WONG HEUNG WING WINGO v. JOHNSON CLEANING SERVICES CO LTD AND ANOTHER

HCPI 225/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 225 OF 2013

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J U D G M E N T

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1.  This action arose from an alleged slip and fall accident suffered by the Plaintiff (Wong) on 21 March 2010 at around 15:30 hours in the male public lavatory at Wan Yip Street East, Yuen Long (Lavatory). The 2^nd Defendant is sued on behalf of the Director of Food and Environmental Hygiene Department (Director). The 1^st Defendant (Johnson Cleaning) was at the material times the contractor engaged by the Director to provide cleaning and hygiene management services at the Lavatory. There is no dispute that both Johnson Cleaning and the Director were occupier of the Lavatory at the material times.

2.  Wong’s case is that upon entry into the Lavatory, he slipped on his 2^nd step and landed on a wet and slippery floor.  Whilst on the floor, he could smell the odour of a mixture of detergent and bleach, and saw that a cleaning worker was holding a water hose. There was no eyewitness to the accident.

3.  The Defendants do not dispute that Wong was seen lying on the floor inside the Lavatory on the day of the accident, but they contest the cause and circumstances of that incident.  The Defendants’ case is that the floor of the Lavatory was dry at the material time, and they put Wong to strict proof of the facts he alleges.  Particular reliance is placed on the single joint report of Dr Kwok Tin Fook, a urologist, dated 11 December 2015 (SJR) which explained that on the day of the accident Wong was suffering from, inter alia, severe anaemia, chronic renal failure and serum electrolyte imbalance as a result of long term ketamine abuse.  Such conditions could have caused him to feel dizzy or lethargic.  Wong’s general well-being was poor, and he could have fallen at any time at any place.  Wong’s fall can be explained by his poor physical condition at the time, say the Defendants.

4.  Both liability and quantum are in issue.  There were 3 factual witnesses on each side.  Wong gave evidence and called 2 witnesses: Mr Wan Wing Yin (Wan) and Wong’s brother, Wong Heung Wai (Wai).  On behalf of the Defendants, Mr Lee Yuet On (Lee), who was the attendant on duty at the Lavatory at the time of the accident, and Ms Ng Mui Hong (Ng), who was on duty at the ladies’ lavatory, were called to give evidence.  The evidence of the Defendants’ 3^rd witness, Mr Tang Kwai Wing (Tang), a manager of Johnson Cleaning, was agreed.

Liability

5.  The main issue on liability is the cause of the accident.  Wong carries the burden of proof.  Even if the Defendants cannot convince the court that he fell due to his state of health, it remains for Wong to prove that the accident was caused by the breach of occupier’s liability[1] on the part of the Defendants or one of them.  

Wong’s use of ketamine

6.  Wong was born on 15 December 1975.  He was 34 years old at the time of the accident.  His evidence is that he had a habit of ketamine abuse since 2002 when he was about 27 years old.  In about 2003, Wong was arrested and sentenced to 8 months at a drug addiction treatment centre. That period of treatment did not eradicate his habit of substance abuse. 

7.  At the end of November 2006, Wong had a bladder surgery.  He said that he had to urinate frequently.  It is a well-known consequence of ketamine abuse.  According to the SJR, Wong was suffering from severe urination problems, and in 2006 his bladder was found to be very constricted.  As a result, his bladder capacity had to be augmented with a piece of small bowel by open surgery.   There were complications which followed the surgery, including urinary tract infection, and due to unsatisfactory emptying of the bladder, Wong had to carry out self-intermittent catheterization to do so.  I shall go into a little more detail below when I address the issue of Wong’s health at the time of the accident. 

8.  Wong said that he did not take any ketamine during a period of about 1 year after his surgery.  Given the post-surgery complications, I am inclined to accept this piece of evidence.    

9.  In 2008, Wong was arrested again for possession of ketamine and sentenced to 10 months’ imprisonment.  There is a dispute whether Wong had rid himself of the habit after the imprisonment.  According to Wong, he did and only turned to ketamine again due to problems he encountered as a result of the accident.  There is a medical record of his dated 18 July 2010 which referred to “persistent ketamine abuse”.  Wong must have returned to ketamine use by that time.  Wong insisted in cross-examination that apart from the catheterization, he was in perfect health at the time of the accident.

10.  I do not believe that it is important to resolve the issue whether Wong had rid himself of the habit of ketamine use during the period after he was released from prison until the date of accident (approximately 18 months[2]). The reason being that such a period of abstinence did not, on the medical evidence before the court, appear to have a positive effect on Wong’s state of health at the time of the accident. 

11.  On balance, I am prepared to give Wong the benefit of doubt that he was free from ketamine during that period of time because there are hospital records of his denial that he was a drug user in March 2010. 

Wong’s state of health at the time of accident

12.  There is a wealth of medical evidence of the damage to Wong’s health caused by ketamine consumption.  I need only refer to the SJR.  According to Dr Kwok, Wong was severely anaemic on the day of the accident.  The hospital record shows that he required a transfusion on the next day, 22 March 2010.  Subsequent investigation found that Wong was suffering from gastritis and severe iron deficiency anaemia.  Dr Kwok opined that :

“People with severe anemia suffer reduced tissue oxygenation and is associated with widespread organ dysfunction depending on the rate of onset of the anemia. In Mr Wong’s case, it had happened within a period of a few months. Even if he had not suffered from shock (which usually occurs in rapid loss of blood), he would have suffered increased fatigue, exertional dyspnea, tachycardia, palpitation or even angina. He would have felt dizzy, headache or even vertigo and tinnitus. There might also have been nausea, loss of appetite, constipation or diarrhoea. Anemia of such degree if untreated in the longer term may even be life threatening. Although both in the interview and in the medical record, he said he slipped and fell because he was affected by some environmental issues, medically speaking, he could have felt dizzy and fell down in any other site at any other time with such a degree of severe anemia.”

13.  In addition, Wong had a contracted bladder which required him to preform intermittent self-catheterization to relieve himself. Wong also had renal failure before the accident.  His kidney function impairment on the day of accident, as reflected by serum creatinine level, was such that it was likely that he was suffering from multiple symptoms like lethargy and dizziness. 

14.  Wong also suffered from serum electrolyte imbalance.  Compounded with his other ailments, such imbalance could have affected his general well-being.  Finally, Wong also suffered from severe impairment of liver function. 

15.  Dr Kwok opined that Wong was “most likely not in a satisfactory physical state” at the time of the accident and concluded that “even if there had been no environmental factor, he could have fell (sic) down some where some time”.

16.  This is compelling evidence of the fact that Wong was, at the time of the accident, very sick and he was liable to fall due to his physical condition.  Wong’s evidence, as well as that of his brother, in respect of his state of health at the time of the accident cannot be accepted in the face of the objective medical evidence. 

The Lavatory

17.  There are photographs of the Lavatory which show that as one entered the Lavatory there was a wall straight ahead at about 2 paces from the entrance.  Apparently, the wall served to shield the inside of the Lavatory from people looking in from the outside.  A user would have to turn left to proceed further into the Lavatory.  From the entrance, he would have to take 2 to 3 steps[3] to the left to walk pass the wall and then turn right to an open area where the facilities were to be found.

Wong’s evidence

18.  Wong’s evidence, as set out in his 1^st witness statement[4], is that when he made the first step inside the Lavatory he noticed that the floor was very wet and slippery, but before he could retract his second step he slipped and fell due to the condition of the floor.  He said that after he fell he saw a cleaning worker holding a water hose splashing away at the detergent on the floor and he noticed the odour of a mixture of detergent and bleach.  He emphasised that there was no barrier at the entrance to the Lavatory to serve as warning that cleaning was being carried out.  His impression was that he saw no warning sign on the floor or the wall of the Lavatory.

Defendants’ evidence

19.  At the time of the accident, Lee was on duty inside the Lavatory.  His evidence is that whilst he was using a mop to dry the floor, he heard certain noise, looked over his shoulder and saw Wong on the floor.  He then went to help Wong to get up.  Lee had not used any detergent or water hose.  His scope of work did not include using a water hose or detergent to clean and wash the floor.  Such a cleaning exercise would be carried out weekly as a “Big Cleaning” by other workers.  There was no Big Cleaning on that day, which was a Sunday. 

20.  Lee said that there were two yellow “Caution Wet Floor” warning signs on the wall facing the entrance of the Lavatory.  In addition, there was a yellow “Caution Wet Floor” warning cone on the ground at the entrance to the Lavatory.

21.  Lee was sure that the floor where Wong fell was dry.  Wong was wearing a pair of badly worn out flip-flops, he was lacking spirit and had a lot of spots on his face.

22.  Lee’s account is partly supported by Ng, who was on duty at the ladies’ lavatory.  Ng was asked by Lee to go to the Lavatory to help.  Lee asked her to call the police, but Wong asked them not to do so.  Wong asked for a chair to rest.  He was provided with one on which he rested for about 15 minutes.  He then asked Lee and Ng to help him to return to his van which was parked nearby.  He drove off after having been helped to climb onto his van. 

23.  Ng observed that Wong was very thin, unlike a normal person.  He had a lot of spots on his face as if suffering from skin decease.  She also noticed that Wong was weak and lacked spirit when she helped him onto the van. 

24.  Tang’s evidence is that he and another colleague (Yam) were responsible for supervising and managing the cleaning work at the Lavatory.  Yam would inspect the Lavatory daily.  In addition, staff of the Food and Environmental Hygiene Department (Department) would inspect the Lavatory twice every day, once before 11:00 and again between 15:00 to 18:00. Irregular checks on the Lavatory were also conducted, on average once every month, by such staff.  According to Tang, it was only during the Big Cleaning, usually carried out on Monday mornings, that the cleaning workers would use detergent to wash the floor and during such exercise the Lavatory would be closed off to the public.

Analysis

25.  Given the lack of independent witness, Wong’s credibility as a witness is crucial.  I do not find him to be a credible witness.  To begin, his viva voce evidence is very different to the contents of his 1^st witness statement.  He said that he did not look at the floor before he fell.  From the photographs, it is clear that Wong was a position to see the spot where he lost his footing (marked X on exhibit P1). Further, the photographs and Wong’s viva voce evidence demonstrate that he took quite a few steps inside the Lavatory before he fell.  Indeed, Wong agreed that he took a left turn after entering the Lavatory, walked pass the wall and then turn right to go to the urinals.  He fell when he took the right turn. 

26.  The contrast between Wong’s viva voce evidence and his 1^st witness statement on such important details suggests that he is not a reliable witness. 

27.  Further, Wong made no mention in his 1^st witness statement or in his evidence-in-chief that he had complained to Lee about the wet and slippery state of the floor.  I agree with Mr Sakhrani, appeared for the Defendants, that this would have been the most natural thing to do.  Wong was asked in cross-examination about his conversation with Lee.  He said nothing about any complaint.  Only when it was pointed out that on his own account he never complained, Wong said for the first time that he had made a complaint whilst he was on the floor.  This is not the evidence of a reliable witness.

28.  The unsatisfactory nature of Wong’s evidence is not confined to matters of liability, the same can be said about his evidence on quantum.  For instance, his evidence that he was working as a van driver which required him to lift heavy objects by himself, like a washing machine weighing about 150 lb., is quite incredible given his very poor state of health.

29.  I accept Lee’s evidence that he did not carry out any washing of the Lavatory floor like what was described by Wong.  There is no reason to doubt that a worker would not normally undertake any substantial responsibility which lied outside his scope of work.  Lee’s evidence is that the Lavatory floor would become wet or dirty from time to time as a result of hand wash or stained sole.  When required, he would clean the floor with 2 mops and a bucket of water by mopping the floor, firstly, with a semi-wet mop, followed by drying with a dry mop.  There is nothing unusual about this evidence.

30.  Lee’s evidence about his cleaning of the Lavatory is largely consistent with how Ng cleaned the ladies’ lavatory.  There is no challenge to Ng’s credibility.  She is clearly an honest witness, and I accept her evidence as reliable.  Ng said that she would normally carry out a wet wash (I understand that to mean using a wet mop) of the floor in the morning followed by drying with a dry mop.  Only water would be used for such cleaning.  Over the course of the day, she would carry out further such cleaning when needed.  Ng also said that sometimes she would use the paper tower to clean the floor.  Insofar as there was any difference between what Ng did compared with Lee, I believe that it was a matter of personal practice or preference. 

31.  There is a short statement of Lee dated 28 October 2010 (Statement) in respect of the accident.  It appears that the Statement was taken after a complaint was made about the accident.  In the Statement, there was a reference to “wash floor” (洗地).  The relevant part stated as follows :

“本人李月安三月二十一日下午3:30左右時間，有按放小心地滑板牌仔。立在廁所正門，洗地，突然間听到有位先生話跌倒，我即刻去護他起來…”

32.  Mr Clough, who appeared for Wong, submitted that the reference to “wash floor” in the Statement corroborated Wong’s evidence in respect of the state of the floor at the time of the accident.  I am unable to agree. 

33.  Lee was 59 years old at the time he gave evidence.  He had received only 1 year of education and is illiterate.  He could not remember if his witness statement was read back to him by the Defendants’ solicitors before he signed it.  He was a little slow with understanding some of the questions put to him in the witness box, and it was not easy to hear or understand some of his answers.  I have little doubt that Lee was not used to being interviewed and having his statement recorded.  Quite likely, he was uncomfortable with such an exercise.  I agree with Mr Sakhrani that Lee appeared to be a compliant person.  

34.  Although Mr Sakhrani said that the Statement was taken by a staff of the Department, that suggestion is not consistent with the letter from the Department to the Director of Legal Aid under which the Statement was enclosed.  It appears from the letter that the Statement was submitted by Johnson Cleaning.  I also note that it was stated at the bottom of the Statement: “ATTN: Inspector Lee”, which suggests that the Statement was taken and then sent to Mr Lee of the Department.  I believe it is likely that the Statement was taken by Tang or one of his colleagues because there is a letter from Tang to the Department[5] which stated that he had made enquiries with the lavatory attendants on duty on the day of the accident. 

35.  Lee was cross-examined on the Statement. Although he could not remember if it was read over to him.  Ng, who also signed the Statement, confirmed that it was read over to Lee.  However, Lee firmly denied he was washing the floor. 

36.  In the context of the Statement, the meaning of “wash floor” is not free from ambiguity.  The Statement was clearly a summary of what Lee had said.  There is no evidence whether Lee had used those 2 words or whether they were used by the statement taker as a summary of what was said.  It could have been the case that Lee said that he was cleaning the floor with a semi-wet mop followed by dry mopping, and such evidence was recorded in abbreviated form as “wash floor”.

37.  Most importantly, there is unchallenged evidence of the system of cleaning employed by Johnson Cleaning.  I do not believe, as I have analysed above, that Lee was engaged in a washing exercise with the use of detergent and a water hose.  The Statement does not sway the weight of the evidence.

38.  Notwithstanding the Statement, I believe that Lee is a reliable witness. 

39.  For completeness, firstly, I should mention that it is not Wong’s pleaded case, nor was it argued by Mr Clough, that the cleaning of the floor with a semi-wet mop followed by a dry mop, constituted a breach of common duty of care.  Such cleaning is clearly necessary for any lavatory.  It is not unusual to find the presence of some water in a public lavatory[6] (Wong agreed to that in his evidence) or any lavatory.

40.  Secondly, common duty of care is not absolute. What is required to discharge that duty is the exercise of reasonable care. There is no challenge to Lee’s evidence on the warning signs.  I believe that such warnings were reasonable and sufficient to warn the Lavatory users of the possibility of presence of some water.

41.  Thirdly, although it appears that Wong had suffered a bad fall in the Lavatory, as pointed out by Mr Sakhrani, there is evidence to suggest that his injuries were not caused by that accident. According to Dr Baldwin Chan, the Defendants’ orthopaedic expert, Wong’s injuries were significant and the associated pain would usually be significant.  It was “quite miraculous” for Wong to be able to drive away with such injuries and only called for medical help hours later at 18:41 hours[7].  According to the record of the Accident and Emergency Department of the Tuen Mun Hospital[8] (A&E and Hospital), Wong had suffered a slip and fall in a toilet that evening at 18:30 hours. 

42.  The ambulance was called after Wong had arrived at Hung Shui Kiu Video Game Centre (Game Centre), a business ran by Wan, about 2 ½ hours after the accident at the Lavatory.  The journey from the Lavatory to the Game Centre would normally have taken 15 to 20 minutes.  Wong said that he had to stop at the road side to rest during the journey because of the pain he felt.  He rested for 1 to 2 hours, and might have fallen asleep.  I find the explanation for the delay in seeking medical help unsatisfactory.  However, I do not believe that there is sufficient evidence to infer that Wong had suffered another accident which was the true cause of his injuries.   

43.  To conclude, I find that Wong has failed to prove that the accident was caused by the breach of common duty of care by the Defendants[9]. Had it been necessary to do so, I would have exonerated the Director pursuant to s.3(4)(b) of the Occupiers Liability Ordinance, Cap 314 because it was reasonable for the Director to have entrusted the cleaning of the Lavatory to Johnson Cleaning, and that he had exercised reasonable care in supervising and checking the cleaning work. 

Quantum

44.  In case I were wrong on the liability issue, I set out my findings on the quantum of damages. 

Injuries, treatments and disabilities

45.  Wong suffered from fracture of the left proximal humerus and fracture of the left hip.  Upon admission to the A&E, medical examination revealed, inter alia, that he had severe anaemia.  It was also noted that he had a history of renal disease. 

46.  Wong had surgery performed on his hip (dynamic hip screw fixation) on 25 March 2010.  The left proximal humerus was treated conservatively.  During hospitalisation, the anaemia was investigated with upper gastrointestinal endoscopy on 9 April 2010 with diagnosis of gastritis, which was treated with medication.  He was discharged from hospital on 23 April 2010.

47.  Wong was referred to physiotherapy and occupational therapy treatments for rehabilitation.  However, from 25 March 2011 to 15 July 2011, he only attended 5 physiotherapy sessions and defaulted on 6 sessions.  Similarly, he began work hardening programme on 1 June 2010 and defaulted on treatment after 6 sessions since 29 June 2010.

48.  According to the medical report by Dr Tam Kwok Wai Kelvin of the Department of Orthopaedic and Traumatology of the Hospital dated 30 December 2011, upon Wong’s latest follow up, both his fractured left hip and humerus had completely healed.  Wong had “resumed his previous duty, and had not much of complaints”.  He still had mild residual tenderness over the left hip region, and he was discharged.   

49.  Wong was jointly examined by orthopaedic experts Dr Andrew Chan Pak Ho and Dr Baldwin Chan on 17 October 2013 (more than 3 ½ years after the accident).  He complained of residual pain in the left hip and left shoulder region, but did not require analgesic for pain control and had no problem in activities of daily living.  Both experts agreed that the fractures were healed, Wong had reached maximal medical improvement with no indication for further surgery or institutional therapy.  The sick leave granted from 21 March 2010 to 2 August 2010 and from 1 November 2010 to 24 June 2011 were appropriate.

50.  Dr Baldwin Chan opined that Wong should largely be able to resume his pre-injury work as a van driver.  He might have residual weakness in his left leg which might hinder heavy lifting, but muscle strength and power should improve with exercise and training.  With diligence, Wong should be able to train back to his pre-injury level.  His activities of daily living and sporting activities such as jogging should not be affected.

51.  Wong’s expert, Dr Andrew Chan, opined that Wong was incapable of heavy lifting.  He could resume employment as a part-time taxi driver or in other driving jobs, eg, as a chauffeur.  Dr Andrew Chan took the view that Wong had a substantial disadvantage in the labour market or higher chance of losing his job due to the injuries. 

PSLA and special damage

52.  Damages for pain suffering and loss of amenities, as well as special damage for hospital expenses, travelling expenses and tonic food, have been agreed at respectively HK$215,000 and HK$9,730.

Issues

53.  The remaining issues are agreed as follows[10] :

(1) The exact type of work that Wong was doing at the time of the accident, ie, whether his work included heavy lifting of weights not less than 150 lbs as he claimed, or he was only doing driving work due to his generally poor health;

(2) Wong’s net earnings at the time of his accident;

(3) The reasonable period of work incapacity attributable to the accident;

(4) Whether Wong’s failure to resume working after 23 June 2010, or 17 July 2010, was due to his chronic kidney failure and other multiple conditions; and

(5) The residual working disability due to the fractures he sustained, assuming he had undergone the therapies recommended to him, including the further round of work hardening.

Wong’s pre-accident employment

54.  Wong’s evidence that he was working as a van driver at the time of the accident is supported by the documents on the purchase of a van by him and his signing on with Hoi Lee Van Call Centre Transportation Co Ltd (Hoi Lee).

55.  The 1^st question is whether Wong’s work was confined to diving.  In this regard, the medical evidence of Dr Kwok is compelling.  I have no doubt that Wong was incapable of lifting heavy objects given his state of health.  According to Dr Kwok, Wong was not even in a fit state to drive a motor vehicle[11].  According to the evidence of both Wong’s witnesses, it was perfectly normal for some van drivers to limit their work to driving. 

56.  The 2^nd question is whether Wong was working as a van driver and at the same time had a contract (Contract) with Wan to provide van services for the Game Centre at a fee of HK$18,000 per month.  I do not find the evidence of this 2^nd job credible.  On the face of it, Wan was an independent witness.  However, his evidence could not withstand the test of cross-examined.  Most importantly, he was only paying HK$6,000 to HK$7,000 per month for van services[12] prior to entering into Contract, and there is no convincing reason to justify almost tripling the expenses for his small business. 

57.  For 3 reasons, I do not accept the justification put forward by Wan, ie, by hiring someone he could trust he would be able to save his own time and focus on other tasks.  Firstly, Wong was available on an ad hoc basis, and as suggested by Mr Sakrani, Wan could have cultivated a relationship with other van drivers so that he could trust them for his delivery work.  Secondly, business expenditure is normally dictated by need and benefit, there is no evidence that Wan would have been able to earn at least about HK$12,000 every month with the time he managed to save.  Thirdly, Wan’s evidence that he did not keep any record of the transportation expenses is not credible given his obligations to file proper tax return. 

58.  I do not find Wong’s evidence on this issue credible either.  Indeed, given his poor state of health, it is likely that he was working on an irregular basis. 

59.  In the premises, I find that Wong was only working as a van driver with Hoi Lee at the time of the accident.  The evidence of his income has been rightly criticised by Mr Sakhrani as highly unsatisfactory and not supported by any document.  Wong’s evidence is limited to saying that he earned at least HK$25,000 from the 2 jobs.  There is no attempt to provide any breakdown, or any evidence on the van expenses. 

60.  Wong claimed in his application for Comprehensive Social Security Assistance (CSSA) dated 7 January 2011 that since September 2009 he was earning an uncertain amount between HK$10,000 to HK$20,000 on average per month.  There is no indication of the expenses involved, eg, vehicle license, insurance, fuel, and maintenance.  Mr Sakhrani submitted that, taking the expenses into account, at most Wong was earning HK$5,000 to HK$10,000 per month.  But such earnings must be discounted for his poor health and his requirement for medical service.

61.  Doing the best I can, and necessarily taking a broad brush approach[13], I adopt the sum of HK$7,500 as Wong’s net monthly earnings at the time of the accident.

Loss of earnings

62.  Mr Sakhrani argued that the reasonable period of disability was up to 23 June 2010.  Wong’s failure to resume any work thereafter was due to: (a) failure to continue with his rehabilitation; (b) his failure to resume some form of work and build up his fitness; and (c) the onset of medical complications unrelated to the accident which rendered him 100% disabled.

63.  I have already alluded to Wong’s failure to attend further treatments.  In a Rehabilitation Outcome Report of the Hospital dated 23 June 2010, it was stated, inter alia, that Wong could resume light duty; he had the potential to return to previous job with further training; and that he had no concrete future work plan, having sold his van.  The report should be considered in light of the fact that Wong had told the hospital that his previous job involved lifting work, contrary to the finding of this court.

64.  The weight of the undisputed medical evidence suggests that Wong might well have been in a position to return to his pre-accident job in June 2010 if he was motivated so to do.  Mr Clough simply relies on the agreed sick leave and submitted that Wong is entitled to be fully compensated for the entire period covered by the same.  The court is not bound by the sick leave certificates, and where there is good reason to do so, it is the court’s responsibility to look at the evidence and come to its conclusion on the loss suffered by the plaintiff: see Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd, unrep, CACV 172/2004, Rogers VP at §9.

65.  On 17 July 2010, Wong was again admitted into Hospital because of jaundice, severe anaemia and acute chronic renal failure. He had to be transferred to intensive care for renal support.  He was put on temporary dialysis (apparently he was not fit for haemodialysis) and was found to have septicaemia.  Wong was discharged from Hospital at the end of September 2010.   

66.  According to Dr Kwok, despite all the urological care Wong had received, his kidney function continued to deteriorate.  Since June 2014, Wong had to receive haemodialysis twice a week.  That was changed to daily abdominal peritoneal dialysis in January 2015, which Wong can perform by himself.  Such dialysis is required 4 times every day.  Dr Kwok also noted that Wong had suffered from deranged liver function, which was due to his use of ketamine. 

67.  The CSSA records show that Wong was granted “normal disability allowance” from 1 October 2010 to 31 December 2010.  From 1 January 2011 to 31 August 2014, he was on 100% disabled allowance.  Wong said that his total disability was certified by his doctor.  From 1 September 2014, it was changed to 50% disabled allowance until 30 June 2015.  Although it is not clear from the evidence whether Wong continues to receive CAAS, it is likely to be the case given his medical conditions. 

68.  The CSSA records are consistent with Wong’s evidence that he had not worked after the expiration of sick leave in June 2011 until 2013 when he worked as a casual tour bus driver.  That turned out to be an unsuccessful attempt because Wong only managed to work for about 20 to 30 days altogether.  He was only able to give a rough estimate of his total earnings from this job at HK$6,000 to HK$7,000. 

69.  Wong blamed the residual disabilities from the injuries suffered as a result of the accident for his loss of earnings.  This is against the weight of the medical evidence.  In particular, I prefer the assessment of Dr Baldwin Chan, which is more consistent with the records and reports from the Hospital.  Giving Wong the benefit of doubt, I find that he was able to return to his pre-accident occupation in July 2010. 

70.  However, any chance of returning to such work was destroyed by his chronic kidney failure and other conditions for which he had to receive intensive treatment.  He is still suffering from his kidney failure and other conditions.  The very sketchy evidence of Wong’s attempt to work as an Uber driver since December 2016 is consistent with the picture that his earning ability is very much hampered by his poor state of health. 

71.  It must follow that Wong is entitled to no compensation for loss of income after July 2010: see Jobling v Associated Dairies Ltd [1981] 3 WLR 155, HL. 

72.  I assess Wong’s loss of earnings at HK$30,000 (HK$7,500 x 4 months) in total.

Loss of earning capacity

73.  I fully accept that the burden of proof here is on Wong.  However, even on Dr Baldwin Chan’s assessment, Wong has residual weakness in his left leg.  Notwithstanding his poor state of health, it may be said that this possibly permanent disability is not compensated in the absence of an award under this head.  It may also be said that with the advancement of medical technology and a changing world, one cannot exclude the possibility that Wong may be able to find suitable employment in the future.  He is only 41 years old. 

74.  Possibly erring on the side of generosity, I award Wong a sum of HK$90,000 under this head as suggested in Mr Clough’s final submissions.

Interest

75.  The usual award of interest for personal injuries actions should be followed.

Conclusions

76.  For the reasons stated above, I dismiss this action with costs to the Defendants, to be taxed if not agreed.  Wong’s own costs be taxed in accordance with Legal Aid Regulations. 

77.  I am grateful to counsel of their assistance.