or minor bump over his left knee by passers-by. Level walking was fine but he would avoid exertion or running. He relied on a walking stick outdoors. The experts also viewed the surveillance video recordings capturing Leung’s use of a walking stick outdoors.

91.  Dr Ko opines that the prognosis for Leung’s sprain injury resulting in exacerbation and/or acute flaring up of his pre-existing arthritis would be reasonably good and favourable. No further treatment was necessary. Leung should manage his activities of daily living and self-care activities without significant problem. He should be able to resume his pre-accident sports activities such as hiking.

92.  All things considered, the orthopaedic experts rated the extent of permanent impairment suffered by Leung to be in a range of 1-3% of the whole person. They differed in their opinion in respect of, amongst other things, Leung’s capacity to resume his pre-injury job. Dr Miu opined that the pain in his knee would render prolonged working and strenuous work in construction sites difficult so that more sedentary job such as packaging, office cleaning or carpark attendant would be advisable instead. Dr Ko opined that the possible residual pain, stiffness and weakness as a result of the injury in May 2018 should be mild and pose no significant hindrance or obstacle to Leung’s resumption of his pre-accident job.

93.  The joint examination was held just before Leung’s sick leave expired at the end of the same month. Notwithstanding his complaint about his residual disabilities, including intermittent left knee pain and the need to rely on walking stick outdoors, Leung started one month later to work as a security guard. The first of these positions put him in a 12-hour shift, and he worked for this employer for 9 months before changing to another one. He has continued to work as security guard for different employers ever since.

94.  It should be noted that the major basis for the work rehabilitation assessment in September 2019 sounding negative as mentioned above was that Leung was considered to have inadequate walking and standing activity tolerance, and thus inability to perform bilateral manual handling task as one of the upper limbs must require walking stick support. Indeed, Leung reported during the assessment his standing and walking tolerance was merely 30 minutes with walking stick. That was also the picture presented to the experts during the joint examination. However, the fact proves that Leung managed the job of a security guard including, as mentioned, shift of duty for 12 hours one month after the joint examination. Despite the evidence of Leung in court, it is inherently incredible that he would have been employable and indeed employed by his various employers as a security guard, had such incapacity to the alleged extent continued to materially disable him by then.

95.  In line with his opinion that Leung’s case falls into the first scenario explained in Chan Kam Hoi (above), Dr Miu advised no apportionment of contribution towards the current condition of Leung on the basis of his pre-existing condition. However, Dr Miu agreed in court that if the ACL tear and the osteochondral defect found in Leung were pre-existing, he would have had no disagreement with Dr Ko’s assessment that such pre-existing condition contributed to 80% of Leung’s current condition. That as mentioned is what I find.

PAIN, SUFFERING AND LOSS OF AMENITIES (PSLA)

96.  Leung was born in January 1979 and was 39 years old at the time of the accident. He is 45 now.

97.  Leung claims damages for PSLA in the sum of HK$700,000. The defendants say HK$80,000 should be appropriate. The major factor accounting for the difference is the defendants’ stance that 80% of the current conditions and disabilities of Leung is attributable to his pre-existing conditions including the ACL condition and the osteoarthritis of both legs. This is now what this court finds as a matter of fact. It follows that Leung’s case falls within the second to the third scenario explained in Chan Kam Hoi (above) so that Leung would have come to such a stage in any event but the injury in May 2018 could have brought this forward.

98.  Counsel for Leung refers to David John Slater v Commissioner of Police HCPI 646/2012 where HK$530,000 was said to be the appropriate starting award for PSLA in a serious injury case. So he submits this is such a case. Following the update on account of inflation explained by the court in Ng Tat Kuen v Tam Che Fu & Ors HCPI 896/2013, he submits that the award should now be HK$700,000. He asks for award in such amount.

99.  Counsel for the defendants refers to the following cases as comparables: Frances Christine Keeling v The Hebe Haven Yacht Club Ltd, CACV 43/2005 (2 November 2005); Man Ying Chu v Leung Kwok Wing [2007] HKLRD (Yrbk) 414; Lee Kam Lin v Full Wise Limited DCPI 2354/2014 (27 November 2015); Rukhsar Begum v Native English Centre Ltd DCPI 2243/2015 (3 April 2017); Chan Kwok Kuen v Actionsports International Ltd DCPI 1985/2013 (30 April 2019). He submits that the award should be around HK$250,000. However, taking into account the pre-existing condition, the appropriate award should be no more than HK$80,000.

100.  Both in terms of the injuries and the treatments entailed, the present case, in my judgment, hardly comes close to the serious injury category. Assessing the appropriate award in accordance with the actual circumstances instead of strait jacket fitting, and taking into account the major contributing factor of his pre-existing condition, I find an award of HK$120,000 would be reasonable.

PRE-TRIAL LOSS OF EARNINGS

101.  Max Wealth kept the record of the income and working days of Leung immediately prior to the accident, to which Madam Chan also testified. It shows that Leung received a daily wage of HK$1,200 and a daily allowance of HK$1,000. During the 12 months immediately prior to the accident, Leung worked for an average of 20 days a month. The average monthly income was HK$44,000, which was similar to that reported in Form 2, ie HK$44,017.

102.  Leung’s pleading was silent on the daily income before the accident, but his evidence in this respect as per his witness statement was in line with the case of the defendants. However, he alleged in his statement that he worked on average for 26 days for Max Wealth prior to the accident, which is contradicted by the contemporaneous record mentioned above, and also differs from his pleaded case as well as his counsel’s submission, namely the lesser number of 23 days.

103.  Even the alleged 23 workings days per month is questionable. This is advocated on the basis that the record of 8 working days in the month of May 2017 is said to be odd as it was much less than those in the following 11 months. Further, justification is advocated on the basis that Leung could work for other employers on the days when he did not work for Max Wealth. Madam Chan was led in cross examination to accept that possibility. However, in question is the actual working days and income of Leung in the past, and therefore it is his burden, not that of the defendants, to establish by evidence that he did in fact work in May 2017 for other employers than Max Wealth and earn income from them. There is no such evidence. If such argument were accepted, there would have been no reason why it cannot be said that 14 or 15 days, as they were recorded, in some of the other months during the same 12-month pre-accident period should be treated in the same proposed way. In the premises, 20 working days per month is adopted for the purpose of assessment.

104.  Max Wealth has disclosed the income records of 2 comparable aluminium formwork workers since the accident until 2021. They show average number of working days per month to have been in the region of about 16 to 23 days. However, the monthly income was shown to have somehow dropped. Madam Chan explained in court that the variations could be brought about by the demand at different phases of the construction project and the social unrest in 2019. However, relying on the workers payroll issued by the Hong Kong Construction Industry Employees General Union, Leung says his daily income would have been HK$2,500 in 2018 and HK$2,700 in 2023. All things considered, I find that it would be reasonable to adopt the median of average daily income rates of HK$2,200 and HK$2,700, ie HK$2,450 for the assessment.

105.  At his monthly income from Max Wealth, Leung should be entitled to his basic mandatory provident fund (MPF) benefit at the statutory maximum of HK$1,500 per month. There is no evidence to the contrary.

106.  As mentioned, sick leave was given until the end of September 2020, but Dr Ko took the view that the treatment, progress and improvement of Leung documented in the medical records suggested that reasonable sick leave should last until November 2018 when his improvement reached plateau at the substantial extent of 80%. That was also when Leung was discharged from physiotherapy. No active treatment programme had been prescribed since then except for occupational therapy, which only came in August 2019, and occupational assessment was already carried out in the following month. In my judgment, there is abundant reason for believing that reasonable sick leave should in any event have ended by then, ie September 2019.

107.  The next question is whether Leung should have been able to resume his pre-accident job upon the expiry of reasonable sick leave as found. As mentioned, Dr Miu answered the question in the negative whereas Dr Ko opined that Leung should be able to do so without significant hindrance or obstacle on account of his residual pain, stiffness and weakness. In my judgment, the question should always be answered from the realistic perspective.

108.  The job demand of a security guard is not to be under-estimated, and Leung has been managing that since the end of October 2020. As mentioned, the extent of alleged continuing disabilities, including instability and need for walking stick outdoors, I find, carries scent of exaggeration. That however does not lend support to therefore concluding that it is reasonable to expect Leung to resume his pre-accident job. It is not difficult to understand the strenuous nature and physical demand of his pre-accident job and other duties which he might be assigned to handle in a construction site setting. Relevantly, the extent of repetitive climbing, squatting and weight bearing in the course of such work and that entailed in his work as a security guard cannot compare. In considering that Leung should have been able to resume his pre-injury construction site work, Dr Ko was not without reservation. His assessment of no significant hindrance or obstacle in such pre-injury work must be viewed realistically.

109.  Following my finding that reasonable sick leave should in any event have ended by the end of September 2019, I find that Leung should have mitigated his loss, and been able to do so, afterwards. For the purpose of assessment, I find that he should have done so by starting to earn his post-accident monthly income (similar to that as security guard) since October 2019.

110.  The evidence of Leung’s monthly income as a security guard in the average sum of HK$17,500 was not seriously challenged. That should carry MPF benefit at the rate of 5%.

111.  On this basis, Leung’s income (inclusive of MPF benefit) since the accident until now should have been HK$(2,450 x 20 + 1,500) x 79 months = HK$3,989,500. Of this period, Leung should have earned (inclusive of MPF benefit) since October 2019 HK$(17,500 x 1.05) x 62 months = HK$1,139,250. His loss of income (inclusive of MPF benefit) up to now is HK$(3,989,500 – 1,139,250) = HK$2,850,250.

112.  Discounting for the major contributing factor of his pre-existing condition, the amount would become HK$570,050.

FUTURE LOSS OF EARNINGS

113.  On behalf of Leung, it is submitted that Leung would retire at the age of 65, and the appropriate multiplier should be 15.4. No submission is made to the contrary, understandably in view of the stance of the defendants that there should be no future loss. In view of the major contributing pre-existing condition, one may expect the multiplier to be discounted. However, no submission is made in this respect either. Doing the best in the circumstances, this court will adopt the percentage discount approach, which was not disapproved by the court in Chan Kam Hoi (above). The percentage will be in line with the assessment so far made.

114.  The future loss of earnings from now will therefore be HK$(2,700 x 20 + 1,500 – 17,500 x 1.05) x 12 x 15.4 = HK$6,860,700. Discounted, the amount will be HK$1,372,140.

LOSS OF EARNING CAPACITY

115.  When Leung is compensated for his future loss of earnings as assessed above, the issue of alleged loss of earning capacity will have to be considered on the basis of his current employment. The principle is trite. There needs to be evidence of Leung being subject to the risk of not being able to stay employed or to be employable as such in the market due to his disabilities. In view of the discussion above, I find no such factual basis for making an award for this head of claim.

FUTURE MEDICAL TREATMENT

116.  Leung claims HK$120,000 for future medical expenses. In my judgment, this is difficulty to justify.

117.  As mentioned, Leung has received conservative treatment during his short hospitalisation period. His subsequent treatment mainly consisted of orthopaedic follow-up and physiotherapy which started in July 2018 and lasted until mid-November 2018. Occupational therapy only started by the end of August 2019 and lasted for just a month. Leung himself reported 80% improvement in, amongst other conditions, pain, while potential instability should have been the concern. Surgery had been explored but not recommended for reasons mentioned above.

118.  Hence no award will be made in respect of this item of claim.

MISCELLANEOUS SPECIAL DAMAGES

119.  A total sum of HK$27,340 is claimed, which consists of HK$7,340 for medical expenses, HK$10,000 for travelling expenses and HK$10,000 for tonic food. The defendants agree to HK$5,000.

120.  Reasonable amount in respect of each component may be awarded, notwithstanding the lack of documentary evidence and detailed breakdown. I make a lump sum award of HK$15,000.

INTEREST

121.  Interest on general damages (PSLA) shall run from the date of writ to today at 2% per annum. Interest on special damages (pre-trial loss of earnings and miscellaneous special damages) shall run from the date of accident until today at half judgment rate.

SUMMARY

122.  In summary, the amount of damages should be in the following sums :

PSLA	HK$    120,000
Pre-trial loss of earnings & MPF	HK$    570,050
Future loss of earnings & MPF	HK$ 1,372,140
Loss of earning capacity	Nil
Future medical expenses	Nil
Miscellaneous special damages	HK$      15,000
Total:	HK$ 2,077,190

123.  Since Leung has received employees’ compensation in the sum of HK$934,480.00, the final award becomes HK$(2,077,190 – 934,480) = HK$1,142,710.

ORDER

124.  Judgment is entered against the two defendants jointly and severally in the sum of HK$1,142,710 with interest as mentioned above until today. Interest from the date hereof until payment runs at the judgment rate.

125.  Following the event, I make a nisi order that the two defendants shall jointly and severally pay Leung’s costs of the present action, to be taxed if not agreed. Leung’s own costs shall be taxed in accordance with legal aid regulations. In the absence of application in 14 days to vary, the nisi costs order shall become absolute without further order.