LAU LAN YING v. TOP HILL COMPANY AND ANOTHER

DCPI 2941/2021

[2025] HKDC 894

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2941 OF 2021

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BETWEEN

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JUDGMENT

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A. Introduction

1.  This is a claim for damages allegedly arisen in relation to a work-related accident that arose at 1100 hours on 22 November 2017 (“the Accident”).

2.  It is undisputed that the Plaintiff (“P”) suffered fractures to her right tibia and fibula and she attended hospital on the day of the Accident.

3.  The 2^nd Defendant (“D2”) is the main contractor to the slope stabilization contract No. GE/2015/02 (E/638-639).

4.  D2 alleges that it had subcontracted the entirety of the slope stabilization work to the 1^st Defendant (“D1”) and P was a casual worker employed by D1.

5.  P commenced DCEC 2003/2019 in relation to the Accident and was awarded HK$407,774.80.

6.  The Contribution and/or Indemnity Proceedings under the present proceedings and DCCJ 5258/2023 have been ordered to be heard separately from this main action (“the Main Action”).

7.  At the trial of the Main Action:

(1) P was represented by Mr Jerome Liu of Counsel;

(2) D1 was represented by Mr Vincent Chan of Counsel; and

(3) D2 was represented by Mr Michael Leung of Counsel.

B. Parties’ Respective Cases on Liability

B1. P’s Case on Liability

8.  P pleads in the Amended Statement of Claim (“ASOC”) that after finishing clearing some trash and working tools on the Slope, as defined at §1(b) (“the Slope”), she was walking down the Access Path (“the Access Path”) (泥沙斜坡) to the Tools Collection Area (“the Tools Collection Area”) and she slipped upon some sand and rocks on the Access Path, fell and sustained bodily injuries. This is the present and the 2^nd version of the Accident happened at location 2 (“Version 2”). The 1^st version of the Accident at location 1 was pleaded in the Statement of Claim (“SOC”) with details at P’s witness statement (“Version 1”).

9.  It is P’s present case she was instructed to clear trash, wooden and iron bars and plates and working tools left on the Slope by her co-workers. P alleges that she was instructed by Uncle Ping and his two sons to place those items to the Tools Collection Area, as defined at §3(a)(v) of the ASOC, outside the Slope (the workplace) where D2 had to carry out slope stabilization. P says that the Tools Collection Area was blocked from the main road by dense bamboo growth and that the only access to the Tools Collection Area was through the top of the ditch and then the Access Path which was full of mud, rock and sand since the first day she attended the construction site (See P’s Answer 5 to D1’s Request for Further and Better Particulars of the ASOC (“D1’s Request for F and BP of the ASOC”)).

10.  P produced a plan of the site as Annex to the ASOC (“the Site Plan”) (A/17). The Site Plan is identical to the one as Exhibit LKY-1 to P’s 2^nd supplemental witness statement.[1]

11.  It is P’s case at §3(b) of the ASOC that at around 1100 hours on 22 November 2017, after having finished the clearing work, she walked down the Access Path to the Tools Collection Area, and she slipped, fell and sustained bodily injuries. It was explained that P was on her way to lunch at the Temporary Site Office. P pleaded she was not holding anything when the accident happened (See P’s Answer 4 to D1’s Request for F and BP of the ASOC).

12.  At §§1 and 2, P pleads inter-alia that (i) the Slope was a workplace for the purpose of the Occupational Safety and Health Ordinance (“OSHO”), Cap 509; (ii) the stabilization work of the Slope was an industrial undertaking within the meaning of Factories and Industrial Undertaking Ordinance Cap 59 (“FIUO”) and D1 and D2 were the proprietors within the meaning of FIUO; (iii) D1 and D2 were the occupiers of the Slope within the meaning of the Occupiers’ Liability Ordinance Cap 314 (“OLO”) and under section 3 of OLO, D1 and D2 owed to P common law duty to see that P would be reasonably safe whilst working on the Slope.

13.  P pleads that there are statutory duties and/or common law duty of care and/or implied terms of contract of employment between P and D1 that during the course of employment, D1 would ensure inter-alia (i) to take all reasonable care and precaution for the safety and convenience of P whilst P was engaging in her employment; (ii) to provide and maintain a safe system of work; (iii) to provide and maintain a safe place of work and safe access to and from it; (iv) to provide P with adequate and proper training; (v) ensure compliance with §§6(1) and 6(2)(c) of OHSO; (vi) ensure compliance with reg 38A(2) of the Construction Sites (Safety) Regulations (Cap 59I) (“CSSR”); and (vii) compliance with regs 14, 16 and 19 of the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations (Cap 59Z) (“FIUO (SOSS) R”).

14.  P’s claim for damages is upon the Accident (Version 2) caused by D1 and D2’s negligence and/or breach of contract of employment and/or breach of statutory duties as enumerated:

(1) D1 and D2’s breach of common law duties (§§4(i) to (xii) of the ASOC);

(2) D1’s breach of contract of employment in which §§4(i) to (xii) of the ASOC were repeated (§4(xiii) of the ASOC);

(3) D1 and D2’s breach of statutory duties (§§4(i) to (xiii)) inclusive of statutory duties under:

(i) OSHO §§6(1), 6(2)(c), 6(1)(d)(i), and 6(1)(d)(ii) (§§4(xv) to (xviii) of the ASOC);

(ii) FIUO §§6A(2), 6A(2)(a), 6A(2)(d) (§§4(xix to xxi) of the ASOC);

(iii) OLO (§4(xxii) of the ASOC);

(iv) Reg 38A(2) of the CSSR to provide suitable, adequate and safe access to and egress from the Tools Collection Area (§4(xxiii) of the ASOC); and

(v) Regs 14,16 and 19 of FUIO (SOSS) R to ensure the duties of safety officer and or supervisor to be carried out under the supervision of a person who has direct control over the work carried out in the Access Path (§4(xxiv) of the ASOC).

B2. D1’s case on liability

15.  D1 filed its Amended Defence (“AD”) and challenges P’s versions of the Accident, specifically:

(i) Version 1 as happened at location 1 on level ground at the bottom of the concrete steps described in P’s witness statement. This version has been abandoned by P;

(ii) Version 2 as happened at location 2 at the Access Path on the slope full of mud, rock and sand as detailed in the P’s 2^nd supplemental witness statement; and

(iii) The other versions given by and not adopted by P, inclusive of the version given in Pok Hoi Hospital’s Admission Note on the date of the Accident, the version as recorded in D2’s Accident Investigation Report of 29 November 2017, and the version in the Interview Record of the Loss Adjuster, Integrity Adjuster Limited, in which she answered to the questions posted and her answers recorded by staff of Integrity Adjuster Limited.

16.  D1 specifically denied the circumstances and location of the Accident as pleaded in §3(b) of the ASOC. At §8 of D1’s AD, D1 pleaded it was not necessary and P was not supposed to walk down the alleged Access Path to the alleged Tools Collection Area. It does not appear to be disputed that at the material time, P was walking to the rest shelter (which is the Temporary Site Office) for lunch and there were two sets of concrete steps one on each of the side of the Slope that required stabilization, the workplace, to allow ingress and egress. An issue is whether the Access Path was outside of the workplace identified on the Plan as “已噴漿的斜坡”.

17.  D1’s case is that there was no negligence nor breach of employment contract on D1’s part. At §9 of the AD, D1 denied §4 of the ASOC and further pleaded that clearing debris as a casual worker was simple and did not require specific training or supervision. As to P’s allegation at §4 of the ASOC and the allegation of D1’s failure to provide and implement a safe and proper system of work, D1’s case says that it is a question of fact whether or not there is a need for a system of work to be prescribed in any given circumstances, citing §§11-67 of Sweet & Maxwell, Charlesworth & Percy on Negligence, 12^th ed. D1’s case is that there was no need for a system of work to be prescribed, citing situations and cases in which courts had held on the facts of those cases that the operation was simple and it was reasonable that the employee be trusted to exercise own common sense to carry out the operation.

18.  In Fong Yuet Ha v Success Employment Services Ltd, CACV 100/2012, 28 December 2012, in which the Court of Appeal at §21 confirmed the judgment of DHCJ Lisa Wong SC in HCPI 345/2009 in these words: “the judge was correct in holding that in the circumstances of that case, there was no need for the employer to prescribe a safe system of work or give specific advice for such an everyday act that could be reasonably trusted to the common sense of the employee to carry out the task safely”. Further, at §§19-20:

“19. As the passage quoted has made clear, it is a question of fact in each case whether it is necessary for the employer to devise a system of work for the task in hand. The judge decided that in the circumstances of this case, the need for a system of work to be prescribed was not made out. In paragraph 38 of the judgment quoted above, the judge referred to Winter v Cardiff Rural District Council and some of the cases in Hong Kong that applied this case. They were all situations where the court held on the facts that the operation was simple and it was reasonable that the employee could be trusted to exercise his common sense to carry out the operation without the need for the employer to prescribe a system of work or give specific instruction or advice how the task should be done.

20. The operation in Cheung Suk Wai v Attorney General was to put bags of refuse into refuse bins. It was held that it was for the cleaning worker to decide on how to carry out the operation in a way most suitable to her, physical ability. including the weight of the bags she should carry at one time. In Tsang Yin Yuk v Nini Maternity Fashion Co Ltd, the shopkeeper stood on astool to push a bag of clothing onto a shelf which was 4 feet deep. It was held that the task of putting bags containing clothing onto the shelf was not inherently dangerous, that the decision of how this should be done had to be taken frequently, and it was reasonable and natural that the decision be left to the employee on the spot, especially in light of the instruction given not to overfill the bags. In Chan Wai Ming v Tai Lee Café & Cake Shop, a chef tilted a heavy pot of boiled soup to pour over the contents into a container, instead of using a ladle. The court held that this was a simple task that a chef of the plaintiff's experience should require no guidance. Ng Kong v Golden Caterers Ltd, HCPI 206/2004, 3 February 2005, cited by the judge in the earlier parts of the judgment, was another case concerning a chef, who tried to pull a plate of fish out of a steaming oven, which he had done many times. The plaintiff complained that a stool was not provided for his use so he had to stand tiptoe. The judge found that a stool was provided but the plaintiff did not use it as it was handier to do without it and further observed that the plaintiff must know without specific instruction if he found he could not reach or comfortably reach a certain height required for his work and it was all a matter of common sense”.

19.  As to the site condition, D1 produced Fang Zhaohua v Kam Fung Engineering Limited and Anor (DCPI 1109/2019, 19 July 2023), §§17-19 at §17 in which the learned Judge in Ahmed Masood v Chung Kau Engineering Company Limited, DCPI 517/2003, 28 January 2005, wrote: “ … In a construction site, mud and debris are obviously regular features, particularly when foundation works are carried out… …Water, mud and building debris are usual features and those who work in construction sites must be aware of these obvious and usual dangers” and the Judge was “not satisfied wet and muddy ground makes the Site or Path unsafe”.

20.  As to safety shoes and outdoor floor matting put in issue by P at §4(xi) of the ASOC, D1 pointed out that P was wearing a pair of safety shoes on the date of the Accident and it would be unusual and unrealistic to place such floor matting on the Access Path.

OSHO

21.  The purposes of OSHO defined at section 2 are: (i) to ensure safety and health of employees when they are at work; and (ii) to prescribe measures that will contribute to making the workplaces of employees safer and healthier, with workplace defined as any place where employees work. Section 6(1) directs every employer “so far as reasonably practical” to ensure “the safety and health at work of all the employers’ employees” and section 6(2) enumerates situations of failure to comply including at section 6(2)(d) “as regards any workplace under the employer’s control – (i) a failure to maintain the workplace in a condition that is, so far as reasonably practicable, safe and without risks to health; or (ii) a failure to provide or maintain means of access to and egress from the workplace that are, so far as reasonably practicable, safe and without any such risks”.

22.  D1’s case citing Wong Ping Kong v Ng Hong Sing and Anor, (DCPI 2748/2019, 23 March 2023), is that breach of sections 6(1) and (2) would not give rise to any civil liability and in any case, the obligations under OSHO are co-extensive with the employer’s common law duty of care to an employee.

OLO

23.  Section 2(1) of OLO has the effect, in place of the common law rules, “to regulate the duty which an occupier of premises owes to his visitors” and section 2(2) states that “persons who are to be treated as an occupier and as his visitors are the same as persons who would at common law …”.

24.  Section 3 provides for the extent of an occupier’s ordinary duty and section 3(1) provides that an occupier owes the same common law duties to all his visitors. Section 3(4)(b) stipulates that “an occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor …and had taken steps (if any) as he ought in order to satisfy himself that the contractor was competent …”. Section 3(5) provides that “the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor. …”.

25.  D1’s case is that P’s pleaded case cannot sustain for a claim for the Accident occurred at the Access Path as P has not alleged that D1 was the occupier of the Access Path, and the place of the Accident has been revised from the “Slope” to the “Access Path”.

FIUO

26.  Section 6A of FIUO provides General duties of a proprietor and section 6A(2)(d) provides that the duties of a proprietor, so far as is reasonably practicable, for an industrial undertaking under the proprietor’s control, to maintain it in a condition that is safe and “without risks to health” and to maintain “means of access to and egress from it that are safe and without such risks”. The term proprietor is defined at section 2 as the person who has management or control of such an industrial undertaking or notifiable workplace and that includes the occupier of any industrial undertaking or notifiable workplace.

27.  It is D1’s case that section 19 provides FIUO does not confer a right of action in civil proceedings in respect of a failure to comply with sections 6A, 6B or 6BA.

CSSR

28.  Reg 38A(2) of the CSSR provides that “the contractor responsible for any construction site shall ensure that, so far as reasonably practicable, suitable and adequate safe access to and egress from every place of work on the site is provided and properly maintained”.

29.  It is D1’s case it is not permissible to extend the scope of duty of contractor “responsible for a construction site to a sub-contractor”. D1 draws reference to §51 of Wan Tsz Nok v Hung Fai Electrical Engineering Limited and Anors (HCPI 1117/2004, 17 November 2008) judgment of DHCJ To (as he then was).

FIUO (SOSS) R

30.  D1’s case is that regs 14, 16 and 19 of FIUO (SOSS) R concerning safety officer/supervisor have never been held to give rise to any civil liability.

31.  D1’s case is that the Accident was caused or contributed to by P’s own negligence.

B3. D2’s case on liability

32.  D2 puts P to strict proof at §4 of D2’s AD that P was employed by D1 as casual worker.

33.  D2 admitted at §5 of D2’s AD that the Slope was a workplace for the purpose of OSHO and that D2 had complied with its statutory duties under OSHO. However, the Slope is physically located separately from the Access Path, the alleged location of the Accident.

34.  D2 admitted at §6 of D2’s AD that stabilization work on the Slope was an industrial undertaking within the meaning of FIUO and that D2 had complied with its statutory duties under FIUO.

35.  D2 also admitted it is an occupier of the Slope within the meaning of OLO and that D2 had complied with its statutory duties under OLO.

36.  D2’s case is that by a subcontract, it had subcontracted all works under Contract No GE/2015/02 in relation to the Slope to D1 and D1 had direct control over P. D2 denies ever given any direct instruction to P. D2’s case is that Uncle Ping and his two sons were unknown to D2 and did not give instructions on behalf of D2 to P.

37.  D2 pleaded at §10 of D2’s AD that §3(b) of the ASOC is not admitted.

38.  Further, D2 categorically denied at §11 that D2 had acted in breach of any duty owed to P. D2 further pleaded that the accident was wholly or substantially caused or contributed to by P, in that P had failed to exercise any reasonable care for her own safety and exposed herself to a risk of injury that P knew or ought to have known.

C. The Parties’ Respective Cases on Quantum

C1. P’s injuries and treatment received

39.  It is not disputed that P suffered injuries to her right leg as a result of the Accident.

40.  She was admitted to the Accident and Emergency Department of Pok Oi Hospital for emergency treatment on 22 November 2017. Medical examination showed she suffered fracture of her right tibia and fibula and she was transferred to Orthopedics and Traumatology for treatment. Fracture fixation was performed on 28 November 2017. P was discharged on 5 December 2017, but P continued to receive follow up treatment until 27 May 2019. P also attended 43 sessions of out-patient physiotherapy treatment at Tin Shui Wai Hospital from 11 December 2017 to 20 November 2018. P also received Occupational Therapy courses from 31 January 2018 to 28 February 2018 and 4 further sessions from 27 November 2018 to 25 March 2019.

C2. P’s case on quantum

41.  P, born on 5 December 1969, was 47 years old at the time of the Accident.

42.  Basis of P’s quantum calculations are as follows:

(1) Prior to the Accident, P earned wages of HK$750.00 daily as a casual worker;

(2) But for the Accident, P would have continued to work 26 days per month as casual worker;

(3) P was unable to work during her sick leave from 22 November 2017 to 29 November 2019 (totalling 738 days);

(4) P was unable to secure work after the sick leave period from 30 November 2019 to 31 July 2020 (totalling 275 days);

(5) From August 2020, P was able to secure work at HK$700.00 per day and P claims for loss of earnings, being the difference between HK$750.00 and HK$700.00 from 1 August 2021 up to the notional trial day on 22 November 2023 (totalling 883 days); and

(6) P also claims for future loss of earnings assuming P will retire at the age of 65. P adopts a multiplier of 10.26.

43.  P claims in her Revised Statement of Damages (“RSOD”) for (a) Pain, Suffering and Loss of Amenities (“PSLA”) (HK$300,000.00); (b) Pre-trial loss of earnings (HK$696,713.33); (c) Post-trial Loss of Earnings (HK$160,056.00); (d) Loss of MPF (HK$42,838.47); (e) Loss of earning capacity (HK$100,000.00); and (f) Special Damages (HK$24,526.00); Less EC compensation received (HK$407,774,80). Net total of HK$916,359.00.

44.  P further claims (i) interest at 2% per annum on PSLA from date of the Writ to the date of judgment; (ii) interest on special damages and pre-trial loss at half of judgment rate from the date of the accident to the date of judgment or payment.

45.  On contributory negligence, P argued that if the Accident was caused by P’s momentary inadvertence or lack of care, it “should well be regarded as an ‘excusable lapse’ and not as contributory negligence”. P cited §28 of Chow Cheung Ching v Right Base Construction & Engineering Co Ltd and Anor [2002] 2 HKLRD 738.

C3. D1’s case on quantum

46.  Firstly, D1’s quantum is based on the findings of:

(1) The Joint Orthopedic Report, upon the 21 July 2020 examination, prepared by Dr Patrick Wong (“Dr Wong”) and Dr Peter Lung (“Dr Lung”); and

(2) The Medical Report, upon the 16 March 2020 examination, prepared by Dr Henry Ho (“Dr Ho”).

47.  Dr Wong, Dr Lung and Dr Ho all agreed that upon P’s completion of occupational therapy in March 2019, her condition was assessed to be static as at 2 March 2019 and therefore, sick leave should only be up to the end of March 2019, that is 16 months and 4 days.

48.  Dr Ho opined that P’s whole person impairment and loss of earning capacity shall be 1.5%.

49.  Secondly, D1 denies P worked 26 days per month on the average and avers that for the period of P’s employment with D1 from May to November 2017, she only worked 21.5 days per month.

50.  D1, in its Answer to P’s RSOD, countered with the following figures: (a) PSLA (HK$250,000.00; (b) Pre-trial loss of earnings (HK$ 260,150); (c) Future Loss of Earnings (Nil); (d) Loss of MPF (HK$13,007.50); (e) Loss of earning capacity (Nil); (f) Special Damages (HK$17,578.00); Less EC compensation received (HK$407,774,80). Net total of HK$132,960.70.

C4. D2’s case on quantum

51.  D2 also relies upon the Joint Orthopedic Report and the Medical Report prepared by Dr Ho to say sick leave certificates issued up to 31 March 2019 (ie 16 months and 4 days) was appropriate and reasonable.

52.  D2 also relies upon Dr Wong’s recommendation of 2% whole person impairment and 3% loss of earing capacity. Dr Wong also opined that P shall be capable of returning to her pre-accident job as a general labourer working in construction sites.

53.  D2 also notes that P average working days per month was only 21.5 days.

54.  D2, in its Answer to P’s RSOD, countered with the following figures: (a) PSLA (HK$230,000.00); (b) Pre-trial loss of earnings and MPF (HK$273,157.50); (c) Future Loss of Earnings and MPF (Nil); (d) Loss of earning capacity (Nil); and (f) Special Damages (HK$22,178.00); Less EC compensation received (HK$407,774,80). Net total of HK$ 117,560.70.

D. Issues

55.  The main issues that require determination are:

(1) How and where did the Accident occurred;

(2) Whether D1 and D2 were occupiers of the Access Path, and if so, whether in respect of the Access Path, they were in breach of their duties to P under OSHO and/or OLO;

(3) Whether and what duties of care D1 and/or D2 owed to P, and if so, whether they were negligent and/or breached their duties owed to P;

(4) If D1 and/or D2 were negligent/breached their duties owed to P, whether P was contributorily negligent, and if so, what should be the apportionment of liability to P; and

(5) Lastly, if liability is established, the proper quantum of damages to be awarded to P.

E. The Witnesses

56.  At the trial, the following witnesses gave evidence:

(1) P gave oral evidence and affirmed her statement, supplemental statement and 2^nd supplemental statement;

(2) Leung Yan Kit James gave evidence for D1 and affirmed his statement, supplemental statement and 3^rd supplemental statement; and

(3) Liu Kai Choi and Yuen Chung Yuen Edward gave evidence for D2 and affirmed their respective statements.

57.  P’s Dramatis Personae referred to a number of persons that were not at the trial to give evidence. They are: (i) 丁遠���� (“Ding”) – the first person P alleged to have contacted after the Accident; (ii) 阿風 (“Ah Fung”) – P’s direct supervisor; (iii) 坪叔 (“Uncle Ping”) and his sons whom P alleges to have given instruction to her to move debris and tools to the Tools Collection Area.

F. The Legal Principles

58.  It is relevant and I have considered the legal principles in the judgment of Cheung Pong Chun v Jasmine Cuisine Limited [2024] HKDC 842 (28 May 2024), §§17, 18, 22-23 decided by His Honour Judge Andrew Li (as he then was). At §17 of Cheung Pong Chun, supra, §17 of Wat Kwing Lok v the Kowloon Motor Bus Company (1933) Ltd (HCPI 936/2005, 20 November 2007) was cited:

“The mere fact of the occurrence of the accident is not sufficient to give rise to a presumption of negligence on the part of the defendant. The burden of proof is on the plaintiff to show on a balance of probabilities that there has occurred an event which is unusual and which, in the absence of an explanation, is more consistent with fault on the part of the defendant than the absence of fault. …”.

59.  In the case of Liu Cairong v Parker Cleaning Services Company Limited, HCPI 189/2013 (23 February 2015) at §26, the Judge wrote:

“The plaintiff has the burden of proving particulars of negligence or breach of duty on balance of probabilities. If the court is uncertain as to why and how exactly the plaintiff injured himself, or if there is insufficient evidence pointing to negligence or breach of other relevant duties on the part of the defendants, the court should dismiss the plaintiff’s claims”.

60.  In this case, no one was around when the Accident occurred and P has advanced different versions of where and how the Accident happened. If P cannot prove the location and mechanism of the alleged Accident on balance of probabilities, P’s case against D1 and D2 ought to be dismissed. At §22 of Cheung Pong Chun supra, the learned Judge wrote:

“Where the plaintiff has put forward one version of event, which is different from a previous version of event also put forward by him, ‘the judge’s function was not to decide which of the Plaintiff’s versions of the incident was more preferable. His role was to determine whether on the balance of probabilities, the Plaintiff’s current version of the incident was correct. That involved considering whether the Plaintiff’s previous versions undermines his current version to such an extent that it could not be said that the Plaintiff’s current version of the incident was probably correct. …’.”

61.  As to assessment of credibility of factual witnesses, DHCJ Eugene Fung SC set out helpful principles at §§78-82 of Hui Cheung Fai v Daiwa Development Ltd (HCA 1734 /2009, 8 April 2014).

“78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness evidence. …

81. The practical approach to assessing credibility of witnesses … may have best been summarized by the words of Robert Goff LJ, as he then was, in the Ocean Frost [1985] 1 LIoyd’s Rep 1 at 57:

‘Speaking from my experience, I have found it essential…when considering the credibility of witnesses always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case and also to pay particular regard to their motives and to the overall probabilities’.

G. Evidence and Findings

G1. The Site Plans

62.  Before going to the evidence of factual witnesses, it is important to point out that there were incomplete plans of the site with different material matters missing out:

(i) the Plan of the site (Annexed to the ASOC) at A/17;

(ii) the plan attached to P’s witness statement at B/88; and

(iii) The plan attached P’s 2^nd supplemental witness statement at B/105.

63.  So clarification was sought of P and D1’s witness, Leung Yan Kit, and they gave oral evidence as to the site, the surrounding buildings, the roads, and ingress and egress points for accessing the Slope, resulting in their uncontested evidence being marked on B/105 as:

(1) Exhibit P-1: in which it is shown P’s Version 1 of the place of the Accident and the stairs P used to egress that is the concrete stairs to the left of the Slope（已噴漿的斜坡）and P’s Version 2 of the place of the Accident, the Access Pathand the concrete stairs to the left and right of the Slope;

(2) Exhibit P-2: in which it is shown a Path (the lane that not previously marked on any of the plans) behind the homes of Ms Lam（林小姐的家）and Uncle Deng（鄧伯伯的家）connecting the concrete stairs to the left and to the right of the Slope (“the Lane”) and the Path next to the Food and Environmental Hygiene Department (“FEHD”) depot; and

(3) Exhibit D2-1: in which it is shown the Path, the lane, going left would lead to Temporary Site Office（工人休息架步）and it is also shown there was access to the Slope through Mr Deng’s home to the concrete stairs to the right of the Slope.

G2. Evidence on the place and how the Accident happened

64.  I accept that the occurrence of an employee’s accident does not without more give rise to liability on the part of an employer in a personal injuries action. As said by Recorder Edward Chan SC in Ng Kong v Golden Caterer Limited (HCPI 206/2004, 3 February 2005) at §63, “there is no presumption of law that an employer is negligent whenever his employee is injured in the course of his employment. …”. As P is the only witness giving evidence as to where and how the accident occurred, her evidence is crucial and should be assessed as to credibility based on generally accepted legal principles at §60 above.

G3. Whether Version 2 is credible to be tested against her statements

65.  At §4 of P’s Opening Submissions (“P’s Opening”), P admitted she previously gave a different version as to where the Accident took place. Version 1 of the location and how the Accident took place were given in §§7 and 8 of her witness statement dated 11 September 2020. P’s witness statement was made about the time of the Writ of Summons and the Statement of Claim of this action both dated 2 January 2020. It is notable that when this action was commenced and P’s witness statement prepared, P was legally advised by Messrs Wong and Tang, solicitors and at §8, it was her evidence “當時該地盤圍封四周，只能經由一條道路 (“該道路”)及一條臨時興建的梯級進入斜坡 …該道路是指在證物編號‘LLY-1’標示為C的道路” This evidence, when tested, turns out to be untrue as C was not the only access onto the Slope. (See the later plan of the site at B/105).

66.  The plan marked Exhibit LLY-1 (B/88) also marked the place where P was tripped as B (“Location 1”). P alleged that she walked down using the temporary staircase marked as A and her right foot was tripped on level ground at the bottom of the stairs. In this version, P said she was going to the temporary site office for lunch as she had completed her work. Time was 11:15 am and she was not holding anything in her hands. By the amendment to the SOC, P has chosen to reject Location 1 and Version 1 as the event that caused her injury.

67.  In P’s supplemental witness statement dated 11 May 2022 at §3, P repeated after she left the Slope, she followed a road (該道路) to walk to the temporary site office for Lunch. P said that she was tripped by loose stones on the road.

68.  P’s Version 2 of the place and how the Accident happened is at §8 of her 2^nd supplemental witness statement of 23 March 2023. P says that it was her practice to hang a water bottle on a tree on the Access Path described as泥沙斜坡and she was preparing to collect her water bottle, then proceed through the Bamboo Growth (竹林) to the alleged Tools Collection Area, then to public toilet and to lunch. As the Access Path was strew with stones, she tripped on stone when she descended the Access Path, fell and was injured (“Location 2”). Version 2 is the basis of her ASOC.

G4. Whether Version 2 is credible should first be tested against contemporaneous documents

69.  The first document in evidence is the Pok Oi Hospital Admission Note of 22 November 2017 the date of the Accident (C/508-509). There the Note records P suffered “right leg twisting injury accidentally when stepping on level ground”. This Admission Note came first in time on the date of the Accident and no one challenged the correctness of what was recorded by hospital staff.

70.  The 2^nd document is the Record of Interview dated 2 February 2018 of the Loss Adjuster “Integrity Adjuster Limited” (廉德行) at E/889-891. This record was handwritten, signed by P and witnessed by P’s friend王玉西 (Ms Wang). It records after descending from the stairs to the left of the Slope, P faced the road with back to the Slope and was tripped by stone on the road. How and where the Accident happened in the Record of Interview accord more with Version 1 and not Version 2. P at §14 of her witness statement, tried to explain the inconsistencies between her evidence in her witness statement and the Record of Interview.

71.  The 3^rd Document is P’s Notice of change of information to the Labour Department (E/887-888) in which how the Accident happened was recorded as “中午收工回休息室時跌倒 扭傷右腳”. No mention of being tripped on stone.

72.  The fourth document that recorded the Accident is the EC Compensation Notice (要求工傷賠償通知書) dated 22 March 2019 (E/897/898). P admitted orally in Court this document was filled by her. It is recorded in manuscript that on the date of the Accident, while clearing debris, P carelessly stepped on a rock. This is another version of the Accident.

73.  On the Record of Interview:

(i) P alleges at §14 of her witness statement that she was not in good mood and did not pay attention to the content as recorded and did not ask for a copy of the Interview Record. It was only in the course of her EC claim, when her lawyer asked for a copy of the Interview Record, that she learned of the inconsistencies. This does not explain why such inconsistencies appear in her witness statement prepared after she instructed lawyers for her EC and PI cases;

(ii) At §§12-14 of her 2^nd supplemental statement, P’s evidence, for the first time, is that when staff of Integrity Adjuster Limited came to interview her, Mr Alan Chan, said to be D2’s safety officer, came to her home (“the Interview”). P alleges that (i) Mr Chan produced a photograph to show the location of the Accident; (ii) the photographs attached to the Accident Investigation Report (E/882-886 at 886) next to the depot of FEHD; (iii) Mr Chan told her to tell others that that was location of the Accident, even though she knew it was not ; (iv) Mr Chan told her had the Accident occurred at Location 2, it would not be covered by insurance; (v) her superior Ah Fung also called her the same night (當晚致電本人) and told her to tell others that the place shown on the photograph was the place of the Accident. I find this account not believable as it is illogical: there is no explanation as to how Ah Fung came to have knowledge of the photograph and why he called P the same night after the interview;

(iii) However, in oral evidence, P admitted Mr Chan did not make an appointment to attend the Interview and she forgot when Mr Chan arrived at her home. As to the Interview, Ms Wang signed the Interview Record as a witness and P’s evidence is that her daughter was also presented at the Interview. However, neither Ms Wang or P’s daughter was present in Court to give evidence; and

(iv) At §15 of her 2^nd supplemental statement, P’s evidence is that she adopted Location 1 in her statement as the place of the Accident because she was frightened by the insurance issue.

G5. P’s oral evidence on Version 1 and the Record of Interview

74.  In her oral evidence, P said she cooperated to adopt Version 1 because she was concerned that if insurance coverage is not available for Location 2 she would not receive any compensation for the injuries she sustained. However, even though P cooperated in the Interview, Pok Hoi hospital records of 18 October 2018 and 1 April 2019, recorded she was not paid wages she claimed (C/482) and her sick leave claims (C/486). In oral evidence, P confirmed she did not have further intention to cooperate and found lawyers to handle her claims. She filed her EC Action (DCEC 2203/2019) on 13 September 2019 and the present action on 2 January 2020.

75.  It remains unexplainable why P filed her original claim in the present action (11 September 2020) that relies upon Version 1 and Location 1 as the place of the Accident, as, by then, she no longer had any reason to cooperate to falsify the place of Accident. The whole story shows, however, P was ready to lie if it suits her interests and what she affirms as the truth may not represent what had happened.

76.  P’s other contradicting oral evidence on the Interview is that:

(i) an unknown person called her by phone when she was hospitalized and told her not to tell Location 2 as the place of the Accident;

(ii) Ah Fung called her 2 days before the Interview to tell Location 1 as the place of the Accident;

(iii) when questioned in court as to what the unknown person told her as to the location of the Accident, she said it was the usual rest place (平時休息的地方) as later marked on P-1.

77.  P’s account of why she adopted Version 1 and how she was allegedly influenced lack credibility.

G6. P’s revised allegations, her Version 2 relating to where, why and how she was injured.

78.  What needs to be investigated is the inherent probability or improbability of the evidence in her 2^nd supplemental statement (B/95-124) as to nature of her work, how she came to use the Access Path, how the alleged injury was sustained by reference to the photographs produced, the Plan and Exhibits P-1, P-2, D2-1 as to the terrain and the ingress and egress points, etc.

79.  First, P’s description of nature of her work at §5 of P’s 2^nd supplemental statement. P alleges that on the day of the Accident only she was at work as casual worker to remove debris after completion of slope stabilization, left on the concrete path with metal railing as shown in photo Exhibits LLY-9 (B/121) and LLY-10 (B/123). She alleged she was to remove tools, sundry items and debris according the D1’s instruction and previous practice. P said she had to remove steel spade, wood strips, waste materials and metal mould from the concrete path that enveloped the Slope to the place marked on the Plan (B/105) as the Tools Collection Area. P said she was unable to move these items and had to push and roll them to the Access Path and to push them down the inclined slope to the Tools Collection Area. P draws reference to LLY-7 (B/117) and LLY-8 (B/119) as to the kinds of materials that had to be removed. P, in oral evidence, said she would bundle the wood strips to be rolled down. It is observed that bundling used wood strips and plywood sheets for removal may not be practical given their various lengths and sizes, and it would likewise not be practical to roll down the metal mould given its weight and shape. From Exhibit LLY-10 (B/123), one can see from the photograph that the alleged Access Path and the alleged place of the Accident was over grown with mature trees. The alleged place of the Accident is part of the overall slope, shown to be with trees of various sizes (B/119). There is no photographic or corroborating evidence from P that the Access Path was shorn of trees and growth at the time of the Accident.

80.  Second, it is P’s evidence at §6 of her 2^nd supplemental statement that the entire Slope was surrounded by the FEHD site, the Houses of Ms Lam and Mr Deng and the bamboo growth, inaccessible by large vehicle. Hence, debris and other materials had to be placed at the Tools Collection Area, to be collected by hoist mounted truck (吊雞車), parked as shown in position of the truck with black body at photo Exhibit LLY-4 (B/111). It is observed there is no bamboo growth shown behind either the truck or the black vehicle or anywhere on B/111. Further it is the unchallenged evidence of Mr Leung, D1’s witness, as shown and marked on Exhibit D2-1, that the upon the descending left staircase, going left upon the Path would lead to the Temporary Site Office, with an open area for storage of tools and debris and accessible from the road at the bottom of Exhibit D2-1.

81.  Third, it is P’s allegation at §9 of her 2^nd supplemental statement that when she fell, Mr Ding, the site supervisor, first came. Mr Ding then went to Mr Deng’s home to seek help and at the same time Mr Ding called P’s superior Ah Fung. Ah Fung came with several unknown persons. Ah Fung and the unknown men assisted P to get down from the Access Path to the road shown on B/105. No evidence has been given by either Mr Ding, Mr Deng or Ah Fung as to the location of where P fell and how P was assisted and removed from the place of the Accident. P alleges at §15 that Mr Ding had been contacted since the Accident, but refused to be a witness. Hence, save for P’s own allegation, there is no evidence from any of the named or un-named persons allegedly present at where P fell.

82.  Based on the entirety of P’s evidence before me, including matters I have not find necessary to repeat in this Judgment, I find that P has not proved, on the balance of probabilities, that Location 2 was the place where the Accident occurred. I find that the alleged Access Path was not the only way for egress. In fact, P admitted in oral evidence it was not safe and it was safer to egress by way of the stairs to the left of the Slope or the two sets of concrete stairs on either side of the Slope. It was pointed out to P that she was careless (貪方便) and she agreed. I find, overall, P evidence in Court as to Location 2 as the place the Accident and her account of going to the alleged Access Path to collect her water bottle that was hung on a tree to be incredible. P’s different versions of how the Accident happened are inconsistent and her Version 2 is disbelieved. It was observed she hesitant at times and her account is incomplete. P had failed to come across as an honest credible witness. I find it hard to believe that P rolled the bundled wood strips down the Access Path to the alleged Tools Collection Area. It is P’s allegation that she hung her water bottle on a tree on the Access Path at the location marked with a horizontal red mark at Exhibit P-1. Failing to produce further evidence as to the lack of other trees and vegetation on the alleged Access Path, a reasonable inference is that the alleged Access Path had growth on it, similar to the surrounding areas, preventing the alleged rolling down of materials to be removed, in particular, bundled wood strips. Further, as no evidence had been adduced as to height and density of the bamboo growth, I am not convinced that the alleged debris and metal mould could be reached and removed by a hoist mounted truck parked at the location as shown on B/111. A more reasonable place for collection of debris and tools by truck would be the open area next to the Temporary Site Office.

G7. Evidence of Mr Leung Yan Kit of D1

83.  At the material times, Mr Leung was D1’s general manager and is no longer with D1. However, Mr Leung did not witness how and where P met the Accident. Three statement were produced by Mr Leung for this action: (i) his witness statement; (ii) his supplemental statement; and (iii) his 3^rd supplemental statement.

84.  Mr Leung’s statement (B/131-138) is confined to the following: (i) the alleged Accident which he did not witness; (ii) condition of the slope and the Pathway that was connected to the Lane or Path behind the homes of Mr Deng and Ms Lin; (iii) cleaning system implemented by D1; (iv) safety warning and training implemented by D2; and (v) advance payments by D1 and D2 to P following the Accident.

85.  In his supplemental statement (B/139-145), Mr Leung’s evidence is on the following: (i) P was only a general labourer and was not engaged to carried out construction work; (ii) Mr Ding, the site supervisor was not known to D1 and/or Mr Leung; (iii) Uncle Ping and his sons were not known to D1 and/or Mr Leung; (iv) When Mr Leung arrived with Ah Fung at the scene of the accident, Mr Ding was not there; (v) the allegation that Mr Chan directed P to falsify the location of the Accident is completely false and Mr Chan was employed by D2; and (vi) there was All Risk insurance taken out by D2 covering D1’s employees pursuant to Clause 14 (1.1) of the contract No GE/2015/02/SCTP between D1 and D2.

86.  In his 3^rd supplemental statement (B/146-152), Mr Leung’s evidence is: (i) D1 had implemented safety systems and provided a safe working place for employees; and (ii) it is unusual and uncommon for anti-debris carpet to be installed.

87.  In his oral evidence, Mr Leung clarified that;

(i) the alleged Access Path, was not part of the Slope;

(ii) the role of Ah Fung was similar to a sub-sub-contractor with D2 being the main contractor and D1 the subcontractor;

(iii) instruction was not given to move debris to the alleged Tools Collection Area;

(iv) Mr Leung had the location of the Temporary Site Office marked as Exhibit D2-1;

(v) there was an open area next to the Temporary Site Office for storage of sundry tools and materials, and the open area was accessible by a road shown on B/105;

(vi) Mr Leung also drew the attention of the Court to Summary of Safety Record at E1/645-649, and the D2’s Hazard Identification Activity Meeting Attendance Record at E1/723 and 724;

(vii) before the job was completed, there were temporary stairs and a working platform for access of materials;

(viii) Ah Fung was sub-subcontracted the entire slope stabilization job;

(ix) D1 did not give instruction as to which road to use for access to public toilet;

(x) there was hoarding surrounding the Slope which was gradually demolished according to need as the job progressed;

(xi) at the time of the Accident, the temporary stairs had been demolished, leaving completed concrete stairs to the left and to the right of the Slope;

(xii) the Resident Engineer was not hired by D1;

(xiii) Mr Ding, the alleged Site Supervisor, was engaged by the Government appointed supervision company AECOM Asia Company Ltd (“AECOM”) (E1/644) and not D1;

(xiv) there was Safety Notice Board at Site and weekly safety inspection; and

(xv) as the slope stabilization benefits Mr Deng and Ms Lin, they were permissive of access and exit of the Slope through their houses.

G8. Evidence of Mr Edward Yuen of D2

88.  Mr Yuen is the sole director of D2. Mr Yuen gave evidence in his witness statement (B/159-202) as follows:

(i) since around 1997, D2 had been awarded 13 landslide prevention and mitigation programmes by the Hong Kong Government Civil Engineering and Development Department (“CEDD”), six of which were subcontracted to D1;

(ii) D1 was to perform in accordance with the terms of the subcontracts including employment of experienced staff and workers including site agent, safety officer, safety supervisor and implementation of safety procedures;

(iii) pursuant to the subcontract, D1 was to decide how to carried out the works, and D1 had control over the Slope;

(iv) D2 did not know Mr Ding or the alleged Uncle Ping or his two sons;

(v) Mr Chan the safety officer was employed by D2 upon D1’s recommendation;

(vi) D2 had never instructed Mr Chan to make a false statement and Mr Chan had no personal interest in the outcome of the proceedings; and

(vii) an insurance All Risks policy had been taken out with the Asia Insurance Company Ltd to indemnify the insured “against his legal liabilities in respect of bodily injury or death under the Employees Compensation Ordinance Cap 282 and independently of the Ordinance to pay compensation and damages …”. Importantly, this militates against P’s claim that she was influenced by calls from Ah Fung and unknown person to say that the place of the Accident was Location 1 instead of Location 2 due to insurance coverage concerns.

89.  Mr Yuen’s 2^nd supplemental witness statement (B/203-229) covers only D2’s position as to the safety mat, and his 3^rd supplemental witness statement clarifies that while Mr Chan (陳贊華) was appointed safety officer, he was not employed by D2, but by D1 (B/210-211).

90.  Lastly, Mr Yuen gave oral evidence that AECOM, the consulting engineer, was engaged by CEDD to supervise and administer the contract.

G7. Evidence of Mr Liu Kai Choi of D2

91.  Mr Liu was not present at site and did not witness the Accident. He has no factual evidence to offer and his statement (B/153-158) would not be repeated here.

92.  Having read their statements and heard their evidence, I find Mr Leung Yan Kit and Mr Yuen Chung Yuen to be credible witnesses and their evidence as to material facts was of assistance to this Court in its deliberations.

G8. The Access Path (Location 2)

93.  On the evidence, I find that the Access Path was outside of the Slope with hoarding erected to surround it at the relevant time of the works. I conclude the Access Path was not part of the workplace for the purpose of OSHO. The purpose of OSHO at §2(b) is “to prescribe measures that will contribute to making workplaces of employees safer and healthier for them” and §6 under the heading “Responsibility for Safety and Health of Employees at Work” mandates at §6(1) that “Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees”. §6(2)(d) stipulates that “as regards any workplace under the employer’s control” for the Employer to provide or maintain means of access to or egress from the workplace that are so far as reasonably practicable, safe and without such risks.

94.  Insofar as the Access Path, firstly it was not under the control of D1 or D2 and secondly, it was not part of the workplace. Therefore, the provisions of OSHO do not apply. Further, D1 had provided two sets of concrete stairs at B/105 for safe ingress and egress and the means of safe access and egress that are required to be provided is subject to it being reasonable and practical to be so provided.

95.  I also find D1 and D2 were not occupiers of the Access Path within the meaning of the OLO. OLO was enacted to regulate the duties upon an occupier to his visitors in consequence of the occupier’s occupation and control of the premises. It is noted at §2(2) that “for the purpose of the rules so unacted, the persons who are to be treated as an occupier and as his visitor are the same as the persons who would be at common law be treated as an occupier and as his invitees or licensees and, at §3(5), it is stipulated that “the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor”.

96.  Here, D1 and/or D2 was not in control of the Access Path being outside of the Slope, that is, the workplace, and P voluntarily took the risk without instruction and entered upon the Access Path for her own convenience. In short, P took and accepted the risk of allegedly using that part of the slope outside the workplace that at one time was hoarded up. I find that OLO has no application even if the alleged Accident occurred at Location 2.

97.  As for FIUO, P has abandoned this head of claim. In any case, §19 of FIUO provided that “this Ordinance does not confer a right of action in civil proceedings in respect of a failure to comply with section 6A, 6B or 6BA” and §6A stipulates the “General Duties” of a Proprietor defined including the duties at §6A(2) of (i) provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risk to health; and (ii) provision of information, instruction and training as is necessary. Clearly, FIUO has no application insofar as the Accident is concerned.

98.  It is stipulated at §2(2) of the CSSR that it applies to a contractor who is responsible for a construction site if he is undertaking construction work, or if there is more than one contractor, that would be the principal contractor there. D2 was the main contractor of the stabilization of the Slope. However, §38A(2) only holds the contractor responsible in so far as it is reasonable to ensure safe access to and egress from every place of work. §38AA(2) also holds any contractor who has direct control over any construction work to ensure, so far as is reasonably practicable, suitable and adequate safe access to and egress from every place of work. This may apply to D1. However, D1 had provided suitable and safe access by means of the two sets of concrete stairs to the left and to the right of the Slope. The Accident allegedly occurred at the Access Path was not due to lack of safe access.

99.  Summing up,

(i) in view of P’s pleaded case that the Accident allegedly occurred at Location 2, I find there was no breach by D1 and/or D2 of the pleaded statutory duties or common law duties and no breach of the implied terms of employment contract between P and D1;

(ii) I would add in view of the nature of P’s work as casual worker, to clear debris left after completion of the slope stabilization, there was no need for training and a prescribed system of work; and

(iii) For the above reasons, I find that neither D1 nor D2 is liable for the Accident alleged happened at Location 2.

H. Quantum

100.  For the sake of completeness and in case this matter goes further and I am wrong in my conclusion on liability, I shall also set out my findings on quantum.

101.  Parties’ quantum submissions (post hearing)

Head of Damages (in HK$)	P	D1	D2
PSLA	320,000.00	250,000.00	230,000.00
Pre-trial loss of earnings	463,552.85	260,150.00	273,157.50
Loss of MPF	23,177.64	13,007.50	0
Post-trial loss of earnings & MPF	0	0	0
Loss of Earning Capacity	57,755.30	0	0
Special Damages - Medical	11,578.00	11,578.00	11,578.00
Special Damages – Travelling	5,000.00	3,000.00	5,000.00
Special Damages - Tonic Food	7,948.00	3,000.00	5,600.00
Sub-total	889,011.79	540,735.50	525,335.50
Less sum awarded DCEC	(407,774.80)	(407,774.80)	(407,774.80)
Total	481,236.99	132,960.70	117,560.70

102.  On the issue of quantum, the parties have repeated their positions as detailed in their respective Opening Submissions.

103.  There are only two main areas of disagreement: (i) PSLA; and (ii) Pre-trial Loss of Earnings.

H.1 Background

104.  P was born on 5 January 1969, and was 48 years old at the time of the accident, ie 22 November 2017.

105.  After the accident P attended the Accident & Emergency Department of Pok Oi Hospital. A right leg fracture fixation was performed in the Department of Orthopaedics & Traumatology. She was discharged after the 28 November 2017 operation. She also received physiotherapy and occupational therapy treatments.

106.  P was given Medical Certificates for sick leave until 29 November 2019 (C/230-285 at 230).

107.  According to P, she resumed work in June 2020 as a mask packing worker, earning HK$400.00 per day, for just one week. Since August 2020, P worked as a general labourer at a construction site, earning HK$700.00 per day and HK$18,200.00 per month (HK$700.00 x 26) (A/84/§§24-25).

H2. Joint Orthopaedic Report by Dr Patrick Wong and Dr Peter Lung

108.  P was examined by Dr Wong (appointed by D2) and Dr Lung (appointed by P) on 21 July 2020. A joint report was prepared on 30 October 2020) (D/608).

109.  There, Dr Wong and Dr Lung agreed (D/616-617):

(i) P suffered fracture right tibia and fibula as a result of the accident;

(ii) The treatment received by P was standard, adequate and appropriate;

(iii) Physical examination showed satisfactory recovery:

(a) that she can walk unaided slowly;

(b) with no significant swelling or deformity over her right leg;

(c) without reduced muscle wasting of the right side; and

(d) only mildly reduced range of movement of right knee and right ankle.

(iv) P had attained maximal medical improvement (“MMI”) and her condition was static enough for assessment;

(v) P did not require any ongoing symptomatic treatment nor any further surgery;

(vi) P was able to manage activities of daily living. Her enjoyment of life and ability to cope socially will only be mildly affected;

(vii) P completed physiotherapy in November 2018 and competed occupational therapy in March 2019. Her condition was assessed to be static by that time. Therefore, sick leave should only be up to end of March 2019;

(viii) The experts did not agree on whether P should be capable of returning to her pre-accident job as a general labourer (D/619-620);

(ix) Dr Wong opined that P should be capable, and that her work efficiency and capacity will only be mildly reduced;

(x) Dr Lung opined that she will not be able to return to her original occupation as a general labourer, but could try occupations like shopkeeper or car-park cashier; and

(xi) On Assessment of Permanent Impairment/Evaluation of Loss of Earning Capacity (“LOEC”), referring to AMA’s Guide 6th ed, page 511, table 16-3, Dr Wong opined that P’s Lower Extremity Impairment (“LEI”) to be 5%, equivalent to whole person impairment of 2%. Dr Lung, however, opined P’s LEI to be 7%, equivalent to whole person impairment of 3%. (D/619).

H3. Examination by Dr Henry Ho

110.  P was further examined by Dr Henry Ho (appointed by D1) on 16 March 2022. A report was prepared on 8 April 2022 (D/624).

(i) Dr Ho also agreed on the areas already agreed between Dr Wong and Dr Lung (D/629-632);

(ii) P was rehabilitated with physiotherapy which ended on 20 November 2018 and occupational therapy which ended on 25 March 2019. Her progress was static on discharge from rehabilitation;

(iii) P came to the examination walking normally without a walking aid. No evidence of inflammation. There was only mild swelling. Range of movement of right knee was full. There was almost full range of movement at right ankle. There was hardly any asymmetry in the lower limb measurements. The measurements indicate excellent recovery;

(iv) Further treatment is not necessary;

(v) MMI had been reached;

(vi) She should have physical capacity to return to normal duty as a construction site general worker. Since there is excellent muscle bulk in her right lower limb, her right leg should be strong enough to handle the physical duties of her job. The range of movement of her right knee and right ankle are more than adequate for normal duty. The overall physical endurance of her right lower limb is expected to improve further due to conditioning after resuming normal duty; and

(vii) Sick leave until March 2019 was appropriate and adequate when her progress became static after physiotherapy and occupational therapy.

111.  On whether P should be capable of returning to her pre-accident job as a general labourer (D/632), Dr Ho agreed with Dr Wong that P should be able to return to her pre-accident job as a general labourer. Dr Ho added that her condition was better than the time she was assessed by Dr Wong and Dr Lung on 21 July 2020.

H4. PSLA

112.  In Hu Wan v Sanwo International Co Ltd (DCPI 3621/2019, 26 February 2021), the plaintiff slipped and fell from the ladder. She suffered from left ankle fracture. Surgery of open reduction and internal fixation was done. Ankle foot orthosis was moulded. Muscle wasting on her left lower limb could be found. There was residual left ankle pain and weakness, especially during prolonged walking and standing. Physiotherapy and Occupational therapy lasted until 2 years after the accident. Sick leave of 36.5 months was granted by treating doctors. PSLA award was HK$250,000.00.

113.  The injury of P in this case was less serious than those of Hu Wan. I have also considered liability and PSLA in the cases Lai Yiu Fong v Fancy Effort Ltd (DCPI 1547/2012, 31 March 2014), Lau Kei Hin Ivan v Wing Kai Building Materials Limited (HCPI 744/2004, 15 March 2006), Lee Bon Yet William v Uncle Restaurant Management Ltd (HCPI 1006/2003, 16 September 2005) and Ma Yuet Pong v Chan Kar Wai and Anors (HCPI 577/2010, 3 October 2012). In light of the findings in respect of PSLA in the circumstances of the above cases and the factor of inflation, I find that the appropriate PSLA sum to be awarded shall be HK$250,000.00.

H5. Pre-trial loss of earnings and MPF

Sick leave

114.  The appropriate length of sick leave is important for the computation of Pre-trial loss of earnings. The starting point should be that three experts agreed that the reasonable sick leave period would expire by March 2019, ie 16 months plus 9 days, which is around 16.3 months.

115.  In P's Opening, P relies upon the sick leave certificates endorsed in the DCEC judgment. However:

(i) D1 says it is trite that such certificates would ordinarily be issued based on subjective symptoms reported to doctors by P, and therefore the judge cannot be bound by the mere issue of sick leave certificates: §§8-9, Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210;

(ii) Second, the presumption in section 10(2) of the Employees Compensation Ordinance (Cap 282) provides that “for the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board on a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.” This is the presumption in section 10(2), that is irrebuttable in the absence of fraud: Sin Fu Yau v Wong Po Kee [2007] 1 HKLRD 159. However, the presumption is only relevant to employees’ compensation cases, but not common law Personal Injury proceedings: §§15-16 of Wong Fong Yuk v 黃興醒 (DCPI 1694/2013, 29 December 2017); and

(iii) D1 says the sick leave period should only be up to the end of March 2019 when both physiotherapy and occupational therapy were completed.

Period to seek job

116.  Regarding the period for P to seek job, P submits that 3 months would be a reasonable period, relying on several authorities: See P's Opening at §25.

117.  P resumed her employment 5 months after the end of her sick leave period does not mean that it took her 5 months to look for a job. There is no evidence when P started looking for a job. On the contrary, P was able to secure the role as a general worker one month after the end of her employment as a mask packing worker. D1 submits that the cases cited by P at §25 of P’s Opening do not stand for the proposition that such additional period should generally be allowed. D1 is only prepared to accept at most 1 additional month for P to seek job.

Income

118.  D1 has provided the payroll records of P (B/132; E/912-918):

Month	Salary (HK$)	No of Work Days
May 2017	13,875	18.5
Jun 2017	18,000	24
Jul 2017	17,250	23
Aug 2017	13,500	18
Sep 2017	18,750	25
Oct 2017	17,250	23
Nov 2017	14,250	19
Total	112,875	150.5
Average	16,125	21.5

119.  P does not dispute with the record (§20 of P’s Opening)

(i) P was actually paid based on the number of days worked (rather than number of months) and P worked for an average 21.5 days per calendar month;

(ii) For the purpose of calculation of damages due to loss of income, P calculates her earning each year based on the period of her employment of 205 days, instead of 150.5 days being the days she worked over the period. That calculation results in P earning over a year of 365 days HK$200,972.56;

(iii) P argues that her income from the second year onwards should be subject to a 3% increment, following the DCEC judgment: See P's Opening at §27.

120.  Therefore P claims for 828 days of loss of income, being 738 days (based on sick leave certificates and 90 days of looking for a job. See §26 of P’s Opening and P claims:

(i) 1^st year after the Accident in the sum of HK$200,972.56;

(ii) 2^nd year after the Accident for 828 days less 365 days for 1^st year, with an increment of 3% in an sum of HK$262,580.29; and

(iii) Loss of MPF being 5% of the total sum HK$463,552.85 in an amount of HK$23,177.64.

121.  D1’s calculation, however, is based on sick leave to end of March 2019, being 16.3 months (§47 of D1’s Opening Submissions) plus one month for job seeking. The amount for loss of income being HK$16,125 times 17.3 resulting in the sum of HK$278,962.50.

122.  Therefore, the difference in the parties’ pre-trial loss of earning figure mainly came from: (i) the sick leave period; (ii) the period for job seeking; and (iii) the number of days P worked. It was P case she worked 26 days per month, but this has been proved wrong by actual figures; and (iv) the 3% increment for 2^nd year.

123.  For the sick leave period, relying on the Expert Reports of the doctors, I find that it should only be up to the end of March 2019.

124.  For job seeking, I find a 3-month period reasonable.

125.  I do not find for the 3% escalation following the 1^st year.

126.  The pre-trial loss of earning should be calculated on the aforesaid basis would be in the sum of HK$16,125.00 x 19.2 = HK$309,600.00

127.  MPF based on 5% pre-trial loss is in the sum of HK$15,480.00.

H6. Post-trial loss of earnings and MPF

128.  It is P’s own case that she has been earning HK$18,200.00 per month since August 2020, which is higher than her pre-accident monthly income of HK$16,125.00 (A/84 at §25). Hence, P rightly conceded and there is no damages under the head of post-trial loss of earnings and MPF.

H7. Loss of earning capacity

129.  In Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, Keith JA held at 311-312G that if there is a “substantial” or “real” risk that a plaintiff would lose his present job at some time before the estimated end of his working life, and he thereby suffers the risk of financial damage, he may be awarded future loss of earning capacity.

130.  In this case, a single digit of 1-3% whole person impairment resulting in “reduced work capacity and efficiency” does not give rise to any loss of earning capacity. It is not an injury that is ‘career-ending’ for the job of casual labourer: §§15-25 of Chan Sze Yuen v Tin Wo Engineering Co Ltd v Anors (HCPI 427/2008, 5 February 2016).

131.  According to Dr Ho, since 2022, the range of movement of her right knee and right ankle are more than adequate for normal duty according and the overall physical endurance of her right lower limb is expected to improve further due to conditioning after resuming normal duty. In light of P’s satisfactory condition, there is simply no substantial / real risk that she would lose her present job. Hence, P’s claim for loss of earning capacity is not allowed.

H8. Special Damages

132.  In respect of the three heads of special damages, parties’ figures are similar and accordingly, P’s figures for medical of HK$11,578.00, travelling of HK$5,000.00 and tonic food of HK$7,948.00 are to be adopted.

I. Conclusion on Liability of D1 and/or D2 and Orders

133.  Having considered all the evidence, I find that P has failed to prove that Location 2 was the location of the Accident and Version 2, being P’s pleaded case of the events leading to the Accident. In short, P’s Location 2 and Version 2 are disbelieved.

134.  In summary:

(i) P’s claim against D1 is dismissed;

(ii) P’s claim against D2 is dismissed;

(iii) As for costs, I make the following nisi order which shall become absolute in the absence of any application to vary within 14 days of the date of handing down of this Judgment:

(1) P do pay D1’s costs of this action to be taxed on party and party basis if not agreed with certificate for counsel; and

(2) P do pay D2’s costs of this action to be taxed on party and party basis if not agreed with certificate for counsel.

135.  Lastly, it remains for me to thank counsel for their helpful assistance.