TSOI WING YUK v. PERFECT MARBLE CO LTD AND ANOTHER

HCPI 779/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 779 OF 2012

_______________

J U D G M E N T
_______________

I.  INTRODUCTION

1. On 12 July 2010, the plaintiff (“P”) was 35 years old and employed as a casual marble worker at a construction site in Kowloon (“Site”). Ting Kin Hing (“Ting”) was his co-worker at the Site. The 2^nd defendant (“D2”) was the Site’s principal contractor, and the 1^st defendant (“D1”) was D2’s marble works subcontractor.

2. P claimed D1 was his/Ting’s direct employer, and contended (a) D1 and D2 (collectively, “Ds”) were persons responsible for a workplace (ie the Site),[1] (b) P’s work of cutting marble slabs constituted construction work and industrial undertaking,[2] and (c) Ds were the proprietors in charge or had control/management of the business that carried on such industrial undertaking. But Ds claimed D1 subcontracted the marble installation works to Chathay Marble Engineering Limited (“Chathay”) that in turn subcontracted certain such works to P’s/Ting’s direct employer 佘清波 (Tsz Tsing Bor, “Tsz”).

3. P’s claim  P claimed that on 12 July 2010 he was instructed to cut marble slabs at the podium on the 5^th floor of Tower 2 at the Site (“Podium”). At about 10:00am, P was measuring a marble slab (about 700mm x 750m x 45mm[3] in size and about 55kgs in weight, “Slab”) that was placed on 2 wooden plinths (木枋) (“Plinths”) on the ground. P applied force to lift the Slab to turn/flip it over (“Lift/Flip”) just when Ting climbed down a nearby scaffold (“Scaffold”) and stepped on the Slab which caused resistance to P’s lifting action. As a result, P sprained his back (“Accident”).

4. P claimed the Accident was caused by negligence and/or breach of implied terms of employment on the part of D1/D2 as they failed to (a) give any/adequate instructions to P/Ting, (b) warn P of the risk/danger of back injury, (c) provide adequate training/supervision to P/Ting, (d) provide sufficient manpower/equipment, and (e) take adequate safety precautions. P further claimed the Accident was caused by Ting’s negligence for which D1/D2 were vicariously liable.

5. Mr Lam, counsel for P, confirmed P’s essential complaint was an unsafe system of work in that P worked on the Slab too close to the Scaffold, and D1/D2 should have (a) instructed/supervised P to have Ting help him Lift/Flip the Slab or (if Ting was on the Scaffold) to have another worker help him do so at a spot away from the Scaffold, and/or (b) provided equipment to Lift/Flip the Slab. Mr Sakhrani, counsel for Ds, complained P had not pleaded/particularised such case. I agree P’s pleadings could have enjoyed more specificity, but I am prepared to assume P could raise such contentions on the existing pleadings.

6. P also claimed the Accident was caused by Ds’ breach of statutory duty in failing to (a) ensure P’s safety/health at work,[4] (b) provide/ maintain plant and system of work,[5] provide necessary information/ instruction/training/supervision,[6] maintain the workplace condition[7] and/or provide/maintain a working environment [8] that was (so far as reasonably practicable) safe and without risk to health, (c) make arrangements for ensuring (so far as reasonably practicable) safety and absence of risk to health in connection with use, handling, storage and transport of substances,[9] and (d) ensure a preliminary assessment was made of the risks to the health/safety of P who was assigned a manual handling operation.[10]

7. P would give credit for employees’ compensation (“EC”) in DCEC825/2012 (“EC Action”) of $492,520.00 against any damages he might receive in the present action.

8. D’s defence  Ds did not admit (and put P to strict proof of) the alleged Accident. Ds claimed D2 conducted manual handling operation risk assessment on 31 October 2009, and further claimed that if the Accident happened as alleged and they were liable to P, P was contributorily negligent in (a) failing to pay attention to his work environment and those approaching him when lifting the Slab, (b) failing to pay attention, to exercise reasonable skill/care/experience and to take reasonable care or necessary precaution of his own safety when lifting the Slab, and (c) exposing himself to and failing to remove himself from risk/damage/injury.

9. Alternative basis for liability  Mr Lam suggested P would still succeed on liability even if it was not proved that Ting stepped on the Slab because (a) Ds did not dispute an accident did happen and/or P did suffer back injury, (b) Ds adduced documentary evidence and cross-examined P/Ting on such basis, and (c) P’s attendance at the accident and emergency department (“AED”) of Kwong Wah Hospital (“KWH”) on 12 July 2010 proved he did suffer back injury that day. Since Ds had fair opportunity to defend this alternative scenario, it was said this court must make findings on why P suffered back injury and whether it was due to Ds’ default.

10. P did not have any alternative case, so the starting point was Ds’ non-admission that required P to prove that the Accident happened as alleged. There was no alternative defence plea that P did suffer some accident/injury with circumstances and/or severity different from what P alleged. Even Ds’ plea of contributory negligence referred to “the accident happened as alleged by [P]” (which Ds denied) and to P carrying out “the alleged work of lifting up the [Slab] without paying attention to …… those approaching him” (my emphasis). Order 18 rules 8(1), 12A and 13 of the Rules of High Court conspired to provide that in such circumstances Ds’ non-admission only required P’s “allegation to be proved” as echoed by Mr Sakhrani’s opening submissions:

“9. [Ds] contend the accident could not have happened in the way alleged and there is just no other way to identify the true cause of the accident. Therefore, [P’s] case should be dismissed.”

11. Mr Lam fell into error by conflating pleadings with evidence. Ds’ inability to adduce witness evidence to positively refute the happening of the Accident, and Ds’ evidential use of P’s previous inconsistent statements[11] to undermine P’s case did not alter Ds’ pleadings that required P to prove his case on liability. Indeed, it was said in Poon Hau Kei v Hsin Chong Construction Co Ltd, Taylor Woodrow Internal Lid Joint Venture[12] that where an accident occurs on the basis of a scenario not pleaded by the plaintiff but is pleaded by the defendant, and it can be established that default arises on the defendant’s scenario, then provided it does so in a fair manner, the court may find liability for the plaintiff against the defendant. This is because where the alternative scenario has been fully and clearly pleaded, usually there will be nothing unfair to find for the plaintiff on the basis of the defendant’s scenario.[13] This was reiterated by the Court of Final Appeal in Mak Kang Hoi v Ho Yuk Wah David as follows:[14]

“102. However, industrial accident cases often raise the pleading point more clearly than others. If the accident is not shown to have taken place in the way or at the place alleged usually the plaintiff must fail. The defendant has pleaded and prepared his case to meet the case alleged and no other.

103. On the other hand, in such cases it is not unusual for a defendant to plead an alternative version of the accident knowing that at least partial liability may result. A plaintiff may then succeed on the defendant’s pleaded case if it is accepted by the judge. If wise he may amend to plead the defendant’s version as an alternative. But in any event, the defendant cannot suggest he is taken by surprise, nor that he is unprepared, nor that the trial is unfair if his pleaded version is accepted.” (my emphasis)

12. Here, if P failed to establish the Accident happened as alleged (ie Ting stepped on the Slab when P lifted it), his claim would fall to be dismissed[15] as P could not simply marshal evidence to say an accident/ injury were somehow shown and Ds were thus liable. This accords with the observations by Ma CJ in Kwok Chin Wing v 21 Holdings Ltd[16] on the purpose of pleadings.

II.  WITNESSES

13. P and Ting gave evidence. D called 陳楚貴 (D2’s safety supervisor since 2007, “Chan”), 張偉民 (D1’s QS Manager since October 1996, “Cheung”), 區國華 (D2’s safety officer since April 2008, “Au”), 吳志強 (Chathay’s proprietor, “Ng”), and 高秀梅 (claims officer of Kono Insurance Limited (“InsCo”) since February 1998, “Ko”). In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the available documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.[17]

14. P did not complete Form 1 in Mainland China. He spoke “閩南話”, and had limited ability to understand written Chinese or Cantonese. But even after giving P allowance for giving evidence via translation, I did not find him frank/forthcoming. His testimony gave an impression of reluctance to engage cross-examination questions, and his explanations for certain material matters were improbable. I find him to be an unconvincing witness. Ting was P’s fellow villager who came to know P in/about 2007 when he started to work as a marble worker. I am not impressed by Ting as witness. There were shortcomings in his evidence, and in my view he had persuaded himself that loyalty to P required him to support an unreliable case. I accept P/Ting were not trained to be meticulous in their recollection/account, but even so their overall evidence was still unsatisfactory, and except for matters I accept below I reject their evidence on the core matters.

15. Chan was posted to the Site in May-July 2010 to assist Au who was responsible for safety matters at the Site. Ng visited the Site occasionally. These witnesses as well as Cheung and Ko were not present at the time of the Accident, but they gave useful evidence on subcontract arrangements, risk assessment and other related matters. Although Chan/Au/ Cheung were employed by D1/D2, Ko was employed by InsCo, and Ng was commercially keen to maintain business relationship with D1, I do not discern their evidence was affected in any significant degree by such relationships (save for Ng’s slight defensiveness when he was cross- examined on Chathay’s liability for making periodical payments (“PP”) to P), and I find they were on the whole credible witnesses who, as Mr Sahkrani submitted, did not seek to over-state their evidence.

16. Tsz gave a witness statement but did not give evidence at trial. He was substituted by Ng who also spoke on marble installation subcontracts at the Site. Mr Lam urged me to draw adverse inference that Tsz’s evidence would not have supported Ds’ contentions[18] since Ds failed to prove they were unable to serve subpoena on Tsz. But even if it were proper to draw such adverse inference, I still have to evaluate the totality of the evidence and ask what weight should be given to such inference in circumstances where this court did not have the opportunity to assess Tsz’s credibility whilst there was documentary evidence and other factual witnesses gave evidence. As seen below, I am not persuaded the Accident happened as P alleged, so any adverse inference would be largely immaterial.

17. The joint orthopaedic expert medical reports dated 2 January and 8 August 2013 (“1^st and 2^nd Reports”) by Dr James Kong Kam Fu (for P, “Dr Kong”) and Dr Lam Kwong Chin (for Ds, “Dr Lam”) (collectively, “Experts”) were adduced at trial without calling the makers thereof.

III.  P’s EMPLOYER

18. P/Ting claimed D1 employed them and Tsz as marble workers to work at the Site. But Ds said P was directly employed by Tsz who was

D2’s sub-sub-subcontractor for marble installation works at the Site.

19. Subcontracts D2 subcontracted to D1 the marble works that included materials supply (eg marble slabs, epoxy/adhesive and stainless steel brackets) and cladding installation (via D1’s subcontractor) (“Marble Works”). [19] I find D1 subcontracted the marble installation works (“Installation Works”) to Chathay[20] but retained responsibility for materials supply, and Chathay further subcontracted some labour-only marble installation works (“Workers’ Works”) to Tsz whose marble workers used D1’s materials and Chathay’s equipment (eg pulley and block system) to perform such works for which Chathay paid Tsz a subcontract fee. Ng confirmed the subcontract to Tsz was an oral arrangement, but I see nothing sinister in oral subcontract for labour services (that did not have to spell out, say, specifications for materials).

20. It was in the above sense that Chathay was a “middleman” between D1 and Tsz (with his marble workers) with the latter carrying out the former’s marble works under sub-sub-contract. I do not agree Chathay simply recruited casual marble workers to be employed by D1. Given the aforesaid chain of subcontracts, I find it improbable D1 itself would also employ marble workers to carry out external wall marble cladding installation at the Podium, which works had been subcontracted to Chathay.

21. Although Tsz himself also did marble cutting/installation work at the Site, which I find unsurprising given the labour-only nature of Tsz’s subcontract for the Workers’ Work, this did not mean he was D1’s employee. Even though none of Ds’ witnesses knew the personal arrangements between Tsz and P/Ting, the fact D1 subcontracted the Installation Works to Chathay who in turn subcontracted the Workers’ Works to Tsz who brought P/Ting to the Site to carry out such works plainly suggested they were Tsz’s and not D1’s employees. There was no suggestion they were Chathay’s employees.

22. Indeed, Ting provided indirect corroboration as he heard/ recalled Chathay was involved in marble works at the Site, and a subcontractor did subcontract some marble works from D1. But apart from this, both P/Ting said they were workers Tsz brought to work at the Site, and they were unclear about the chain of subcontracts for marble works or the relationship between Chathay/D1 and Tsz. I am unable to place weight on their statement evidence that they were D1’s employees.

23. Work instructions P did not elaborate why he thought it was D1’s foreman who arranged the works for Tsz[21] to assign to the marble workers including P. In fact, Chathay prepared the cutting sheet for the marble slabs, and after D1 set the sequence/location of the Installation Works, Ng/Chathay relayed such instructions to Tsz and sought D1’s instructions/assistance if there were technical issues. Ng was unaware of any occasion Tsz asked D1’s foreman about such matters. Ng also did not give instructions directly to P whom he did not regard as Chathay’s employee. Even if Chathay was told to hurry with the works, Chathay (not D1) would tell its subcontractors (including Tsz) to supply more labour. In my view, under such subcontract regime, neither D1 nor Chathay dealt with P at all.

24. Fees/wages  Tsz paid P’s earnings. P claimed D1 paid him via Tsz, but I prefer Ng’s evidence that Chathay received project/subcontract fee from D1 and in turn paid subcontract fee to Tsz, who paid wages to his own employees (including P).

25. Access to the Site  To enter the Site, workers had to inter alia swipe their access cards. D1’s name (聯益) was entered for “所屬公司” on the access cards of Ting (although Ting knew D1 had a subcontractor for marble works) and Ng (who was certainly not D1’s employee). In my view, this was just to identify for D2 (who issued such access cards and controlled access to the Site) that Ng, Tsz and the marble workers (including Ting) all did the Marble Works that D2 had subcontracted to D1 rather than to identify the cardholders’ direct employers.

26. P worked at the Site for 3 different periods. He worked for a few days in/about May 2010 when he signed on a book to enter the Site. P also worked at the Site in early June 2010 for another employer and signed on a book until D2 issued him an access card on 15 June 2010. On 30 June 2010, Tsz introduced P to work at the Site. P signed on a book with D1’s name and did not use the access card. On 17 July 2010 (ie after the Accident), D1’s foreman accompanied P to D2’s site office to let the duty safety officer  amend in manuscript the entry for “所屬公司” on P’s access card to D1’s name (聯益). Such amendment was consistent with the explanation for D1 as “所屬公司” in paragraph 25 above, and P’s signature on the book with D1’s name did not take the matter further for such book served the same function as the access card to identify for D2 (as principal contractor who controlled access to the Site) which worker did works that were attributable to which of its subcontractors. These matters did not show P/Ting were D1’s employees.

27. Safety induction course (“Induction Course”)  Chan explained (and I accept) (a) D2 instructed the security guards to lead new workers without access cards to attend the Induction Course D2 organised for all workers,[22] (b) they would sign the attendance record after completion of the course, (c) D2 only issued access cards after Chan verified their completion of the course from the attendance record, and (d) the access cards would usually be ready on the same day.[23] I find P must have attended the Induction Course just before he was issued his access card on 15 June 2010.

28. Ting claimed D1’s name (聯益) was used for such safety training, but Ng (who was certainly not D1’s employee) also signed the Induction Course’s attendance record against D1’s name, which reinforced my view that this was just to identify for D2 (who organised the course and issued the access cards) that Ng, Tsz and the marble workers (eg Ting) all did the Marble Works D2 subcontracted to D1 rather than to show D1 was their direct employer.

29. Safety helmets  D1 stored safety helmets in a metal cage with its name at the Site, and Ng, P and other marble workers used such safety helmets. In my view, this only showed Chathay subcontracted labour-only Workers’ Works to Tsz, and D1/Chathay remained responsible for materials/ equipment. Viewed against the totality of the evidence, this was insufficient to show D1 was P’s employer, especially when there was no suggestion D1 or D2 provided P’s tools, ie “「卷」尺、木工鋁筆、雲石切割機的工作工具” as noted in the 2^nd Record.[24]

30. Form dated 17 July 2010  There was a post-Accident form with a top section on “僱用公司/僱主資料” and a bottom section on “地盤安全主任分析” (dated 17 July 2010) (“17/7/10 Form”). The top section was signed by鄺在權 (D1’s senior project manager for the Site, “Kong”) for D1 at the space for “僱主簽署及蓋章(二判)”, and contained information on (a) “僱用公司名稱/姓名(二判)” stated to be D1 (marble works) whose responsible person was Kong, and (b) “直接僱用公司名稱/姓名” stated to be Chathay (marble works) whose responsible person was Ng. Au completed/signed the bottom section that correlated to an accident report that Au/P signed on the same day. Au probably completed the bottom section first because Ng (who filled in (b) in the top section) only heard about the Accident from Tsz 1-2 weeks later.

31. The top section of the 17/7/10 Form drew a careful distinction between “僱用公司” and “直接僱用公司”. The former specified to be “(二判)” of the marble works clearly meant D1 that subcontracted the Marble Works from D2 as principal contractor. As for the latter, it was not P’s or Ds’ case that Chathay was P’s direct employer, which lent weight to Ng’s explanation that when D1 asked Chathay to help fill in the form, he just put down Chathay’s name simply because Chathay asked Tsz to engage marble workers to carry out the Workers’ Works, and P was one such worker.

32. After the Accident  On 4 August 2010, D2 lodged Form 2 with the Labour Department (“LD”) with “聯益[D1]/鄺在權[Kong]” as “僱用公司名稱/僱主姓名”, which echoed the top section of the 17/7/10 Form as explained above. The subsequent conduct of the involved parties and D1’s correspondence with LD and D2 as explained below made clear D1 was not P’s direct employer, which culminated in a revised Form 2 faxed to LD on 19 September 2011 that “僱用公司名稱/‚僱主姓名” were “聯益[D1]/鄺在權[Kong];‚佘清波[Tsz] ……”. This was also echoed in “資料更改通知書” [25] although it was unclear whether it had been sent to LD.

33. Cheung did not know why Chathay was “unable to approach or get in touch with the company further down below [it] to make a payment” of PP to P, but Ng explained Tsz was probably in financial difficulty. So on 15 September 2010 when P submitted “要求工傷賠償通知書” to LD that named D1 as direct employer and requested for PP, LD wrote to D1 on the following day to remind about employer’s liability to pay PP and “如你是總承判商, 你亦有責任支付按期付款及其他補償給你的次承判商的僱員。有關詳情, 請參閱背頁條文 [ie section 24 of the Employees’ Compensation Ordinance Cap 282 (“ECO”)]”. Cheung/Ng agreed D1 pressed Chathay to arrange PP for P, and Chathay issued a cheque dated to 22 September 2010 in the sum of $24,960.00 for the 1^st PP, and P signed the 1^st “受傷工人借糧簽收證明” (“Receipt”) dated 16 September 2010 to acknowledge receipt:

“本人[P] ……，直屬僱主為佘清波先生[Tsz]，現收到由直屬僱主往上分包商 “澤輝雲石工程有限公司”[Chathay]借糧予本人在工傷假期間之金額如下:

工傷期間:   2010年7月12日 – 2010年9月11日

本期已收金額:  HK$24,960.00 (由 “澤輝雲石工程有限公”[Chathay]借糧)

總已收到金額:  HK$24,960.00” (my emphasis)

It was Cheung who gave Chathay the draft form for the Receipt,[26] which stated Tsz was P’s direct employer because Chathay so told Cheung at the time. It was significant D1 did not regard P as its employee even for the 1^st PP.

34. On 24 September 2010, Cheung/D1 replied to LD to clarify D1 was not P’s direct employer, “現已與往下承包商協調,並已支付予[P]工傷期間之借糧款項共(HK$24,960),詳參附件。若日後[P]再提交認可醫療病假紙,將由[D1]先生墊付!” Mr Lam submitted Cheung lied about D1 “現已與往下承包商[ie Chathay]協調”, but it was clear from paragraph 33 above there was “協調” between D1 and Chathay for the latter to “借糧” for the 1^st PP (even though Ng said Chathay was motivated to do so in order to maintain good business relationship with D1). But Cheung went on to confirm in the letter that D1 (even though it was not P’s direct employer) would pay further PP on account (墊付) if P submitted sick leave certificates. Ng did say Chathay was told D1 would handle further PP to P whilst Cheung said Chathay told him it could not afford further PP so D1 (which had insurance cover) paid further PP “on account” pursuant to its obligation under the ECO as notified by LD. In my view, such difference was just Ng’s defensive attempt on behalf of Chathay to shy away from responsibility to pay PP when Tsz failed to make payment and D1 pressed for payment to be made, but this had no material significance because even before D1’s payment of the 2^nd PP it had already made clear to LD it was not P’s direct employer.

35. All this must be viewed against Cheung’s understanding that (a) P’s direct employer (Tsz) was primarily responsible for paying PP but a “principal contractor” for the marble works within the meaning of section 24(1) of the ECO[27] (which I agree would include D2, D1 and/or Chathay as each of them contracted or subcontracted the Marble Works or part thereof down the chain of subcontracts) also had to pay PP, and (b) any such payment by D1 would in principle be deductible from the project/ subcontract fee payable to its subcontractor, which was why PP was said to be “借糧”/“墊付”. As Cheung explained, D1 would take recovery action (presumably under section 24(2) of the ECO) if InsCo eventually failed to reimburse PP that D1 had paid “on account”.

36. So from 15 October 2010 to 22 December 2011, D1 paid PP to P, and P signed the 2^nd to 17^th Receipts that stated “本人[P] ……, 直屬僱主為佘清波先生[Tsz], 現收到由直屬僱主往上分包商[Chathay]及[D1]借糧與[P]在工傷假期間之金額 ……” It was unsurprising these Receipts did not expressly state D1 paid on behalf of Chathay/Tsz because D1 as “principal contractor” within the meaning of section 24(1) of the ECO was itself obliged to pay PP, and by the Receipts and its letter dated 24 September 2010 to LD D1 had already made clear it was not P’s direct employer.

37. I do not believe P when he said for each PP he was merely told to check the cheque amount against the amount stated in the Receipt without understanding what was written on the Receipt (eg it stated Tsz to be his direct employer). I prefer Cheung’s evidence that he (a) asked P to note the cheque amount matched the amount stated in the Receipt, (b) told P “we actually lent money on behalf of other(s) to him (我哋係代借錢畀佢)” (as D1 was not primarily responsible for paying PP), and (c) witnessed P’s signature on the Receipt. Given Tsz’s non-payment, LD’s queries, D1’s arrangements with Chathay for the 1^st PP, and D1’s potential recovery action, Cheung was plainly alive to the need to make clear D1 only “借糧” and did not pay PP qua employer. I am satisfied Cheung told P this before P signed the Receipts without any objection.

38. On 18 October 2010, Cheung (for D1) wrote to D2 to make clear D1 was not P’s direct employer:

“(2) ……[P] was employed for our works ……

(3) The direct employer of the injured worker was “佘清波”先生 [Tsz]. We awarded supply & installation of external wall stone cladding works and subletted the whole installation to [Chathay], and 澤輝[Chathay] subletted part of the installation to “佘清波”先生 [Tsz]. ……” (my emphasis)

39. InsCo’s interview record  On 23 November 2010, Ko and her colleagues interviewed P by questioning him about the Accident and related information, and Ko paraphrased/recorded his answers. P was asked to read a print copy of such record (“1^st Record”), and Ko read it to him line by line in Cantonese and told him to amend as he wished. P claimed he did not quite understand or pay close attention, but agreed he took away the 1^st Record and “[Ko] told [P] to read it – told [P] to hand it to [his] family to read it to find if there was anything not written accurately or appropriately, then do the amendment”. P returned an amended 1^st Record (“2^nd Record”), and on 9 December 2010 InsCo mailed to him an engrossment that incorporated the amendments. P returned an amended 2^nd Record (“3^rd Record”), and on 28 December 2010 InsCo mailed to him an engrossment that incorporated the further amendments. Later, P returned to InsCo the signed 3^rd Record dated 30 December 2010 (“Signed Record”). I set out relevant extracts of the combined 1^st, 2^nd, 3^rd and Signed Records (“Records”) with amendments in the 2^nd Record marked by strike through and underline (“1^st Amendments”) and amendments in the 3^rd Record (if any) marked by italics (“2^nd Amendments”):

“本人直接受僱於香港建築有限公司[D2]之四判佘清波先生[Tsz]，僱用為雲石工人一名。

……

7. 本人受傷後有通知僱主佘清波[Tsz]及工友(阿丁)[Ting]。

……

13. 意外發生時，本人獨自一個人工作。現場附近共有約三位工友在較遠處工作(其中一位本人稱呼他“阿丁”[Ting]，其餘工友，本人則不清楚他們的名字)，但相信他們應該看見事發經過而我隨即將工傷意外一事告訴“阿丁”[Ting]及“僱主佘清波”[Tsz]。

……”

40. P said he told InsCo’s staff he failed to complete Form 1 (but they said “咁即係讀過初中啦!”) and had limited understanding of written Chinese and/or Cantonese. P complained InsCo’s staff misunderstood what he said, and parts of the 1^st Record were inaccurate (eg he told Ko that Tsz (whom he thought was D1’s foreman) asked him to work at the Site but did not say Tsz was “四判” or his employer). On the other hand, Ko insisted she recorded what P told her. Although she did not realise P was not a punti speaker, she had no impression of P not understanding her or having difficulty in reading/expressing himself.

41. Notwithstanding such differences between P and Ko, there was no dispute P showed the 1^st Record to his father (“Father”) who was better educated than P and who worked in factories since he came to Hong Kong in 1978 (but was never involved in marble cutting/installation work). P claimed he/Father thought a brief account of the Accident would suffice as they had no experience of work injury or legal claim, so “[P]所知及所著重的只是[P]在進行切割雲石並把它翻轉時扭傷背部”. For the 1^st Amendments, P claimed he briefly explained to the Father how he sprained his back. “……[Whenever the Father] …… found something not written properly or appropriately, the kind of wording was not so right, he then changed it”. For the 2^nd Amendments, P claimed the Father felt further changes were required as he went through the engrossed 2^nd Record, but P did not read the Records carefully and did not realise they stated he was directly employed by Tsz.

42. On balance, I do not believe P as he must have known InsCo was investigating the alleged Accident/injury and the interview by InsCo must have been relevant to his claim for PP or compensation (be it EC or otherwise), so he would not have lost sight of the importance in identifying his employer. I do not believe Ko made up the assertion that Tsz was P’s direct employer since she let P read the 1^st Record, read it aloud to him line by line, and let him take it away to consult others about its contents. Ko could not have assumed any inaccuracies would remain undetected, especially when InsCo thereafter did not even try to contact P let alone try to influence the 1^st and 2^nd Amendments. I find Ko faithfully recorded in paraphrase what P told her about Tsz being his direct employer.

43. I also reject the notion that the Father took his own initiative to make the 1^st/2^nd Amendments as he liked. Since the Father had no experience in marble works, the fine details of such works added by the 1^st/2^nd Amendments (see paragraph 60 below) could only have come from P. I find it was more likely that the Father asked P about the matters stated in the 1^st Record, and P gave him relevant information. In my view, the statement that Tsz was P’s direct employer was not amended because P knew that to be the true position.

44. Letter dated 25 July 2011  In July 2011 (ie about a year after the Accident), a reply[28] was returned to LD on “關於調整用以計算工傷補償的僱員收入”. Cheung explained (and I accept) this form focused on P’s earnings, but D1/D2 placed their signatures thereon because Chathay did not cooperate in locating P’s direct employer. Anyway, over the past year D1 had consistently made clear to LD and D2 it was not P’s direct employer, so this form could hardly be regarded as D1’s acknowledgment that P was its direct employee.

45. Summary  I have carefully considered the well-established criteria in Poon Chau Nam v Yim Siu Cheung[29] for considering whether a worker was an employee. By adopting a nuanced approach[30] in reviewing the substance of the relationship and the available documents as against the overall factual matrix, I find on balance P failed to establish D1 and/or D2 was his and/or Ting’s direct employer, and I find P and Ting were employed by Tsz.

IV.  LIABIITY

46. Duties of marble worker  According to the Signed Record, “[P]的工作範圍包括量度需要切割雲石之尺寸及切割雲石(一般而言，[P]不需要進行吊運及搬運工作，只是有需要時才移動雲石及將雲石翻面)”. P would place the marble slab flat on 2 Plinths on the ground, squat down to mark/cut the marble slab, and if required, “…… 將雙手放在雲石的一隻角的位置，然後利用該角的對邊作為支撐點，從而將雲石推起，然後將其翻轉” (my emphasis). P told the Experts he would Lift/Flip marble slabs 5-7 times a day. Ting’s duties included climbing up the Scaffold to take measurements, climbing down to mark the marble slab for cutting, and climbing up the Scaffold again to confirm measurements.

47. Scaffold  The double-layered Scaffold had working platforms erected between the outer working layer (“Outer Layer”) and inner finishing layer (“Inner Layer”). Bamboo poles erected as main vertical posts of the Outer Layer that rested on solid ground were connected with horizontal ledgers for fixing their position. P did not pay attention to the height of the bottom/base horizontal ledger (“Bottom Ledger”) from the ground except it would not cause obstruction to workers working on the ground in the vicinity. Ting said it was about 2ft-2.5ft, which was consistent with P’s evidence that the Outer Layer “…… also served the purpose of preventing outsiders from going into the scaffold, affecting the work …… the external one is – served to prevent people not climbing up from coming into contact and affecting the work”.

48. P’s case on the Accident  At about 9:00am, P/Ting went to work at the Site, and P handled the 1^st marble slab. At/about 10:00am, P was about to cut the 2^nd marble slab (ie the Slab) that was placed flat on 2 Plinths on the ground. Ting took measurements of the external wall and marked the Slab.

When Ting climbed the Scaffold again to reconfirm the measurements, P was on the ground between the Outer Layer and the Slab with his back to the Scaffold but close to the Bottom Ledger such that he “was actually in the position of almost touching the Scaffold”. P wanted to pivot/turn the Slab by “…… 利用地面作為一邊雲石的支撐點以翻轉雲石” (my emphasis).

49. To pivot/turn the Slab by using the opposite side/edge (“Pivot Edge”) that rested on the Plinths/ground as lever (“Pivot Action”), P started from a half-squat position at an oblique angle to a corner of the Slab (“Lift Corner”) with one foot placed at an angle in front of the other (both feet were outside and not underneath the Slab) and his hands holding the middle of 2 sides/edges of the Slab adjacent to the Lift Corner (“Adjacent Edges”). P then exerted force to lift the Adjacent Edge that was opposite to the Pivot Edge (“Lift Edge”) as he rose from his half-squat, and as he did so he moved his body closer to the Slab to minimise the force/strength required to hold/lift the Slab. At the trial, P used A4 paper to demonstrate how to Lift/Flip the Slab, but due to the flimsiness and small size of such paper, it was unclear whether he adopted the Pivot Action by using the whole Pivot Edge that rested on the Plinths/ground as lever or whether he twirled the Slab on the corner diagonally opposite the Lift Corner (“Twirl Corner”) (“Twirl Action”). But paragraph 1(d) of Mr Lam’s opening submissions referred to the Pivot Action, ie “P used both of his hands to lift up one edge of the marble stone from the ground (the opposite edge of the marble stone still rested on the ground) ……” (my emphasis)[31]

50. Ting claimed when he climbed down the Outer Layer 1-2 minutes later, he faced the external wall and was unaware P was about to Lift/Flip the Slab. P claimed he did not see/hear Ting coming down the Outer Layer as he had his back to the Scaffold and there was noise coming from the cutting machines and from the workers shouting in the vicinity, so “當[P]抬高[the Slab]時，[P]並沒有發覺[Ting]用腳踏在[the Slab]的另一邊，因此當[P]出盡力氣抬高[the Slab]時，由於[Ting]的腳踏在[the Slab]的另一邊所造成的壓力，[P]的背部突然感到極度痛楚……” P said he slowly put down the Slab and got up. Ting heard P said his back “「閃」了一下，扭傷腰部”, and told P to approach Tsz if it was serious. P reported his work injury to D2’s safety personnel who telephoned to inform D1’s foreman and told P to go to KWH’s AED, which P did by taxi.

51. Findings on the Accident  I find on balance that if P tried to Lift/Flip the Slab, he would have done so by the Pivot Action (and not the Twirl Action) with the Pivot Edge resting on the Plinths/ground since less force/strength was required by using the whole of the Pivot Edge rather than just the Twirl Corner as lever. Chan also said a marble worker would adopt the Pivot Action if he had to Lift/Flip a marble slab on his own.[32] But on balance, I reject P’s/Ting’s account of the Accident, which I find improbable.

52. I start with some basic matters. First, the Slab was 700mm x 750mm (or about 2.3ft x 2.5ft) in size, so if P’s hands were holding the middle of the Adjacent Edges (1 of which was the Lift Edge), the free edge on each Adjacent Edge beyond P’s arm/hand would be about 15ins (“Free Edge”). Secondly, P did not know how high the Lift Edge was above the ground when Ting allegedly stepped on the Slab, but he agreed it was about 45° to the ground. Given the size of the Slab, the Lift Edge could not be more than 2.5ft above the ground, which was almost level with the Bottom Ledger according to Ting.

53. Although P could not say Ting stepped on which part of the Slab, bearing in mind (a) the Lift Edge was the highest point of the Slab above the ground and closest to the Scaffold, (b) P claimed no part of Ting’s body touched him before his foot came into contact with the Slab, and (c) P claimed he was unaware of Ting climbing down the Scaffold until Ting stepped on the Slab, P’s best scenario would be that Ting stepped on the 15ins of Free Edge at the Lift Edge. I find it improbable on P’s case for Ting to step on any lower part of the Slab that was further away from the Scaffold. Moreover, given P’s understanding of the purpose of the Bottom Ledger which was to prevent workers in the vicinity “from coming into contact and affecting the work” of workers on the Scaffold, it was doubtful whether (as P/Ting alleged) P was working so close to the Scaffold that Ting could step on the Slab without (i) crossing/touching P’s crouched position and/or outstretched arms/hands or (ii) P becoming aware of his descent.

54. But even on P’s best scenario that P worked at the base of and close to the Scaffold and Ting stepped on the Free Edge of the Lift Edge, I find it unconvincing that until Ting did so P would not be aware of Ting’s descent and/or Ting’s leg never came into contact with P’s body. Bearing in mind (a) P claimed he was about 20-30cm (about 8-12ins) away from the Outer Layer, (b) the Lift Edge was about/under 2.5ft above the ground, and (c) its Free Edge was about 15ins, I find it inherently improbable Ting’s foot came down to such low level in such small space without Ting’s body/leg touching P’s crouched body and outstretched arm/hand that held the Lift Edge and/or P was unaware of Ting’s approach (either in front of or next to him) until his foot stepped on the Slab. P’s allegations would be even more untenable if Ting stepped on any lower part of the Slab further away from the Scaffold.

55. On P’s case, Ting climbed down precisely where he climbed up a few minutes earlier. Ting knew P was working on the Slab at that very spot at the base of the Scaffold, and was also aware that “…… there were both people and slabs on the ground and one would make sure that, when one climbed down, one would try not to step on them”. I find it inherently improbable that Ting, who had 3 years of experience as marble worker and who regarded climbing up/down scaffolds as routine work, would not lookout for an obstruction-free landing even when he was close to the ground. In any event, it would have been a simple matter of a quick glance downwards or over the shoulder to check the base of the Scaffold and there was nothing to block Ting’s view. P claimed Ting had to concentrate on his hands/feet when he was high on the Scaffold, but Ting could have taken a glance when he was close to the ground. In my view, it was simple/natural thing to do not only for the safety of co-workers but also for the climber’s own safe landing. Even P said a marble worker climbing down a scaffold would pay attention to people/objects below when he was close to the ground.

56. Ting was therefore constrained to say he did not bother to check P’s position because (a) he would not have stepped on P and (b) it did not matter that he stepped on the Slab but he did not expect/appreciate P would Lift/Flip the Slab. I reject such artificial allegations. Even on P’s case, Ting admitted (a) he was alive generally to the safety of workers at the base of the Scaffold and particularly to P working on the Slab close to the Scaffold right below him, and (b) he knew P might have to Lift/Flip the Slab in the course of his work (especially when Ting had already marked the surface of 1 side of the Slab). I do not accept Ting was so confident he would not step on P (whom Ting must have known might shift his position in the course of his work) that he did not even glance downwards or over his shoulder to make sure he could land safely and not crash into P/Slab.

57. I also find it unnatural/strange that nothing was said between P and Ting after the Accident about Ting stepping on the Slab. Since P said he immediately told Ting he hurt his back, one would have expected P to have berated Ting for stepping on the Slab and/or Ting to have said he was sorry (even if he did not mean to hurt P). In my view, the silence was loud and suggested Ting did not step on the Slab. Even more surprising was Ting’s evidence that (a) “[he] had no idea as to the cause of [P’s] injury. [Ting] noticed the Slab but [he] had no idea how [P] got injured [himself]. That was not anything [Ting] had – that was not anything that bothered [Ting] ……”, (b) “[he had] no idea as to how [P] got injured and in fact, [he] had nothing to do with this”, and (c) it was later that he learned P met with the Accident, all of which did not sit well with P’s claim that Ting caused the Accident by stepping on the Slab that caused resistance to his lifting action.

58. Summary on the Accident  I find P/Ting unreliable, and do not accept the alleged Accident happened as a result of Ting stepping on the Slab when P was lifting it. Mr Lam said P had no motive to lie, but I find P’s/Ting’s assertion of Ting’s involvement was a poor attempt to bolster P’s case on liability since P recognised he could Lift/Flip a marble slab the size of the Slab on his own without problem, and it was a common task he did at the Site and other construction sites. In coming to the above view I have considered paragraphs 59-62 below.

59. Accident report  5 days later (17 July 2010), P returned to the Site to tell Au about the Accident, and Au recorded “意外經過” in “意外調查報告” that Au prepared/signed as safety officer and P signed as injured person: “工人在2座5/F平台進行裁石工序，在搬起雲石時，不慎扭傷背部。……” There was no dispute P did not mention to Au that Ting stepped on the Slab, but he blamed Au in not asking for details. But since P claimed he believed the Accident would not have occurred but for Ting stepping on the Slab, I find he would not have omitted to mention this when he saw Au essentially to report his work injury if the Accident happened as alleged. Such omission suggested it did not occur.

60. Records  P did not state in the Records that Ting stepped on the Slab despite the 1^st/2^nd Amendments (and instead they stated Ting was working in the far distance):

“3. 意外時，…… 本人使用雙手把其中一塊雲石反轉翻面，欲從其背面進行量度及劃上記號;期間，不慎扭傷背部意外扭傷腰椎。

4. 進行雲石量度之工序並不需要使用任何工具協助的，僅需要卷尺、木工鉛筆及雲石切割機這些工具而已。

……

13. 意外發生時，本人獨自一個人工作。現場附近共有約三位工友在較遠處工作(其中一位本人稱呼他“阿丁”，其餘工友，本人則不清楚他們的名字)，但相信他們應該看見事發經過而我隨即將工傷意外一事告訴“阿丁”及“僱主佘清波”。”

61. P complained Ko did not ask for details and/or questioned him about any resistance force, so when Ko/Father asked him to briefly describe the Accident, “[P]便說是翻轉雲石時扭傷”, “對於意外發生的細節及/或牽涉的人物, [they]也沒有斟酌，也沒想過是否要詳細交待”. I do not accept P’s explanation. Even if P was only asked to give a brief account of the Accident, on P’s case he would not have omitted to mention the very matter he thought caused his back injury (ie Ting stepping on the Slab that caused resistance to his lifting action). The 1^st/2^nd Amendments made changes to paragraphs 3-4 and 13 that described the Accident (including what tools P used), and such details could only have come from P as the Father never worked as a marble worker and was not present at the time of the Accident. I find P/Father must have discussed details about the Accident. The silence on Ting stepping on the Slab suggested it did not happen. In my view, P’s suggestion that it was after the assigned solicitors asked him about details of Accident “[P]才想起阿丁當時用腳踏在雲石上而造成壓力” (my emphasis) had unmistakable signs of an afterthought.

62. Further, the Records that stated “現場附近共有約三位工人在較遠處工作(其中一位本人稱呼他 “阿丁”) ……” did not sit well with P’s case. P claimed he told Ko apart from himself 2 workers (including Ting) did measurements at height and 1 worker “在地上掃膠水工作”. I do not believe Ko misunderstood P or made up the statement that other workers were at “較遠處”. Ko could not have assumed such an inaccuracy could remain undetected, and the Father did not make any “correction” when he made amendments to Ting’s name in paragraph 13. I find P/Father discussed about Ting, but no changes were made because P did tell Ko Ting was working at “較遠處” (which also explained why P did not mention in the Records Ting came down the Scaffold and stepped on the Slab).

63. Liability  P failed to establish on balance of probabilities the Accident happened as he alleged. In light of paragraphs 9-12 above, P’s case on liability failed and his claim fell to be dismissed. But I shall go on to consider liability on the assumption P were able to establish the Accident happened as alleged.

64. Vicarious liability  I disagree D2 was vicariously liable for Ting’s negligence. Although D2 carried out risk assessment for miscellaneous/marble workers, organised the Induction Course and other safety training courses, and carried out overall safety supervision/patrols, I am unable to discern any sufficient basis for vicarious liability on the part of D2 as principal contractor (or D1 as superior subcontractor) in the absence of any plea that they personally assumed responsibility and/or D2 as ad hoc employer borrowed Ting to be its ad hoc employee. I have found neither D1 nor D2 was Ting’s employer.

65. In the recent judgment of Cox v Ministry of Justice[33] handed down by the UK Supreme Court after the trial of this action that discussed the relationship that had to exist between an individual and a defendant (in the absence of a contract of employment) before a defendant can be made vicariously liable in tort for the conduct of that individual, Lord Reed referred to the 5 policy reasons that usually make it fair, just and reasonable to impose vicarious liability[34] and focused on the 3 inter-related factors: (a) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf the defendant, (b) the tortfeasor’s activity is likely to be part of the business activity of the defendant, and (c) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor. Lord Reed went on to say:

“24. …… The result of this approach is that a relationship other than one of employment is on principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.

……

29. …… It results in an extension of the scope of vicarious liability beyond the responsibility of an employer for acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasor’s activities are entirely attributable to the conduct of a recognisably independent business of his own or of a third party. ……

30. …… The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of his operation and for its benefit. ……” (my emphasis)

66. Here, D2 did not assign any activity to Ting, and I have found D1 did not do so too. D2 subcontracted the Marble Works to D1, D1 subcontracted the Installation Works to Chathay, and Chathay subcontracted the Workers’ Works to Tsz, so plainly Ting’s activities as marble worker employed by Tsz at the Site was attributable to the recognisably independent business of Tsz for which he received project/subcontract fee. I am not satisfied there was any vicarious liability on the part of D1 and/or D2.

67. Induction Course  D2 organised the Induction Course to educate all new workers on general construction site safety and to provide information about their work environment. I have found P attended such Induction Course.

68. Manual handling operations  Au/Chan knew marble workers at the Site handled marble slabs that weighed 55kgs or more, which was regarded as heavy manual operation with risk of injury, so D2 organised manual handling operation course to give safety training to inter alia marble workers who had to lift/transport heavy objects. Au (speaker at such course) warned of the risk of injury (back sprain being a common injury) during manual handling operations. P claimed he did not attend such course, and D2 could no longer locate the attendance records.

69. Risk assessment  Au/D2 carried out risk assessment for manual handling operations (including on-site “搬運雲石工作”) and prepared “體力處理操作風險評估表” for miscellaneous/marble workers dated 31 October 2009. For carrying out such risk assessment, Au had to understand the work procedure for marble works, identify the relevant manual handling acts, and consider the associated risks. Au came to know marble workers had to mark/cut/install the marble slabs, climb up/down the scaffold to take measurements, and Lift/Flip the marble slabs for marking/cutting. Chan too was aware marble workers had to work on the scaffold, and occasionally (but rarely) they had to cut the marble slabs on-site.

70. The recommendations “依優先次序列出” in the risk assessment report were as follows:

“i. 儘量使用手推車,減少徒手提舉搬運重物。

ii. 每連續工作兩小時,工人須有十五分鐘的休息時間。

iii. 儘量小組(兩人一組)搬運雲石。

iv. 加強工人對體力處理橾作的安全常識,及工人工作時必須有足夠空間運作。”

Proper posture should be adopted since risk of injury would be increased if the lifting action involved twisting/bending the body, and it was recommended that 2 workers should work together to lift object weighing more than 15kgs off the ground.

71. Chan/Au agreed that to Lift/Flip a marble slab the size of the Slab with bare hands was heavy manual work even though the weight of such marble slab would be less than 55kgs with the Pivot Edge resting on the ground.  Chan explained that to Lift/Flip a marble slab, if there were 2 workers, they would be positioned on opposite sides of the marble slab to work in unison to lift the Lift Edge whilst the Pivot Edge rested on the ground, turn the marble slab over and then lower it to the ground, but if there was only 1 worker, such worker would lift the Lift Edge with the Pivot Edge resting on the ground, and when the marble slab was vertically perpendicular to the ground he would shift his position to the other side of the marble slab to lower it to the ground. Chan agreed there would be risk of injury (eg hand/wrist/back sprain or other injury upon dropping the marble slab due to loosened grip), but whether it could be done by only 1 worker depended on the worker’s physique.[35]

72. The risk assessment report was passed to D2’s subcontractors (including D1) with expectation that they would take steps to inform/advise their own subcontractors/workers. Au/Chan organised safety training courses and patrolled the Site to supervise/encourage compliance with the recommended measures. If they noticed any non-compliance, they would tell/stop the worker, take a photograph, issue letter/memo to remind the relevant subcontractor on future compliance, and fill in a record card.

73. D1 and Chathay  Cheung was not responsible for safety matters, and seldom visited the Site in 2010. He did not know whether D1 carried out risk assessment or took safety measures for handling/moving marble slabs at the Site. Ng knew there was risk of injury to Lift/Flip a marble slab that weighed over 50kgs, so Ng/Chathay reminded Tsz about work safety and told Tsz his marble workers should take care in carrying out the Workers’ Works.

74. Liability of D1/D2  Mr Lam suggested that since Au agreed D2 as principal contractor should take care of the safety of all workers at the Site, and Cheung agreed D1 should take care of the safety of all marble workers, so D1/D2 owed duty of care to take care of P’s safety. But the laudable broad sentiments expressed by Au/Cheung did not mean D2/D1 became insurers against any accident/injury that might befall any worker or marble worker.  Indeed, the happening of the Accident as alleged did not prove there was necessarily inherent danger or foreseeable risk such that there would be negligence in not taking some precautions. Likewise, a back sprain was not itself negligence. D1’s/D2’s duty of care to take reasonable steps to eliminate real/foreseeable risks must be viewed against the overall factual matrix, including the fact D1/D2 subcontracted the Installation and Workers’ Works to other subcontractors who were expected to discharge their own duty of care to their workers. Also, it was not the duty of D2/D1 to carry out risk assessment for each and every task in the work procedure that was not inherently dangerous and/or not reasonably foreseeable regardless of the seriousness of the risk of injury. It was held in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty & anor that the essential factor is whether the damage is of such a kind as a reasonable man should have foreseen:[36]

“…… the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk and not a mere possibility which would never influence the mind of a reasonable man. …… to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.”

75. Here, it was essential to first ascertain the cause of the Accident to see whether D1/D2 was negligent in addressing such cause. It was plain that P’s principal complaint was Ting stepping on the Slab causing resistance to his lifting action rather than the usual act by P to Lift/Flip the Slab. It must be borne in mind that at the time of the Accident, P in lifting the Lift Edge to 45º to the ground was only engaged in a lifting action (and had not reached the stage of flipping or pivoting the Slab). P himself admitted (a) the Accident/injury would not have happened if Ting had not stepped on the Slab, (b) he could manage to Lift/Flip the Slab on his own, (c) he did routinely Lift/Flip marble slabs of this size at the Site and other construction sites without need for help from other co-worker(s) (but he would seek help in handling larger/heavier marble slabs) and the practice was basically the same at the Site and other construction sites, and (e) he would Lift/Flip marble slabs 5-7 times/day. In short, P’s evidence amounted to this:  quite irrespective whether generally it would have been cautionary and/or prudent for 2 marble workers to Lift/Flip a marble slab the size of the Slab, P had no problem in lifting the Lift Edge to just about/under 2.5ft at an angle of 45º to the ground (with the Pivot Edge resting on the Plinths/ground and P did not have to support the full weight of the Slab).  Hence, even on P’s case, such lifting action was not causative of the Accident.

76. This accorded with Chan’s evidence that whether the Pivot Action could be handled by 1 marble worker depended on the worker’s physique, and he thought a worker of his build (ie normal build) could do so as the marble slab would not be lifted completely off the ground. I see nothing wrong with the realism of such view (and indeed P also agreed he could do so himself), which was not inconsistent with the cautionary recommendation of having 2 marble workers to perform such task.

77. Mr Lam argued since Au recommended 2 workers should work together to Lift/Flip the marble slab, D2 was negligent in failing to provide sufficient workers to help P Lift/Flip the Slab safely. First, the act to Lift/Flip the Slab was not the cause of the Accident. Secondly, P admitted Ting could help him move/lift marble slabs. Ting was up on the Scaffold for only 1-2 minutes for re-measurement, and there was no suggestion P’s act to Lift/Flip the Slab was so urgent it could not await Ting’s return to the ground. Thirdly (and more importantly), P said even if Ting were available, still he would Lift/Flip the Slab alone, and would look to Ting or co-worker for help only if the marble slab was heavier and larger in size, which echoed the Records that stated inter alia:

“5. 該塊雲石長約750毫米、濶約700毫米、厚約45毫米及重約110斤。因只是把雲石放在兩條木枋上移動的雲石進行翻面而已，並非搬起整塊雲石，所以本人可力獨自搬運該塊雲石以獨自將該雲石翻面。但如有需要，本人可向僱主提出要求協助。

6. 本人會視乎雲石的大小及重量而自行決定是否要求工友協助搬運雲石將雲石翻面。就是次意外，本人認為該塊雲石不算太大或太重，所以沒有要求工友協助。”

Given the 1^st Amendments made to the above paragraphs, I find those paragraphs reflected P’s case/understanding. Fourthly, D2 had subcontracted the Marble Works, and it was not its duty/obligation to supply labour for the installation works. There is no merit to this argument.

78. Mr Lam next suggested D2’s risk assessment was inadequate as it dealt with transporting and/or lifting (off ground) heavy objects, and failed to focus on the act to Lift/Flip a marble slab. But this was not the mischief here, and on P’s evidence, quite irrespective of any risk assessment, he admittedly could Lift/Flip the Slab on his own (had it not been for Ting stepping on the Slab) and knew he could ask Ting or other co-worker for help if required (but he did not). 

79. It should not be forgotten that D1/D2 subcontracted the Marble Works and Installation Works to their respective subcontractors. D2 had conducted risk assessment and disseminated the report to its subcontractors (including D1) with the expectation that they would supervise/encourage implementation of the recommendations. D2’s safety personnel also conducted safety patrols and required workers/subcontractors to take remedial actions when non-compliance was observed. D1/D2 were not P’s direct employer, indeed not even his direct employer’s immediate superior subcontractor, and I am not satisfied D2/D1 as principal contractor and superior subcontractor failed in their duties in relation to the marble workers when on P’s case the act to Lift/Flip marble slabs was not even the cause of the Accident.

80. The true question on liability concerned Ting stepping on the Slab. I have expressed doubt whether P worked so close to the Scaffold as he/Ting alleged, but even assuming P was that close to the Scaffold, Mr Lam’s complaint that D1/D2 should have taken measures to ensure P would not work too close to the Scaffold assumed there was a real or reasonably foreseeable risk such that D1/D2 should have taken precautions. It was therefore necessary to ask the anterior question whether there was any real or reasonably foreseeable risk that a marble worker who routinely climbed up/down a scaffold in his work would not check what was on the ground underneath him before landing. Mr Lam submitted D2 in carrying out the risk assessment failed to properly learn/understand the work procedure and to devise a safe system of work and/or adequate safety guidelines/warning,[37] so “[in] the absence of any proper instructions from D2 (and D1 as well) and when the preparatory work is done close to the [Scaffold], it is wholly probable that when the worker climbed down from the scaffold, he might inadvertently step on the marble stone that was being overturned by another worker down below”.

81. Both Au/Chan agreed they knew some marble workers had to climb up/down the Scaffold for taking measurements and installing marble cladding whilst others worked on the ground marking/cutting marble slabs. But this was a far cry from reasonably expecting a marble worker who routinely climbed up/down scaffolds would land on a co-worker or object underneath him. Despite their experience and patrols at construction sites, Au/Chan had never seen such occurrence. Chan quite reasonably questioned why any marble worker used to routine work on scaffolds would climb down to land where another marble worker was working on the ground. “How would one climb down above the head of another person? …… If a worker was flipping a marble slab here, how could his co-worker climb down above his head? There is no way for a worker to do it. Instead he would just do it further away [ie climb down to land just next to the spot as demonstrated by the witness] climbing down.” In my view, there was no breach of duty just because of Ting’s action, and it was reasonable/sensible to expect a marble worker climbing down the Scaffold to naturally take a quick glance to make an obstruction-free landing at least for his own safety in addition to safety for others. It would be unreasonable to expect (as Ting suggested) a marble worker climbing down a scaffold to be unconcerned as to who/what was below him, especially when there was no difficulty to climb down or land next to the spot if required. Mr Sakhrani colourfully suggested it was unnecessary to treat marble workers as imbeciles. In fact, as seen from paragraphs 47 and 55 above, both P and Ting were already aware of this need to “make sure that, when one climbed down, one would try not to step on [people and slabs on the ground]”, and P knew the Outer Layer was meant to prevent other workers to come into contact and affecting workers on the Scaffold. On balance I find the risk of a marble worker climbing down a scaffold and landing on the ground without bothering to see his landing spot was obstruction-free was not reasonably foreseeable as to sound in need for risk assessment and/or in negligence or breach of statutory duty.

82. P’s claim fell to be dismissed. I need not speculate what was the cause of P’s back pain, eg whether it was spontaneous onset upon exertion. However, since I disbelieve P’s allegations in respect of the Accident and since P had history of back symptoms,[38] Dr Lam’s opinion set out in paragraph 86 below did have some force. I also need not deal with the issue of contributory negligence on the part of P. But for completeness, I shall consider the issue of quantum on the assumptions that (a) the Accident happened as P alleged, (b) P was able to prove his case on liability, and (c) P was not contributorily negligent.

V.  QUANTUM

(a)  Personal history

83. P did not complete Form 1, and had limited ability to understand Cantonese and/or written Chinese. P claimed to have strong physique before the Accident as he had to manhandle heavy marble slabs and Lift/Flip them over 5-7 times/day. But P was not symptom-free. He told the Experts he had occasional low back tiredness (not actual pain) after exertion, but no treatment was required. Further, P admitted (and the medical report by AED of Tseung Kwan O Hospital (“TKOH”) dated 3 April 2014 showed) he attended AED of Queen Elizabeth Hospital (“QEH”) on 5 January 2009 for back sprain with radiation to his right leg, but he claimed to have fully recovered from that condition. P explained in his statement evidence there was no injury/accident and he worked as usual, but he went to QEH’s AED the following day because he felt tight/painful at his waist. He was given 3 days’ sick leave, and thereafter returned to work without further follow up.  This history accorded with Dr Lam’s view that P had incidental onset of back pain at work, which muscle strain was expected to be temporary and not severe (see paragraph 86 below), but for present purpose I shall assume that the Accident was a contributing cause of P’s back injury.

(b)  Causation of injury

84. The Experts agreed P probably had back pain of soft tissue origin with no suggestion of bony fracture or neurological deficit.

85. Dr Ko opined P in essence had a back sprain injury whilst lifting the Slab that might have resulted in mild disc bulging of L5 with mild soft tissue residual back pain and residual right leg numbness. Dr Ko said biomechanical studies suggested lifting excessive heavy weights might lead to increase in the discs pressure and was thus prone to discs prolapse. Although Dr Kong agreed (a) the minimal bulging was a sign of degeneration[39] that should not cause lower limb neurological symptoms or carry much clinical significance,[40] (b) there was no significant spinal nerve root compression, and (c) on the more objective findings P did not have genuine neurological deficit due to L5/S1 disc pathology that would result in persistent right side numbness, he suggested the injury was consistent with mild disruption of the fibres of annulus fibrosus with modest degree of soft tissue residual back pain and right sciatica “in an already degenerated [or derogated] disc”.

86. But Dr Lam opined P’s back pain was likely due to pre-existing back problem with incidental onset of pain at work or on the particular date (rather than actual back sprain/injury), which muscle strain would usually be temporary and not severe. In coming to such view, Dr Lam considered (a) P did similar lifting 5-7 times/day, (b) the force P applied to lift the Slab[41]  was well within the physical capacity of an average male and should not injure an otherwise normal spine, (c) any additional weight from Ting placing his foot on the Lift Edge would be very minimal given the use of the long lever system, and (d) there was no particular twisting of back or direct hit by object or fall to the ground during the Accident. Dr Lam opined that disc bulging/ protrusion from a single incident was highly unlikely since biomechanical studies showed the disc was stronger in vertical loading than the vertebral body, so loads high enough to rupture a disc would tend to fracture a vertebral body first. This was typically a wear and tear phenomenon that occurred over multiple loading cycles instead of a single loading incident,[42] so the presence of abnormalities on imaging studies (eg the MRI dated 30 September 2010 referred to below) did not necessarily mean P had impairment due to an injury.

87. Given P (a) did not have to bear the full weight of the Slab with the Pivot Edge resting on the ground, (b) only lifted the Lift Edge to about/under 2.5ft and 45º to the ground, and (c) could physically Lift/Flip marble slabs the size of the Slab on his own 5-7 times/day for the past 8 days at the Site and also at other construction sites, but P also had pre-existing degeneration with previous presentation of symptoms as back sprain with radiation to his right leg following a workday in January 2009 as well as occasional low back tiredness upon exertion (which spontaneous onset, according to Dr Lam, should be temporary and not severe), there is some force in Dr Lam’s opinion that P’s back pain was due to incidental onset as a result of pre-existing back problem, which lent support for my conclusion that P’s back pain was not due to the Accident. But that said, for present purposes, I assume the Accident was a contributing cause of P’s back pain.

88. I disagree with Mr Lam’s suggestion that Ting stepping on the Slab “must have exerted tremendous force and pressure on the [Slab]”. Since the Lift Edge was about/under 2.5ft from the ground when Ting stepped on the Slab, he was plainly about to land and could not have been dropping onto the ground with tremendous force. Further, as he placed only 1 foot on the Slab, his arms and other foot would have supported part of his body weight by holding onto and having foothold on the Scaffold. In my view, even on P’s case, Ting stepping on the Slab would not have exerted tremendous force and pressure.

89. But assuming P was able to prove Ting stepped on the Slab and Ds were liable to P as alleged, even though the alleged Accident was on such basis a contributing/effective cause of P’s back sprain/injury, I find it could not have been the sole cause for Dr Lam said the impugned act of Ting stepping on the Slab as P was lifting it would not have injured a normal spine, and even Dr Kong recognised P’s symptoms were due to the effect of injury on “an already degenerated [or derogated] disc”. So even on P’s case, both the Accident and P’s pre-existing degeneration were contributing causes, and I need to consider the impact of degeneration on damages in the discussion below.

(c)  Treatment

90. At KWH’s AED, P complained of back pain, and there was tenderness of lower lumbar spine on palpation with decreased range of back movement, but no lower limb neurological deficits were elicited. P attended TKOH’s AED on 15 July 2010 with tenderness over lower back but no neurological deficit, “jerks+; power 5/5; sensation intact”. The provisional diagnosis was sprain back. Right sciatica was first mentioned when P attended TKOH’s AED on 18 July 2010 complaining of back pain and right leg pain, and the clinical diagnosis was sprain back with right leg sciatica. The medical record noted “5/1/09: back sprain, radiate to right leg”, which was obviously a referral to P’s consultation at QEH’s AED in January 2009. P was given sick leave until 24 July 2010.

91. P was seen at TKOH’s O Po Ning Road general outpatient clinic (“GOPC”) on 24 July 2010 complaining of low back pain associated with foot numbness. There was tenderness over lumbrosacral spine and reduced active range of movement with no obvious neurological deficits. P re-attended TKOH’s GOPC on 29 July 2010 with similar findings. Right/left straight leg raising (SLR) was 50º/60º with “tight hamstring”. On 3 September 2010, P attended TKOH’s GOPC with similar findings. P attended TKOH’s AED on 6, 13 and 23 August 2010 for residual back pain with sick leave granted for 6-26 August 2010. On 6 August 2010, P complained of mechanical pain and pain radiating to right lower limb. Right/left SLR was 70º/90º with no weakness/numbness, 5/5 power and normal sensation. On 13 August 2010, tenderness was reduced, but there was numbness/weakness. On 23 August 2010, SLR was 60º/90º, right/left power was 4+/5 and 5/5, and sensation was intact.

92. P was referred for physiotherapy with detailed assessment done on 23 August 2010. Subjectively, P complained of 5/10 back pain aggravated by walking (15-30mins) and sitting tolerance was 30mins, and he had high self-perceived disability level due to back pain. Objectively, active range of motion of trunk for flexion was “finger touched upper shin level” and for extension, left/right side flexion and left/right rotation were “2/3 of full range”. Right/left SLR was 45°/60° (with back pain) with tenderness over lower lumbar muscle region on palpation.

93. On 27 August 2010, P attended TKOH’s AED for residual back pain and right leg pain with sick leave extended. P was first seen at TKOH’s orthopaedic clinic on 7 September 2010 complaining of persistent back pain radiating to lower limb and right leg numbness. Physical examination showed focal tenderness over spinal muscle and reduced light touch sensation over right leg lateral shin but no muscle weakness. X-ray showed only degenerative changes. He was treated conservatively with physiotherapy and medication. The Experts agreed that although P had right sciatica, there was no well-defined neurological deficit or feature of significant spinal nerve root compression, so P’s condition was of soft tissue origin.

94. P had private MRI lumbar spine done in Mainland China on 30 September 2010 that showed mild scoliosis, hypointense signal at L5-S1 intervertebral space on T2W1 image, and “腰5骶1椎間盤膨隆”  (posterior bulging/protrusion of intervertebral disc on L5-S1 level). The Experts agreed the decreased T2 signal for L5/S1 disc and minimal L5/S1 bulging were signs of degeneration, but without thecal/root compression the latter should not cause lower limb neurological symptoms and did not carry much clinical significance.

95. According to the orthopaedic clinic record on 5 October 2010, P had mild improvement of low back pain with mainly residual right lower limb pain but no weakness/numbness. Walking tolerance was about 30mins with no claudication. TKOH’s physiotherapy reports on 24 and 29 November 2010 and 15 March 2011 respectively showed (a) P had 20% overall improvement with 8/10 pain and right/left SLR at 55º/69º, (b) P had about 40% overall improvement and 5/10 right low back and right lower limb pain, and (c) P had about 40% overall improvement”, 6/10 pain and right/left SLR at 50º/71º. P attended TKOH’s department of orthopaedics and traumatology (“DOT”) on 25 January 2011, but right posterior thigh pain was static with no lower limb weakness and SLR was 60º/80º. On 22 March 2011, P again attended TKOH’s DOT, and right/left SLR was 70º/90º.

96. The above account showed P’s condition had improved as corroborated by the surveillance recordings on 9 and 11-12 April 2011 that showed P walked with normal gait with no apparent restriction in walking tolerance, walked up/down staircases smoothly, moved his back and bent to touch ground freely, and performed pulling up repeatedly up to 6 times consecutively without observation of distress during such activities. P claimed the pull up and back bending/stretching exercises were simple waist-hardening exercises recommended by the physiotherapist for his rehabilitation, but he still had waist pain in going up/down staircase and after walking for 25mins. Plainly, P’s condition had improved both subjectively and objectively as evident from the physiotherapy reports and surveillance recordings, and his waist/back condition was much better than he would have this court believe. I do not accept P had such limited standing/walking/ sitting tolerance or was in such seriously painful condition as he alleged.

97. Indeed, TKOH’s orthopaedic clinic record on 17 May 2011 noted P’s “right posterior thigh pain static; [physical examination]: no focal spinal tenderness; SLR right 70º / left 90º, laseque –ve; bilateral lower limb power 5/6; sensation intact; reflex normal; plan: MAB” (my emphasis). On 12 July 2011, P attended TKOH’s DOT: “mainly right posterior thigh numbness [affecting job]; SLR right 50º / left 90º; bilateral lower limb power 5/5; sensation intact; reflex normal”. P was discharged from physiotherapy as his condition was static with maximal medical improvement (“MMI”), and Medical Assessment Board (“MAB”) assessment was done on 17 August 2011 with 2% loss of earning capacity for “sprain of back resulting in pain and numbness”. But P gave evidence that he could not return to work because he still had numbness at external/lateral side of right thigh/leg.

98. On 6 September 2011, P attended TKOH’s DOT complaining of residual right posterior thigh numbness, but “no lower limb weakness; SLR right 50º / left 80º; squatting / tip-toeing / heel walking ok; light touch [no abnormality detected]”. On 23 September 2011, P attended TKOH’s AED for residual back pain and right leg pain, and was referred for physiotherapy. On 30 November 2011, P attended TKOH’s AED complaining of residual back pain and right leg pain. On 13 December 2011, P again attended TKOH’s DOT: “SLR right/left 70°-ve; bilateral lower limb power 5/5; sensation/reflex+; tender paraspinal muscle”.

99. P first attended occupational therapy at UCH on 11 November 2011 complaining of low back pain with right lower limb numbness, and diminished standing/walking tolerance due to back pain. Work rehabilitation was arranged, but after 5 months P still complained of persistent low back pain and right lower limb sciatic pain. Finger-to-floor forward trunk flexion was 40cm, bilateral lifting capacities from floor-to-knuckle and knuckle-to- shoulder were 30lbs and 10lbs respectively, standing/walking tolerance improved from 10mins to 25mins, and post-exertional back pain was 8/10. The occupational therapist concluded P’s physical capacity and functional tolerance were not adequate for his previous job.

100. TKOH’s physiotherapy department did detailed assessment on 1 December 2011. Subjectively, P complained of 5/10 back pain aggravated by walking/sitting for 20mins, and he had high self-perceived disability level due to back pain. Objectively, active range of motion of trunk for flexion was “finger touched upper shin level”, extension was full range, and left/right side flexion and left/right rotation were “2/3 of full range”, and right/left SLR was 60°/70° (with back pain) with tenderness over lower lumbar muscle region. P was given physiotherapy treatment.

101. Review MAB was done on 21 December 2011 for sprain back resulting in back pain, numbness and dyspepsia with loss of earning capacity revised to 2.5%. The Experts agreed the findings in 2011 were similar to those in 2010, ie P had right lower limb complaint with no documented neurological deficit.

102. TKOH’s physiotherapy record dated 12 January 2012 showed 8/10 pain but 20% subjective overall improvement. TKOH’s orthopaedic clinic record for 19 January 2012 showed P’s right/left SLR were 70º/70º, “bilateral lower limb power 5/5; sensitive/reflex +; tender paraspinal muscle; slow progress in pain relief … no night pain” with sick leave was given to 4 February 2012.

103. On 5, 9, 16 and 23 February 2012, P attended TKOH’s AED with no lower limb neurology, “tender°; spasm+; SLR –ve”, “right lower back tender”, and “LBP + right leg numbness x few days” respectively.  P was granted sick leave from 5 to 29 February 2012, and was suggested to attended vocational resettlement service for exploration of vocational choices on 24 February 2012. On 1, 4, 9, 16, 21 and 26 March 2012, P attended TKOH’s AED complaining of low back pain “down right leg” and “right thigh numbness” with limited/painful right SLR but normal reflex/gait and full muscle power. Interestingly, on 16 March 2012 it was noted “sensation normal”, but on 21 March 2012 P denied sensation of whole right lower limb (which was quite impossible). On 14 April 2012, P attended TKOH’s GOPC complaining of mild tenderness at right paraspinal muscle of lumbar spine, but active range of movement was preserved. On 1 May 2012, P attended TKOH’s AED for “tender right paraspinal”.

104. P was discharged on 10 May 2012:

(a) from TKOH’s orthopaedic clinic as physical examination showed no lower limb neurology, no lower limb weakness, “sensation/reflex+” and right/left SLR was 60º/70º (even though P had “[low back pain] VAS 8/10” with 20%-30% overall improvement, walking tolerance of 20-25mins and tenderness over L4-L5);

(b) from UCH’s occupational therapy as progress was static (even though P claimed he had persistent low back pain with right lower limb sciatica pain (VAS pain scale 8)), but he was referred for vocational re-settlement to prepare for change of job;

(c) TKOH’s physiotherapy as P’s condition was static with P’s subjective complaint of 7-8/10 back pain aggravated by walking/sitting for 20-25mins despite 20%-30% improvement, and objective examination that active range of motion of trunk for flexion was “finger touched upper shin level”, extension was full range, left/right side flexion was “finger touched lower thigh level”, left/right rotation was “2/3 of full range”, right/left SLR was 60°/70° (back pain produced), and there was tenderness over lower lumbar muscle region.

105. Surveillance recordings on 24 April and 10 May 2012 showed P was able to lower his back to peer through a shop window, bend his back to board a taxi, twist his waist, and quicken his pace to hold a door, but P was not seen to involve strenuous or employment activities.

106. On 30 June 2012, P attended TKOH’s GOPC, and it was noted there was “no gross lower limb neurological deficits”.  On 11 July 2012, P attended the clinic in Mainland China with diagnosis of lumbar disc protrusion and strain of lumbar muscles. On 5 and 28 July 2012, P attended TKOH’s AED for back pain and right leg pain, and was granted sick leave until 1 August 2012 when he attended TKOH’s DOT spine clinic with spasm on both sides of the paraspinal muscle and “diffused â sensation lateral right lower limb …… SLR 60º both sides ……” and right leg numbness. The impression was that there was no evidence of nerve root compression, back pain was likely to be muscle inflammation, “cannot find pathology for his leg complain; MMI reached and MAB done; no sick leave will be given”.

107. The Experts noted the assessment at TKOH’s spine clinic on 1 August 2012 was rather close in time to their joint examination on 26 July 2012, and they agreed there were no evidence of nerve root compression and no identifiable pathology for P’s leg complaint. At the time of the joint examination, the Experts noted P still complained of episodic low back pain (more on the right side and worse with prolonged sitting (30mins), standing (30mins), walking (20-25mins) or weather change) with 20% overall improvement after treatment, and tenderness at midline and right side of whole lumbar spine. P also claimed to have persistent right thigh numbness (sometimes to toes and worse with prolonged walking), and his condition remained static despite treatment, but the Experts noted P could sit without apparent distress for 30mins, get up from his seat smoothly, walk in normal gait unaided, stand on either side single-legged, stand/walk on tiptoes/heels, and perform ¾ squat and rise without support. P’s back movement was fair, but under simulation tests he complained of increased back pain on vertex pressure, shoulder pressure, shoulder elevation, pelvis rotation and skin pinching. X-ray was normal-looking other than mild lumbar spondylosis with no loss of lumbar lordosis and no paraspinal tenderness or spasm. The Experts agreed the absence of these objective signs showed the back pain should be of minor degree, and Dr Kong added that P had mild to moderate soft tissue residual back pain.

108. The Experts noted there was no obvious muscle wasting or spasticity of P’s lower limbs. P “[complained] of numbness of whole right lower limb (decreased by 50%), worst at outer thigh (decreased by 80%)”, but had satisfactory/symmetrical hip, knee and ankle movement. The Experts agreed P’s claimed area of numbness was too diffuse for a lumbar disc pathology, and the claimed area of maximal numbness at the thigh was not consistent with L5/S1 disc pathology. Radiculopathy should be associated with objective signs such as muscle wasting and diminished reflexes, but there were no corresponding changes in P. The SLR was not limited which indicated there was no spinal nerve root tension. Dr Kong added there was no significant spinal nerve root compression.

109. On 10 August 2012, P attended TKOH’s AED for “back pain radiates to right leg x few days”. On 15 August 2012, P attended TKOH’s AED with right/left SLR 70º/90º.  Upon visit to the orthopaedic clinic on 15 August 2012, TKOH’s DOT issued P a Certificate of an Employee’s Permanent Unfitness for a Particular Type of Work (Form 1) that certified P was permanently unfit for his present job for “persistent back pain aggravated by exertion” and “assessed to be unfit for material handling”, but “fit at light to light medium level of duty” (“Unfitness Certificate”).

110. P continued to have sick leave from general clinics. On 10, 15 and 21 August 2012, P attended TKOH’s AED for back pain and right leg pain or right leg numbness. On 31 August 2012, P attended TKOH’s AED complaining of back pain. On 5 September 2012, P attended TKOH’s GOPC for “increased pain with right back for 2 days” but “not much radiation”. On 22 September 2012, P complained of back pain for a few days and right leg pain. On 1, 12 and 14 October 2012, P attended TKOH’s AED for back pain and/or radiation to right leg, but interestingly on 12 October 2012 SLR was 90º/90º but on 14 October 2012 SLR was 60º/90º (on this day P was again referred for physiotherapy). On 18 October 2012, P attended TKOH’s GOPC: “LS spine and right paraspinal muscle tender; SLR 50º/70º; subjective â light touch sensation whole right lower limb”. But on 22 October 2012 when P attended TKOH’s AED for lower back pain, his SLR rebounded to 90º/90º. P also attended TKOH’s AED on 29 October 2012 and TKOH’s GOPC on 30 October 2012 for low back pain and “…… subjective â light touch sensation whole right lower limb; right lower back minimal pain ……” P was granted sick leave until 29 October 2012.

111. On 8 and 20 November 2012, P attended TKOH’s AED for low back pain and back pain with radiation down his right lower limb. Detailed assessment by TKOH’s physiotherapy department was done on 30 November 2012. Subjectively, P complained of 7/10 back pain aggravated by walking/sitting for 25-30mins. Objectively, all active range of motion was full range with stiffness over lower lumbar region. P was given physiotherapy treatment.

112. Follow up at TKOH’s DOT on 17 January 2013 showed static condition with residual right leg pain, “back pain with radiation to right lower limb + numbness same; SLR full; excursion to mid shin; power full; blunted sensation right anterior thigh”. P was expected to have residual back and right leg pain especially during exertion, but remained independent in ambulation and all activities of daily living.

113. Detailed assessment was done by TKOH’s physiotherapy department at the last session on 5 February 2013. Subjectively, P complained of 7-8/10 back pain. Objectively, flexion and right/left flexion were “finger touched knee level” and “finger touched lower thigh level”, extension was full range, left/right rotation was “2/3 of full range”, left/right SLR was 60°/60° with tightness. The physiotherapist recommended P to be discharged since his condition was static.

114. P in his witness statement dated 5 July 2013 claimed he still had pain (more severe in rainy weather), numbness and weakness of his back and right lower limb, and could not perform heavy duties. He could not stand for long period or walk/sit for more than 25mins. There was tightness of right leg tendon during walking, and feeling of right toes numbness during sleep. P’s waist often felt stiff, and he had pin-prick sensation.

115. P was seen at TKOH’s DOT specialty clinic on 18 July 2013 with complaint of residual back pain but no lower limb neurology. P claimed to have back pain and right lower leg pain after prolonged standing at work as security guard. The Experts agreed that the findings by 2013 were essentially the same as those in 2010.

(d)  Pain, suffering and loss of amenities (“PSLA”)

116. P told the Experts he was not sporty, and I am unconvinced by his allegation that he could no longer enjoy his pre-Accident sporting activities. Given his ability to perform vigorous waist-hardening exercises (including pull ups and bending/stretching) as early as in April 2011, I accept P could enjoy recreational/sport activities suitable for man of his age and average physical health. I also agree P’s other social activities and activities of daily living should not be affected.

117. The Experts agreed that P’s physical condition had become static and no further treatment was required. Dr Kong opined P’s whole man impairment was 5% and Dr Lam opined it was 2%. Dr Lam was critical of the severity/chronicity of P’s complaints. He opined that orthopaedically for a back strain/sprain with soft tissue involvement but without any substantial structural damage, orthopaedically back pain could usually improve with time upon conservative treatment to reach plateau healing if not to normality, and static/worsening symptoms despite treatment suggested presence of other factors (eg underlying diseases, progressive conditions, or psycho-social factors). Dr Lam considered the diffuseness, chronicity and intensity of P’s back complaints as disproportionate to similar back injury without substantial structural damage sustained 3 years ago. Given that P’s back/lower limb complaints were rather vague/subjective, there were minimal objective signs to support such claims, and the presence of multiple features suggestive of symptom magnification, Dr Lam opined the symptoms should be less than what P claimed.

118. Mr Lam submitted Dr Lam’s opinion “went beyond the scope of his duty and expertise and ought to be rejected” because (a) Dr Lam only examined P once on 26 July 2012 and failed to give proper consideration to P’s extended treatment history as recorded in the medical reports and his numerous attendances at TKOH’s AED complaining of back pain, (b) none of the treatment doctors/therapists had any adverse comments similar to Dr Lam’s opinion, and (c) the treatment doctors granted extended sick leave without doubting its necessity.

119. In my view, Mr Lam’s submissions failed to recognise the differences between treatment and expert medical evidence that Bharwaney J highlighted in Zahid Anwar v Graceful Sound Ltd & anor:[43]

“25. …… Experts are instructed to assist the court by offering their expert opinion on areas which are within their specialist experience and which are not matters of common knowledge. That expert evidence has to be based on the objective evidence available to and ascertainable by them. The paramount duty of the expert is to the court, …… He ……must conduct a forensic examination and critically weigh the objective facts before offering his opinion to the court. In the case of orthopaedic experts, this means that recognised non-invasive tests must be carried out to rule out exaggerated assertions and malingering.” (my emphasis)

I too have discussed such distinction between therapeutic medical factual evidence and forensic medical expert evidence in Lau Mei Wa v Li King Yin & anor,[44] which explains why unsurprisingly therapeutic medical professionals and forensic medical experts may as a result of their different clinical and forensic evaluations come to different conclusions. I endorse what I have said in Lau Mei Wa which is equally applicable here. In my view, Dr Lam did consider/evaluate P’s complaints, symptoms and treatment history as well as his own examination findings to formulate his own opinion based on specialist orthopaedic knowledge, and I see no reason to simply reject Dr Lam’s opinion out of hand.

120. In fact, I agree with Dr Lam that P’s condition was milder and his symptoms less severe than P would have this court believe. Both TKOH’s orthopaedists and the Experts agreed there were no or no significant nerve root compression and/or no identifiable pathology to account for P’s persistent leg complaint. Moreover, the diffusiveness of the complaint of right leg numbness (including the alleged worst outer thigh area) was inconsistent with L5/S1 disc pathology, and the complaint of chronic radiculopathy was not associated with the expected objective signs of muscle wasting and diminished reflexes. In fact, power and reflex of P’s lower limbs were normal. These matters plainly supported Dr Lam’s view, which I accept, that there was symptom magnification on the part of P. This was also borne out by TKOH’s GOPC’s view that P’s complaint of loss of sensation for whole right limb was quite impossible (see paragraph 103 above), and by the suggestion of pin-prick sensation in P’s statement evidence years after the Accident. Even Dr Kong agreed that in the absence of objective signs P should only have mild to moderate soft tissue residual back pain. In my view, P had plainly over-stated his complaints.

121. Mr Sahkrani cast suspicion on the pattern of P’s attendance at TKOH’s AED with no attendance during a 13-month gap between 27 August 2010 and 23 September 2011 and a subsequent 4½-month gap with only 1 visit on 30 November 2011, but P attended TKOH’s AED 23 times between 5 February and 20 November 2012. I accept the aforesaid gaps in 2010-2011 might be explained by P’s regular attendance at TKOH’s DOT which ceased on 19 January 2012 with sick leave granted to 4 February 2012. In my view, this explained why P resorted to multiple attendances at TKOH’s AED thereafter. One could not escape from suspicion that these visits were for obtaining sick leave and in due course for referral to physiotherapy when (a) TKOH’s DOT in their specialist discipline found P’s thigh pain to be static on 25 January and 17 May 2011, and P’s condition reached MMI and was fit for MAB assessment by July 2011, (b) initial and review MAB were already done on 17 August and 21 December 2011, (c) P’s condition was regarded as static such that he was referred for vocational resettlement service on 24 February 2012, (d) TKOH and UCH discharged P from all medical disciplines on 10 May 2012 given his static condition, (e) the Experts regarded P’s condition had reached MMI before their joint examination on 26 July 2012, and (f) on 1 August 2012 TKOH’s DOT reiterated that P’s condition had reached MMI. In light of the treatment history, even though P continued to consult TKOH’s AED and obtained referral for physiotherapy in 2012, I am satisfied this was influenced by his exaggerated complaints upon which the treating doctors/therapists relied, but by such time his condition was already static and in fact quite mild. Indeed, TKOH’s DOT was of such firm view they specified on 1 August 2012 that “no sick leave will be given”. Even the doctors of TKOH’s AED who were not orthopaedic specialists no longer granted sick leave after 18 November 2012 even though P continued to seek treatment well into 2013.

122. Mr Sakhrani also questioned why P’s subjective assessment of pain deteriorated from 5-6/10 to 7-8/10 after the review MAB in December 2011 (which persisted until 2013) despite P’s subjective recognition of some overall improvement. P claimed he only told the doctor/therapist the level of pain he felt on the day of the consultation, but the weather affected the pain and it varied. I agree this was rather perplexing given (a) P’s denial of any intervening accident/injury, (b) P’s ability to perform vigorous exercises as early in April 2011 (and he was able to move his body up/down smoothly several times without indication of pain during a demonstration at trial), and (c) the absence of neurological deficits or structural damage. In my view, this suggested symptom exaggeration/magnification which the Experts recognised when they elicited positive Waddell’s signs during their joint examination. Dr Kong suggested they were also signs of body language that the patient was trying to convey to the examiner that he still suffered from a modest degree of residual back pain. That said, I have no doubt P’s complaints were more severe than his true condition, and even Dr Kong noted any back pain would be of “modest degree”.

123. I accept Dr Lam’s concern that P’s static or worsening symptoms could not be orthopaedically justified on the basis of the alleged injury which should have reached plateau healing if not normality. Bearing in mind that P allegedly suffered muscle/back sprain with soft tissue injury as a result of the Accident, I find on the aforesaid analysis that P’s symptoms should have been modest, his standing/sitting/walking tolerance and back movements should have been better than presented, especially when there was no loss of lumbar lordosis, no muscle wasting in the legs, no significant spinal nerve root compression and no well-defined neurological deficits.

124. I now turn to the issue of pre-existing degeneration. There was no dispute there was radiological/MRI degeneration due to natural progression, and Dr Kong agreed P had degenerated/derogated disc. The Experts agreed not all people with spine degeneration would have pain, but those with degeneration were more prone to have pain, in particular when there was previous history of back pain. P did have history of back pain. P had occasional low back tiredness upon exertion, and in January 2009 he had non-trauma back pain with radiation down his leg after a workday, and in the absence of accident/injury and in the presence of progressive degeneration, I find such symptoms were associated with his pre-existing degeneration.

125. Dr Kong opined that given P’s young age he would not have symptoms for another 10-15 years without the Accident. But in concluding that 20% be apportioned for P’s pre-existing degeneration, Dr Kong must have realised P’s degenerated/derogated disc was and would continue to be a contributing cause to his post-Accident condition. But in coming to this modest view, Dr Kong did not have the benefit of the medical report by TKOH’s AED dated 3 April 2014 on P’s attendance at QEH’s AED on 5 January 2009 and P’s explanation as described in paragraph 83 above. Plainly, despite P’s young age and his ability to perform work as a marble worker prior to the Accident, he was not entirely symptom-free, and about 1½ years before the Accident he already had painful symptoms with radiation down his leg that required 3 days’ sick leave.

126. This accorded with Dr Lam’s view (which I prefer) that P’s back was rather vulnerable due to the degenerative changes prior to the Accident, and since degeneration was an on-going process and exertion common for a marble worker, P would develop similar back pain if he continued with his pre-Accident work, and even without the Accident or other trauma at some point he would be unable to continue with his pre-injury work. Dr Lam estimated P would develop similar back pain within 1-2 years even without the Accident.

127. The proper approach to damages when there was a pre-existing condition is set out in Chan Kam Hoi v Dragages et Trauvaux Publics[45] which I have summarised in Yu Wai Kan v Law Choi Tai:[46]

“71. It appears to me that the following are the principles which govern the issue of causation and the quantification of loss suffered by the Plaintiff:

……

(e) When considering the effect of a pre-existing condition on an award of damages, there are 3 possible scenarios. ……The first is where the plaintiff is almost certain to have gone through life unaffected by the condition, and the defendant will be liable for all damage caused. The second is where there is a strong possibility that some other event or natural progression of the condition will have brought about the plaintiff’s present state, so it will be necessary to assess the degree of the possibility in deciding what reduction is appropriate in the same way as it is necessary to assess the effect of other vicissitudes of life that May abbreviate the plaintiff’s working life or lifespan and thus abridge his loss. The third is where this will certainly have occurred at some stage in any event so that clearly an allowance has to be made but the extent of which depends on the evidence as to when the precipitating event will have occurred (see Chan Kam Hoi v Dragages et Trauvaux Publics [1998] 4 HKC 523, 527).

(f) Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages.  Past loss of earnings May also be reduced if the risks during the years concerned are sufficiently high.  For future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence, especially when a plaintiff’s working life is likely to be limited by a pre-existing condition (see Chan Kam Hoi at p.529 and Cheung Fat Tim v Wong Siu Ming trading as Kee Construction Company & anor HCA 5079/1991, Findlay J (unreported, 17 January 1995)).”

128. It appeared the Experts agreed that even without the Accident P in any event would have symptoms from his degeneration, and the real question was whether it would be 10-15 years as Dr Kong suggested or 1-2 years as Dr Lam suggested. Indeed, the Experts accepted that a degenerative spine was likely to produce pain when there was previous history of back pain, and here P had a vulnerable back and previous exhibition of painful symptoms. In my view, this falls into the third category of Chan Kam Hoi. Given P’s degenerative vulnerability and the nature of his pre-Accident work, I prefer Dr Lam’s view that symptoms of such vulnerability are likely to occur in 1-2 years even if there had been no Accident. But that said, given (a) P’s relatively young age, (b) his degeneration was non-florid, and (c) I have found P’s condition/symptoms to be quite mild, I find the degenerative symptoms of back pain would not be debilitating but would increase in severity/frequency as his degeneration progresses. I am also satisfied that even though P’s degenerative condition would not be symptom-free, P could still work as a marble worker even though he might have occasional tiredness and/or temporary muscle strain at his back after exertion, but as his degenerative condition progresses it would in due course adversely affect his ability to continue with heavy manual work, and he would have to prematurely retire as a marble worker.

129. I have viewed the cases cited by Mr Lam[47] and by Mr Sakhrani.[48] Taking into account P’s reasonable rehabilitation, his mild residual condition, his exaggeration of symptoms/disabilities, his treatment history and the Experts’ opinion, but accepting the effect due to the interplay of P’s degenerative spine, I find the appropriate award for PSLA to be $180,000.

(e)  Pre-Accident work

130. When P came to Hong Kong, he worked in Chinese restaurant commercial kitchens as a kitchen apprentice in 1996-2000 earning $7,000.00-$8,000.00/month, a dim sum apprentice who prepared ingredients for cooking dim sum in 2000 to mid-2000 earning $8,000.00-$9,000.00/ month, and a dim sum (or steam-basket) master responsible for steam-cooking dim sum in mid-2000 to 2002 earning about $10,000.00/ month. P returned to Mainland China in 2002-2005, and since 2005-2006 he worked as casual marble worker for different employers at different construction sites.

131. There was no dispute that P’s daily wages at the time of the Accident was $650.00 and he worked 8-9 out of 12-13 days at the Site. The crux of the dispute was how many days he worked on average in a month. P said he would line up his next job whilst working on the current one, and on average he worked 26 days/month so his pre-Accident average monthly earnings were $16,900.00, but Ds claimed P worked 24 days/month so his pre-Accident average monthly earnings were $15,600.00 as shown in the Form 5 (certificate of compensation assessment) dated 11 January 2012.

132. P marked his workdays on a wall calendar which he no longer retained but which he tried to reconstruct after the Accident from memory by circling his workdays in 2010 on a small calendar (“Calendar”). I am not satisfied with the accuracy of the Calendar since even P did not care to circle any days in January/February and early April 2010 because he could not remember which days were his workdays.[49]

133. P’s premise for an average of 26 workdays/month meant Sundays were discounted as non-working days. But P said he also did not work on statutory holidays (12 days in 2010) which together with Sundays were described by P as “red days”.  He also accepted that construction sites would close for 9-10 days during Chinese New Year, and he sometimes visited his native village around Ching Ming Festival as he did in April 2010,[50] which I find to be at least 2-3 days for such trip to be meaningful. Mr Sakhrani submitted common sense would dictate that there might be days in which P skipped work due to illness or to attend to personal matters. I note that even on P’s case with reference to the Calendar he did not circle 8, 10 and 15 March, 4 May, and 16 and 29 June 2010 (which were not “red days”) as his workdays. I accept there would be certain days when P simply did not work.

134. I note P received financial assistance from the Student Financial Assistance Agency for his young son. In P’s application for assessment of eligibility for 2011/12 dated 19 May 2011, he stated his annual earnings as construction site (地盤) casual worker (散工) was $108,150.00 (or about $9,012.50/month). Although the application form referred to earnings for the post-Accident period from 1 April 2010 to 31 March 2011, P in evidence agreed he did not have earnings after the Accident, and the sum of $108,150 was an estimate “based on the sums of money obtained from [his] work every month” before the Accident. This suggested that P’s pre-Accident monthly earnings were even more depressed than what Ds contended.

135. But I accept P would occasionally work overtime at night or on “red days” (as in the case of 1-2 May 2010 marked on the Calendar). Taking all of the above into account, I am convinced Ds’ contention that P would on average work 24 days/month to be more realistic, and P’s average monthly earnings at the time of the Accident were $650.00 x 24 days = $15,600.00.

(f)  Pre-trial loss of earnings and loss of MPF contributions

136. Sick leave  P was granted sick leave for 842 days during the 28-month period from 12 July 2010 to 18 November 2012. Dr Lam considered P’s sick leave to be unnecessarily and unduly prolonged. He said for similar back pain without demonstrable structural damage sick leave up to 3 months should be adequate for a manual worker to return to work, and prolonged sick leave with no expectation of significant improvement from specific treatment was not appropriate as it would not facilitate recovery and might enhance the sick role to de-motivate returning to work.

137. On the other hand, Dr Kong said that in general treating doctors were in the best position to determine whether P could resume working, and he opined sick leave granted to P up to 12 May 2012 were within reasonable limits because he received regular courses of physiotherapy and occupational therapy. Mr Lam submitted that sick leave granted to P was consistent with his back injuries, persistent symptoms and medical treatment history (in particular the third course of physiotherapy from 31 October 2012 to 5 February 2013). He argued that since the treatment doctors granted extended sick leave without doubting its necessity, Dr Lam should not ignore the treatment findings and sick leave. But Mr Sakhrani submitted Dr Kong failed as a forensic expert in endorsing the sick leave of the treating doctors without careful scrutiny.

138. The starting point is Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[51] in which Le Pichon JA said medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge could not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff. This echoed Dr Lam’s opinion that sick leave given to P by the treatment doctors based on reported subjective symptoms could not be conclusive evidence of whether or not P was fit to work.

139. I have carefully considered the treatment/expert medical evidence, and reiterate my analysis in paragraphs 120-123 above. Giving my findings above in relation to P’s treatment history/condition, P’s exaggeration of his symptoms/disabilities, the mildness of his residual condition, the static nature of his condition found by TKOH’s orthopaedists in 2011, and his MMI status by the time of the initial MAB, I find the appropriate sick leave would be up to end of December 2011. By that time P had completed the initial and review MAB, he had made substantial recovery and his condition had become static. In my view, notwithstanding P’s subsequent visits to TKOH’s AED and his obtaining sick leave and referral for physiotherapy in 2012/2013, they did not serve therapeutic purpose. Indeed, both Experts confirmed that by their joint examination in mid-2012 P’s condition was stable and no further treatment was required. There was much to be said for Dr Lam’s opinion that sick leave should be stopped if the condition was stable/static since full recovery might not be achieved in most cases.

140. Return to work  According to the Unfitness Certificate issued on 15 April 2012, P was assessed to be unfit for working as a marble worker. UCH’s occupational therapists were also of the same view. P claimed he could not return to his pre-Accident work because squatting down for long periods to cut the marble slabs and exerting himself to move the marble slabs, which would cause pressure on and pain at back and right lower limb, so he could only handle jobs that were physically less demanding.

141. Dr Kong opined it would be difficult for P to resume his pre-injury work as a marble worker because of his residual orthopaedic impairments, and it would be reasonable/appropriate for him to switch to other sedentary jobs, eg security guard, carpark attendant, cashier or telephone receptionist, with mild degree of reasonable reduction of working capacity/efficiency. On the other hand, Dr Lam considered most workers with back pain due to sprain/strain with soft tissue involvement and no substantial structural damage could return to work including strenuous ones. He suggested that the objective findings showed P should be able to return to his pre-injury work as a marble worker in a manner comparable to other workers of his age and general physical health. Although P might have some residual symptoms upon prolonged working, the overall adverse effect should be mild.

142. I have to consider P’s capacity to return to work on the assumption that the Accident was a contributing cause of P’s back condition and on my finding that P would still be able to work as a marble worker for some years despite his degenerative spine (even though he would not be symptom-free and would have retire early). In my view, the question of P’s return to work was not a mere medical issue. Factual considerations as to the nature of his pre-Accident work and overall work safety had to be considered. Even though the objective medical findings suggested P might return to his pre-Accident work, such work plainly required regular exertion of manual strength. Even Dr Lam recognised P might suffer from residual symptoms upon prolonged working. This raised a safety concern not only for P but for other co-workers if any such residual symptoms would affect his strength in lifting, holding and/or transporting marble slabs (even though such symptoms might be temporary and not severe at least before degeneration progressed further). In the circumstances, I consider it was not advisable for P to return to work as a marble worker.

143. Post-Accident work  P claimed he started to look for work after expiry of his sick leave on 18 November 2012. He took an examination to qualify as security guard, but given his personal background, previous work experience, language barrier and injuries/disabilities, he only secured casual work as a part-time security guard in June 2013 with Guard Able Limited for 7 days earning $1,856.00. Since 1 July 2013 he was employed as security guard by the same company, and it was agreed between P and Ds that P’s monthly earnings until November 2014 and thereafter were $6,744.00 and $7,440.00 respectively.

144. Mr Sakhrani submitted P failed to prove his loss was calculable by reference to the earnings of a security guard, and suggested he could have sought work as a dim sum apprentice that in 2000 was paid more than what he now earned. But I find there was insufficient evidence before me that P could effectively return to work in a Chinese restaurant commercial kitchen. He left the trade in 2002 (about 10 years before he could have returned to work after the alleged Accident), and there was no evidence to suggest he would be employable as dim sum apprentice or dim sum master given his age and rusty skills. I do not think P could be faulted for saying he could not work as a dim sum master as he did such work a long time ago. He further explained that a dim sum master usually had his own team of kitchen staff failing which even a dim sum master could only do odd jobs in a commercial kitchen. Moreover, P only worked as a dim sum apprentice for half a year from 2000 to mid-2000, and I am not persuaded his then earnings of $8,000.00-$9,000.00/month necessarily reflected the then market rate, and there was no evidence of the current earnings of a dim sum apprentice. I agree P’s present job as security guard (being one recommended by Dr Kong) was appropriate.

145. There was no reason why P who was referred for vocational resettlement service in early 2012 could not have taken examination for security guard after the initial MAB. I allow P 2 months after the expiry of appropriate sick leave period to find alternative work. I adopt $1,856.00 as the notional earnings for the first month as part-time security guard in March 2012. The statutory minimum wage came into effect on 1 May 2011 at $28.00/hour, which was increased to $30.00 on 1 May 2013 and $32.50/hour on 1 May 2015. It appears that the formula for calculating P’s maximum monthly income of $6,960 ($30.00 x 29 days x 8 hours) and $7,440.00 ($30.00 x 31 days x 8 hours) under his employment contracts with Guard Able Limited dated 11 July and 8 October 2013 respectively was premised on the statutory minimum wage. P’s notional monthly earnings as a security guard should be calculated on the basis of $6,496.00/month (ie $28.00 x 29 days x 8 hours) from April 2012 to April 2013 and $6,744.00/month from May to June 2013 by analogy with the agreed monthly earnings for July 2013.

146. Thus, P’s pre-trial loss of earnings and loss of MPF contributions from 12 July 2010 to 10 June 2015 would be [$15,600.00 x 59 months – $1,856.00 (notionally March 2012) – ($6,496.00 x 13 months (notionally April 2012 to April 2013)) – ($6,744.00 x 2 months (notionally May 2013 to June 2013)) - ($6,744.00 x 17 months (July 2013 to November 2014) – $7,440.00 x 6 months (December 2014 to May 2015))] x 1.05 = $694,386.00.

(g)  Post-trial loss of earnings and loss of MPF contribution

147. P was 40 years old at the time of trial. The starting point was at what age P would have retired as a marble worker. There was no evidence of any fixed retirement age, and I see no basis to reject P’s contention that marble worker could have worked until 65 years.  But I have found P would suffer from symptoms of his pre-existing degeneration problem. With natural progression of his back degeneration, he would have back pain which would eventually prevent him from working as a marble worker, and even without the Accident as alleged P would have to retire early from his pre-Accident work as a marble worker. Indeed, even Dr Kong suggested (which view I have found to be overly optimistic in paragraphs 125-128 above) there would be presentation of such symptoms in 10-15 years after the 2^nd Report in 2013, ie when P would be about 48-53 years old, and he even suggested a 20% apportionment for degeneration. In Chan Kam Hoi, Mortimer VP held that:[52]

“When calculating the damages for future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence. This is particularly so when a plaintiff's working life is likely to be limited by a pre‑existing condition as in this case.”

Taking all the above circumstances into account and adopting a broad brush approach, I find that even without the Accident as alleged P would have to retire from his work as a marble worker when he is 50 years old. P was 40 years old at trial. The applicable multiplier table should be “Table 3: Multipliers for Loss of Earnings to Pension Age 50 (Males)” at p 21 of the Personal Injury Tables Hong Kong 2013, and the appropriate multiplier should be 9.46.[53] In the circumstances, P’s future loss of earnings were ($15,600.00 - $7,440.00) x 12 x 9.46 x 1.05 = $972,639.36.

(h)  Loss of earning capacity

148. P claimed an award of $100,000 for loss of earning capacity. I agree P will be less competitive than comparable workers who are able- bodied (as he would have residual symptoms from lifting heavy weights and mild reduced efficiency) should he be thrown into the labour market, and he will probably need a longer period of time before he can find himself suitable employment in the open market. In their Answer, Ds agreed to allow this head of claim, and no application was made to withdraw from such position. Given that I am satisfied an award should be made under this head of claim, I allow this sum of $100,000.00.

(i)  Special damages

149. Special damages (medical, travelling and tonic food expenses) were agreed at $19,740.00.

(j)  Summary

150. I summarise the above awards (without need for consideration of the issues of contributory negligence and interest on the awards) as follows :

	HK$
PSLA	180,000.00
Pre-trial loss of earnings and MPF contributions	694,386.00
Post-trial loss of earnings and MPF contributions	972,639.36
Loss of earning capacity	100,000.00
Special damages	19,740.00
Less EC received	(492,520.00)
Total :	1,474,245.36
	==========

VI.  CONCLUSION

151. In the circumstances, P’s claim is dismissed. There is no reason why costs should not follow event. I grant a costs order nisi that P do pay Ds costs of the action (including all costs reserved, if any) to be taxed if not agreed, and P’s own costs be taxed in accordance with Legal Aid Regulations.