RAI GEHENDRA RAJ v. YICK HING CONSTRUCTION CO LTD

HCPI 48/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 48 OF 2012

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J U D G M E N T

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1.  In this action, the plaintiff, Mr Rai Gehendra Raj (“Mr Raj”), claims damages for injury to his back and other consequential loss and damage which he claims to have suffered as a result of lifting and moving a heavy object at work on 29 August 2008.

A.   OVERALL ASSESSMENT OF MR RAJ AS A WITNESS

2.  Mr Raj’s case on both liability and quantum is based largely upon his own assertions, most of which are disputed by the defendant, Yick Hing Construction Company Limited (“Yick Hing”).  Much therefore depends on my assessment of Mr Raj’s credibility and reliability.

3.  In assessing Mr Raj’s evidence on any issue, in addition to observing his demeanour in the witness stand, I have tested his testimony by asking whether it is inherently plausible/implausible and whether it is, in a material way, contradicted by other evidence that is undisputed or indisputable, if any.  See R v Ng Wing Ming [1995] 1 HKCLR 64, per Litton JA at 65, 67; Four Seas Fish Balls Co Ltd v Yeung Hung Sin, HCA 4159/2003, unreported, per Chung J at [20]; Profit Boat Development Ltd v Craft Projects (HK) Co Ltd, HCCT 122/2000, unreported, per Recorder R Yuen SC at [16]; and Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513, per Deputy High Court Judge Au (as he then was) at [53].

4.  Mr Raj has been cross-examined by counsel for Yick Hing, Mr Herbert Leung (appearing with Mr Kelvin Tang), in great detail.  Having seen him under cross-examination for 3 days, I am afraid the impression that I have formed of Mr Raj as a witness is not favourable.  I find Mr Raj guarded, defensive and argumentative, often challenging perfectly legitimate questions from Mr Leung.  Mr Raj is also evasive and frequently gives answers that do not address the questions being put to him.  Many questions have to be repeated, not just by counsel but many times by the court too.  Even giving due allowance for understandable loss of memory due to lapse of time, Mr Raj’s evidence is sometimes internally inconsistent and sometimes at odds with other evidence.  And where what he says in court is contradicted by or at variance with what is recorded in a contemporaneous document (e.g. the records regarding his wages and work attendance in 2008) or what he has said on a previous occasion (e.g. as recorded in the notes kept by the doctor who saw Mr Raj in his first medical consultation after the accident or as asserted in his pleadings, witness statement and affirmation in this action which have all been interpreted to him in Nepalese and confirmed by him to be true and accurate), Mr Raj’s answer would invariably be that the person compiling/ preparing the document in question (e.g. his employer, the treating doctor, the solicitors who acted for him until the discharge of his legal aid certificate, etc) had made it up, got it wrong or failed to fully or accurately understand or reflect his instructions.  While occasional human errors are to be expected, the “mistakes” spoken of by Mr Raj are to my mind too abundant, so as to call into question Mr Raj’s evidence.  For these reasons, I see the need to approach Mr Raj’s evidence with caution.

5.  I am in particular convinced that Mr Raj has manifestly inflated his case on quantum in terms of the physical injury that he sustained, the residual pains and impairments left by such injury, his earnings at the time of the accident and his future prospective income had he not been injured.  While I have to consider and assess the evidence on each issue individually and issue by issue, the fact that Mr Raj has been discredited over one or more matters to which he has testified is relevant to the assessment of his overall credibility and reliability.  Where there is a dearth of objective evidence against which Mr Raj’s bare assertions can be tested (e.g. on the issue as to whether, and if so how, the accident occurred), I allow myself to be guided by the impression that I have formed as to Mr Raj’s overall credibility and reliability.

B.   THE ACCIDENT

B1.   Mr Raj’s accounts of the accident and the employment during which it occurred

6.  By way of background, Mr Raj claims to have worked in the construction industry in different positions in Hong Kong after he resettled in Hong Kong in late 1995. 

7.  Through the introduction of a Mr Sahan Kumar Rai (“Mr Rai”) whom he met at the end of 2007, Mr Raj began to work at different construction sites that were located mostly on the Hong Kong Island from 2 January 2008.  He and other workers (about 25 to 27 Nepalese workers including Mr Raj and about 5 to 7 Chinese workers) worked under the supervision of a Chinese male called Ah Fai (or Mr Lau) (“Ah Fai”) who was a foreman and another Chinese male called Ah Pi (“Ah Pi”) who was the team leader.  Ah Pi assisted Ah Fai.  The works undertaken were slope maintenance works.  The duties that Mr Raj had to perform included erecting and dismantling metal scaffoldings, delivering, transferring, loading and unloading construction tools and materials, digging soil at slopes, controlling traffic and various other heavy manual duties as instructed by Ah Fai and Ah Pi.  This continued until 7 March 2008 when Mr Raj and his co-workers stopped work because they had not been paid and had to recover their arrears of wages through the intervention of the Labour Department.

8.  Thereafter, Mr Raj remained unemployed until he resumed work from 3 July 2008 at Ah Fai’s invitation.  This time he was teamed up with a Chinese male worker and a Chinese female worker (whose names Mr Raj does not know).  They worked under Ah Fai and Ah Pi’s supervision.

9.  Pausing here, the identity of Mr Raj’s employer at the time of the accident is in issue.  The evidence on this issue will be analysed in section C2 below.  At this point, I just note that at the material time, Yick Hing was the main contractor of the Civil Engineering and Development Department of the HKSAR Government for a project for landslip preventive works for slopes on the Hong Kong Island (“Works”).  Yick Hing subcontracted all the Works to its related company, Yick Shing Contractors Limited (“Yick Shing”).  With the exceptions of work orders under what were called the “Preliminary Section” and “Site Safety Section”, Yick Shing further subcontracted the Works to a Sam Lee Company (“Sam Lee”).[i]

10.  Turning then to the accident, according to Mr Raj, it occurred on 29 August 2008 in the course of his abovementioned employment.

11.  There was no witness to, and Yick Hing does not admit, the accident.  Save for the fact that Mr Raj did attend the Accident and Emergency Department of the Kwong Wah Hospital (“KWH”) in the late afternoon on 29 August 2008 with a complaint of back pain sustained at work earlier on that day, there is no corroborative objective evidence against which the court can evaluate Mr Raj’s evidence on the accident.  Bearing in mind that a claim of back injury sustained from lifting and moving a heavy object can be easily made up but difficult to rebut, the court would obviously, as a first step, have to check whether the claimant has given a consistent account of how the injury occurred before accepting the claim.  In this regard, Mr Raj has over the years given an account of the accident one way or another on many occasions.

12.  Chronologically, the first record of Mr Raj’s account of the accident takes the form of the following abbreviated notes made by the doctor at KWH who saw Mr Raj on 29 August 2008: “Back pain after sprain today.  12-1 pm today at Stanley.  50 kg.  IP … when lifting the iron tool.  Bending down the back.  Digging soil. …”.

13.  Next, in support of his application for legal aid, Mr Raj filled in a questionnaire dated 16 August 2011 in which he gave Peak Road as the place where the accident happened and described the accident firstly by a sketch showing a person (i.e. Mr Raj) standing at the back of a van parked on a road in front of a construction site on a slope and holding a large and long rectangular object in his hands and secondly with the following words:

“I was asked to unload the HEAVY METAL OBJECT / Drilling Machine (which has use to make whole on the slope construction) weigh approx. 60 to 70 k.g. or Above.” (original emphasis)

14.  Pending the grant of legal aid, Mr Raj acted in person and issued the writ of summons herein on 23 August 2011 against Sam Lee c/o Yick Hing with this indorsement of claim:

“The Plaintiff’s claim is for damages for personal injuries, loss and damage sustained in the course of his employment arising out of the negligence and/or breach of statutory duty and/or breach of contract of employment, and/or breach of duty under the Factories and Industrial Undertaking Ordinance, Cap.59 and its Regulations, the Occupational Safety and Health Ordinance, Cap.509 and its Regulations of Defendant and/or its servants or agents at [09-11 am Peak Road, Hong Kong] on the 29^th day of August 2008.”

15.  On 16 February 2012, pursuant to Order 20 rule 1 of the Rules of the High Court (Cap 4A), Mr Raj [then represented by Messrs David Ravenscroft & Co (“DRC”), solicitors assigned by the Director of Legal Aid] amended the writ of summons to make Sam Lee the 1^st defendant and add Yick Hing as the 2^nd defendant to this action.

16.  The statement of claim was not filed until 28 May 2012.  In paragraph 1(a), Mr Raj is said to be a general labourer employed by Sam Lee at a slope maintenance site outside 28 Peak Road, Hong Kong.  The occurrence of the accident is pleaded in paragraph 4 as follows:

“On 29^th August 2008 at about 9:30 a.m. in the course of his employment at the Site the Plaintiff, in accordance with instructions from his supervisor, picked up a drilling machine weighing 60 to 70 kilos and carried it to its place of use. As the Plaintiff places the drilling machine on the ground at its place of use and as a result of its weight the Plaintiff injured his back.

The “Site” has been defined to refer to the slope maintenance site outside 28 Peak Road.

17.  Then, upon an ex parte application made by DRC on Mr Raj’s behalf on 16 July 2012, the writ of summons and the statement of claim were amended on 31 July 2012 to discontinue the action against Sam Lee thereby making Yick Hing the only defendant in this action.  It is however noted that the amended statement of claim still maintained that Sam Lee was Mr Raj’s employer at the time of the accident.  Paragraph 4 as set out in the preceding paragraph is unaffected by this round of amendments.

18.  On 28 August 2012, further and better particulars were given in respect of paragraph 4 of the amended statement of claim by identifying Ah Pi as the supervisor referred to therein and averring that Ah Pi was the employee of either Yick Hing or Sam Lee and that Ah Pi was not involved in moving the drilling machine but was sitting in the driving seat of a van parked on the road next to the Site at about 5 steps from Mr Raj.

19.  On 11 September 2012, Yick Hing filed its defence which, inter alia, does not admit Mr Raj’s employment with Sam Lee or the occurrence of the accident alleged by Mr Raj.

20.  Next, Mr Raj was examined by Dr Wong Chin Hong (nominated by Mr Raj) and Dr Arthur Chiang Si Chung (nominated by Yick Hing) on 16 May 2013.  Paragraph 12 of their joint expert report dated 3 November 2013 records Mr Raj’s account of the accident to them as follows:

“He was transferring a drilling machine (said to weigh 60-70 kg) from a van. He was doing the task by himself. As he was putting the machine on the ground, he felt pain on his back. He sat in the van for half an hour. He then got off the van and continued to work for 10 minutes. He stopped work because of increasing back pain.”

21.  Mr Raj made and served his witness statement on 10 September 2013 and 15 January 2014.  By this statement, Mr Raj makes the following assertions regarding his employment for the first time:

(1)  that Mr Rai (who first recruited him in the end of 2007) was a team leader of Sam Lee and/or Yick Hing and introduced workers to Sam Lee and/or Yick Hing (paragraph 4);

(2)  that Mr Raj himself was also employed at the time of the accident as a scaffolder in addition to being just a general labourer (paragraphs 4, 7 and 10); and

(3)  that Mr Raj was so employed by Sam Lee and/or Yick Hing (paragraphs 4, 5, 8, 9, 10, 11, 32 and 34).

22.  More importantly, Mr Raj expands on his account of the accident:

“5. The accident occurred at the pavement outside No.28 Peak Road. There was a slope maintenance work in progress on the opposite side of No.28 Peak Road / Way of Interocean Court at that time.

…

14. Slightly before 8:00 a.m. on 29^th August 2008, I took a minibus ub IFC2 Central District and alighted at somewhere near No.1 Magazine Gap Road where one of the construction sites of [Yick Hing] was located. I then met the said Chinese male worker and the Chinese female worker who were my co-workers whom I always worked with in the same team. Later, Ah Pi drove a company van and stopped near us. We then got on board of the company van which was silver in colour. I sat in the front seat next to Ah Pi. The Chinese male and female workers were sitting behind the driver’s seat. At that time, I was not aware of any drilling tools or equipment placed in the compartment of the van.

15. The van arrived at somewhere near No.28 Peak Road (“the Site”) where there was another site for slope maintenance works of Sam Lee and/or [Yick Hing]. The work of that site was in progress. Ah Pi stopped the van by the side of the road. He then told me to get down from the van and to collect a drilling metal tool from the compartment of the van and put it by the side of the pavement of the road. Ah Pi also told me that after I had put the drilling tool down onto the pavement, we would go to Repulse Bay Road near Headland Road together and work there. I then alighted from the van and stood behind its rear part. Ah Pi then pressed a button at the driver’s seat to open the rear door of the van.

16. I found a drilling tool placed near the door of the compartment. It was rectangular in shape; its size was about 15-18 inches long, 15-18 inches wide and 12-15 inches thick. Its weight was about 60 kg to 70 kg. It was used to drill holes on slopes for slopes maintenance works.

17. As the drilling tool was placed near the door of the compartment of the van, it was not necessary for me to get into the compartment for collecting it. Therefore, I stood on the ground and used both of my hands to carry the drilling metal tool.

18. When I was carrying the drilling tool, I found that it was very heavy. I doubted whether I was able to carry it by myself alone. As Pi had previously told me to be quick as we would be going to Repulse Bay Road for work. I did not dare to delay the work assigned by Ah Pi. Besides, the van was parked by the side of the road and any delay of the work would cause obstruction to the traffic. Moreover, Ah Pi was always rude to me and he had always asked me to perform the most labourious works. I therefore understood that even if I asked him for assistance, I would not be given any help. As such, my thought of asking him for assistance faded away very quickly.

19. I then continued to carry the heavy drilling tool with both of my hands and walked to the pavement. Because of the heaviness of the drilling tool, I was only able to walk slowly. I walked about 3 to 5 steps and reached the pavement. At all material times, I intended to squat down and put the drilling tool down onto the pavement. However, when I was squatting down, I suddenly felt a sharp pain to my lower back. I then lost my strength and was unable to hold the heavy drilling metal tool. I dropped the drilling tool onto the pavement and then returned to the van (“the Accident”). As such, I sustained serious back injuries from the Accident.

20. At that time, I was not aware of the seriousness of the injury to my back. Also, I thought that the pain might only last for a brief moment and would subdue later on and I do not dare to tell Ah Pi that I had sprained my back when lifting and unloading the heavy drilling tool from the van.

…

24. After the Accident, Ah Pi drove us to Repulse Bay Road with the two Chinese workers. When we reached there, I found that there were already some Chinese workers working there. At about 10:30 a.m., I was instructed to clean the drainage which size was about 45-55 inches (high) x 40-45 inches (wide) and was in rectangular shape. It was little dark inside the drainage and I had to bend down to clear rubbish and to remove some plywood from the drainage. After working for about 15 to 20 minutes, I felt the pain at my back became very severe. At about 11:00 a.m., I could not tolerate it anymore. I then informed Ah Pi about the Accident and Ah Pi told me to either take a rest or to go to hospital for medical treatment. I elected to take a rest. However, after I had taken a rest for about 30 minutes, I still found my back to be severely painful. I then informed Ah Pi that I needed to go to hospital.

25. As I lived near Yau Ma Tei at Mongkok, Kowloon, I took a bus at a bus stop near the working site at Repulse Bay Road to Yau Ma Tei. I arrived at the government Yau Ma Tei Jockey Club Clinic (“YMTC”) and intended to ask for medical treatment. However, I was told by the staff of the clinic that I must make a telephone booking for appointment to see a doctor. I then made a phone booking and I was allotted an appointment at 7:30 p.m. on that day and I waited for some time for my turn there. However, I could not tolerate the pain and therefore, began looking for other ways to see a doctor at an earlier time. I took a taxi and reached Kwong Wah Hospital (“KWH”)’s Accident & Emergency Department at about 5:15 p.m. for medical treatment. I was examined by a doctor and was told that I suffered from a lower back injury (“the injury”).”

23.  On 11 June 2014, Mr Raj re-amended the statement of claim to, inter alia, put forward the case that he was employed by Sam Lee and/or Yick Hing at the time of the accident.  Paragraph 4 (which pleads the occurrence of the accident as set out in paragraph 16 above) however remains untouched by this further round of amendments.

24.  One aspect of Mr Raj’s account of the accident with which Yick Hing takes issue is that a drilling machine weighs about 200 kilograms and cannot possibly be moved manually.  To illustrate the point, Yick Hing’s senior project manager and only witness, Mr Liu Kai Choi (“Mr Liu”), has exhibited a photograph of a drilling machine as appendix II to his first witness statement dated 10 December 2013.

25.  By his 2^nd affirmation filed on 5 March 2014, in answer to interrogatories administered by Yick Hing in respect of Mr Raj’s witness statement, insofar as it is relevant to the occurrence of the accident, Mr Raj has deposed that:

(1)  The time when he was carrying the drilling metal tool was between 9 am and 10 am.

(2)  “[T]he alleged drilling tool should be the same as the one shown in the photograph in Appendix II of the Witness Statement of Liu Kai Choi dated 10 December 2013.  More specifically, the drilling tool that I lifted was the chuck that holds the drilling bit of the drilling tool.”

(3)  “[T]he weight of the drilling tool I mentioned in my Witness Statement is a close estimate of the one I actually carried on the location of the accident.”

(4)  “[T]he distance between the compartment of the van and the location where I squatted down to put down the drilling tool was about 7-8 foot in distance.”

26.  Lastly, in paragraph 5 of his opening submissions, Mr Raj refers to the object that caused him the back injury a “drilling rig”.

27.  At the trial, Mr Raj has produced as exhibit “P1” 2 photographs of the relevant section of Peak Road that he himself took in 2009 and on which he has marked the spot where the van from which he retrieved the drilling tool had stopped and parked (by “X”), the construction site where slope maintenance work was being carried out and where the drilling tool that he was moving was to be used (by “Y”) and the path along which he moved to carry the tool from the back of the van to the pavement (by a dotted line).  It can be seen that the van was parked inside a lay-by area right outside 28 Peak Road and the site of the slope maintenance work was some distance down the road on the opposite side.  Mr Raj could not have walked more than a few steps to drop the drilling tool on the side of pavement outside 28 Peak Road because the van must have been parked very close to the pavement. 

28.  Further, having identified in his said affirmation that the object that he was carrying at the time of the accident was the same as “the chuck that holds the drilling bit of the drilling tool” shown in the photograph in appendix II to Mr Liu’s first witness statement, Mr Raj has circled on the said photograph the portion that he calls the chuck and produced the photograph with his circular marking as exhibit “P2”.  However, he later qualifies under further cross-examination that the object that he lifted looked a little bigger than the part that he has circled and that it is possible that it was another part of that or some other drilling machine.

B2.   My finding regarding the accident

29.  As said earlier, other than Mr Raj’s testimony, the only other piece of evidence from which Mr Raj may derive some support on the occurrence of the accident is his attendance at KWH in the late afternoon on 29 August 2008 for medical treatment for back pain.  However, while supporting or tending to support Mr Raj’s claim that something had somehow happened on 29 August 2008 to cause him back pain, it does not prove or tend to prove how the accident happened.

30.  I have carefully reviewed, but I am unimpressed by, Mr Raj’s evidence, particularly the discrepant manner in which he has described key aspects of the accident.

31.  First, Mr Raj has given different times at which he first sustained injury to his back:

(1)  12 to 1 pm as noted in KWH’s said medical notes;

(2)  9 – 11 am in the indorsement of claim;

(3)  about 9:30 am in paragraph 4 of the statement of claim or between 9 and 10 am in the affirmation answering Yick Hing’s interrogatories.

32.  Second, Mr Raj has given different locations where he sprained his back:

(1)  Stanley as noted in KWH’s said medical notes;

(2)  “its place of use” as used in paragraph 4 of the statement of claim which must, in context, refer to the slope maintenance site marked “Y” on exhibit P1 which is not only on the opposite side of 28 Peak Road but also further down the road;

(3)  the side of the pavement outside 28 Peak Road (which was obviously not the place where the object moved by Mr Raj was to be used) according to his witness statement and evidence in court.

33.  Third, Mr Raj has described the object that he was carrying at the time of the accident and its shape, weight and dimensions with marked variations:

(1)  50 kg as noted in KWH’s said medical notes;

(2)  a large and long rectangular object as shown in the drawing in annex 1 to the questionnaire for the Legal Aid Department;

(3)  a drilling machine weighing about 60-70 kgs as pleaded in paragraph 4 of the statement of claim and as told to the medical experts at the joint medical examination;

(4)  a rectangular drilling tool weighing about 60 kg to 70 kg and measuring about 15-18 inches x 15-18 inches x 12-15 inches according to Mr Raj’s witness statement;

(5)  same as the part of the drilling machine depicted in the photograph in appendix II to Mr Liu’s first witness statement which Mr Raj calls “the chuck that holds the drilling bit of the drilling tool” according to the affirmation answering Yick Hing’s interrogatories;

(6)  the part of the drilling machine shown in the said photograph circled by Mr Raj in court (exhibit P2) which does not in any way resemble the drilling tool described in Mr Raj’s witness statement (e.g. it is obviously not rectangular in shape);

(7)  some other part of that or some other drilling machines that is bigger than the part circled on exhibit P2 as suggested under further cross-examination.

34.  These discrepancies have been put to Mr Raj but I do not think that he has given any or any credible explanations therefor whether in cross-examination or re-examination. 

35.  For instance, in an attempt to explain KWH’s said medical notes, Mr Raj claims to have told the attending doctor that after lifting a heavy object at Peak Road, he went to another site at Repulse Bay Road which is near Stanley in answer to the doctor’s questions as to where he had the accident and where he worked; that he lifted the heavy object at 9:30 am; and that he only said around 12 to 1 pm when the doctor asked him when the pain started.  I find it curious that the doctor should miss out the time and place of the accident.  Further, the reference to 12 - 1 pm as the time when the pain started does not sit well with the statements (in paragraphs 19 and 24 of Mr Raj’s witness statement) that Mr Raj felt a sharp pain in his back when he dropped the heavy object onto the pavement; that the pain in his back became severe after he had worked for about 15 to 20 minutes (from about 10:30 am) at Repulse Bay Road and that he could not tolerate the pain anymore and stopped working at about 11 am.

36.  While one may accept that an incident causing back pain somehow occurred to Mr Raj on 29 August 2008 in view of KWH’s said medical notes, in the absence of explanations that satisfactorily reconcile the aforesaid discrepancies in key aspects of Mr Raj’s case on the accident and guided by the general unfavourable impression that I have formed of his overall credibility and reliability, I do not feel able to act on Mr Raj’s evidence even on a balance of probabilities.  In other words, Mr Raj has not discharged the burden of proving the accident as described by him.

37.  In light of such conclusion, it is strictly unnecessary for me to address the bases upon which Mr Raj seeks to attribute liability to Yick Hing or the quantum of Mr Raj’s claim.  However, for the sake of completeness and in case this matter goes further and I am wrong in my conclusion on the accident, I shall also proceed to make findings on liability and quantum and give brief reasons therefor.

C.   LIABILITY

C1.  Mr Raj’s case on liability

38.  Mr Raj’s case on liability as pleaded in the re-amended statement of claim is convoluted and not easy to follow.  Doing the best that I can, I understand Mr Raj to be saying that the accident he asserts was caused by:

(1) the breach of the implied terms of Mr Raj’s contract of employment on the part of Yick Shing “and/or” Sam Lee on the basis that Mr Raj was employed by Yick Hing “and/or” Sam Lee;

(2) Yick Hing’s negligence;

(3) Yick Hing’s breach of the common duty of care under the Occupiers’ Liability Ordinance (Cap 314) (“OLO”);[ii]

(4) Yick Hing’s own breaches of statutory duty under

(a)  s 38A of the Construction Sites (Safety) Regulations (Cap 59I) (“CSSR”);

(b)  s 6(1) of the Occupational Safety and Health Ordinance (Cap 509) (“OSHO”);

(c)  ss 23(1), 24, 25, 27(1)(a), (b), (c) and (d), 27(2), 29(1)(a) and (b), 30(1), 30(2) and 31 of the Occupational Safety and Health Regulation (Cap 509A) (“OSHR”); and

(4) Sam Lee’s breaches of statutory duty under the said sections of the OSHR for which Yick Hing is said to be liable.

39.  Mr Raj further places reliance on the maxim of res ipsa loquitur.  As I see it, there is no place in this case for this often indiscriminately pleaded maxim, which only applies in cases where the precise cause of the incident is unexplained or cannot be shown but it is more probable that it was the result of an act or omission of the defendant that amounted to a failure to take proper care of the plaintiff.  See, e.g. Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207, per Bokhary PJ at [3].  Here the precise cause of the accident is not unknown on Mr Raj’s evidence.  It is just that I do not accept such evidence.

40.  The reliance on the OLO is also patently misconceived as the common duty of care under the OLO is limited in application to dangers due to the state of premises, as opposed to dangers arising from activities on land.  See Clerk & Lindsell on Torts (21^st Ed), §12-03.  See also Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14, per Bokhary PJ at [19].

41.  The attribution of vicariously liability for Sam Lee’s breaches of statutory duty to Yick Hing can likewise be disposed of shortly.  Vicarious liability for another person’s wrong only arises where the other person is the defendant’s employee or agent.  See Clerk & Lindsell on Torts, supra, §6-59.  Sam Lee was not the employee or agent, but an independent sub-sub-contractor, of Yick Hing.

42.  On these notes, I turn to discuss the other bases upon which Mr Raj seeks to attach liability for the accident to Yick Hing.  However, such discussion would obviously be confined to examining the applicability of the legal bases put forward by Mr Raj to say that Yick Hing was responsible for his safety at work.  In view of my refusal to find the occurrence of the accident described by Mr Raj, I am not able to further consider whether Yick Hing had acted in breach even if I should find that it owed any obligation towards Mr Raj.  For the same reason, I am precluded from addressing whether Mr Raj was contributorily negligent.

C2.  Yick Hing not in breach of Mr Raj’s contract of employment - Mr Raj not employed by Yick Hing

43.  As noted in paragraph 38(1) above, it is suggested in the re-amended statement of claim that Mr Raj was employed by Yick Hing and/or Sam Lee.  This relatively late averment by re-amendment to the amended statement of claim raises 3 different scenarios:

(1)  that Mr Raj was employed by Yick Hing only;

(2)  that Mr Raj was employed by Sam Lee only; or

(3)  that Mr Raj was employed by both Yick Hing and Sam Lee.

44.  Despite the confusion caused by the statement in paragraph 1 of Mr Raj’s opening submissions that he was employed by Sam Lee, Mr Raj has at the beginning of the trial clarified and confirmed that he is putting forward the first-mentioned scenario.

45.  However, despite such clarification and confirmation, it has become clear in the course of his cross-examination that he does not really know by whom he was employed at the material time, which he has expressly acknowledged in answer to my direct question.

46.  The modern approach to the question whether a person is in business on his own or another’s employee as set out by the Court of Final Appeal in Poon CHau Nam v Yim Siu Cheung t/a Yat Cheung Air Conditioning & Electric Co (2007) 10 HKCFAR 156, per Ribeiro PJ at [17]-[18] has been applied to the determination of the question whether one person is another’s employee.  See, for example, Chan Wai Keung v Li Yau Hing, DCEC 1232/2010, unreported (11 April 2013), per District Court Judge HC Wong at [30]-[31] and Shen Li Ping v Oriental Logistics Group Ltd, DCEC 987/2010, unreported (25 October 2012), per Deputy District Court Judge Clement Lee at [6]-[9].

47.  Following the same approach, in view of Mr Raj’s concession that he does not really who his employer was at the material time, one should turn to examine all the features of the relationship between Mr Raj and Yick Hing.  However, the evidence adduced by Mr Raj has left the court with very little to work with. 

(1)  The person who first recruited Mr Raj (i.e. Mr Rai), though said to be employed by Sam Lee and/or Yick Hing in Mr Raj’s witness statement, had in fact never told Mr Raj who he worked for.  The highest that Mr Raj can put it is that Mr Rai had said that “we are under Yick Hing” which Mr Raj understands to mean that Yick Hing was the main contractor.

(2)  Mr Raj has claimed in cross-examination that Ah Fai and Ah Pi under whose supervision Mr Raj and his co-workers worked from 2 January to 8 March 2008 and from 3 July to 29 August 2008 were Yick Hing’s employees.  The only basis upon which Mr Raj says so is that he had seen them 5 to 6 times when he went to Yick Ying’s depot at Victoria Road.  However, Ah Fai and Ah Pi’s attendance and presence at Yick Hing’s said depot is neither here nor there.  Mr Liu’s evidence is that Yick Hing’s said depot accommodated other companies such as Mott Connell Limited (the engineer for the project) and Sam Lee and that Sam Lee had container offices there.  This seems to me to be in line with clause 2.3 of the sub-sub-contract between Yick Shing and Sam Lee under which Sam Lee could use the depot erected by Yick Shing.  I accept Mr Liu’s evidence.

(3)  There is nothing else in Mr Raj’s evidence that throws light on his relationship with Yick Hing, if any.

48.  This state of evidence clearly does not provide any or any sufficient basis for a finding that Mr Raj was employed by Yick Hing.  I make no such finding.

49.  To the contrary, the following body of evidence points to Mr Raj being an employee of Sam Lee as a matter of probabilities and I so find.

(1)  As between Yick Hing, Yick Shing and Sam Lee, the obligation to provide labourers for the Works fell ultimately on Sam Lee. See clauses 2.2, 2.4 and 12(1) of the sub-subcontract between Yick Shing and Sam Lee.

(2)  Mr Liu has produced as appendices I, III, IV and V to his first statement various records kept in respect of Mr Raj’s attendance and wages from 2 January to 7 March 2008 and from 3 July to 29 August 2008. According to Mr Liu, Yick Hing obtained these documents from Sam Lee.  I have no reason to question such evidence. 

(3)  Included in such documents is a copy of Sam Lee’s cheque dated 31 January 2008 in favour of Mr Raj for the sum of $1,440 the receipt of which Mr Raj has confirmed as part of his wages for January 2008.

(4)  As said earlier, Mr Raj and his co-workers recovered arrears of wages for the period from 2 January to 7 March 2008 by enlisting the help of the Labour Department.  In Mr Raj’s notice of claim for wages due under ss 43D(1)/43H(1) of the Employment Ordinance (Cap 57) (“EO”), Sam Lee was put down as Mr Raj’s employee.  According to Mr Raj, this part of the form was filled in by the Labour Department after having been briefed about Mr Raj and his co-workers’ situation but he does not know from where the Labour Department obtained Sam Lee’s name.  However, common sense would suggest that it is more probable than not that the Labour Department got the name of the workers’ employer from the workers themselves.  I note that Mr Raj signed the form after it had been completed because he thought that its content was correct.

(5)  Mr Raj’s claim for arrears of wages ($34,160) was eventually settled for $25,120 paid by 3 cheques of Sam Lee totalling $12,000 and 2 cheques of Yick Hing totalling $13,120.  Sam Lee would have had no reason to pay part of Mr Raj’s outstanding wages if it had not been Mr Raj’s employer whereas Yick Hing as the principal contractor above Sam Lee, was obliged under s 43C(1) of the EO to pay the wages of Mr Raj not paid by Sam Lee within time.

(6)  Mr Raj himself put down Sam Lee as his employer at the time of the accident in the questionnaire in support of his application for legal aid.

50.  Since Yick Hing was not Mr Raj’s employer, it could not have been in breach of Mr Raj’s contract of employment.

C3.  Yick Hing not negligent – Yick Hing owed no tortious duty of care to Mr Raj

51.  On the question whether Yick Hing as the principal contractor owed a duty of care under the law of negligence to Mr Raj (an employee of Yick Hing’s independent sub-subcontractor), Mr Leung refers me to Ng Tat Kuen v Tam Che Fu, HCPI 896/2013, unreported (26 October 2015), in which Mr Justice To, referring to Lord Bridge’s speech in Caparo Industries Plc v Dickman [1990] 2 AC 605 ay 617H-618C and Bokhary PJ’s judgment in Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming, supra, at [30], summarised at [26]-[27], inter alia, that whether a duty of care is owed under the law of negligence depends on foreseeability, proximity and whether it would be fair, just and reasonable to impose a duty of care.

52.  Again, Mr Raj has given the court very little material to work with.

53.  Save for his complaints about not being provided with proper equipment or sufficient manpower in moving the heavy object, Mr Raj has not in his evidence dealt with whether generally any, and if so what, system of work (in terms of provision of proper equipment and sufficient manpower and adoption of safe methods and procedure etc) was put in place by Sam Lee for the movement of heavy objects at the sites where the Works under its sub-subcontractor with Yick Shing were carried out.  It follows that there is no evidence of any general lack of an effective or sufficient system of work for the movement of heavy objects, not to mention Yick Hing’s awareness of the same.  This case is therefore distinguishable from, e.g. Gauchan Som Prasad v Hin Wah Construction Co Ltd, DCPI 2398/2009, unreported (26 July 2011) in which the principal contractor was held by District Court Judge Lok (as he then was) to owe a duty of care to the employees of his subcontractor on the basis of its knowledge of the defective system of work and control or supervision over such defective system of work.

54.  More importantly, even on Mr Raj’s version of the accident, there is no evidence that Yick Hing knew or should have known that Mr Raj would be instructed to move (unassisted) a heavy object from Sam Lee’s van on the roadside to the pavement outside 28 Peak Road, which was not even within the site for slope maintenance work, on 29 August 2008.

55.  I do not see any evidential basis to impose upon Yick Hing in favour of Mr Raj a duty of care under the law of negligence in respect of the activity alleged by Mr Raj to have caused him injury on 29 August 2008.

C4.  Yick Hing not in breach of statutory duty – statutory provisions pleaded not applicable

C4.1  CSSR

56.  Section 38A of the CSSR is clearly irrelevant as it deals with hazards arising from working at a height, requires safe access to and egress from a place of work and prevents access to a place on site in a hazardous condition.

C4.2  OSHO

57.  Section 6(1) of the OSHO imposes a duty to ensure the safety and health at work only upon the employer which is defined in s 3(1) as a person who employs natural persons under contracts of employment or apprenticeship.

58.  Mr Raj’s case against Yick Hing based on this section falls away with my finding that Yick Hing was not Mr Raj’s employer.

C4.3  OSHR

59.  To recap, Mr Raj relies on ss 23(1), 24, 25, 27(1)(a), (b), (c) and (d), 27(2), 29(1)(a) and (b), 30(1), 30(2) and 31 of the OSHR.

60.  The case based on ss 30 and 31 can be disposed of right away as the duties thereunder are imposed on the employer, which Yick Hing was not.

61.  As for ss 23, 24, 25, 27 and 29, leaving aside the contents of the duties arising thereunder, they apply to “the person responsible for the workplace”.

62.  A “workplace” means any place where employees work.  See s 3(1) of the OSHO.

63.  Section 3(2) of the OSHO defines “the person responsible for the workplace” to be “the employer of the employees who are employed to carry out work there, or if the employer does not exercise any degree of control over the relevant part or aspect of the workplace, means the occupier of the workplace”.  The “occupier”, in relation to any premises or workplace, is defined by s 3(1) to include “a person who has any degree of control over the premises or workplace” and, in particular, a person to whom s 3(5) and (6) applies (which has no application in the present case).

64.  As explained by Mr Justice To in Ng Tat Kuen v Tam Che Fu, supra, at [53]-[55], the duties of “the person responsible for the workplace” under the OSHO and OSHR are imposed primarily upon the employer of the employees employed at the workplace.  It is only if the employer does not exercise any degree of control over the workplace or the relevant part of the workplace that the responsibility is passed to the occupier.  Though an inclusive definition of “occupier” is given, the essence in the occupier of the workplace must be his power to exercise control, in addition to the fact of his occupation of the workplace.

65.  I have already found Sam Lee, and not Yick Hing, to be Mr Raj’s employer.  Hence, ss 23, 24, 25, 27 and 29 of the OSHR would bind Yick Hing only if Sam Lee did not exercise any degree of control, while Yick Hing had some degree of control, over the relevant workplace.

66.  The relevant workplace for present purpose must be the roadside and pavement outside 28 Peak Road, which was not the site for slope maintenance work.  That area was a public place to which all members of the public could have access.  No one was in exclusive occupation.  Indeed, Yick Hing had no presence or power whatsoever there.  I do not see how Yick Hing can be said to have any degree of control over such a place.  See again Ng Tat Kuen v Tam Che Fu at [62]-[66].

67.  To conclude, Mr Raj would have no case against Yick Hing under the OSHR (even on his version of the accident).

D.   QUANTUM

D1.  The parties’ respective positions on quantum

68.  I begin by setting out the respective positions on quantum adopted by the parties:

Head of Damages	Mr Raj (according to revised statement of damages)	Yick Hing (based on closing submissions)
PSLA	$450,000	$100,000 - 150,000
Pre-trial loss of earning	$1,152,387 / $2,123,306	$68,828 / $76,860 (including employer’s MPF contribution)
Future loss of earnings	$1,264,560 / $3,478,464	$0
MPF	$120,847 / $280,089	Included in pre-trial loss of earnings
Loss of earning capacity	$150,000	$0 - $20,000
Medical expenses	$6,105	$6,411
Travelling expenses	$8,000	$4,000
Massage therapy	$10,000	$0
Nourishing or tonic food	$6,000	$0
Costs of walking stick	$150	$0

Mr Raj presents 2 alternative scenarios for the loss of earnings depending on whether the court adopts what he asserts to be his pre-accident wages or the wages of a licensed scaffolder.  Yick Hing’s alternative figures for pre-trial loss of earnings turn on whether Mr Raj earned $480 or $430 per day as at 29 August 2008.

69.  The controversy that separates the parties on quantum related to the seriousness of Mr Raj’s injury from the accident, including the necessity and reasonableness of the prolonged treatment and sick leave and the genuineness of his persistent complaints of residual pain and incapacities and inability to return to his pre‑accident employment.

D2.  Physical injury

70.  Mr Raj was close to 44 years old on 29 August 2008.  He will soon be 53.

71.  Until March 2009, the diagnosis given for Mr Raj’s back pain was local muscle tenderness over his lower back.  X-rays of the lumbosacral spine taken at KWH on 29 August 2008 reveals no abnormality.

72.  On 12 March 2009, X-ray of the lumbosacral spine taken at the Princess Margaret Hospital (“PMH”) shows mild degenerative changes and the disc space over the L5/S1 level appears narrow.  A MRI of the lumbosacral spine privately arranged by Mr Raj in Nepal on 24 April 2010 shows reduced intervertebral disc heights in between the L4-L5 and L5-S1 levels with loss of disc signal; broad based posterior disc prolapse at the L4-L5 level compromising with thecal sac, spinal canal and L5 root of either side up to some extent; and broad based posterior disc prolapse at the L5-S1 level with disc fragment sequestration off midline towards the left compromising mainly with S1 root of Lt S1 side.  X-ray of the lumbosacral spine taken at the joint medical examination on 16 May 2013 shows the same changes. 

73.  Mr Raj has sought treatment at multiple medical institutions, principally as follows:

(1)  KWH on 29 August, 5 September and 13 October 2008;

(2)  Yau Ma Tei Jockey Club Clinic on 38 occasions from September 2008 to March 2009;

(3)  Queen Elizabeth Hospital from October to November 2008 fro 8 sessions of physiotherapy;

(4)  PMH’s Physiotherapy Department from December 2008 to July 2009 for 41 sessions of physiotherapy;

(5)  PMH’s Department of Orthopaedic & Traumatology from March 2009 to March 2013 (during which he underwent 35 sessions of occupational therapy from May to August 2009); and

(6)  Asia Medical Centre from April to August 2013.

74.  Mr Raj has obtained sick leave certificates for a total of 804 days from 29 August 2008 to April 2014.

75.  The 2 medical experts, Dr Wong and Dr Chiang, are in agreement, and I find, that the prolapsed L4/5 and L5/S1 discs are likely to be pre-existing. 

76.  The doctors however differ as to whether such degenerative changes (which could remain asymptomatic for years) could have been triggered and aggravated by the accident asserted by Mr Raj. 

(1)  Mr Wong answers this question in the affirmative with the conclusion that all of Mr Raj’s persistent back and lower limb symptoms can be fully attributed to the injury on 29 August 2008.  However, his sole reason is that Mr Raj has not given any history of back injury or problem before 29 August 2008.

(2)  Dr Chiang on the other hand rules out this possibility.  According to Dr Chiang, Mr Raj sustained soft tissue injury of the low back on 29 August 2008. If such injury triggered or aggravated the pre-existing degenerative changes, more obvious symptoms and signs in one or both of the lower limbs, with limitation of straight raising test, would likely to be present within the initial few days after the injury.  The absence of lower limb symptoms in the early few months after the injury suggests the unlikely presence of prolapsed lower lumbar disc from aggravation of a pre-existing degenerated disc.

77.  I prefer Dr Chiang’s view to that of Dr Wong.  It appears to me that Dr Wong simply acts on Mr Raj’s self reported medical history.  Indeed, I do not think it is unfair for me to say that Dr Wong seems to have taken an unquestioning approach in expressing opinions supporting the positions that Mr Raj has adopted in this action without setting out any critical analysis of the material available to him.  In this regard, Mr Leung has drawn my attention to previous occasions on which Dr Wong was found to have adopted an over-simplistic approach regarding the genuineness of a plaintiff’s complaints.  See Sherma Phalindra v Tin Wo Engineering Co Ltd, HCPI32/2011, unreported (8 November 2012) and Rajwinder Singh v Man Hung Kwan, DCPI 17/2013, unreported (28 January 2016).

78.  Hence, in assessing quantum, I will proceed on the basis that Mr Raj sustained soft tissue injury of the low back only on 29 August 2008, which has not triggered or aggravated the pre-existing degenerative discs. 

79.  I further accept Dr Chiang’s estimation that, even without the injury complained of, in about 2 to 4 years from time of the injury (which would be from around September 2010 to September 2012), it would have been very likely for Mr Raj to encounter other aggravating episodes or develop more regular symptoms from progression of his pre-degenerated discs, which would compel him to switch to lighter jobs.  This falls within the 3^rd scenario mentioned in Chan Kam Hoi v Dragages et Trauvaux Publics [1998] 2 HKLRD 958, per Mortimer VP at 963E-G.  I will assess damages accordingly.

80.  Mr Raj complains of residual pain and impairments.  I am, however, of the firm view that Mr Raj has exaggerated his symptoms.

81.  First, Mr Raj has described his symptoms variously and inconsistently.

(1)  At the joint medical examination on 16 May 2013, Mr Raj complained of constant mild low back pain; burning sensation in both legs more on the posterior and lateral aspects of the left calf with muscle cramp in both calves when there was pain; blurred vision and loss of control of urine and bowel movements.

(2)  At the trial in mid September 2016, he demonstrates that the burning sensation extends from the lower back to the toes which is more focused on the left side, though there has been a little improvement since the joint medical examination.  He also confirms that he is still suffering from blurred vision and loss of control of urine and bowel movements.

(3)  Yet, Mr Raj has not said anything about the blurred vision or burning sensation in his witness statement made on 10 September 2013.  Also the back pain mentioned there extends “from his ankles up his back, shoulder and hands”.

(4)  Then, in his revised statement of damages dated 10 September 2014, Mr Raj complains about pain radiating down his back to both lower limbs, numbness and burning sensation in both lower limbs.  There is no mention of any problem with his shoulders or hands.

(5)  At the trial, upon being shown his witness statement, Mr Raj suddenly says he still feels pain in his hands and shoulders though the pain in his upper limbs is less than that affecting his lower limbs.  When asked why the upper limb pain is not referred to in the revised statement of damages, Mr Raj just says that his former solicitors forgot to do so.

(6)  He again blames his former solicitors when it is questioned why both the witness statement and revised statement of damages omit references to the blurred vision and loss of control of urine and bowel movements.

(7)  Lastly, he blames his former solicitors and the medical experts for leaving out the problem of numbness from the witness statement and the joint expert report.

I reject Mr Raj’s explanations for the inconsistent accounts of his symptoms which I consider to be evidence of symptom magnification on the part of Mr Raj.

82.  Second, the contemporaneous medical records before the court contain express references to the presence of Waddell’s signs and other findings of symptom magnification at various examinations in 2008, 2009 and 2010.

83.  Third, Dr Chiang also suspects Mr Raj of exaggerating his symptoms possibly to a significant degree for 3 reasons (without any dispute from Dr Wong):

(1)  marked discrepancy in the straight raising test results both in March 2009 and at the joint medical examination;

(2)  lower limb weakness that cannot be anatomically explained both in March 2009 and at the joint medical examination;

(3)  presence of positive Waddell’s sign both in July 2010 and at the joint medical examination.

I accept Dr Chiang’s opinion.

84.  On this basis, I also prefer the following assessment by Dr Chiang:

(1)  Mr Raj should have a reasonable prospect of returning to his pre-injury job in his pre-injury capacity, having regard to the estimated extent of the soft tissue injury in the low back and the actual underlying residues from the injury (though the pre-degenerated discs would demand reduced prolonged and continuous heavy manual or lifting activities).

(2)  Based on the findings in the first orthopaedic visit in March 2009 and taking into consideration the natural course of similar extent of injury, sick leave for Mr Raj’s back injury could probably end by about mid 2009.

(3)  Mr Raj has suffered 3% impairment of the whole person and 3% loss of earning capacity.

D3.  PSLA

85.  I believe $180,000 would have been an appropriate award.

D4.  Loss of earnings

86.  Mr Raj claims damages for loss of earnings on the bases that:

(1)  He is unable to return to his pre-injury job.

(2)  He can only work as a security guard for a monthly salary in the region of $7,500.

(3)  He did not start to look for a job until after the joint medical examination on 16 May 2013.

(4)  He first became gainfully employed on 17 August 2014 as a security guard with Sunkoshi Gurkha Security Limited.  Despite the reference to a monthly salary of $7,440 in the employment contract, Mr Raj only has work when called upon to do so by the company, which has not been frequent.

(5)  In contrast, he earned $17,080 per month as to 29 August 2008.

(6)  But for his injury, he would have been able to work as a licensed scaffolder and received about $33,852 per month ($1,302 per day paid to scaffolders engaged in public sector construction projects times 26 working days) as from 1 September 2009.

87.  I dismiss the last-mentioned assertion without hesitation as pure wishful thinking on the part of Mr Raj or those formerly acting for him.

(1)  First, Mr Raj was trained in metal, not bamboo, scaffolding.  There is a difference.

(2)  Second, his “Metal Scaffold Training Certificate” was issued in August 2005.  Yet, he apparently never worked as a scaffolder after August 2005.  The claim that he also worked as a scaffolder in the employment with Sam Lee emerges late in Mr Raj’s witness statement, prior to which his case is that he was a general labourer. 

(3)  Third, it appears to me that it was not easy for Mr Raj to secure employment even as a general labourer.  He was unemployed from 8 March to 2 July 2008 despite his job hunting efforts. 

(4)  Fourth, he is unable to explain why 1 September 2009 is chosen as a cut-off date, saying that his former solicitors picked it.

88.  As for his earnings at the time of injury, Mr Raj’s case is difficult to follow.

(1)  Mr Raj asserts in paragraph 4 of his witness statement that he was told by Mr Rai when he was first recruited at the end of 2007 that he would be paid $480 per day and $80 per hour for overtime work. 

(2)  Yet, in claiming for arrears of wages in March 2008, according to Mr Raj’s said affirmation, he came to a total sum of $34,160 for the period from 2 January to 7 March 2008 by adopting a daily wage of $550 and $80 per hour for overtime work.  Mr Raj claims in cross-examination that the Labour Department told him that his wages should be $562 per day according to some labour law.  As it turned out, Mr Raj’s claim was settled for $25,120.

(3)  According to the same affirmation, Mr Raj reverts back to $480 per day and $80 per hour for overtime work for the period from 2 July to 29 August 2008.

89.  There is, however, contemporaneous documentary evidence of Mr Raj’s wages and work attendance in 2008 in the form of Sam Lee’s records in appendices I, III and V to Mr Liu’s first witness statement showing the following:

(1)  Mr Raj worked as a “交通+什工”.

(2)  His wages in 2008 were $430 per day and $54 per hour for overtime work.

(3)  Mr Raj worked the following numbers of days in 2008:

Month	Days	Overtime hours (if any)
January 2008	17 days (16 full days and 2 half days with sick days for a finger injury)	None
February 2008	20.5 days	2 hours
1-7 March 2008	6 days	None
July 2008	20 days	None
August 2008	17 days	None (Mr Raj was off work at 3 or 4 pm on may days this month.)

(4)  Leaving aside the incomplete month of March 2008, I would say Mr Raj worked an average of 20 days per month while employed by Sam Lee.

90.  Mr Raj takes issue with these Sam Lee records disclosed by Yick Hing, saying that he played no part in their compilation and that he remembers doing 1 to 2 hours of overtime work everyday.  I do not accept such challenge. Quite apart from the facts that it is unsupported by any evidence other than Mr Raj’s bare assertion and that I have come to a negative view on Mr Raj’s credibility and reliability, Mr Raj is demonstrably wrong on one point about the record kepts by Sam Lee in respect of his attendance.  Mr Raj insists that he worked on 6 January 2008, in the course of which he sustained an injury to his left ring finger.  According to Sam Lee’s records, 6 January 2008 was a day off. It was in fact a Sunday which is usually a day off.  In fact, Mr Raj went to Queen Elizabeth Hospital to seek medical treatment for his finger injury on 6 January 2008.  According to the relevant medical notes, Mr Raj told the attending doctor that he was injured “yesterday”, i.e. on 5 January 2008.

91.  I find that Mr Raj worked about 20 days per month at a daily wage of $430 thereby earning $8,600 per month at time of injury on 29 August 2008.

92.  I have already accepted Dr Chiang’s opinions that sick leave could probably end by mid 2009 and that Mr Raj could return to his pre-injury line of work at that point in time.  However, Mr Raj should be allowed some time to seek and secure new employment say 3 months from the notional end of sick leave, which would take us to about September 2009.

93.  In the premises, I would have compensated Mr Raj with an award of $117,390 including the employer’s 5% MPF contribution (i.e. $8,600 per month x 1.05 x 13 months) for his loss of earnings up to and including 30 September 2009.

94.  I would have declined to make any award for loss of earnings after 30 September 2009.

D5.  Loss of earning capacity

95.  I would not have made any award for loss of earning capacity. While it would have been likely for Mr Raj to be at risk in the job market in later years, any difficulty encountered would have been attributable to his pre-degenerated discs.

D6.  Special Damages

96.  For medical expenses, Mr Raj has submitted receipts for a total amount higher than the sum of $6,105 claimed in the revised statement of damages.  In view of my earlier findings as to the true nature and extent of Mr Raj’s injury, I accept Mr Leung’s submission that a proper award for medical expenses would have been $6,411.

97.  For the same reason, I would have discounted the travelling expenses to $4,000.

98.  I would not have made any awards for the massage therapy or nourishing or tonic food.  Mr Raj’s witness statement has not touched upon such expenditure.  He has not given a breakdown or outline of how the figures of $10,000 and $6,000 are calculated.  He has not disclosed a single supporting document.

99.  I would have granted the $150 claim for the walking stick. Although Mr Raj’s prolonged use of a walking stick can be questioned as part of his symptom magnification, it would have been unnecessarily harsh to deprive him of a walking aid in the early stage of his recovery.

D7.  Conclusion on quantum

100.  In summary, had Yick Hing been wholly liable for the injury on 29 August 2009, the damages would have added up to $307,951, which I break down as follows:

Head of Damages	Amount
PSLA	$180,000
Pre-trial Loss of Earnings + MPF	$117,390
Medical Expenses	$6,411
Travelling expenses	$4,000
Walking stick	$150

E.   ORDER

101.  I dismiss Mr Raj’s claim.  I also make an order nisi that Mr Raj should pay Yick Hing’s costs of this action, to be taxed on a party and party basis if not agreed.  Mr Raj’s own costs prior to the discharge of his legal aid certificate should be taxed in accordance with the Legal Aid Regulations.