LIU KIN PONG v. KEE WAH FOOD PRODUCTION LTD

HCPI 632/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 632 OF 2014

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JUDGMENT

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A. Introduction

1.  In January 2012, the plaintiff was 23 of age.  According to the oral evidence he gave at the trial, at around 10 am in the morning on 2 January 2012, he was moving a tall and heavy cage trolley (“the Trolley”) to an oven room.  He said he had already done this for 20 times after he started work at 7:30 am.  He did not feel anything uneasy or painful before but at this last time, according to him, having moved the Trolley for about 30 metres, his left leg suddenly felt painful, so painful that he had to kneel down and cried out.  He then hopped with his right leg and sat on a side of the oven room.  While sitting, he felt his left leg tremoring and twitching.  However, there was neither swelling nor bruise.  After taking some rest, he went to his employer’s canteen to have lunch, and then went home.

2.  He alleges that he sprained his left leg on this occasion.  He asserts that as a result of this injury, he stopped working for some years[1]. In fact, he did not work until now, more than 5 years after the accident.  In these proceedings, he claims damages for personal injury against his employer, the defendant. The defendant disputes both liability and quantum.

3.  On liability, the plaintiff claims the accident was caused by the defendant’s negligence, breach of employment contract or breach of statutory duties. 

4.  In essence, on negligence and breach of employment contract, the plaintiff says the defendant had failed to provide a safe system of work, to provide suitable tools (such as a smaller cage trolley) to the defendant to safely complete his duties, to take reasonable care of the plaintiff, to provide a reasonable working environment, to provide adequate safety information, instructions, training and supervision and to provide sufficient manpower or co-worker. 

5.  On breach of statutory duties, the plaintiff says the defendant had contravened section 6 of the Occupational Safety and Health Ordinance, Cap 509 (to ensure the safety and health at work as far as reasonably practicable) and Regulation 23 (to make a suitable and sufficient preliminary assessment of the risks to the safety and health of the plaintiff and a suitable and sufficient review of such preliminary assessment), Regulation 24 (to avoid the need for the plaintiff to undertake manual handling operations which might create safety and health risks) and Regulation 27 (to take appropriate steps to reduce such health risks or enhance safety and to provide relevant information for like purposes) of the Occupational Safety and Health Regulation, Cap 509A.   

6.  The defendant contends (a) that the accident did not happen, (b) that even if it did happen, the accident was not caused by the defendant’s negligence, breach of employment contract or statutory duties, and (c) that even if the defendant was held to be liable as such, the plaintiff should be found liable for no less than 50% contributory negligence for failing to ask for assistance if he found it difficult to move the Trolley.

7.  On quantum, the seriousness of the injury is also vigorously disputed by the defendant.  The plaintiff’s major complaints are that:

(a)   He had constant pulling pain over his left calf, which was worsened upon walking.

(b)   He was unable to bend his left ankle when bearing weight on his left leg as he felt serious pain.

(c)   There was tremor and feebleness over his 4 limbs.

(d)   He had only limited tolerance for prolonged sitting and walking.

(e)   His left ankle was stiff, and he felt pain when standing on his left leg.

(f)   He found his right leg difficult to control.

(g)   He walked with heavy limps and had to walk with a stick.

8.  The defendant contends that the plaintiff’s injury, if any, should be of a relatively minor nature, and that he should be able to resume his pre‑injury occupation after 1 month, with no loss of earning capacity.

9.  The parties’ respective submissions on quantum of damages, should I find the defendant liable, are summarised as follows:

Item	Description		Plaintiff’s case		Defendant’s case
(1)	Pain, suffering and loss of amenities (“PSLA”)		$200,000		No more than $50,000
(2)	Pre-trial loss of earnings during the reasonable sick leave period		$166,162.50 ($7,500 × 633 ÷ 30 months × 1.05 (to include Mandatory Provident Fund (“MPF”)))		$7,875 ($7,500 × 1 month × 1.05 (to include MPF))
(3)	Pre-trial loss of earnings after the reasonable sick leave period		$117,600 ($4,000 × 28 months × 1.05 (to include MPF))		Nil
(4)	Post-trial loss of earnings		$1,203,048 ($4,000 × 12 months/year × 1.05 (to include MPF) × 23.87 (multiplier))		Nil
(5)	Loss of earning capacity		$200,000		Nil
(6)	Special Damages – Medical Expenses		$32,905		$32,905
(7)	Special Damages – Travelling Expenses and Tonic Food		$12,500 ($6,500 + $6,000)		No more than $4,000
(8)	Interest for PSLA at 2% per annum from the date of service of writ (July 2014) to the notional date of trial (June 2017) (35 months)		$12,000 ($200,000 × 35 months ÷ 12 × 2%)		[no calculation provided]
(9)	Interest for full special damages at half of the judgment rate (4% per annum) from the date of accident (2 January 2012) to the date of payment of employee compensation claim (“ECC payment”) (30 October 2013) (22 months)		$24,139 (($ 166,162.50 + $ 117,600 + $ 45,405)		[no calculation provided]
(10)	Interest for Remainder of special damages after deduction of the ECC payment at half of the judgment rate (ie 4% per annum) from date of the ECC payment (30 October 2013) to the date of the trial (June 2017) (44 months)		$21,878 (($ 166,162.50 + $ 117,600 + $ 45,405 − $ 180,000) × 4%		[no calculation provided]
(11)	The defendant asks for reduction of the damages by the degree of contributory negligence for which the plaintiff may be found responsible.
(12)	Lastly, both parties agree that credit will have to be given by the plaintiff for the amount of $180,000 being the employees’ compensation payment already received by him.

10.  I shall deal with the following questions in sequence:

(a)  whether the alleged accident did happen;

(b)  whether the alleged injury was serious;

(c)  whether the alleged accident was caused by the defendant’s negligence, breach of employment contract or statutory duties;

(d)  whether the plaintiff should be found responsible for contributory negligence; and

(e)  whether the injury suffered by the plaintiff was serious, and the appropriate quantum of damages.

11.  At the trial, there was one witness giving oral evidence for each side: the plaintiff for himself, and Mr Lin Kwai Cheong (“Mr Lin”), a senior technician employed by the defendant for it.  Although the plaintiff has engaged Dr Tio Man Kwun, Peter (“Dr Tio”) as his orthopaedic expert and Dr Yu Yuk Ling (“Dr Yu”) as his neurological expert and the defendant has engaged Dr Lam Kwong Chin (“Dr Lam”) as its orthopaedic expert and Dr Edmund K W Woo (“Dr Woo”) as its neurological expert, no expert was called to give oral evidence at the trial.  Therefore, I could only assess the experts’ evidence based on their reports, which were agreed by the parties to be admissible.

B.   The accident

12.  Whether the accident had taken place is a question of credibility of the witnesses.  I accept the defendant’s counsel’s submissions that in assessing the credibility of a party’s case on a particular issue, the court should take into consideration the following:

“(a) Whether the party’s case is inherently plausible or implausible;

(b) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(c) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility; and

(d) The demeanour of the witnesses.”

(See Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at paragraph 53, per Deputy High Court Judge Thomas Au (as he then was)).

13.  Following the above approach, I find the plaintiff’s evidence unreliable, for the following reasons.

14.  Firstly, the plaintiff’s oral evidence changed significantly from what he said in his two signed witness statements dated 6 March 2015 and 3 February 2017.  In his first witness statement, he said that after pushing the cage trolley into the oven room, he felt very painful at areas which were below his left knee to his leg tendon; he then informed Mr Lin, and Mr Lin suggested him sit down to take a brief rest; and after lunch, as he still felt great pain on his left leg, he informed his supervisor “Dai Lou”, whom allowed him to return home to rest.  This written account was materially different from his viva voce evidence that I have summarized in paragraph 1 above.  In particular, there is no mention at all in his witness statements that:

(a)  He already felt pain after he had pushed the cage trolley for about 30 metres.

(b)  He cried out loudly because of the pain; and it was so painful that he had to kneel down on his left knee right away.

(c)  He then hopped to one side of the room and sat down.

(d)  He forgot whether there was any person helping him to sit down.

(e)  After he sat down, his left leg tremored and twitched.  The tremor and twitch have been continuing since then.

(f)  There was neither swelling nor bruise.

These are essential details of the plaintiff’s alleged injury.  However, not only they were not mentioned in his witness statements, they were also not mentioned in his pleadings. 

15.  Secondly, the account of the accident given by the plaintiff to the doctors that he saw since 2012 changed from time to time:

(a)  The plaintiff did not go for any medical treatment on 2 January 2012 immediately after the accident.  The first time he went to see a doctor was 7 January 2012, 5 days afterward.  The Standard Medical Report of the A&E Department of Alice Ho Miu Ling Nethersole Hospital dated 7 June 2013 recorded the plaintiff’s diagnosis as “left leg sprain”, with the description that:

“ He had left leg sprain when pushing object on 2/1/2012. On examination, there was no swelling on left leg and joint movement was normal.”

Other than confirmation of no swelling, the plaintiff did not complain of any tremoring or twitching.

(b)  On 11 January 2012, the plaintiff went to the A&E Department of the same hospital.  In the Standard Medical Report dated 9 June 2013, the description of his condition was:

“ He sustained an injury of sprain left leg whilst at work on 2 January 2012. Physical examination showed tenderness over left leg calf region. There was no local swelling.”

Again, the plaintiff did not complain of, nor was he found any, tremoring or twitching.

(c)  On 14 January 2012, the plaintiff went to see the A&E Department of the same hospital again.  The Standard Medical Report dated 13 June 2013 described his condition:

“ Mr Liu attended our department for left calf pain on 14/1/2012. He complained of pain started after he suffered from strained injury on-duty on 3/1/2012[2]. On physical examination, there was no tenderness nor swelling over bilateral knees and calves. The range of movement of both knees was full. She [sic] was discharged home with medications for pain relief after X ray films[3] were taken.”

Again, the plaintiff did not complain of, nor was he found any, tremoring or twitching.

(d)  On 17 January 2012, the plaintiff went to see Dr Chen Chi Kin, a Specialist in Orthopaedic Surgery (“Dr Chen”) for treatment.  In Dr Chen’s medical report dated 3 June 2013 that the plaintiff consulted for treatment, Dr Chen recorded that, “he complained of left leg pain and swelling after a sprain injury when he was working on 2.1.2012.” (my emphasis in italics).  This time the plaintiff did not complain of any tremoring or twitching but he complained of swelling.

(e)  On 16 April 2013, the plaintiff was interviewed by Dr Lam.  In paragraphs 14 and 15 of his report dated 6 June 2013, Dr Lam recorded what the plaintiff said about the accident:

“ 14. Mr Liu alleged that he was injured at work in the morning on 2/1/12. He described that while he was pushing a trolley (loaded with trays of food materials) to the oven room, he felt sudden left calf pain.

15. He said he had had already pushed 30 – 40 rounds of trolley in that morning. He said he did not have particular sprain of joints, contusion against object, or fall to the ground on that day.” (my emphasis in italics)

In this interview, he did not mention crying out, kneeling down, tremoring or twitching. Instead, he confirmed that he did not have sprain of joints or contusion against object or fall to the ground at the accident.

(f)   On 29 April 2013, the plaintiff was examined by Dr Woo.  In his report dated 13 May 2013, Dr Woo recorded what the plaintiff told him about the alleged accident:

“ Mr Liu recalled that the accident occurred at around 10 am on 2^nd January 2012. He was pushing a loaded cart (estimated to weigh at least 300 pounds) over a distance of about 20 to 30 metres towards an oven (an act that he had been regularly performing). Before he reached the oven, he suddenly noted pulling pain in the left calf. He could not recall any impact to the calf, nor did he step over any object on the floor. He had to leap on one foot to a chair. He reported the matter to his supervisor and was advised to rest. He sat for more than an hour during which the left leg started to tremble. By about 11:30 am, he limped to the canteen (on the same floor as the working area) for lunch. When he finished his lunch in 15 minutes, he went down (via the lift) to the ground floor (from the second floor where the accident occurred) to lie down to rest at the sick bay. The calf pain appeared to improve in 15 minutes and so he returned to the working area on the second floor (via the lift). He attempted to resume work but the pain recurred and intensified, especially when he was inside the oven. He could not continue and hence went home at around 12:30 pm.” (my emphasis in italics)

In this version, the plaintiff did not mention crying out or kneeling down, but he complained of trembling.

(g)  On 10 June 2015, the plaintiff was jointly examined by Dr Lam and Dr Tio.  As recorded in their joint report dated 14 July 2015, the plaintiff’s recollection of the accident was the same as he told Dr Lam in the last occasion (see sub-paragraph (e) above).  In other words, he did not tell the two experts that as he felt great pain, he had cried out and knelt onto the ground, and that his left leg started tremoring and twitching while he sat on the side of the oven room.

(h)  On 3 March 2016, the plaintiff was jointly examined by Dr Yu and Dr Woo.  This time the plaintiff told them that he knelt on his left knee because of the pain, but he did not mention of crying out or tremoring or twitching.  What he said this time was recorded in paragraph 4.2 of the joint report dated 19 July 2016:

“ Mr Liu informed us that, at the material time, he was pushing a loaded trolley (estimated to weigh at least 500 pounds) towards an oven room (an act he had been regularly performing). Just before he reached the oven room, he suddenly noted pulling pain in the left calf. He could not recall any impact to the calf, nor did he step over any object on the floor. He said the pain commenced when he exerted pressure with the left foot on the ground. There was no twist or turn of the left ankle. Because of the pain, his left leg gave way so that he knelt on his left knee. He managed to push the trolley away and he stood up by himself. He hopped on one leg into the oven room and sat down. He massaged the left calf. After resting for about 90 minutes, he stood up and hopped to the canteen (on the same floor as the oven room) for lunch. When he finished his lunch in 15 minutes, he went down (via the lift) to the ground floor (from the second floor where the accident occurred) to lie down to rest at the sick bay. The calf pain appeared to improve in 15 minutes and so he returned to the working area on the second floor (via the lift). He attempted to resume work but the pain recurred and intensified, associated with cold sweating. He could not continue and hence left at around 12:30 pm. He went home by bus alone.” (my emphasis in itlaics)

16.  Thirdly, apart from the material details of the accident referred to above, the plaintiff’s evidence also changed from time to time in other aspects of his case.  As submitted by the defendant’s counsel, there are two notable examples:

(a)   In the Statement of Claim (the truth of which he had signed to confirm) dated 3 July 2014 and his first witness statement dated 6 March 2016, he claims that he sprained his left calf as a result of pushing a cage trolley weighing more than 400 pounds over a rough and uneven passageway.  He did not complain of pushing any damaged wheel of trolley.  In his supplemental witness statement, he said the rough and uneven passageway was in fact the floor of the oven room which was covered with anti-slippery tiles, and he was not certain whether or not at the day of the accident he used any damaged cage trolley.  However, when he gave oral evidence at the trial, he said that he did use cage trolley with damaged wheels on 2 January 2012 before the accident.

(b)   Regarding the weight of the cage trolley, the plaintiff pleaded in the Statement of Claim that it was about 400 pounds.  In his witness statement, he stated that it was over 400 pounds.  When he was examined by the orthopaedic experts Dr Lam and Dr Tio, he told them that he was pushing a trolley loaded with trays of food materials, estimated 170 – 200 pounds, to the oven room (as recorded in paragraph 30 of their joint report, referred to in paragraph 15(g) above).  When he was first examined by the defendant’s neurological expert Dr Woo, he told Dr Woo that he was pushing a loaded cart estimated to weigh at least 300 pounds (see paragraph 15(f) above), but when he was examined by both sides’ neurological experts — Dr Yu and Dr Woo, he told them that he was pushing a loaded trolley estimated to weigh at least 500 pounds (see paragraph 15(h) above). 

While these incidences might be understood as individual incidences where the plaintiff made casual estimations or recollections which might be no more than demonstrating his intention to emphasize that the trolley was heavy and there were broken trolleys, taking into account the numerous inconsistencies that he told his lawyers and doctors in so many occasions as mentioned above, I find that his evidence is not credible and must be scrutinised with extreme care. 

17.  The plaintiff’s counsel submitted that past version should not cast doubt against the plaintiff’s version of the incident in court.  He relied on the Court of Appeal’s judgment in Chan Chi Shing v Tsang Fook Metal Engineering CACV 238/1999, 21 December 1999, per Keith JA at page 3:

“ [5] ... 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 undermined 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. …”

18.  I have borne in mind the court here is to determine whether, on the balance of probabilities, the plaintiff’s current version is correct.  Based on the above analysis, I find that in the present case, the plaintiff’s many different previous versions of the accident have clearly undermined his current version given at the trial.  The inconsistencies in many different versions demonstrated above, particularly with regard to the material details such as whether the plaintiff was so painful that he cried out and knelt on his knee, whether right after he was injured his leg had already started to tremble, tremor or twitch, were inexplicable and the plaintiff did not adduce any evidence or provide any reason which plausibly explained why he gave so many different accounts of the event in so many occasions.

19.  Fourthly, other than the plaintiff’s own oral evidence, there is no objective or documentary evidence which supports his current version of the accident.  There was no eye witness to the accident.  There was no direct evidence of the accident.  There was no external wound of the injury.  As I have noted in paragraph 15(a) above, the plaintiff only came to hospital 5 days after the accident, and even in the record of that consultation, the doctor reported that, “On examination, there was no swelling on left leg and joint movement was normal.”  The plaintiff’s counsel relied on a Form 2 — Notice by Employer of An Accident to an Employee Resulting in Incapacity filed in accordance with section 15 of the Employees’ Compensation Ordinance dated 17 January 2012, arguing that it is a contemporaneous record of the accident.  However, as submitted by the defendant’s counsel, this report is at best self-serving, because it was prepared on the basis of the plaintiff’s own claim of accident.  This can be seen from the description of the accident in Part D of the report, which reads:

“ Employee claims that he sprained his left leg while pushing a caged trolley into the oven room.” (my emphasis in italics)

20.  I note with acceptance the general finding by Dr Lam in paragraph 84 of his report referred to in paragraph 15(e) above, after he interviewed the plaintiff on 16 April 2013:

“ This assessment was done 15 months after the alleged accident. At this examination, Mr Liu had multiple complaints. However, almost all of complaints are very vague and subjective. They are not supported by objective findings and not related to the alleged accident.” (my emphasis in italics)

21.  Fifthly, the plaintiff answered many questions in an evasive, hesitant or reluctant manner.  Same as Dr Lam’s comment referred to above, his answers were often vague and subjective and could not be supported by objective evidence.  In one instance when a question was put to him whether in his recollection he had pushed a cage trolley with broken wheel at the date of the accident, he said in his actual recollection there was none but if by deduction he should have done so anyhow; and when he was asked to confirm that in his actual recollection he did not push any broken cage trolley, he said he could not be sure, because he wrote “not sure” (probably referring to his witness statement).

22.  Sixthly, I find many parts of the plaintiff’s description of the event inherently implausible.  For instance, the plaintiff said he was so painful that he cried out loudly (“當場大叫”).  However, he said after he cried out loudly in the oven room, nobody came over, and nobody came to help carrying him. When he was questioned further, he said that he was asked what happened, but he had forgotten whether there was anyone helped carrying him, and he hopped to one side and sat down.  As confirmed by Mr Lin during cross-examination by the plaintiff’s counsel, the work place usually had 30 to 40 people and there were 3 – 4 persons responsible for pushing cage trolleys to and fro the ovens.  It was really surprising that nobody at all came to help the plaintiff when he cried out loudly for pain.  Coupling with the fact that the plaintiff never mentioned this in his pleadings and witness statements and to all the doctors that he saw, I do not believe the plaintiff’s account of the event.

23.  As to Mr Lin who gave oral evidence for the defendant, I find him to be an honest witness.  He was forthcoming when answering any questions and his answers were straightforward.  For instance, he said immediately without any hesitation that the photo in appendix 1 (mistakenly typed as “appendix 3”) to his witness statement dated 13 May 2015 was a cage trolley for carrying pineapple cakes instead of cookies which the plaintiff pushed at the date of the accident.  Therefore, when there is difference between the plaintiff’s oral evidence and Mr Lin’s, subject to checking against other documentary evidence, I prefer the evidence of Mr Lin.

24.  I therefore accept as fact Mr Lin’s account of the event as follows: In the morning on 2 January 2012, Mr Lin was working in the oven room.  He noticed that the plaintiff walked in a limping gait when he was working.  He asked the plaintiff what happened.  The plaintiff said his leg was painful.  Mr Lin then reported to the department supervisor what the plaintiff told him.  The supervisor then asked the plaintiff to sit down and take a rest.  I do not believe that the plaintiff had cried out loudly because of pain.  I also do not believe that his left leg had tremored and twitched on that occasion.

C.   Seriousness of the injury

Spraining of left calf

25.  I find that the plaintiff’s injury was minor and should have fully recovered within a relatively short time.  I shall state the reasons below.

26.  Whilst, as I have found, the plaintiff did complain in the morning on 2 January 2012 that his left leg felt painful, he did not go to see a doctor for treatment until 5 days later on 7 January 2012. The doctor at the A&E Department of Alice Ho Miu Ling Nethersole Hospital recorded that his general condition on initial presentation was satisfactory.  As mentioned in paragraph 15(a) above, the doctor found him on examination that there was no swelling on his left leg and joint movement was normal.  Since then, he had consulted various doctors continuously.

27.  On 11 January 2012, physical examination showed tenderness over the plaintiff’s left leg calf region but there was no local swelling.  On 14 January 2012, such tenderness disappeared, and although he complained of pain, there was no swelling, the range of movement of both knees was full and the X-ray films showed no fracture.  On 17 January 2012, the plaintiff went to see Dr Chen, as mentioned in paragraph 15(d) above.  Dr Chen’s examination showed tenderness and swelling over his left calf and the diagnosis was muscle sprain over his left calf.  Dr Chen recorded that on subsequent follow-ups, the plaintiff complained of persistent pain and swelling despite analgesics and 6 sessions of physiotherapy, but magnetic resonance imaging (“MRI”) performed on 24 February 2012 did not show any muscle tear or bony lesion.

28.  It can be seen that the injury was not substantial at all.  Although the plaintiff kept complaining of pain, apart from his own assertions, there was no substantiation of any objective medical evidence.  This observation was substantiated by the comments of Dr Lam, the defendant’s expert, whom interviewed the plaintiff on 16 April 2013.  Dr Lam made the following comments:

“ 67. On enquiry, Mr Liu [the plaintiff] said he did not have particular sprain of joints, contusion against object, or fall to the ground on that day. In another word, there was no strong element of injury.

68. As the trolley was wheeled, it would be very unlikely for pushing it on level ground to cause significant injury or tear of limb muscles. Based on Mr Liu’s own description, he at most had a strain or cramp of the calf muscles upon exertion.

69. As the calf muscles are very vascular, a tear is usually associated with massive bruising. Mr Liu said he did not notice any bruising in the next few days, showing that substantial muscle tear is rather unlikely.

70. He was first seen at AED of AHNH on 7/1/12. This delay in seeking treatment is also against the presence of substantial injury. If Mr Liu did have an injury which was capable to cause such chronic and disabling symptoms, the initial injury incident and pain should be very prominent. It would be very unlikely for him not to seek immediate treatment.

71. According to AED record on 7/1, 11/1 and 14/1/12, the findings were:

- left hip & knee & ankle ROM normal, non-tender; knee, ankle joint normal; Knee no swelling, ROM full;

- Left calf soft; left leg swelling⁰, redness⁰, tenderness+; Bilateral calf soft, non-tender; Bilateral calf no swelling; Circumference 35cm both sides;

- Achilles tendon intact.

72. The findings at the 3 AED visits showed that, despite his complaint, there were no detectable or objective abnormal signs at the left leg.”

29.  Subsequently on 10 June 2015, the plaintiff was examined by Dr Lam and Dr Tio jointly.  Dr Lam maintained his previous comments. Whilst Dr Tio, the plaintiff’s expert commented that it was likely that the plaintiff had soft tissue injury to his left calf as a result of the accident, and the plaintiff’s visits to Dr Chen (as mentioned in paragraph 27 above) were evidence that he did have symptoms and signs over his left calf in those visits, like Dr Lam, he also did not diagnose the plaintiff to have suffered any serious injury as a result of the accident[4].

Other complaints particularly tremoring

30.  Apart from pulling pain over his left calf, as summarized in paragraph 7 above, the plaintiff also made other complaints of injury.  Tremor was the major one.  My finding is that these complaints, including tremor, even if the plaintiff has suffered any, were not related to the accident. 

31.  I have found in paragraph 24 above that the plaintiff’s left leg did not tremor and twitch at the time of the accident.  Indeed, as recorded in the evidence referred to in paragraph 15 above, when he saw doctors in the first few occasions after 2 January 2012, he did not make any complaint of tremoring, shaking, twitching or jerking.  The very first time where there was any reference to the plaintiff’s leg tremor was 6 November 2012, more than 10 months after the accident, when the plaintiff was admitted to the orthopaedic ward of Alice Ho Miu Ling Nethersole Hospital during which examination showed that he had a resting tremor in the left lower extremity[5].  Since then, the plaintiff continually complaint of left leg’s tremor.

32.  At the trial, when the plaintiff was asked why he did not find a job, he said he could not, because his hands were tremoring and his legs were tremoring, particularly after he had sat, the signals of his whole body would match together once he stood up, and his legs would feel numb, with his four limbs becoming overly sensitive, which are the same with the nerves’ signals, such that he could not bend his legs, to the extent they could not even touch the ground and he could not even walk normally.  I asked him to demonstrate.  He shook his legs in a way which appeared to me more like a voluntary gesture instead of an involuntary tremoring. 

33.  It is telling to note the video taken of the surveillance on the plaintiff.  Having watched the video, I am in full agreement of the observation of Dr Yu and Dr Woo in paragraph 19 of their joint expert report:

“ 19. The surveillance CD-ROM taken of Mr Liu on 16^th April 2013, 29^th April 2013 and 24^th May 2013 was reviewed. Mr Liu was observed to walk, either alone or in the company of a lady, normally and independently for long distances. His gait was normal; it was clearly not spastic. He did not carry a walking stick. There was no tremor in either leg. There was no indication that he experienced pain in the left lower limb when he walked. These features were markedly different from those at this assessment (see Paragraph 18). His demeanour was normal. He used the mobile phone freely. He was observed to be sitting and eating in a restaurant; the surveillance did not capture his legs in the sitting position but he did not have any gross jerky movements in the trunk or in the upper limbs. He also demonstrated good bimanual dexterity with no tremor in his right hand. He was mentally alert, and was fully aware of the surroundings. He knew well the way and transportation to the various destinations. He crossed the road without any difficulty. He embarked onto the bus with ease. Overall, Mr Liu presented as a normal person of his age during the period when he was under surveillance.”

(my emphasis in bold)

34.  My finding that the tremor and other complaints, if any, are unrelated to the accident are substantiated by the findings of both parties’ experts.  Dr Tio and Dr Lam have agreed that:

(a)   The MRI scan of brain performed on 15 March 2013, which showed features suggestive of a small Rathke’s cleft cyst or pituitary microadenoma, is purely an incidental finding which is not related to the plaintiff’s left leg injury on 2 January 2012[6].

(b)   The MRI scan of the plaintiff’s cervical spine done on 15 March 2013, which showed mild posterior prolapse of the C3/4, C4/5 and C5/6 discs, are degenerative changes which are chronic and pre-existing.  They agree that these findings of degenerative changes could not be related to the plaintiff’s left leg injury in the accident[7].

(c)   The finding of the MRI which showed a benign bony lesion at C2, which is suspicious of a small vertebral haemangioma, is purely an incidental finding that is also not related to the left leg injury in the accident[8].

(d)   The findings of the somatosensory evoked potential (“SEP”) done on 2 June 2013, which suggested lesion of large fibre sensory conduction between sensory cortex and popliteal fossa, ie between the head and knee, could not be caused by a left leg injury[9].

(e)   Based on the clinical and investigation findings, the plaintiff’s limb tremor is not due to a physical cause[10].

(f)   At the joint examination, although (i) the plaintiff showed episodic shaking of hands and legs, he was observed to have less shaking when his attention was diverted, (ii) he carried a stick in his right hand, he could walk in an unsteady gait unaided, (iii) he was less stable with left side single-legged, tiptoes or heels, upon examination, other than generally weaker lower limbs, no neurological deficit in the upper and lower limbs was found[11].

(g)   The plaintiff’s symptoms and signs could not be related to a left leg injury[12].

(h)   The plaintiff’s complaint at the joint examination of bilateral shoulder tightness and on and off bilateral knee and ankle pain are unrelated to the accident[13].

35.  Not only that the plaintiff’s complaints are not supported by the orthopaedic experts.  They are also not supported by the neurological experts, Dr Yu and Dr Woo:

(a)   Both experts observed that the plaintiff had no serious injury in the accident on 2 January 2012[14].

(b)   Dr Yu opined [15] that the “tremor” that the plaintiff displayed during the joint assessment was atypical and did not conform to the pattern of any neurological disorder.  There was no feature indicating any disease which may bring about tremors, such as disorders of the cerebellum or brainstem, Parkinson’s disease, Wilson’s disease, benign essential tremor, neurodegenerative disease and thyrotoxicosis.  Further, in the surveillance video recording, no such tremor or any tremor was observed, although he noted that the neurologists at AHMLNH diagnosed psychogenic tremor after thorough observation and investigation[16].

(c)   As to the plaintiff’s complaint of pain in the left lower limb, Dr Yu opined that there was no objective sensory deficit or feature during the joint examination suggesting chronic regional pain syndrome, nor was there any indication in the surveillance video-recording that the plaintiff suffered from pain in left lower limb.

(d)   On the plaintiff’s complaint of jerky movement at the right upper and lower limbs and left upper limbs, Dr Yu observed that no such jerks were observed at the joint assessment or in the video-recording, and expressed the opinion that in any case, a minor injury at the left ankle and lower part of the left leg should not bring about such movements.

(e)   Dr Yu concluded that the symptoms under complaint are not neurological or organic in nature and hence no neurological complications arose as a result of the accident.  Nonetheless, Dr Yu adds that in general, non-neurological or non-organic symptoms following an accident may be psychogenic or simulated (factitious) and the proper approach is to rule out the former before the latter is diagnosed[17].

(f)   Dr Woo opined that the tremor is factitious.  Except this point, Dr Woo’s opinion was in substance the same as Dr Yu’s opinion.  Dr Woo stated that there is no neuropathological cause for the tremor, that the plaintiff exaggerated lordotic gait with hyper‑extension at the hips is totally inconsistent with a sprain in the calf, that the surveillance revealed the marked discrepancies between the tremor and the lordotic gait the plaintiff demonstrated at the joint examination and his normal demeanour when he was not under medical scrutiny, and that the delayed onset of the plaintiff’s complaint of tremor, ie not until 6 November 2012, militates strongly against any causal relationship between the accident and the tremor[18].

(g)   Both experts agreed on all other neurological aspects of the plaintiff’s complaints, namely: (i) the SEP findings of 2 July 2013 have no causal relationship with the accident[19], (ii) the plaintiff’s pre-existing medical illnesses cannot account for the accident or his residual disabilities[20], and (iii) the plaintiff does not have any neurological impairment and no neurological treatment is required[21].

36.  I have expressed the view at Footnote 17 above that as I have found that the plaintiff’s complaint of tremor was not the result of the accident, it is not necessary for me to find that the tremor was factitious.  Dr Yu raised the need to look into any psychogenic cause of the symptoms of tremor and feebleness.  Firstly, there was simply no psychiatric expert’s evidence adduced to support the plaintiff’s claim.  Secondly, according to the medical report dated 21 March 2016 by Dr Lam Hiu Ha of Department of Psychiatry of Alice Ho Miu Ling Nethersole Hospital/Tai Po Hospital, after the accident on 2 January 2012, the plaintiff had attended the Psychiatric Out-patient Clinic of Alice Ho Miu Ling Nethersole Hospital two times on 15 October 2013 and 28 March 2016 for evaluation of suspected psychogenic cause of lower limb tremor.  On both occasions, he complained of leg tremor.  However, on both occasions no psychiatric diagnoses were made.  It was reported that the plaintiff did not suffer any psychiatric disorder and did not require any psychiatric medications, and he was then followed up there mainly for monitoring of mood after injury.  There is no evidence of psychiatric illness at all, not to mention any finding on psychiatric cause of the alleged tremor.

37.  During his closing submissions, the plaintiff’s counsel invited the court to making the finding that the plaintiff suffered psychogenic tremor because of the accident.  I asked him the basis of making such a finding given the lack of psychiatric expert evidence and that even in the treating medical records no psychiatric illness was diagnosed.  The plaintiff’s counsel replied that I should base on common sense.  Taking into account the absence of psychiatric expert evidence and any psychiatrist’s positive diagnosis, and also the much belated onset of the alleged tremor, the answer from common sense must be against the plaintiff’s counsel’s invitation.  

38.  In conclusion, having considered all the evidence, particularly the medical experts’ opinions and the surveillance video, the only probable finding must be that the plaintiff only suffered a minor left calf sprain injury as a result of the accident.  He should have fully recovered within a short period of time.  His all other complaints, such as tremor, even if not factitious, cannot be proved to have been caused by the accident.  

D.   Causation

39.  The plaintiff’s counsel spent a great deal of time at the trial attempting to establish that:

(a)   Since the accident took place at around 10 am (instead of around 9 am as recalled by Mr Lin), the plaintiff had already pushed the trolley for about 20 times before the accident.

(b)   Because the Lunar New Year was approaching, the workload increased and the plaintiff had been working under high workload for many days already, during which he would be required to push the trolley for over 100 times a day.

(c)   Because of lack of manpower, everybody was busy, and so he received no help from his colleagues.

(d)   The trolley was very heavy.  Coupling with the rough anti-slippery tiles, a short-slanted slope with a metal board leading up to the oven and an ‘anchor ball’ at the front of the oven which required the plaintiff to use some force to push the trolley in, it was hard for the plaintiff to push the trolley.

(e)   The defendant had no system to check and discard or repair broken trolleys, and the plaintiff might have pushed broken trolleys before the accident.

As a result of all these, as the plaintiff’s counsel submitted, the plaintiff was injured.

40.  The plaintiff’s counsel submitted that the defendant had been negligent, in breach of its employment contract with the plaintiff or breach of its statutory duties in causing the accident, because the defendant had failed to provide a safe system of work, in that the defendant (a) had failed to carry out a preliminary assessment and further assessment to evaluate the risks to the safety and health of its employees performing manual handling operations, and (b) had failed to take measures to minimize the risks, such as by reducing the number of movements by re-arranging and improving the workplace layout and the weight of loads of the trolley, by avoiding rough and uneven floors, by practicing job rotation, by instructing other persons to assist the plaintiff, by providing stable gangways by using suitable coverings on uneven surface and by providing appropriate information of the loads and special training programmes for its employees.  The plaintiff’s counsel placed heavy reliance on Guidance Notes on Manual Handling Operations issued by Occupational Safety and Health Branch, Labour Department and Occupational Safety & Health Council.  He particularly referred the court to the following passages:

“ 4.1 … Manual handling operations are very often involved in everyday work. Incorrect manual handling operations involving ‌… prolonged or frequently repetitive motions … can lead to injuries such as sprains ….

4.2.1 …

(iii) Frequent or prolonged manual handling

Frequent or prolonged physical effort or speeding up in order to increase the rate of work, will increase the risk of injury.  In the same way, insufficient rest or recovery periods may increase incidence of injury.”

41.  I do not accept the plaintiff’s counsel’s submissions.

42.  Firstly, both the plaintiff and Mr Lin gave oral evidence that pushing cage trolley to the oven room was a daily routine of the plaintiff.  Every day he repeated this job many times and, before the accident on 2 January 2012, he had done it for a few months.  He had never complained that the trolley was heavy or that he was tired or that he needed a rest because he was tired.  He had never complained that the anti-slippery tiles were rough, making him hard to push the trolley over.  He had never asked Mr Lin or any other colleague for any help in pushing the trolley.  He had never complained that he felt pain during or after pushing the trolley.  In Mr Lin’s evidence, the plaintiff looked very much at ease when he pushed the trolley.

43.  Secondly, as a matter of fact, what the plaintiff was required to do at all material times of the present case is a simple task — to push a wheeled cage trolley loaded with cookies to the oven room.  The cookies could be many but the trolley was fitted with wheels.  Certainly, no fault could be found for the floor be laid with anti-slippery tiles, and anti-slippery tiles could not be said to be making the floor “rough” or “uneven” to any serious extent.  The plaintiff confirmed that when the accident took place, the trolley that he was pushing had not been damaged.  All in all, it is a task that should present no difficulty for the plaintiff to do it safely, and he had done it for months without complaint of any kind.

44.  In this connection, the principle enunciated in Winter v Cardiff Rural District Council [1950] 1 All ER 819, per Lord Oaksey at pages 822 to 823 is instructive:

“ In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that the employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. … where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot.”

45.  The Court of Appeal in Fong Yuet Ha v Success Employment Services Limited CACV 100/2012, 28 December 2012, per Kwan JA at paragraphs 19 – 21, affirmed the said principle with the following analysis:

“ 19. … 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 a stool 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 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.

21.   The judge was correct in holding that in the circumstances of this 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 reasonably be trusted to the common sense of the employee to carry out the task safely.  The retrieval of items on the upper shelf was simply not an inherently dangerous act, as contended by Mr Wong.  Nor is there any merit in his contention that the judge must resolve the dispute whether Madam Fong had requested for a stepladder and was turned down, for the reasons given in paras 36 and 38 of the judgment that I have quoted earlier.”

46.  In my view, pushing a cage trolley was not a complicated or inherently dangerous job.  It did not require particular instructions, advice or information from the defendant before the plaintiff could do it.  It was an everyday routine which the plaintiff had done it for months.  A young adult employee like the plaintiff could certainly be trusted to exercise his common sense to do it.  I therefore find it reasonable that the plaintiff could be trusted to exercise his common sense to carry out the operation without the need for the defendant as employer to prescribe a system of work or give specific instruction or advice how the task should be done.

47.  Thirdly, it follows that, in my view, the matters which the plaintiff’s counsel referred to in paragraph 39 above and the reference to Guidance Notes on Manual Handling Operations mentioned in paragraph 40 above do not assist the plaintiff’s case.  The task was simple and not inherently dangerous.  The plaintiff had done it at ease ever since he started to do it for the last few months, even when the workload had been increased.  He did not make any complaint of any kind.  He did not tell Mr Lin or anybody that he felt tired.  He did not ever request for any help in pushing the trolley.  From his behaviour, there was simply no sign or no reasonable sign which would enable the defendant to come to notice that the plaintiff in fact had been tired, was already physically overstretched, had insufficient rest or recovery periods, or that the increase in workload had increased his pressure, thereby making the job of pushing trolley unsafe or increasing the risk of injury.

48.  Fourthly, there was no medical evidence which showed or tended to show that the plaintiff’s injury, ie spraining of his left calf, was caused by the defendant’s failure to have properly assess the job requirement of the plaintiff and the associated risk.

49.  Fifthly, and lastly, for completeness, I should also mention that although the plaintiff relied on various allegations that he had pushed broken trolleys before the accidence, the presence of slanted metal plate at the entrance of the oven, the presence of an ‘anchor ball’ at the front of the oven, the necessity of re-arranging and improving the workplace layout and the weight of loads of the trolley, practicing job rotation, instructing other persons to assist the plaintiff, providing stable gangways, all these allegations have not been pleaded and are not part of the plaintiff’s case.  Although the plaintiff’s counsel placed heavy reliance on Guidance Notes on Manual Handling Operations, the document was not referred to in the plaintiff’s pleadings, and the plaintiff did not plead that the defendant was negligent or in breach of the employment contract or statutory duties by requiring the plaintiff to carry out prolonged or frequently repetitive work of pushing trolley, which resulted in his injury.

50.  For the above reasons, I find that the plaintiff’s injury was not caused by the defendant’s negligence, breach of employment contract or breach of statutory duties.  Consequently, the defendant was not liable for the plaintiff’s injury.

51.  For completeness, in case the matter goes further and my conclusion on liability is wrong, I set out below my findings on contributory negligence and quantum.

E.   Contributory Negligence

52.  Had the defendant been found liable to the plaintiff, I would find that the plaintiff should be held liable for 50% contributory negligence.  At the trial, the plaintiff gave evidence that he was tired because of continuous work, and it was the cumulative of muscle fatigue which caused the pain at the accident on 2 January 2012.  However, the undisputed evidence was that he had never complained to anybody of being tired or muscle fatigue.  The plaintiff’s job of pushing a trolley, put simply, was not complicated.  If he felt tired or stressed because of prolonged or frequently repetitive pushing of a heavy trolley over a rough and uneven surface as he alleged in his pleadings, he should have asked for help or should have taken a rest before the incident which caused his leg injured.  As I have mentioned above, there was no sign or reasonable sign which gave the defendant any hint that there was any safety or health risk on the plaintiff.  In this circumstance, it was really up to him to protect his own health.  His failure to do so, in my view, contributed substantially to his injury.  Therefore, I consider 50% is an appropriate apportionment reflecting his own part of responsibility and negligence in causing his injury.

F.   Quantum

53.  I have found that the plaintiff’s injury in the accident is minor, namely sprain of his left calf, which should and could have been recovered within a short period of time.  Based on the evidence already summarized above, there was no neurological and psychiatric complication.  The tremor, even if not factitious, was not related to the accident. 

54.  I shall move on to assess individual heads of damages claimed by the plaintiff, on the basis that my conclusion on liability is wrong.

Pain, suffering and loss of amenities (PSLA)

55.  The plaintiff claimed $200,000, whereas the defendant suggested $50,000.

56.  I have found the plaintiff’s injury of sprain of left calf was only minor and could be fully recovered within a short period of time, the amount of PSLA should be proportionate to be in line with this finding.

57.  I find the cases referred to by the defendant’s counsel apposite:

(a)  In Fazal Ahmed v MTR Corp Ltd DCPI 29/2011, 25 April 2012, a security guard suffered back and neck injuries with contusion of the back and a pain in the neck.  The damages for PSLA was awarded at $50,000.00.

(b)  In Fu Chuen Sing v Ryan (HK) Ltd DCPI 2135/2009, 5 August 2010, a delivery worker of newspapers and magazines suffered back sprain injury with tenderness on paraspinal muscles, residual pain in the back, right shoulder and neck as well as right arm cramp.  The damages for PSLA was awarded at $50,000.00.

(c)  In Lo Yin Fong v Maxim’s Caterers Ltd DCPI 1424/2009, 15 March 2011, an account manager suffered multiple injuries to the knees, hips, and shoulder with pain in the knees, right hip and both shoulders.  She suffered only mild contusions with no complication.  There were some depressive symptoms.  She was awarded damages for PSLA at $50,000.00.

58.  Whilst each case should be examined on its own facts, I am of the view that the plaintiff’s suffering from the sprained left calf was no serious than any of the three cases referred to above.  I find that $50,000 is the appropriate amount of damages for PLSA, and I would so award.

Pre-trial loss of earnings

59.  The parties agreed that the plaintiff’s average monthly earning before the accident on 2 January 2012 was $7,500.

60.  The plaintiff claimed for loss of earning during sick leave issued by the treating doctors from 7 January 2012 to 17 February 2015, which amounted to 633 days.  I need to determine whether 633 days were reasonable.  I am reminded of the approach as stated in paragraphs 17 and 18 of the Court of Appeal’s judgment in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210, per Le Pichon JA:

“ 17. … First, it is the patient who makes the request for a certificate from the doctor. Second, a doctor treating his patient may, consistently with the code of practice, issue the certificate without carrying out any detailed examination since such an examination is not always practicable or necessary. What is quite clear in the present case is that the plaintiff has been found to have grossly exaggerated his complaints. Although the exaggeration took place during the joint examination, plainly it would be open to the Judge not to disregard the possibility of the plaintiff also having exaggerated his symptoms when he saw the treating doctors responsible for issuing the sick leave certificates.

18. Since the plaintiff’s pre-trial loss of earnings is ascertained by reference to the period during which the plaintiff was prevented by the injuries sustained from returning to work, what has to be ascertained and identified is the length of that period.  In my view, that is an exercise that would not require evidence to suggest or imply that those who had granted sick leave to the plaintiff did so improperly.  Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award of pre-trial loss of earnings and no other.  Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court.  As Rogers V-P observed in: Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd (unrep., CACV 172/2004, [2005] HKEC 1077) at para.9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

61.  Dr Lam opined that a sick leave up to 4 weeks should be adequate for the plaintiff to resume working as a food production assistant, or other manual jobs.  Dr Tio opined that a period of sick leave of up to 1 year should be endorsed.

62.  Dr Lam explained his opinion as follows:

“ ‒ The lengthy sick leave is not justified. In principle, sick leaves should be stopped if the condition is static or stable enough. There is no need for the sick leave to be continued till full recovery, as it could not be achieved in many cases.

‒ Even if Mr Liu did have a left leg injury, based on the injury nature (MRI did not show up any muscle tear), the expected progress, and the work requirement of Mr Liu, a sick leave of up to 4 weeks should be adequate for him to resume working as a food production assistant, or other manual jobs.

‒ The present sick leaves, which were given indefinitely with no expectation of significant improvement from specific treatment, should not be endorsed. Such sick leaves would not facilitate the recovery. In the contrary, they might enhance the sick role and de-motivate Mr Liu from ever returning to work.”[22]

63.  Dr Tio explained his opinion as follows:

“ Dr Tio opines that purely for his orthopaedic condition and taken into consideration of his pre-injury job nature, a period of sick leave of up to 1 year should be endorsed. The prolonged period of sick leave given could be because of the presence of psychiatric illness which could have adverse effect on the recovery and presentation of his left calf injury.”[23]

64.  I find Dr Lam’s explanation convincing, sound and in line with the Court of Appeal’s approach in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd referred to above.  In contrast, Dr Tio in effect did not give any reason or provide any basis to support why “a period of sick leave of up to 1 year should be endorsed”.  Moreover, since he was not a psychiatrist, he could not assume any expertise on psychiatric illness and was in no position to state that the prolonged period of sick leave given could be because of the presence of psychiatric illness which could have adverse effect on the recovery and presentation of his left calf injury, which appears to be pure speculative.

65.  Therefore, I prefer the opinion of Dr Lam and hold that the reasonable sick leave period should be 4 weeks.

66.  The plaintiff also claimed sick leave for psychiatric treatments.

67.  I reject this claim.  Firstly, both neurological experts (Dr Yu and Dr Woo) found no neurological impairment and hence no sick leave was required.  Secondly, there is no psychiatric expert opinion supporting grant of any sick leave for psychiatric illness, and in any event, there was no evidence that the plaintiff was granted any sick leave by any psychiatrist and as mentioned above, no psychiatric illness was diagnosed.  Thirdly, I have found above that tremor, even if not factitious, was not related to the accident.

68.  The plaintiff also claimed that he cannot resume his pre-accident occupation as a result of the injury suffered during the accident.  His counsel submitted that but for the Accident, he would be able to earn $9,000 per month, and after the accident, adopting the approach stated in the Court of Appeal’s judgment in Hussain Kamran v Khan, Amar formerly trading as Three Star Recycling Co (A Firm) & anor CACV 255/2014, 5 October 2016, paragraph 45, per Chu JA, having regard to the plaintiff’s residual pain and disabilities, the employment reasonably open to him would still be in a bakery, but with reduced efficiency, therefore reduced income, estimated to be in the sum of $5,000 per month.

69.  Such claim is not supported by the medical experts’ evidence.

70.  Orthopaedic-wise, both Dr Tio and Dr Lam opined that the plaintiff should be able to resume his pre-injury duty.  Dr Lam explained that based on the more objective parts of the joint examination findings, there was no physical hindrance for the plaintiff to resume his job as a food production assistant.  The residual adverse influence from the left leg injury, according to Dr Lam, would be negligible^[24]. Dr Tio explained that the plaintiff should be able to resume his pre-injury duty with some reduced efficiency such as pain over his left leg upon prolonged walking or standing and upon manual duties.  Dr Tio added that the plaintiff might need intermittent breaks of 15 minutes after each two to three hours’ work[25].

71.  Neurological-wise, Dr Woo opined that the plaintiff should be able to resume his pre-injury occupation as a kitchen worker with no loss of earning capacity.  Dr Yu opined that as the plaintiff did not have any neurological impairment, assessment of employment potential did not apply.[26] My reading is that their opinions are the same.

72.  Therefore, I find that the plaintiff should be able to resume his pre-injury occupation with no loss of earning capacity.  As such, the plaintiff’s claim for loss of earnings after the reasonable sick leave period fails.

73.  In the premises, I would find that the plaintiff’s pre-trial loss of earning (together with MPF) amounts to:

$7,500 × 1 month × 1.05 = $7,875.

Post-trial loss of earnings

74.  In light of my finding that the plaintiff’s injury (sprain of left calf) was minor with no loss of earning capacity, the plaintiff’s claim under this head would be disallowed.

Loss of earning capacity

75.  There was no medical evidence which supported the plaintiff’s allegation that there is a ‘substantial’ or ‘real’ risk that the plaintiff will lose his employment at some time before the estimated end of his working life, see the Court of Appeal’s judgment in Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306 at 312D – G, per Keith JA, citing with approval Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at p142A – C per Browne LJ.  And as I have found that the plaintiff has only suffered a minor injury at the accident on 2 January 2012 and should have recovered fully shortly thereafter with no loss of earning capacity, there would be no award to the plaintiff under this head.

Special damages

76.  The plaintiff’s medical expenses of $32,905 have been accepted by the defendant.

77.  The plaintiff also claimed tonic food’s expenses of $6,500 and travelling expenses of $6,000.  As the plaintiff did not produce any receipts to substantiate these expenses, both parties agreed that I am entitled to allow a reasonable sum.  Considering my finding that the injury was minor which should have been fully recovered within a short period of time, I agree with the defendant’s counsel’s submission that a total sum of $4,000 for both tonic food’s and travelling expenses are reasonable.

Conclusion on quantum

78.  The total amount of damages that would be awarded (in case my conclusion on liability is wrong) is as follows:

$50,000 (PSLA) + $7,875 (pre-trial loss of earnings and MPF) +     $36,905 (special damages) = $94,780

79.  I would award interest on PSLA (ie $50,000) at the rate of 2% per annum from the date of service of writ to the date of judgment.

80.  I would award interest on pre-trial loss of earnings and MPF (ie $7,875) and special damages ($36,905) at half of the judgment rate from the date of the accident (ie 2 January 2012) to the date of payment of the employees’ compensation and thereafter at the same rate on the balance over and above the amount of employees’ compensation (if any) until the date of judgment.

81.  The damages awarded ($94,780) and interests awarded above should be reduced by 50% being contributory negligence that the plaintiff has been held responsible for.

82.  Then credit should be given by the plaintiff for the amount of $180,000 being the amount of employees’ compensation already received by the plaintiff.

G.   Order

83.  The plaintiff’s action is dismissed.

84.  Costs should follow the event.  I therefore also make an order nisi that the plaintiff shall pay the defendant’s costs of this action, to be taxed if not agreed.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.

85.  I thank Counsel for their helpful assistance.