CAI GUOPING v. YIM HOK WING AND OTHERS

HCPI 494/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 494 OF 2013

_________________

_________________

_________________

J U D G M E N T

_________________

BACKGROUND

1. This case is about a workplace accident.

2. On 5 January 2012, the plaintiff was working as a general labourer at a construction site of certain multi‑storey residential buildings in Ma On Shan, New Territories.  At about 10am, the plaintiff was on the 7^th floor of one of the buildings, at the entrance to a hoist, which I shall described later, when a concrete panel fell and struck him, causing the plaintiff to fall and hit the right side of his head on the concrete floor slab.  The panel was 300cm in length, 59cm wide and 8cm thick.  It weighed 170 kg.  There is significant disagreement between the parties as to how the accident happened and, so, I have given only a general description at this stage; analysis of the competing versions will come later.

3. The plaintiff was taken to the Accident & Emergency Department at Prince of Wales Hospital.  He sustained multiple lacerations (one of which was closed with stitches) and bruises over the face and lips.  Physical examination revealed swelling and bruising to the right side of his face. Computer tomography (CT) was performed which showed multiple facial fractures (right tripod, right orbital floor and right maxillary sinus).  He was assessed by an ophthalmologist and presented with decreased visual acuity over his right eye, right infraorbital numbness, diplopia in all gazes, with right hypertropia.  Anterior and posterior segments examinations were normal.  There was slight decrease in right side abduction.  His right central and lateral incisors were fractured.  No active orthopaedic problem was found.  He was hemodynamically and neurologically stable and no neurosurgical follow-up was needed.  He was admitted as an in-patient.

4. On 9 January 2012, open reduction internal fixation of his malar and zygomatic fracture (Gillies reduction and plating) was performed, which was uneventful.  With regard to his fractured teeth, the central incisor could not be restored and was taken out.  Root canal treatment was commenced to stabilize the lateral incisor.  On a review visit, his dental and lip wounds were found to be satisfactory and he was advised to consult a private dentist for further dental restoration.  Post‑operative recovery was fine and he was discharged on 12 January 2012.

5. According to a Prince of Wales Hospital, Department of Surgery/Surgery Subspecialties, medical report, dated 26 April 2012, the plaintiff was reviewed in the hospital out‑patient clinic and was last seen there on 8 March 2012.  Apart from complaining of discomfort over the right zygoma, no functional deficit was detected on physical examination.

6. A medical report, dated 22 September 2012, prepared by the Prince of Wales Hospital, Department of Ophthalmology & Visual Sciences states that CT on 6 August 2012 showed reduction of right tripod and maxillary sinus fracture with in‑situ fixation screws, alignment satisfactory, resolved soft tissue swelling.

7. A medical report, dated 16 January 2014, prepared by the Prince of Wales Hospital, Department of Ophthalmology & Visual Sciences states:

“… His right eye visual acuity slowly improved to 20/20 by Mar 2012 but he complained of persistent 20% red colour desaturation and right hemifacial numbness. Ocular examination was unremarkable. Visual field tests were done in Mar and Jun 2012, but high fixation loss were (sic) noted and results were therefore unreliable. Probing and syringing in Jul 2012 indicated that his nasolacrimal ducts were patent.

CT orbit on 6 Aug 2012 showed satisfactory alignment of the orbits after internal fixation of the tripod fracture.  He was last seen on 4 Sept 2012.  His visual acuity was 20/30(right eye) and 20/25-2(left eye).  He defaulted follow-up thereafter.”

8. Whether the plaintiff defaulted follow‑up was an issue between the parties, which I shall deal with later, but there was no dispute that 4 September 2012 was the plaintiff’s last consultation at Prince of Wales Hospital.

9. After September 2012, the plaintiff attended the Accident & Emergency Department of Yan Chai Hospital.  Between October 2012 and January 2013, he attended that hospital on 19 occasions. A medical report from that hospital, dated 11 February 2014, states:

“[the plaintiff attended] … complaining of persistent right sided headache. He had an injury causing fracture to his face in January 2012. He experienced persistent pain since then. … Physical examination revealed no obvious abnormality.”

10. In addition to his consultations with the two hospitals, the plaintiff consulted a private orthopaedic surgeon and a general practitioner.  The last such consultation was with the orthopaedic surgeon in April 2013.  I have not seen a medical report from either doctor.

11. The plaintiff was given sick leave certificates, initially by Prince of Wales Hospital and then, from September 2012, by Yan Chai Hospital and the private doctors.  He produced certificates covering the period from 5 January 2012 to 1 May 2013.

12. For the purposes of these proceedings, two orthopaedic surgeons, one instructed by the plaintiff, one by the defendants, prepared a joint medical report, dated 25 April 2013.  The report noted that the plaintiff complained of right face numbness, tinnitus, disturbed sleep and loose teeth. The two surgeons left discussion of these matters to other specialists.  The report also noted that the plaintiff said he had tight shoulder and upper arm discomfort, which had onset about eight months prior to being seen (ie six months after the accident) and remained static.

13. The two orthopaedic surgeons agreed that the complaints concerning the shoulder and upper arm were not related to the accident and were vague and subjective.  They also agreed that there was no active orthopaedic problem and further orthopaedic treatment was not required.  Further, they agreed that, from an orthopaedic perspective, there is no physical hindrance to the plaintiff continuing with his pre‑injury work as a construction site general labourer and that the plaintiff does not have any ratable impairment or loss of earning capacity due to orthopaedic injuries.  The two surgeons noted that the plaintiff was given sick leave certificates but that, from an orthopaedic perspective, sick leave was not required.

14. With regard to the fractured teeth an undated quotation from a dentist notes that the plaintiff has a four unit bridge extending from the upper left central incisor to the upper right canine.  The plaintiff says this bridge was done by a dentist in the Mainland, for which he has produced a receipt, dated 16 May 2013.

15. The Employee’s Compensation (Ordinary Assessment) Board issued a Certificate of Assessment, dated 8 February 2013, certifying that the plaintiff was assessed to have a 3% permanent loss of earning capacity.

16. The above is a summary of the relevant treatment the plaintiff has undergone to date and of the medical reports produced at trial.

17. In his oral testimony the plaintiff complained of the following:

(1)  A persistent “jerking” sensation, like an electrical movement, at his right temporal region during the day and night, which causes insomnia.

(2)  Being able to feel the metal plate under his right eye brow.

(3)  Right facial numbness.

(4)  Poorer vision.

(5)  Pain in his head brought on by changes in weather.

(6)  Denture discomfort.

18. The plaintiff claims that, as a result of the “jerking” sensation, he is unable to return to work as a general construction labourer or to undertake heavy labour.  He said that he was only able to work as an odd‑job labourer, eg collecting garbage.

19. The plaintiff claims:

(1)  Pain, suffering and loss of amenities.

(2)  Pre‑trial loss of earnings.

(3)  Post‑trial loss of earnings.

(4)  Other accrued special damages.

LIABILITY

The cause of the accident

20. On the day of the accident, 5 January 2012, concrete panels, the dimensions and weight of which I have described in para 2 above, were being transported, using a hoist, from the ground floor to the 7^th floor of one of the residential towers.  The panels were loaded into the hoist by workers on the ground floor and the plaintiff and his co‑worker unloaded them at the 7^th floor.

21. The hoist was a type of lift.  It was 1.3m square with sides which were 1.5m high.  One of the sides, which could be described as the front of the hoist, opened to allow access.  To the top of each side which ran back from the front of the hoist was attached a vertical metal post, described by witnesses as an I‑beam.  Another I‑beam spanned horizontally between the two vertical posts at a height of about 2.1m above the floor of the hoist.  These three I‑beams formed a frame to which was attached a cable by which the hoist was raised and lowered.  The hoist was enclosed in a metal cage, which ran from the ground floor to the top of the building, forming a shaft.

22. Attached to the horizontal I-beam was a CCTV camera, which was pointed at the front of the hoist and linked to a monitor on the ground floor which could be viewed by the hoist operator.  Some form of communication device, which allowed voice communication between the workers on upper floors and the hoist operator on the ground floor, was hung on the building wall adjacent to the entrance to the hoist at each floor.

23. There three versions of the plaintiff’s description of the accident.

24. One version is set out in the plaintiff’s signed witness statement prepared for these proceedings, dated 10 March 2014.  He stated:

“7. On the date of the accident, that is 5^th January 2012, at about 10 a.m., I was working on the 7^th Floor of Block 4 of the Said Site. I, together with another colleague, was preparing to handle a precast concrete partition wall (‘the Said Wall’) which was being transported via a hoist from the Ground Floor to the 7^th Floor. … The Said Wall was fixated (sic) by rope inside the crane at that time. When the hoist stopped at the 7^th Floor, the said colleague and I approached the gate of the hoist and prepared to move the Said Wall from the crane. The said colleague opened the gate of the hoist and left to take a trolley so as to transport the Said Wall. I stood outside the gate of the hoist and waited for the said colleague. Whilst I was standing outside the gate of the hoist, the Said Wall suddenly flipped and fell out from the hoist and pressed onto the left side of my body. As the Said Wall was very heavy, the right side of my face was crushed onto the floor. …

8.   I am of the view that the current accident was caused by the negligence on the part of the employer and/or principal contractor for the following reasons:  Firstly, the colleague who was in charge of placing the Said Wall into the hoist on the Ground Floor failed to securely fixate (sic) the Said Wall inside the crane, causing the Said Wall to fall out from the hoist pressing onto me; …”

25. This version was reflected in the Statement of Claim, dated 11 June 2013, and the plaintiff’s case was opened on the basis of this version.  This version was also recorded in the plaintiff’s signed Record of Interview, dated 7 February 2012, recorded by the Labour Department.  In the record of interview the plaintiff also said: “At the time of the accident, there was only one concrete partition wall inside the hoist.”

26. When called to give evidence at trial the plaintiff declined to confirm his written statement, saying that he did not understand it.  Hence, he gave viva voce evidence‑in‑chief and his account of the accident was as follows.  Two concrete panels were in the hoist and they were tied to wire netting at the back of the hoist.  The two panels were placed against the back of the hoist on an incline or slant.  The plaintiff and his co‑worker untied the two panels.  They placed the first panel (the one in front) onto the trolley and whilst they were doing that, the second panel fell on the plaintiff, striking the left side of his body.  The right side of his face hit the floor. He said that it was only two days before the accident that the panels had begun being transported in the hoist in pairs; prior to that they were transported singly.

27. In certain medical reports, the plaintiff’s treating doctors record another version:  that the plaintiff was holding a concrete block or holding it above his head, when he slipped and fell backward with the concrete block hitting his face.

28. I do not place much weight on the doctors’ records of how the accident happened.  Those records are very brief summaries and there may have been some misunderstanding.  Moreover, the doctors were likely more concerned with the medical issues rather than details as to the cause of the injuries.

29. The defendants’ case was very different.  Yim Hok Wing, the 1^st defendant and an employee of the 2^nddefendant, said that, at the time of the accident, he was the hoist operator at the ground floor and he saw the accident on the CCTV monitor which I described in para 22 above.  Mr Yim said that there were two panels in the hoist.  He saw the plaintiff laying one concrete panel onto a trolley and, as the plaintiff was doing so, the trolley moved toward the hoist with the result that the bottom of the panel hit the bottom of the second panel, which was standing inside the hoist, causing the second panel to fall.

30. The plaintiff’s version given in oral testimony and Mr Yim’s evidence are consistent to the extent that there were two panels in the hoist and that, whilst the plaintiff was loading the first panel onto a trolley, the second panel fell and hit him.  Where the two diverge is that the plaintiff says that the second panel fell suddenly whereas Mr Yim says that it fell because it was hit by the first panel.

31. I prefer the evidence of Mr Yim.  He was clear and direct.  He was firm under cross‑examination.  He was the hoist operator and he had a video monitor which he said he was watching at the time of the accident.  His version of the accident is in no way fanciful. 

32. On the other hand, that the plaintiff gave two different versions of the accident for the purposes of these proceedings (his written statement and his oral testimony) leaves me with a real sense of doubt.  He signed his witness statement and he agreed in cross‑examination that it had been read to him before signing.  Both the Statement of Claim and his witness statement must have been drafted according to his instructions and, yet, in cross‑examination he described the version in his witness statement as “nonsense”.  Furthermore, the same version appears in the Labour Department Record of Interview.  It is true that the plaintiff had only primary education but he had no difficulty understanding questions when giving evidence and could anticipate the direction of cross-examination.

33. Moreover, the plaintiff’s versions have the panel inexplicably falling.  He did not say that it had been struck by something or that the hoist moved.  What also causes me to doubt the plaintiff’s version is that at first he denied there was a CCTV camera in the hoist, he then changed his evidence and accepted that there was a camera but he maintained that it was not working.  I consider that the plaintiff realized that the CCTV camera was a problem for him and he was attempting to deal with it by, first, denying its existence and then asserting that it was not working.

Who is liable?—plaintiff’s case

34. There was a dispute between the parties as to whether the panel was tied to wire netting at the back of the hoist (the plaintiff’s case) or tied to the horizontal I‑beam (the defendants’ case).  For the reasons given below, it is not necessary to resolve this issue (if I had to I would find that the panel was tied to the I‑beam).

35. The plaintiff claimed that he was not given any specific instructions as to how to handle the panels. 

36. The plaintiff’s case is that, given that the hoist was only 1.3m square, the two panels had to rest against the I‑beam at close to an upright position and, once the rope had been untied such that the panels were no longer secured, any accidental touch or disturbance would easily cause a panel to topple.  The plaintiff says that such toppling would cause great risk to workers nearby.  The plaintiff argues that, if the panels had been transported singly, then the workers could give their attention to handling one panel at a time, without the risk of disturbing a second panel.

37. With regard to the 1^st defendant, although the plaintiff pleaded that he was his employer, in closing the plaintiff’s counsel accepted that he was not but, nevertheless, argued that the 1^st defendant owed the plaintiff a common law duty of care for the following reasons:

(1)  he was the head of a gang of workers which included the plaintiff;

(2)  he was responsible for making sure that the operation proceeded safely and that the load inside the hoist was properly secured; and

(3)  he should eliminate unnecessary danger by limiting the number of panels transported at any one time to one.

38. The plaintiff claims that the 1^st defendant was in breach of his duty of care because the second panel was not secured inside the hoist, he did not limit the number of panels hoisted at any one time to one and he failed to conduct the hoisting operation safely.

39. The plaintiff also asserts that the 1^st defendant was a contractor because he entered into an agreement, the New Equipment Leasing Agreement, with the 2^nd defendant, undertaking to perform, amongst others, the service of moving panels with the hoist.  As such, the plaintiff argues, the 1^st defendant was a contractor with direct control over construction work, namely, moving the panels using the hoist.  In this capacity, the plaintiff says, the 1^st defendant was obliged by Regulation 38(1)(b) of the Construction Site (Safety) Regulations, Cap 59I to ensure that every part of any load raised or lowered by the hoist was adequately secured so as to prevent danger arising to persons as a result of the slipping or displacement of any part of the load.  The plaintiff also relies on Regulation 38(1)(5) which provides that any contractor who has direct control over any construction work which involves the use of a hoist shall ensure that neither loose material nor goods are carried on the platform of the hoist unless the platform is enclosed or other effective precautions have been taken to prevent the material or goods from falling from the platform.  The plaintiff says that the 1^st defendant was in breach of these obligations because the second panel was unsecured.

40. With respect to the 2^nd defendant, the plaintiff’s employer, the plaintiff says that it failed to take reasonable steps to ensure that its employees could work in reasonable safety and failed to provide the plaintiff with a safe working system and a safe place of work.

41. The plaintiff says also that the 2^nd defendant had direct control over construction work, namely the installation of the panels, which involved the use of the hoist.  Hence, it had the same obligations under Regulation 38(1)(b) and 38(1)(5) as had the 1^st defendant. The plaintiff says that the 1^st defendant was in breach of these obligations because the second panel was unsecured.

42. As to the 3^rd defendant, the plaintiff’s case is that, as the principal contractor, the 3^rd defendant was responsible for the site and the hoist pursuant to Regulation 2(2) of Cap 59I.

43. The plaintiff claims that each of the defendants had sufficient control over the premises, ie the hoist, such that they each were obliged under section 3 of the Occupiers Liability Ordinance, Cap 314 to ensure that the plaintiff would be reasonably safe in using the hoist.  Because the second panel was not secured, the defendants were in breach of this duty.

Who is liable?—defendants’ case

44. The defendants claim that the plaintiff was shown a correct method of handling the panels, which method the plaintiff was not following when the accident happened.

45. The so‑called correct method involved untying the panels, then moving the first panel to the side of the hoist (which involved rotating the panel through 90°).  Whilst the first panel was being moved by one worker, the other worker would tend to the second panel to ensure that it did not fall. Once the first panel had been moved to the side of the hoist, both workers would then carry the second panel and place it on a trolley.  The final action was to place the first panel onto the trolley.

46. There is no dispute that the plaintiff and his co‑worker were not following this method but the plaintiff says that he never received any instruction on this method.

47. The 1^st defendant (Yim) and Chan Lim Yeung (the 2^nd defendant’s former foreman) both gave evidence that the correct method was taught to the plaintiff by Chan and demonstrated by Yim.  Yim and Chan corroborated each other.  When cross‑examined, the plaintiff conceded that he had attended a safety course but said that he was only told to move the panels safely and to take care.  The defendants tendered a safety training form, signed by the plaintiff, indicating that he attended a safety course on 3 November 2011.  It appears that the plaintiff’s training was in two parts.  First, “Site induction safety training and industry safety training – installing partition wall”.  Second, “Special Training (installing partition wall) Transport Work”.  I accept that the plaintiff was trained in the correct method.  Mr Chan said that, when he patrolled the site, he had seen the plaintiff using the correct method.

48. The plaintiff asserted that the correct method was unsafe.  The plaintiff argued that the panels should have been transported singly or, if two were to be transported, each should be individually secured.

49. I am reminded that the duty of care owed by employers to employees at common law is a single duty to take reasonable care for the employee’s safety.  A safe system of work is difficult to define and it is doubtful that any attempt to provide an exhaustive list of what the system included would prove successful.  I am also reminded that, when considering whether an employer was in breach of his obligation to provide a safe system of work, it was relevant, although not a pre‑condition, to see if the plaintiff managed to propose an acceptable alternative system.  Even if the plaintiff did not do so, the court was not precluded from finding the employer in breach of that obligation.  Identifying an acceptable alternative system was not a pre-condition to finding that a defendant failed to provide a safe system of work: Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371.

50. In my view, the 2^nd defendant did not provide a safe system of work to the plaintiff, its employee, and was in breach of its common law duty.  Very heavy, large concrete panels were being transported in pairs, which required handling the panels in a confined space and handling one panel whilst the other was not secured.  I find also that the 2^nd defendant failed to discharge its obligations under Regulation 38(1)(b) and 38(1)(5).

51. As to the 1^st defendant, I consider that he was breach of his common law duty to the plaintiff for the reasons set out in paras 37 and 38 above.  I also consider the 1^st defendant failed to discharge his obligations under Regulation 38(1)(b) and 38(1)(5) for the reasons given in para 39 above.

52. Regarding the 3^rd defendant, I find it to be liable for the reasons given in para 42 above.

53. I find each defendant liable under the Occupiers Liability Ordinance, for the reason given in para 43 above.

54. I find each defendant jointly and severally liable.

55. Nevertheless, the plaintiff increased the risk of injury by not following the correct method, which was demonstrated by the fact that the panel was brought down by being struck by the other panel.  The plaintiff’s counsel submitted that there was no evidence showing whether it was the plaintiff or his co‑worker who caused the accident.  I do not think that is determinative because the clear evidence is that the plaintiff and his co‑worker were jointly engaged in the unloading when the accident happened.  I assess the plaintiff’s contributory negligence at 50%. 

DAMAGES

56. I have described the plaintiff’s injuries in paras 3 to 7 above.  His complaints made at trial I have set out in para 17.

57. In closing the plaintiff claimed:

PSLA	$300,000
Pre-trial loss of earnings	$623,463.50
Post-trial loss of earnings	$893,980.56
Other special damages	$108,080
Sub‑total	$1,925,524.06
Less: employees compensation	($330,000)
Total	$1,595,524.06

(The plaintiff’s Revised Statement of Damages and both counsels’ openings state that the amount of employees compensation was $333,300; I shall treat this sum as the correct amount.)

Pain, suffering and loss of amenity

58. With regard to the “jerking” sensation, this does not appear in the Statement of Claim or in his witness statement.  The Statement of Claim refers to (1) right facial pain; (2) headache; (3) blurred vision in his right eye; and (4) fractured incisor.  None of the various reports prepared by the several doctors mentions this symptom.  Apart from the plaintiff’s subjective complaint, there is nothing to assist the court in assessing this complaint. When he was last seen at Prince of Wales Hospital Department of Surgery, apart from complaining about discomfort over the right zygoma, there was no functional deficit detected on physical examination.  The medical certificates from Yan Chai Hospital record that he complained of headache, right facial pain, residual pain but in cross‑examination the plaintiff said he did not suffer from headache but a pain over the right temple when the weather changed.

59. It is very surprising that the “jerking” sensation was described for the first time at trial and, significantly, there is no evidence that it was caused by the accident.  Accordingly, I shall not take this claimed symptom into account.

60. Regarding the plaintiff’s vision, he said that his right eye is not as good as his left.  However, no ophthalmological expert report was produced. The plaintiff was last seen by an ophthalmologist on 4 September 2012 and that doctor’s report notes that he failed to attend his next follow‑up appointment.  The indications are that, although the vision in his right eye may be worse that his left, there is no real problem.  Indeed, in cross‑examination the plaintiff said that he did not care much about it.

61. As for the other symptoms, there are no expert reports to support the plaintiff’s claim.  As I noted, the medical certificates from Yan Chai Hospital record his complaint of persistent headache, right facial pain and residual pain but his evidence was that he stopped going to the doctor because the doctor refused to give him any more medical certificates.

62. As for any orthopaedic problems, the joint experts state that there are no active orthopaedic problems.

63. I do not regard the plaintiff as having any significant residual complaints, complications or disability.  He did not produce any medical report to support his claim that he cannot return to his former employment.  I consider he is exaggerating his disability.  I regard him as being left with minimal residual symptoms and there is nothing to prevent him returning to his pre‑accident work.  In this regard, I noted above the Medical Assessment Board assessed his residual disability at 3%.  I noted that, when giving evidence and attending court, the plaintiff’s bearing and demeanor did not present as one with any significant problem.

64. The plaintiff referred me to Lam Chung Chak v Chan Wing Yin, HCA 617/1980, Leung Wing v Chan Hoi Yin, HCA 4409/1985 and Tsang Kee Chuen v The Hong Kong and Yaumatei Ferry Co Ltd, HCA 303/1988 but I do not find any of these cases helpful; the disabilities described are much more serious, including complete loss of vision in one eye, disfigurement, inability to close eyelids and impaired sense of smell.  The plaintiff referred me also to Chan Yim v Shing Cheong Construction Ltd, HCPI 54/2006 and So Sau Man v Leung Ming Kwong & anor, DCPI 376/2005.  In each of these cases the original injuries were not as severe as the plaintiff’s and the residual disabilities were minimal.  The award in the former case for pain, suffering and loss of amenity was $230,000 and in the latter, $100,000. The plaintiff submits that, in his case, the award should be in the region of $250,000 to $300,000.  Having considered the authorities and that the plaintiff had a severe injury and is left with a metal plate in the right side of his skull but with minimal residual disability, I shall allow $250,000.

Special damages—Loss of earnings

65. The plaintiff’s case was that, because of his injuries and discomfort, he was unable to work during the sick leave period.  He later gave more specifics as to the date when he resumed continuous employment.  He said it was about 20 days after he was assessed, apparently for the last time, by the Medical Assessment Board, which on the certificate of assessment took place on 30 January 2013.  He claimed he returned to work as an odd‑job labourer, earning between $7,000 and $8,000 per month since May 2013.  The plaintiff submits that he is entitled to full loss from the date of the accident to end of January 2013 and partial loss from February 2013 to January 2015.

66. The period of full loss is a period covered by sick leave certificates.  The defendant reminds me that, according to Tam Fu Yip v Sincere Engineering & Trading [2008] 5 HKLRD 210, the court is not bound by sick leave certificates but has to evaluate them with all the evidence.  As the Court of Appeal noted, sick leave certificates would be issued primarily because of the subjective symptoms reported to the doctors by the plaintiff.

67. Sick leave certificates have been produced for the following periods:

5.1.12 – 6.7.12	Prince of Wales Hospital
9.7.12 – 13.8.12	Dr Lau (Orthopaedic Surgeon)
14.8.12 – 27.8.12	Dr Chow (General Practitioner)
27.8.12 – 4.9.12	Dr Lau
4.9.12 – 6.9.12	Prince of Wales Hospital
7.9.12 – 26.9.12	Dr Lau
26.9.12 – 10.12.12	Yan Chai Hospital
11.12.12 – 28.12.12	Dr Lau
29.12.12 – 9.1.13	Yan Chai Hospital
9.1.13 – 1.5.13	Dr Lau

68. As can be seen from the above, he was given sick leave by Prince of Wales Hospital up to 6 July 2012, thereafter he attended Dr Lau and Dr Chow. When he was asked in cross-examination why he changed to private doctors he said it was because the doctor at Prince of Wales Hospital told him that he could no longer give him a sick leave certificate and could not help him any further.  When he returned to Prince of Wales Hospital on 4 September 2012 he was given three days sick leave and, as I noted above, he failed (defaulted) to keep his follow‑up appointment.  The hospital record shows that he was given a follow-up appointment for 3 December 2012 but the plaintiff denied that he was given the appointment, instead, he said that he was given only one day sick leave (the record shows 3 days) and told not to come back.  He then went back to Dr Lau. 

69. With regard to Dr Lau, he is an orthopaedic surgeon and the joint experts have said that, from an orthopaedic perspective, sick leave was not required.

70. Dr Chow’s certificates note that the plaintiff was suffering from head contusion injury and fracture.  The Yan Chai Hospital certificates note variously that the plaintiff was suffering from headache, right facial pain, old right face injury with residual pain, head injury, old right facial injury and right facial fracture. 

71. In my view, I can rely on the Prince of Wales certificates because that is the hospital where he was an in‑patient and treated for his injuries.  It is telling that the doctors at Prince of Wales did not consider it necessary to continue to issue sick leave certificates.  Hence, the period of sick leave I will take into account is 5 January 2012 to 6 July 2012 and 4 September 2012 to 6 September 2012.

72. On the basis of the joint experts’ opinion I shall not take into account the sick leave granted by the orthopaedic surgeon, Dr Lau.

73. I am not persuaded to take into account the sick leave granted by Dr Chow and Yan Chai Hospital for the reason that I prefer the position taken by Prince of Wales Hospital, ie sick leave certificates were no longer required.

74. The plaintiff was cross‑examined about deposits shown in his bank deposit book.  Under cross‑examination he was anticipating the line of questions and, rather than answer a question he would protest that he had not worked during the period of his sick leave.  He said that a deposit of $4,500 on 26 April 2012 was earnings.  In re‑examination he said he was mistaken about that.  He said variously that the deposits were loans from friends or winnings from mahjong.  The plaintiff’s evidence was not satisfactory but it may be that, because he was anticipating the line of questions and could not remember the nature of each deposit, he was inventing the source of the deposits but this invention does not mean that the deposits were from earnings.  Certainly, one cannot discern a pattern of earning or work during the sick leave period.

75. I must now turn to the level of the plaintiff’s pre‑accident earnings and this is difficult to assess.  Documents attached to the plaintiff’s witness statement show that, during the period of his employment with the 2^nd defendant, the plaintiff was paid a daily wage of $300, credited to his bank account, and certain sums in cash, which were described as a share of the 1^st defendant’s profits made under the New Equipment Leasing Agreement referred to in para 39 above: together those amounts were $25,000 for November 2011, $17,943 for December 2011 and (exhibit D3) $3,414 for the first four days of January 2014.  The plaintiff’s Revised Statement of Damages pleaded that his average monthly income was about $21,471.50, which is the average of $25,000 and $17,943.  The plaintiff testified that he could earn $1,000 a day before the accident and about $300,000 a year.  Another document, from Hing Kee Engineering Co purportedly showed that he earned $9,000 for nine days in December 2011.  This last document carries little weight; the author did not give evidence and it is dated 5 January 2012, the day of the accident.  Moreover, it was not referred to in the plaintiff’s closing submissions.

76. According to Mr Yim, the plaintiff was paid $17,294.60 and $12,654.40 for November and December from the profits under the New Equipment Leasing Agreement.  It appears that the plaintiff worked 23 days in November and 17 days in December.  Assuming an additional daily wage of $300, he would have earned $6,900 and $5,100 for each month, making a total for November and December of $24,194.60 and $17,754.40 respectively.  The average over the two months was $20,974.50, which is very close to the plaintiff’s claim.

77. On the other hand, the plaintiff’s tax returns show that his declared income for the period from January 2011 to December 2011 to be $57,000.  When one adds to that sum his income earned from his work on the subject site ($25,000 + $17,943), his income was $99,943 or $8,330 (rounded) per month.  When asked why his declared income was so much lower than his claimed income he could only reply that he did not prepare the tax returns.

78. In my view, the plaintiff earned more than was declared on his tax returns.  That he was capable of earning more is borne out by his income from his work on the subject site at Ma On Shan.  The difficulty in assessment is that he was a casual labourer without a fixed income, as illustrated by his tax returns, which showed large monthly variations, and the fact that his cash payments came from a share of profits under a particular agreement between the 1^st and 2^nd defendants which was only for the period of construction at the subject site.  I think the best I can do is to accept the plaintiff’s figure of $21,471.50 a month, which gives an annual income of $257,658, which is less than his claim of $300,000 per year.  Given that there are 69 general holidays in Hong Kong (Sundays and public holidays), there are 296 days available to the plaintiff to find casual work; the allowed annual income provides for about 257 days, which I consider to be a fair allowance as a casual labourer who may not be employed every work day of a month.

79. Based on my analysis above of the appropriate sick leave period, I allow a full loss period from 5 January 2012 to 6 July 2012 and 4 September 2012 to 6 September 2012, ie six months and five days.  That provides for a sum of $132,349 (rounded).

80. Also based on my analysis of the appropriate sick leave period and my finding that the plaintiff was not prevented from returning to his former employment, I do not allow any partial loss.

81. Based on my finding that the plaintiff is not prevented from returning to his former employment, I do not allow any loss of future earnings or earning capacity.

Special damages

82. The first head of special damages is medical expenses for which the plaintiff claims $49,780.

83. The defendants agree to the expenses incurred at Prince of Wales Hospital, which total $1,500.

84. The plaintiff claims medical expenses for Dr Chow, Dr Lau and Yan Chai Hospital in respect of his attendances for sick leave certificates.  The total claimed is $10,300.  As I have not allowed any claim for the periods covered by those certificates, similarly I do not allow the medical expenses.

85. The plaintiff also claims RMB30,000 for dental treatment in the PRC (the four unit bridge).  This is about HK$37,980 and a receipt has been produced.  The defendants refer to a quotation prepared by a Dr Leung for a replacement porcelain dental bridge in the sum of $15,200.  The defendants argue that the plaintiff should have mitigated this sum by approaching the dentists at the Prince of Wales Hospital or obtained a referral to a private dentist in Hong Kong.  I do not think that the Hong Kong quotation is a guide to the cost of the original work because it says nothing about the nature and extent of the original work.  I consider that the correct approach is to rely on the receipt and I allow $37,980.

86. Next is the plaintiff’s claim for travelling expenses: $3,000. Given that these expenses include travelling to Dr Chow, Dr Lau and Yan Chai Hospital for sick leave certificates which I have not allowed, I consider a discount should be made and I agree with the defendants that the sum should be $2,000.

87. The plaintiff claims $5,000 for “tonic food”, which he described in evidence as seafood, pork, soup bones and chicken soup.  I do not consider this food to be “tonic food” and I make no allowance.

88. There is also a claim for further dental treatment, which is based on Dr Leung’s quotation to replace the dental bridge ($15,200) plus his further quotation for root canal treatment ($3,800).  Dr Leung advises that the longevity of a porcelain dental bridge is about 12 to 15 years. The plaintiff says that it is expected that the bridge will need to be replace twice during his lifetime.  Hence, the claim is $49,400 ($15,200 + $3,800 + $30,400).

89. The defendants’ response it to take as a starting point that the average life span of Hong Kong men is 80.  As the plaintiff is now 56 and taking an average of 13.5 years as the longevity of a bridge, then the plaintiff will not need his first replacement until he is 69.5 years.  The defendants argue that the plaintiff will have reached his notional death before the second replacement.

90. I consider the defendants’ position regarding the bridge replacement to be too formulaic because one only needs to adjust the bridge longevity figure back to 12 years and the second replacement falls at precisely the current average life span.  Accordingly, I shall allow the full claim of $49,400.

SUMMARY ON DAMAGES

91. Summary on damages is as follows:

PSLA	$250,000
Pre-trial loss of earnings
Full loss	$132,349
Partial loss	Nil
Loss of future earnings	Nil
Loss of earning capacity	Nil
Special damages	$41,480
Future dental treatment	$49,400
Sub-total	$473,229
Less: contributory negligence (50%)	($236,614)
Sub-total	$236,614
Less: employees compensation received	($333,300)
Total	($96,686)
	=======

92. It can be seen that the employees compensation received exceeded the plaintiff’s entitlement to damages.  If follows that no award should be made, even though liability was established: So Loy Hing v Kowloon Motor Bus Company (1933) Ltd, HCPI 910/2011.

93. If the plaintiff had received a sum of damages I would have allowed interest on the general damages (pain, suffering and loss of amenities) at 2% per annum from the date of the Writ to the date of trial and on the special damages at half judgment rate per annum from the date of the accident to the date of trial.

94. Although the plaintiff failed to recover a sum because of the employees compensation he received, I shall make an order nisi that there be no order as to costs because of the liability split.