GURUNG JOU BAHADUR v. DRAGAGES HONG KONG LTD AND ANOTHER

HCPI 43/2017

[2025] HKCFI 4027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 43 OF 2017

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J U D G M E N T

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1.  The plaintiff (“Gurung”) claims damages for injuries sustained in the course of work at a construction site in 2015. Both liability and quantum are in dispute.

BACKGROUND

2.  The alleged accident took place on 29 June 2015. The then 43-year-old Gurung was working under the employ of the 1^st defendant (“Dragages”) as a rigger in the construction site in question at Pillar Point, Tuen Mun, New Territories (“the Site”), of which the 2^nd defendant (“Joint Venture”) was the principal contractor. Where appropriate, Dragages and the Joint Venture will be referred to collectively as the defendants.

3.  As a rigger, Gurung’s job duties included transportation of rigging parts and materials as well as their installation. At about 10:05 am on the day in question, Gurung was assigned with 2 co-workers by their foreman to install a steel hopper. A hopper by nature is a funnel shaped structure. According to the evidence, including the photographs produced, the hopper in question had 4 sides with an open top which tapered down (“the Hopper”). Gurung and his co-workers were supposed to put the Hopper in an upright position and its tapered end/bottom would be bolted to other parts. In the course of putting up the Hopper, Gurung allegedly sustained sprain injury to his back. Despite a short break, he was unable to resume working. He was then sent by ambulance to the hospital.

4.  With legal aid, Gurung filed his application for employees’ compensation in mid-July 2016 (DCEC 1501/2016), and commenced the present action for common law damages in mid-January 2017. The former was subsequently settled in mid-June 2018.

5.  In August 2018, leave was first given to set this case down for trial, but it was never done. I will revisit that situation at the end of this judgment.

6.  In early February 2022, Gurung’s legal aid certificate was discharged. He has since been acting in person. Due to the lapse of time, Gurung sought and was given leave to further revise his pleaded case on quantum and, in connection with that, to adduce further witness statement. Leave to set down the case for trial was again given in February 2024. Hence this trial.

THE PLEADED CASES

7.  According to his pleading, Gurung and his co-workers first transported the Hopper manually to where it was supposed to be installed. They then lifted the Hopper slightly, about an inch, above the ground. They continued to put the Hopper up (or actually upright). However, there was imbalance in the distribution of the load amongst the members of the team in the process, with most of that resting on Gurung. The job was aborted. Gurung felt sharp pain at his back.

8.  Gurung contends that he was injured as a result of the negligence and breach of implied duty of care as employer on the part of Dragages, as well as breach of common duty of care as occupiers under the Occupier’s Liability Ordinance, Cap 314 (“OLO”) on the part of the defendants.

9.  The defendants are also said to have been in breach of statutory duties under sections 6(1) and 6(2)(a), (b), (c) and (e) of the Factories and Industrial Undertaking Ordinance, Cap 59; sections 6(1) and 6(2)(a), (b), (c) and (e) of the Occupational Safety and Health Ordinance, Cap 509; sections 23, 24, 27, 28, 29, 30 and 31 of the Occupational Safety and Health Regulations, Cap 509A; and sections 38(1)(b), 38A(1)(a) and (c), 38AA(1)(a)-(c), 38C and 38E of the Construction Site (Safety) Regulations, Cap 59I.

10.  In defence, the defendants contend that Gurung was an experienced rigger who possessed, amongst other things, a specified trade safety training certificate as a construction materials rigger. Specific instruction on the correct steps and postures in manual handling at work had been provided. If the accident happened as alleged, it was caused or contributed to by the own neglect of Gurung in adopting the right posture and taking reasonable care in the course of work. It is also pointed out that Gurung was suffering from his own pre-existing back condition not brought about by the accident.

11.  Gurung puts forward a claim in excess of HK$4 million whereas the defendants contend that he has been adequately compensated by the employees’ compensation received, and therefore no award should be made even if the defendants are found to be liable.

ISSUES

12.  The issues are broadly:

(1)  how the accident happened;

(2)  whether the accident was caused by breach of duty on the part of any of the defendants;

(3)  whether Gurung was contributorily negligent in bringing about the accident;

(4)  quantum of damages.

WITNESSES

13.  Gurung gave evidence, including adopting the contents of his 2 witness statements. No witness as to fact was called by the defendants.

14.  The principles of assessing witnesses’ credibility have been often cited. Essentially, the court will consider the witness’ testimony against the undisputed or indisputable evidence, including contemporaneous documents, as well as its inherent plausibility and plausibility relative to the other evidence: see for instance Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors, HCA 1734/2009 (8 April 2014) at §§77-82.

15.  Medical expert evidence was adduced by Dr Wong Chin Hong and Dr Ko Put Shui Peter instructed on behalf of Gurung and the defendants respectively. Despite previous direction of the master to the contrary, I granted leave for the experts to testify at the trial on issues which called for clarification. Eventually only Dr Ko attended the trial.

HOW THE ACCIDENT HAPPENED

16.  Much is said by counsel for the defendants about the apparent shifting of Gurung’s case regarding the precise manner in which the alleged accident happened.

17.  What Gurung stated in the application for employees’ compensation was almost identical to that pleaded and subsequently explained in his witness statement in the present case. The illustration of the alleged accident possibly gives the impression that Gurung has been complaining about injury in the course of lifting the Hopper from the ground with his co-workers.

18.  In court, Gurung elaborated how the accident happened. He and his co-workers first transported the Hopper from another spot in the Site. Upon arrival at the spot where the Hopper had to be installed, they rested the Hopper horizontally on the ground. They then bowed down and lifted the Hopper slightly above the ground with a view to putting it upright. The transportation of the Hopper up to that spot and the lifting of it above the ground were carried out manually by the team. So far they managed that uneventfully. The team continued to put the Hopper to an upright position. It was in the course of that that he felt pain so much so the Hopper had to be put down. He felt sharp pain in the region between his waist and left buttock, more to the left side, as he pointed out by hand in court. He attributes that to the imbalance of load amongst the workers in the course of putting the Hopper upright at the time.

19.  Worth noting is that in his witness statement, Gurung did state that it was due to “imbalance of putting up” the Hopper that most weight landed on him and hence his injury. In view of the pleadings and witness statements in such terms, it may be said that they are capable of marginally accommodating the mechanism of injury as clarified by Gurung in court. I am prepared not to hold against him that he has alleged inconsistent versions of how the accident happened. From the defendants’ perspective, the clarification in court should not cause material prejudice to their position in meeting his case, particularly when they never intended to adduce factual evidence in this respect in any event.

20.  The failure in precision about the mechanism of injury might cause relatively more concern when it comes to the medical experts’ opinion. For instance, the medical report of the hospital dated 9 August 2016 simply recorded that Gurung claimed to have suffered low back pain after lifting heavy object at work. The medical experts recorded in their first joint report the information from Gurung during the joint medical examination in May 2017 that he was in a standing position lifting up the Hopper with his co-workers when he sustained his sprain injury. Whether or not Gurung’s clarification of the mechanism of the injury would have material impact on the medical expert opinion was explored at the trial, but, as mentioned, with only Dr Ko who attended.

21.  In their joint report, the medical experts referred to the background of Gurung, including his medical history. Specifically, Gurung had previous slip and fall injury when working as a security guard back in the 2000’s. That entailed surgical operation performed in Nepal and sick leave for about 10 months. He claimed no residual lower limb symptoms and had since worked in various jobs involving manual heavy duties in construction site. He told the experts there was at the juncture of the present accident no low back pain but left gluteal pain radiating to the left posterior thigh. Both medical experts opined that the alleged accident possibly involved a soft tissue sprain. Understanding the precise manner in which Gurung came to be allegedly injured at work, Dr Ko did not propose to change his opinion in this respect.

WHETHER THE ACCIDENT WAS CAUSED BY THE DEFENDANTS’ BREACH

22.  In connection with the whole list of causes of action pleaded as mentioned, the major contentions are that the defendants failed to prescribe a safe system of work specifically in requiring Gurung to handle the Hopper manually and in doing so, failing to provide sufficient equipment, manpower, instruction, training and supervision for the execution of the task.

23.  Considering the factual allegations and the evidence, one readily sees that the OLO is irrelevant. The condition of the premises where Gurung was working did not bring about the accident. This was an activity tort. See for instance Waan Chuen Ming v Lo Kin Nam CACV 281/2008 (12 May 2009). This is another instance of the prevalent indiscriminate plea of cause of action for breach of occupier’s common duty of care in personal injuries actions. This is high time better professional judgment than perceived comprehensiveness should have been applied in drafting pleading.

24.  Counsel rightly observes that the weight of the Hopper was a mystery before the trial. Nowhere in the pleading or witness statement was its weight mentioned. The medical experts in their joint report also raised such query. Whilst it was described as heavy, Gurung remained ambiguous about its actual weight at the trial. This court had to extract from him a better picture by borrowing assistance from the photographs produced.

25.  The photographs depict what the Hopper was like when installed. It was surrounded by steel walkway with railings. Using the railings as a reference point, Gurung illustrated in court that the railings reached below his armpit which was about 4 feet in height while the Hopper was taller than him but not substantially. The Hopper was obviously made of metal sheets and hollow. According to Gurung, it weighed more or less his own weight. One therefore gets a relatively better idea about its dimensions and approximate weight.

26.  For the purpose of liability, it must be proved that it was reasonably foreseeable on the part of the employer that the manner of work would give rise to risk of injury, and that he has failed to take reasonable steps, which could and should have been taken, to prevent such risk of injury. Insofar as the principal contractor is concerned, its liability for negligence also hinges upon the state of its knowledge, actual or constructive, about the relevant risk of injury at work and its extent of control over the performance of the work. All these must be assessed in the circumstances which of course vary from case to case.

27.  The non-delegable duty of the employer to the employee is to devise a safe system of work, which entails assessment of the risk of injury at work and, upon that, to provide sufficient and proper tools and equipment, manpower, instruction and supervision at the work in question to address the reasonably foreseeable risk: see Wilsons and Clyde Coal Co Ltd v English [1938] AC 57; Winter v Cardiff Rural District Council [1950] 1 All ER 819 (at 822 to 823); General Cleaning Contractors Ltd v Christmas [1953] AC 180 (at 189 – 190 and 194); Lai Wah Wai v Castco Testing Centre Ltd [1996] 2 HKC 44 (at §§74-75); Charlesworth & Percy on Negligence (13^th Ed) at Paras. 11-05 & 11-68).

28.  However, the duty is not absolute. Nor is that reasonably expected to be down to the minute detail. It would not be unreasonable for the employer to expect that the employee would exercise common sense and judgment, particularly in performing simple tasks, without the need for the employer to give specific instruction on the details of how such task should be performed: see Fong Yuet Ha v Success Employment Services Ltd , CACV 100/2012 (28 December 2012) at §§17-21.

29.  Experience of the employee is relevant. In the present case, after his arrival at Hong Kong in 1996, Gurung had worked for different construction companies as a general labourer. He had since worked in different jobs. Since late 2010, Gurung had mainly worked in jobs involving heavy manual labour. Between October 2010 and the end of July 2013, he worked as a carrier cum driver which required him to help loading and unloading of goods up to about 30 kg. He had then worked as a scaffolder until the end of 2013, which sometimes required him to carry heavy objects of about 15 kg. He had then worked as a track foreman, which involved heavy manual labour such as moving jacks weighing about 30 kg and using pulley to lift railway tracks of about 72 metres long and weighing about 40 tons. He joined Dragages as a rigger in November 2014.

30.  In court, Gurung agreed that his work as a rigger under the employ of Dragages at the Site entailed heavy manual labour as that in most of his previous jobs. His daily job involved moving and assembling machine parts weighing about 2 to 5 tons, alignment of pipes weighing about 1 ton using spanner as well as and lifting chain-blocks weighing about 20-25 kg. According to the joint medical expert report, he gave a similar account of his daily job demand when he worked at the Site.

31.  Having Gurung to handle the Hopper on the day in question per se connotes nothing unreasonable, unless the task should not reasonably have been carried out manually at all or, even if manually, should have been carried out with sufficient safety measures which were not put in place. Indeed, Gurung contends that the task of putting up the Hopper, which brought about his injury, should not have been carried out manually without lifting machine or equipment. In support of his contention, Gurung cited the instances of handling weighty parts and materials by lifting machine or equipment as depicted by the various photographs produced by him.

32.  It may be noted that there is no evidence from Dragages or the Joint Venture that deployment of lifting machine or equipment for the task in question was not feasible or reasonably practicable. That said, the burden of proof of breach remains on Gurung. In discharge of such burden, the instances of lifting or transportation of machines, metal parts and pipes depicted in the photographs relied on by Gurung were so obvious that anyone would be struck if told that they were to be carried out manually without lifting machine or equipment. However, none of these instances cited stands as fair comparison with the handling of the Hopper in terms of its form, dimension and weight as well as the apparent incidental logistical complication at work.

33.  In my judgment, it does not readily appeal to an objective person that it would be impracticable or unreasonable for the Hopper to be handled manually. The question, it follows, is whether and, if yes, what reasonable steps should have been taken for that to be done manually and safely.

34.  In court, Gurung confirmed that by the time of the alleged accident, he had already undergone the relevant safety training for construction site work, including that concerning how to safely and properly handle weights. He had obtained a safety card after completion of such training. In court, he claimed he was aware of the proper posture in handling weight manually. As mentioned, he was experienced in handling weight manually in various working environment both before and after joining Dragages.

35.  Importantly, Gurung was not required to carry out the work in question alone. Admittedly Dragages’ foreman assigned him to work as a team of 3 workers to handle the Hopper from the outset. Further, according to Gurung, his 2 co-workers had worked together as such since the time when he joined Dragages. The 3 of them had carried out similar task before, which was part of their usual job duties. There is no contention or evidence that Gurung’s co-workers were below reasonable competence in carrying out the task.

36.  According to Gurung, he discussed with his co-workers on how the task should be carried out, and had consensus that he would be the leader and the other 2 would follow his instruction. He was designated the leading role because he was more experienced in the team. He understood such role and expected his co-workers to follow him in the execution of the task. Gurung further explained in court that he did not actually give his co-workers specific instruction before carrying out the task, because the foreman had already explained to him and his co-workers how to manually move objects like the Hopper. Gurung was of the view that his job was simply to perform the task by leading and together with the other 2 co-workers.

37.  Gurung and his co-workers indeed managed to transport the Hopper from elsewhere at the Site to the spot where it was supposed to be installed. They also managed to lift the Hopper on the spot above the ground with a view to putting it to an upright position. In terms of synchronisation and co-ordination amongst them, handling the Hopper manually had so far been uneventful. It allegedly went wrong only when they proceeded to put the Hopper upright. The cause was imbalance of the load of the Hopper amongst them in the process.

38.  In the circumstances, performance of the task in question manually per se was not impracticable or unreasonable in the circumstances of this case. Safety training and instruction as well as reasonably sufficient and competent manpower had admittedly been provided. There was conscious assignment of the work to a team of 3 workers from the outset. There is no allegation that similar accident has happened before this occasion. These measures on this occasion also proved to have sufficed in enabling the team of 3 workers to manually transport the Hopper to the spot and to manually lift the Hopper at the spot uneventfully. What was expected of the team of 3 workers in putting the Hopper upright was their continuous attention in synchronisation and co-ordination amongst them. Insofar as ensuring that in the process, the workers were supposed to look upon Gurung as the designated leader of the team. There is no contention or evidence that anything extraneous arose at that juncture which somehow rendered it no longer reasonable to continue to leave it to the judgment of the team, particularly Gurung as the leader, on the spot to complete the task.

39.  All matters considered, I find that Gurung fails to discharge his burden of proving that the accident was caused by the breach of duties on the part of Dragages as the employer or the Joint Venture as the principal contractor.

CONTRIBUTORY NEGLIGENCE

40.  The utility of assessing contributory negligence, assuming that the defendants are somehow liable, very much depends on the factual basis of liability. I only propose to do my best for completeness.

41.  Peculiar in the circumstances of the present case was the relevant experience, training and instruction as well as, even more relevantly, the admitted leading role of Gurung whom his co-workers were supposed to look up to for judgment and guidance in the execution of the task. He admittedly failed to do so at the time, which contributed to the failed attention to the distribution and balance of the load bearing when putting the Hopper upright. In my judgment, such inadvertence contributed to the accident. That said, the 70-80% share of responsibility proposed by counsel exceeds the reasonable apportionment in the circumstances. In my judgment, the reasonable degree of contributory negligence on such basis would have been around 30%.

QUANTUM

42.  Also for completeness, I proceed to consider the quantum. As mentioned, Gurung projects the quantum in excess of HK$4 million.

Injuries and treatment

43.  Gurung was sent by ambulance to the hospital. His chief complaint was low back pain. He was referred to the Orthopaedic and Traumatology (“O&T”) Department. Tenderness in his lower back was detected but there was no numbness or lower limb weakness. Left straight leg raising test was positive. X-ray of lumbosacral spine revealed no fracture but degenerative changes with good alignment. There was no neurological deficit. The diagnosis was back sprain/mechanical low back pain. Gurung was discharged on 2 July 2015. MRI performed in mid-September 2015 showed impressions of L4/5 lateral disc protrusion, left L4/5 nerve roots abutting and mild left foraminal narrowing as well as L5/S1 broad based disc protrusion.

44.  Gurung’s follow-up at the O&T Department of the hospital continued until mid-2016 when he still complained about low back pain. Gurung received physiotherapy between mid-July and the end of November 2015. Occupational therapy lasted between late October 2015 and early March 2016. The latest follow-up was in late June 2016. After completion of 24 sessions of physiotherapy, Gurung reported about 50% overall improvement. Gurung attended both public outpatient clinic and private practitioners for further consultation until mid-June 2016.

45.  Meanwhile, the condition of Gurung was considered to be steady and suitable to attend assessment in mid-2016 for the purpose of the employees’ compensation claim. For his low back injury resulting in back pain, stiffness and weakness, he was assessed to be suffering from 1.5% loss of earning capacity. The assessment was reviewed in March 2017 to 5% on the basis that his back injury resulted in prolapsed intervertebral disc with radiculopathy.

46.  Gurung has been given sick leave from the date of the accident until late June 2016 as well as that for another 2 days in February 2017.

Present complaint

47.  At the time when he was jointly examined by the medical experts in late May 2017 as mentioned below, Gurung had no low back pain but complained about intermittent pain in the left gluteal region down to the left posterior thigh with the following aggravating factors:

(1)  at evening and in the morning;

(2)  when he was having any thoughts, it increased the symptoms;

(3)  sitting tolerance was less than an hour, and he would need to get up stretching;

(4)  walking tolerance was half an hour tops, and he would need to stop and rest.

48.  Gurung also complained about on and off bilateral calf muscle tightness for 3 to 4 months. He had taken painkillers for 3 times in the previous 3 months.

49.  Gurung manages his self-care and usual daily life activities as well as public transportation.

50.  In his second witness statement dated late July 2023, Gurung complained about pain on the back of his right thigh down to the shin as well. He could not have his hands lifted up continuously for over 10 minutes, and pain would also be triggered after half an hour of physical activities. He also complained about loss of hearing on his left ear and hypertension. In court, he sought to attribute all these as the aftermath of his injury in 2015.

Medical expert evidence

51.  The medical experts produced their first joint report dated 26 June 2017. The experts consulted the medical records and reports for the medical history, injuries and treatment of Gurung as well as the X-ray and MRI impressions. They also conducted physical examination of Gurung, some findings of which will be discussed below.

52.  According to Dr Wong, Gurung sustained a soft tissues sprain with no bone lesion. On the basis that Gurung had recovered well from his back injury in 2006 and lack of history suggesting otherwise since, his current pain and symptoms would not have come about at all but for the accident. The experts’ second joint report dated 5 October 2018 served to delete the mention of pre-existing degeneration under §§10.8 and 10.9 of the first joint report, upon which Dr Wong also amended his opinion under §11.2 on causation. His opinion was that the lesions observed from the MRI in 2016 could have been caused by the accident in the present case. So understood, Dr Wong effectively ruled out pre-existing condition as a cause of the symptoms Gurung complained of.

53.  According to Dr Ko, Gurung had recurrent or possible exacerbation of pre-existing low back pain. If the accident had happened in the manner as described by Gurung, it should have been compatible and consistent with probable low energy uncomplicated soft tissue sprain injury resulting in residual low back pain. Dr Ko maintained that, after further understanding the precise manner in which the accident happened as elaborated by Gurung in court.

54.  Amongst the medical evidence considered, the reports from the hospital recorded that Gurung was referred in mid-May 2006 for lumbar spondylosis and left radiculopathy. His then complaint was severe back pain with radiation to his left leg. He was discharged after treatment. However, as confirmed by the letter from the medical institute in Nepal dated 23 January 2018 and Gurung in court, his condition by 2006 still necessitated the surgery for lumbar disc prolapse then. That, Dr Ko opined, evidenced that Gurung was still affected by his previous injury in 2005 with L4/5 disc disorder in the form of low back pain and left sciatica in 2006 so much so that surgical intervention was deemed necessary then. In late August 2009, Gurung was still referred to outpatient physiotherapy for low back pain. In court, Gurung confirmed that such low back pain was not triggered by any extraneous cause. After 13 sessions of therapy, he reported improvement by 40-50% only. The above medical history suggests that Gurung’s condition subsequent to his injury back in the 2000’s continued to affect him even in the absence of any further extraneous physical cause.

55.  Dr Ko correlated the impressions of the MRI dated mid-September 2015 with the impressions and diagnoses of soft tissue injury or mechanical pain at the back of Gurung recorded in the medical records and reports of the treating hospitals. There was no objective lower limb neurological deficit in treatment and the multiple assessments in follow-up. None of the treating doctors made the diagnosis of sciatica or recorded any genuine objective physical signs of sciatica as a result of the present accident.

56.  Dr Ko also correlated the MRI impressions with the clinical findings at the time of the joint medical examination which, he explained in court, was performed by Dr Wong and assisted by him in recording. Gurung complained not about low back pain left gluteal pain with radiating pain to the left posterior thigh. No neurological deficit or sign of genuine neurological compression was detected.

57.  Dr Ko further referred to the identified Waddell’s simulation signs in the vertex compression, truncal rotation and shoulder elevation during the joint examination. The detection of 3 out of 5 positive signs is considered to be clinically significant which, absent psychological component, is suggestive of symptom magnification: see for instance Wong Yun Chiu v Union Printing Co Ltd HCPI 282/2009 (29 July 2011) at §20.

58.  Dr Ko also referred to other findings from the physical examination at the joint examination which were physical signs inconsistent and incompatible with, and should not constitute any part of any manifestation of, sciatica or radicular symptoms demonstrated by Gurung. Heavy elements of exaggeration and magnification was therefore present.

59.  Dr Ko opined that the documented findings during inpatient treatment and outpatient consultation clinic mentioned above suggested that Gurung should have recovered well from his uncomplicated soft tissue sprain injury. His current complaint of intermittent pain in the left gluteal region radiating to his left posterior thigh should be residue from his previous L4/5 disc disorder or referred muscle pain.

60.  Dr Wong did not actually disagreed in respect of the existence of symptoms exaggeration or magnification. However, he chose to believe that the complaint of pain is subjective so that certain degree of over-expression of symptoms did not cause him to rule out genuine pain and tenderness of Gurung.

61.  In line with their respective opinion mentioned above, Dr Wong considered the sick leave so far granted to Gurung to be reasonable whereas Dr Ko opined that the adequate and appropriate sick leave for the sprain injury at the end of June 2015 should be 6 to 8 months. In this respect, it should be noted that some of the sick leaves recorded the diagnosis of lumbar spondylitis or sciatica which, as discussed above, was not supported by any record of objective signs of sciatica by the treating doctors and the opinion of Dr Ko as a consequence of the present accident.

62.  Both experts agreed that Gurung should have no significant problem in the management of his usual activities of daily living and self-care. Dr Wong opined that Gurung is better suited for jobs of light nature such as watchman, carpark attendant or shop assistant. Dr Ko did not differ. However, he explained that considering the history of back injury with L4/5 disc disorder resulting in low back pain and left sciatica requiring surgical operation in the past, it should not have been in the best interest of Gurung to engage himself in job that require such heavy manual work as a rigger in any event. Gurung still complains about symptoms and referred pain which Dr Ko opined could be residue from such previous condition and often unprovoked. Dr Ko opined that the resultant limitation for him to return to work as a rigger at construction site should have been contributed mostly, if not solely, by the residue of his previous low back condition instead of the present accident.

63.  On the above basis, Dr Ko considered that Gurung’s case effectively falls into the third scenario as explained in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, namely had Gurung continued his job of heavy labour in construction site, his present condition would certainly have come about at any stage even without the present accident.

64.  I feel more assisted by the opinion of Dr Ko, which I accept was solid and well explained when considered against the evidence of Gurung as well as his medical history and the objective medical diagnoses and findings after the present accident.

Pain, suffering and loss of amenities (PSLA)

65.  Gurung claims HK$600,000 for his PSLA.

66.  In respect of the nature and degree of injuries and resultant conditions objectively attributable to the uncomplicated soft back tissue sprain suffered by Gurung from the accident in question, counsel proposes an award in the region of HK$80,000. She refers to the following cases as comparables:

Tamang Udas and Global Sunny Engineering Limited & Anor HCPI 732/2011 (7 January 2013);

Yip Kwok Shing v Fung Chau Tim DCPI 2627/2015 (26 June 2017);

Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited HCPI 473/2006 (6 June 2007);

Tsang Chung Ming v Caritas – Hong Kong [2019] HKCFI 1035;

So Chi Keung v Hospital Authority [2021] HKDC 1246.

67.  All things considered, including inflation consideration, I find an award in the region of HK$100,000 should be appropriate in the circumstances of Gurung which were in fact attributable to his minor soft tissue back sprain in the present case.

Loss of earnings

68.  There are various versions of the pre-accident average monthly income of Gurung.

69.  According to the payroll detail report, which counsel relies on, the payments by autopay plus his P-Fund/MPF during the period between November 2014 and June 2015 were HK$201,347.07 + 8,315.74 = HK$209,661.81. The average monthly income was HK$26,207.85.

70.  According to Form 2 filed by the defendants in July 2015, the average monthly income of Gurung was HK$27,113.91 while the earnings in the month immediately preceding the accident was HK$30,591.77.

71.  According to Form 5, the Commissioner of Labour Department assessed the periodical payments to Gurung on the basis of this sum of HK$30,591.77. Not surprisingly, this highest of all the versions also became the pleaded case of Gurung whereas counsel for the defendants seeks to rely on the lower amount of HK$26,207.85 mentioned above.

72.  That HK$30,591.77 was the earnings for the month immediately prior to the accident tallies with the payroll detail report. The adoption of that for the purpose of assessing the periodical payments to Gurung has its reason with reference to the Employees’ Compensation Ordinance, Cap 282. For the purpose of the present action, the actual earnings as evidenced by the payroll detail report, in my judgment, should be adopted for the calculation of any loss of earnings suffered Gurung. As such, counsel’s submission is accepted. The average monthly earnings of Gurung was HK$26,207.85 for the purpose of calculation below.

73.  As mentioned, Gurung has received sick leave for roughly 1 year since the accident. However Gurung claims to have remained incapacitated from returning to any work until February 2018. On this basis, he claims total loss of earnings from the accident until February 2018.

74.  The principle regarding claim for loss of earnings during period of absence from work needs no introduction. For the purpose of the common law claim, sick leave certificate is but one relevant type of evidence in support of temporary incapacity to work. The certificate is not conclusive: see for instance Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 (at 214-216).

75.  In view of the discussion in respect of the medical evidence and medical expert evidence, I find that reasonable sick leave necessitated by the minor and uncomplicated sprain injury attributable to the accident should be about 8 months. That said, I am prepared to give another reasonable window for securing employment in an alternative job. Absence from work for 1 year since the accident, I find, would have been reasonable. That effectively coincides with the entire sick leave period.

76.  The award for loss of earnings, inclusive of MPF benefits, during this period would therefore be HK$26,207.85 x 12 months x 1.05 = HK$330,218.91.

77.  Had Gurung returned to work but in one of the alternative jobs recommended by the experts, he might have suffered partial loss in terms of difference in income level compared with that obtainable from his pre-accident job. However, in view of Dr Ko’s expert evidence, which this court prefers, this exceeds what was attributable to his simple sprain injury in the accident. In view of the findings discussed above, there is no basis for attributing any loss of earnings after the expiry of the reasonable sick leave to the accident and injury in the present case. The claim for future loss of earnings is likewise denied.

Loss of earning capacity

78.  An award for loss of earning capacity is made to compensate the disadvantage in the labour market which the plaintiff will suffer in the form of compromised capacity to stay employed or gainfully employed in his post-accident job, be it the same as the pre-accident job or alternative job, as a result of his post-accident conditions and disabilities: see Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132; Chan Wai Tong & Anor v Li Ping Sum [1985] HKLR 176. In view of the findings discussed above, there is no basis for making such an award. The claim for HK$200,000 under this head is denied.

Special damages

79.  A sum of HK$30,000 is claimed for medical, travelling and tonic food expenses. No breakdown is provided. In his witness statement, Gurung explained that his medical expenses and other expenses amounted to HK$20,000 and HK$5,000 respectively. That hardly qualifies as actual breakdown. In his second witness statement, Gurung somehow listed out his various other expenses such as medical expenses for his other alleged medical conditions wholly extraneous to his injury in the present case, house renovation, household and loans from third parties as if they were relevant.

80.  The defendants are prepared to agree to a sum of HK$5,180 for medical expenses, which are evidenced by the receipts produced. They put Gurung to proof of the expenses on travelling and tonic food claimed. In the absence of concrete documentary proof, I am prepared to make a notional award of HK$2,000 for these items.

81.  Hence a total sum of HK$7,180.

Summary

82.  In summary, the quantum is arrived at as follows:

Pain, suffering and loss of amenities	HK$100,000.00
Loss of earnings & MPF	HK$330,218.91
Special damages	HK$ 7,180.00
Total	HK$437,398.91

83.  Discounted by 30% on account of contributory negligence, the quantum becomes HK$306,179.24.

84.  Interest on general damages accrues from the date of writ to today at 2% per annum while interest on incurred special damages accrues from the date of accident until today at half judgment rate. Judgment interest would have run at the judgment rate until full payment.

85.  However, the above pre-judgment interest is subject to the following caveat.

86.  As mentioned, leave to set down this case for trial was given in August 2018, which Gurung’s then solicitors, WT Law Offices, apparently never proceeded with. By the end of November 2018, another firm of solicitors, namely Krishnan & Tsang, was assigned by the Director of Legal Aid to act for Gurung. Nevertheless, the case had since until the end of 2021 not been set down for trial notwithstanding apparent correspondence between those acting for the parties respectively. Nor has the court been informed at all of the failure to set down, contrary to the orders granting leave to set down. Eventually, legal aid to Gurung was even discharged in January 2022.

87.  Whilst both sides were under the duty to ensure that the order to set down was duly complied with, it must primarily be that of Gurung as the plaintiff. He failed such duty, notwithstanding being legally represented at the material times. As such, this court sees no reason why he should be entitled to pre-judgment interest during the period between September 2018 and January 2022.

88.  Gurung has received employees’ compensation in the sum of HK$409,184.65. That has adequately compensated his damage truly attributable to his injury resulting from the accident in the present case.

CONCLUSION AND ORDER

89.  Gurung fails to establish liability. Even assuming liability were established, no award would have been made. Hence the same fate of dismissal of the claim.

90.  Following this event, I make a nisi order that Gurung shall pay the defendants their costs of this action, including any costs reserved, to be taxed if not agreed. Gurung’s own costs up to the discharge of his legal aid shall be taxed in accordance with legal aid regulation. In the absence of application within 14 days to vary, the nisi order shall become absolute without further order.