LAM TUN WA v. SAN HING DRILL CUT ENGINNEERING COMPANY LTD AND OTHERS

DCEC 475/2022
DCPI 3973/2022
(Heard Together)

[2025] HKDC 324

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 475 OF 2022

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3973 OF 2022

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JUDGMENT

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INTRODUCTION

1.  This is the assessment hearing of the claims of the Applicant/Plaintiff Mr Lam Tun Wa (“Lam”) for employees’ compensation in DCEC 475/2022 (“EC Action”) and damages for personal injuries in DCPI 3973/2022 (“PI Action”) arising out of an accident at work met by him on 11 December 2020 (“Accident”).

2.  In the EC Action, Lam sues his employer San Hing Drill Cut Engineering Company Limited as the 1^st Respondent (“R1”) and the principal contractor Jun Wei Decoration Engineering Limited as the 2^nd Respondent (“R2”). No Answer having been filed by R1 and R2, Interlocutory Judgment was entered against them on 12 May 2023 leaving compensation to be assessed.

3.  In the PI Action, Lam sues his employer as the 1^st Defendant (“D1”), the principal contractor as the 2^nd Defendant (“D2”) and Tsoi Ying Kit, the owner of the premises where the Accident took place as the 3^rd Defendant (“D3”). Interlocutory Judgment in default of defence was entered on 13 December 2023 against D1, D2 and D3 leaving damages to be assessed.

4.  By Orders dated 28 August 2023 and 9 August 2024, the Employees Compensation Assistance Fund Board (“Fund Board”) was joined in as the 4^th Defendant (“D4”) and 3^rd Respondent (“R3”) respectively in the PI Action and the EC Action to defend the issue of quantum in both cases.

5.  By an Order dated 3 July 2024, the compensation and damages assessment hearings for the EC Action and the PI Action were ordered to be heard together, hence this assessment hearing of both claims.

6.  Other than Lam and the Fund Board, the other respondents/ defendants were absent at the hearing. This Court, having been satisfied that valid service has been effected on the absent respondents R1 and R2, and the absent defendants D1, D2 and D3, proceeded the assessment hearing in their absence.

7.  Lam is represented by Ms Margaret Chan of counsel, and the Fund Board by Ms Flora Lam of counsel, in both actions.

THE TRIAL DATES

8.  The assessment hearing of both actions was set down and trial dates fixed by an Order dated 3 July 2024.

9.  A single joint expert (“SJE”) report dated 18 January 2024 (“SJE Report”) has been obtained from SJE in orthopaedics Dr Lau Hoi Kuen (“Dr Lau”), jointly engaged by Lam and the Fund Board.

10.  At the Pre-Trial Review (“PTR”) hearing held on 2 September 2024, Lam’s counsel Ms Chan first made the application for SJE Dr Lau to be called at the assessment hearing for oral evidence. Fund Board’s counsel Ms Lam submitted that it was not necessary. The application was granted by this Court upon hearing the submissions of counsel.

11.  This Court was nevertheless informed 5 days before the assessment hearing by Lam’s solicitors that Dr Lau would not be able to attend trial on the dates fixed. It transpired that Dr Lau was neither informed of the trial dates nor the need for him to attend trial, and he had sometime in August 2024 made plans such that he would be out of town on the trial dates fixed.

12.  Lam was the only factual witness called and he finished giving evidence on the first day of trial on 4 November 2024. The assessment hearing had to be adjourned after the first day pending Dr Lau’s return to Hong Kong, and resumed after 2 weeks on 20 November 2024.

13.  This is highly unsatisfactory. The assessment hearing could have completed within 2 days as scheduled. Judicial resources were wasted. This Court warned the parties of the possible wasted costs implications occasioned by the adjournment.

14.  Lam’s solicitors accept that in the circumstances of the case, it was their duty to ascertain Dr Lau’s availability and confirm his attendance at trial when making the application to call Dr Lau at trial. They apologised for the omission.

15.  Parties confirmed towards the end of the trial that no submissions or application for wasted costs occasioned by this mis-arrangement would be made.

16.  It cannot be stressed enough the important duty of legal representatives to confirm the availability and ensure the attendance of expert witnesses to be called when fixing dates for trial.

PRELIMINARY MATTERS – THE APPLICANT’S SUMMONS

17.  In the EC Action, Lam filed a Summons on 5 September 2024 (“Summons”) under O 38 r 2A and O 20 r 8 of the Rules of the District Court (Cap 336H) (“RDC”) and r 19 of the Employees’ Compensation (Rules of Court) Rules (Cap 282B) seeking the following orders:-

(1)  Leave to adduce Lam’s witness statement per the draft annexed to the Summons (“WS Application”); and

(2)  Leave to re-amend the Amended Application per the draft annexed to the Summons (“Amendment Application”).

The Amendment Application

18.  Lam seeks to (i) amend the pleaded figure of average monthly earnings of $27,470 by a slightly higher figure of $28,600, same as the pleaded earnings for the month immediately preceding the Accident; and (ii) include details of Lam having attended occupational therapy (“OT”) at the United Christian Hospital (“UCH”).

19.  Lam’s counsel Ms Chan submits that the amendments are necessary in order to give an accurate and complete picture of Lam’s case. They will in Ms Chan’s submissions advance Lam’s case and assist the court in the assessment under the Employees’ Compensation Ordinance (Cap 282)(“ECO”).

20.  As submitted by the Fund Board’s counsel Ms Lam, and I agree, the proposed amendment to the average monthly earnings is unnecessary for the purposes of assessing employees’ compensation. The higher figure of $28,600, more favourable to Lam, will be adopted in accordance with s11 of the ECO with or without the amendment.

21.  As to the other amendment of inclusion of OT referral and treatment, I take the view that such is evidence, not material facts requiring to be pleaded, and has already been disclosed by way of discovery of medical records.

22.  R3 however raises no objection to the Amendment Application so long as it be provided with costs of the same.

23.  Upon agreement of Lam and R3 and by consent, I allow the Amendment Application. Having heard and considered parties’ submissions on costs, I make the following costs order nisi:-

(1)  Costs of the Amendment Application under the Summons, including costs of the hearing which took a total of about 22 minutes, be payable by Lam to R3, with certificate for counsel, to be taxed if not agreed; and

(2)  No order as to costs between Lam and R1 and R2; and

(3)  Not without reluctance (given my view that the Amendment Application is wholly unnecessary), I grant legal aid taxation in respect of Lam’s own costs.

The WS Application

24.  Lam also seeks to adduce in the EC Action his witness statement in the draft attached to the Summons, which was signed subsequently on 24 October 2024 (“Lam’s WS”) and included in the trial bundles[1].

25.  In the PI Action, Lam has already adduced 2 witness statements dated 6 July 2023 and 26 March 2024 (“WS1” and “WS2” respectively), which set out P’s evidence relevant to the issues of liability and quantum.

26.  In passing, WS2 mainly deals with the SJE Report by setting out Lam’s disagreements on Dr Lau’s opinions/ conclusions – this is wholly inappropriate.

27.  At the setting down hearing held on 3 July 2024 before HHJ Levy, the court upon the indication of Lam’s solicitors of the intended application for adducing a witness statement of Lam in the EC Action, indicated that it should suffice for Lam to adopt relevant paragraphs in WS1 for the purposes of assessing compensation in the EC Action. The court granted leave for Lam to rely on 2 paragraphs (§§21 and 43) in WS1, containing Lam’s evidence on earnings and summary of medical expenses.

28.  R3’s counsel submits, and I agree, the court’s above ruling should be the proper and costs economical approach. As the assessment of quantum of both actions would be tried at the same time, Lam can rely on the evidence adduced in WS1 and WS2 for the purposes of assessment in both actions.

29.  However, Lam’s legal representatives saw it fit to issue the Summons seeking to adduce Lam’s WS. Lam’s counsel submits that it is relevant and necessary, in order for Lam to properly address the following matters to assist the court in assessing quantum under the ECO:-

(i)  Monthly earnings of Lam at the time of the Accident;

(ii)  Medical expenses; and

(iii)  Sick leaves.

30.  R3’s counsel argues that most of the paragraphs in Lam’s WS are irrelevant to the issues of quantum of the employees’ compensation claim and contain legal submissions rather than factual evidence within Lam’s personal knowledge. Adducing Lam’s WS is wholly unnecessary given leave was granted for Lam to rely on the 2 relevant paragraphs (§§21 and 43) in WS1.

31.  Upon hearing counsel’s submissions, I reserved my ruling on the 1^st day of trial. Meanwhile I granted leave for the parties to refer to Lam’s WS de bene esse for the purposes of the assessment hearing.

32.  Evidence was concluded on the 1^st day of trial. I gave my ruling on the adjourned date of trial on 20 November 2024.

33.  Lam’s WS comprises 13 pages, and annexed with 30 pages of documents. Almost all of the contents of factual evidence and even the annexures duplicate those set out and annexed in WS1 adduced in the PI Action. It also contains substantial legal submissions which are not permitted in a witness statement of facts.

34.  A witness statement is the equivalent of the oral evidence that a witness will give at trial. It must contain only such material facts as the witness is able to prove of his own knowledge. Inadmissible evidence incorporated in a witness statement will not be made admissible. (O 38 r 2A(8) of RDC, HKCP at 38/2A/6, Ho Wai Tung v Ho Fung [2020] HKCFI 1787 at §§29-30, 36).

35.  My ruling and reasons given at the hearing are as follows:-

(1)  Apart from the preamble in §§1 and 2, §§3-5 (on Lam’s personal and work background) duplicate §§3, 4 and 6 of WS1. §§6-16 on the relationships of R1 and R2, employment of Lam and circumstances of the Accident duplicate §§7-16 of WS1. These paragraphs contain evidence of liability and are irrelevant to the issues of quantum for the purposes of assessment of compensation. It is wholly inappropriate and unnecessary, but costs-wasting, for substantial evidence on liability to be included in Lam’s WS when default judgment had long been obtained against R1 and R2 on 12 May 2023;

(2)  §§17 and 18 set out details of earnings. They are relevant but duplicate to a great extent §21 of WS1;

(3)  §§19-32 on Lam’s injuries, treatments and sick leaves duplicate §§22-34 of WS1;

(4)  §§33-35 on sick leaves and Medical Board assessments (Form7/Form9): These contain recitation of records and duplicate §35 of WS1, and are wholly unnecessary;

(5)  §§36-46 and 48 contain matters explained and advice by Lam’s solicitors, recitation of records and legal submissions on the calculations of compensation under sections 9, 10 and 10A of the ECO. The legal submissions are not factual matters from Lam’s own knowledge, and are inadmissible; and

(6)  §47 duplicates §43 of WS1, and contains legal submissions on calculations of medical expenses allowed under section 10A of the ECO.

36.  To conclude, Lam’s WS sought to be adduced under the Summons, other than the preamble and §§17 and 18, contains extensive inadmissible evidence, and is liable to be struck out. Where the evidence is relevant and admissible, it duplicates that set out in WS1 already adduced in the PI Action.

37.  The annexures to Lam’s WS of 30 pages of documents, some of which are relevant to the issue of liability only, are wholly inappropriate and unnecessary. They also duplicate those documents annexed to WS1, and are documents already disclosed by Lam by way of lists of documents and contained in the trial bundles.

38.  There is thus duplication of 3 sets of documents in WS1, Lam’s WS and the trial bundles, some of which relate to the issue of liability only and are irrelevant for the purposes of assessment of compensation or damages.

39.  This is a wholly wrong approach of preparation of witness statements. The documents relevant to the issues in dispute should be disclosed by way of lists of documents, rather than annexed to and duplicated time and again in the witness statements and the trial bundles.

40.  In the circumstances of this case, in particular given the clear indication and granting of leave by the court at the hearing of 3 July 2024 for Lam to rely on only 2 paragraphs in WS1 for the purposes of assessment under the ECO, the conduct of Lam’s legal representatives in preparing the voluminous Lam’s WS and taking out a Summons to adduce the same is shown to be superfluous and wholly inappropriate. Such conduct does not advance Lam’s case nor assist the court, but is a complete waste of time and costs of all parties and judicial resources.

41.  I gave my decision (with brief reasons) on the 2^nd day of trial to strike out the whole of Lam’s WS save and except the preamble 2 paragraphs and §§17 and 18, and made the following order:-

(1)  Lam’s WS be expunged;

(2)  Lam do file a redacted version (with §§3-16 and 18-48, and the annexures expunged) of Lam’s WS within 2 days; and

(3)  Service of the redacted Lam’s WS be dispensed with.

42.  Following my decision above, counsel made submissions on costs at the hearing. I reserved my decision on costs to this Judgment.

43.  More than 90% of Lam’s WS was struck out, leaving only 2 paragraphs which largely duplicate those contained in WS1. Costs should follow the event. I have no doubt that Lam should pay the costs of the WS Application under the Summons to R3.

44.  It would be unfair for such costs lost on the WS Application, one that should not have been made upon proper legal advice, should fall to be deducted from the compensation Lam may subsequently be awarded. The contents of Lam’s WS contain nothing more than duplication and legal submissions on calculations of employees’ compensation, of which matters Lam does not have personal knowledge. Lam’s solicitors are shown to be taking matters in their own hands in defiance of their duty owed to their client, the Director of Legal Aid and the court.

45.  I made indication at the hearing that it would be appropriate in the circumstances of this case for this Court to consider making costs sanctions such that Lam’s solicitors should be asked to show cause as required by O 62 r 8 of the RDC as to why those costs of the WS Application adjudged payable by Lam should not be borne by them personally. Such costs should include those lost to R3 and Lam’s own costs of preparation of Lam’s WS which was the subject of the Summons.

46.  Mr Kevin Cheng of Lam’s solicitors confirmed in court his understanding of the court’s criticisms and acceptance of the proposed costs sanctions, and that they would not require to show cause or be heard further.

47.  I have considered parties’ submissions on costs, and make the following order nisi on the WS Application:-

(1)  Costs of the WS Application under the Summons, including costs of the hearing which took a total of about 75 minutes, be payable by Lam to R3, with certificate for counsel, to be taxed if not agreed, such costs be borne by Lam’s solicitors personally;

(2)  No order as to costs between Lam and R1 and R2; and

(3)  No legal aid taxation of Lam’s own costs in respect of the WS Application under the Summons and preparation of Lam’s WS sought to be adduced.

EVIDENCE ON QUANTUM

48.  Lam was aged 59 at the time of the Accident and is currently 63 years old.

49.  He had been working as a drilling and cutting worker on construction sites for 26 years prior to the Accident.

50.  His case is that as a result of the injuries sustained in the Accident, he has suffered and continues to suffer severe disabilities such that he has not been able to resume any work to date.

The Accident

51.  Regarding the circumstances of the Accident, Lam’s pleaded case is that when working underground at House No. 6, 90 Repulse Bay Road, Hong Kong, he was hit at his head, back and low back/waist by a big heavy canvas bag which fell from height on the ground level. He suffered a brief loss of consciousness after the impact.

Injuries, Treatment and Disabilities

52.  Immediately after the Accident, Lam was taken in the company car to and attended the Accident and Emergency Department (“A&E”) of Ruttonjee & Tang Shiu Kin Hospitals (“RH”). He complained of head injury, neck and back sprain, and dizziness, and was found to have tenderness over left back paraspinal region. X-rays of the cervical lumbosacral spine showed decreased lumbar lordosis but no fracture. CT scan of brain revealed no abnormal findings. He was treated and discharged with a sick leave of 4 days from 11 to 14 December 2020[2].

53.  Lam attended later the A&E of United Christian Hospital (“UCH”) on 13, 16 and 18 December 2020 due to persistent headache, dizziness, neck and back pain and later also chest wall pain and bilateral ankle pain. Physical examination showed tenderness over the cervical and lumbar spine. Chest x-rays were taken. Physical examination revealed diffuse tenderness over his cervical, thoracic and lumbar spine. No remarkable findings were made, and there was no neurological deficit. He was noted to walk unaided, and was granted a few days of sick leave on each occasion until 22 December 2020[3].

54.  Lam consulted private medical practitioner Dr Chow Chun Kwan (“Dr Chow”), and was arranged to have MRI scans of the brain, cervical, thoracic and lumbar spine and CT scan of thorax on 19 and 21 December 2020. No neurological deficit nor significant intracranial lesion, spinal stenosis, impingement, cord edema or other significant abnormalities, other than degenerative changes of mild discs protrusion and bulging, moderate impingement and moderate narrowing of neural foramina were noted[4]. He also had x-rays of both shoulders, pelvis, hips, both knees and ankles on 21 December 2020. No significant abnormal findings of fracture, destructive bony lesion, soft tissue density or calcification were noted[5].

55.  Upon referral by Dr Chow, Lam attended the Department of Orthopaedics & Traumatology (“O&T”) of Queen Elizabeth Hospital (“QEH”) since 23 March 2021 for unresolved neck, back, shoulders and hips pain. X-rays and examination did not show any fracture nor neurological deficit all along. He was treated with analgesics and physiotherapy[6]. He was granted sick leaves upon regular follow ups by the treating doctors of QEH up to 18 October 2021.

56.  Upon Lam’s complaints of multiple area discomfort and vertigo, the O&T of QEH referred him on 23 March 2021 to the Department of Ear, Nose & Throat of QEH. No specific diagnosis was made. He was noted to walk with stick[7].

57.  Lam continued to seek treatment at different hospitals and clinics for the unresolved persistent multiple areas bodily pains and head symptoms.

58.  Upon referral of the treating doctor at Kwun Tong Jockey Club Clinic General Out-patient Clinic (“KT GOPC”), Lam attended 36 physiotherapy sessions at UCH for treatment of neck and back pain during the period from 21 January to 9 November 2021. He reported only 20% subjective improvement upon treatment. His condition was considered static, and he was discharged from physiotherapy.

59.  When no more sick leave (after 18 October 2021) was granted by the treating doctors of O&T of QEH, Lam sought treatment from another private medical practitioner Dr Chan Sai Keung (“Dr Chan”) since 29 October 2021 for the unresolved headache, neck and back pain. He attended regular consultations with Dr Chan once every 3 weeks for more than 2 years up to 29 November 2023. Continuous sick leaves were granted by Dr Chan, for 21 days on each occasion, from 29 October 2021 to 20 December 2023.

60.  Lam also sought traditional Chinese medicine (“TCM”) treatment with bone-setting, massage and acupuncture until end-2023 (as he reported to SJE Dr Lau). He also complained of lower limb weakness that gave way on walking and he had to use a stick for walking. His conditions seemed to have deteriorated greatly after mid-2021, such that he used a pair of crutches since February 2022. Dr Chan arranged for updated MRI of the thoracic spine on 21 August 2024 which showed mild thoracic spondylosis with minimal to mild discs protrusions and mild spinal cord impingement without abnormal cord signal. Spinal cord is not compressed and no exiting nerve root impingement was noted[8].

61.  Lam also received physiotherapy and OT in public hospitals and also in the private sector. From 16 February to 25 July 2022, he attended 9 treatment sessions at UCH, and had OT Work Rehabilitation Assessment (“WRA”) on 28 March 2022. He complained of multiple pain over the neck, back and lower limbs, and had to rely on elbow crutches. Pain was described to be severe at resting pain 5-6/10 and mobility pain 10/10. There was strong pain factor with generalized weakness over the upper and lower limbs. He still need to walk with 2 elbow crutches and demonstrated limited sitting/ standing/ walking tolerance. As set out in the WRA report, Lam failed to sustain full squat and only able to manage basic ADL (Activities of Daily Living) slowly. Subjective review on return to work readiness: not ready. Early retirement was recommended as he demonstrated working capacity far below previous job demands[9].

62.  Other than the complaints of multiple physical bodily pains and head symptoms, Lam sought treatment at the A&E of QEH on 6 and 8 January 2021 for psychiatric symptoms of low mood, anxiety and suicidal ideas…persistently heard noises produced during the incident. He was prescribed with tranquilizer medication. Clinical diagnosis of adjustment reaction was made[10].

63.  Upon referral of QEH, Lam attended Yung Fung Shee Psychiatric Centre (“YFSPC”) for regular psychiatric treatment since 24 February 2021 for more than 3 years until now. Record shows that he suffered from anxiety, irritation and deteriorated sleep and was afraid of moving vehicles in the street. The psychiatric diagnosis was adjustment disorder. He was treated with antidepressant and supportive counselling. He showed clinical improvement upon treatment. He was issued 8 days of sick leave by YFSPC during 24 February to 2 March 2021 and on 10 November 2021. The treating psychiatrist remarked that “Adjustment disorder rarely inflicted permanent impairment on vocational capability”. Prognosis was considered good[11].

64.  Lam also complained of subjective blurred vision after the Accident (but was “not able to recall which eye was involved”). He was referred to and attended the Department of Ophthalmology of Tseung Kwan O Hospital for investigation on 10 June 2021. He was found to have normal visual acuity in both eyes. The treating doctor concluded that Lam did not sustain any long-term ocular complications as a result of the Accident[12].

65.  During follow up at UCH on 12 August 2021, Lam complained of erectile dysfunction with flaccid erection which he thought was related to the Accident. He was referred to the urology clinic for assessment[13].

66.  Lam’s case (as reported to Dr Lau in January 2024) is that he continued to attend follow up and consultations with Dr Chan Sai Keung, YFSPC, O&T, etc. He still requires to take drugs round the clock for pain relief.

Present Complaints/ Permanent Disabilities

67.  Lam’s case is that as a result of the Accident, he has suffered and continues to suffer from the following symptoms and permanent disabilities:-

(1)  Pain and discomfort over his neck, back and limbs affecting movements and ambulation, sleep and ability in taking public transport, aggravated with rainy days and weather changes, requiring pain relief medications;

(2)  Dizziness and headache;

(3)  All four limbs and joints pain with numbness and weakness, such that he has to walk with, and cannot stand without, elbow crutches;

(4)  Impaired walking and sitting tolerance; and

(5)  Feeling anxious and irritable, easily intimidated by loud noise.

Medical Board Assessments

68.  Lam was assessed by the Medical Assessment Board (“MAB”) to be suffering from 8% permanent loss of earning capacity (“LEC”) in respect of multiple injuries resulting in (i) prolapsed intervertebral disc (“PID”) (7%) and persistent headache and dizziness (1%) for the purposes of the ECO as set out in a Certificate of Assessment (Form 7) dated 22 March 2023[14].

69.  The assessment was revised to 14.5% LEC upon review per the Certificate of Review of Assessment (Form 9) dated 27 September 2023 in respect of multiple injuries resulting in (i) whole back pain, cervical thoracic and lumbar spine PID, back weakness (13%); and persistent headache and dizziness (1.5%)[15].

70.  The continuous sick leaves granted from the date of Accident up to 13 September 2023 (ie the date of the review), except for one day on 26 October 2021, were endorsed by the MAB.

Medical Expert Evidence

71.  Whilst Lam’s evidence gives the impression of a highly incapacitated man who suffers from multiple bodily pains, and can only limp slowly with 2 elbow crutches and manage his basic ADL needs but not work, the medical evidence does not support any structural damage or serious injuries to the spinal cord and head as he alleges.

72.  Lam was examined by SJE in orthopaedics Dr Lau on 9 January 2024, more than 3 years after the Accident. The SJE Report was commissioned pursuant to the examination.

73.  As recorded in the SJE Report, Lam still complained of persistent physical, head and psychiatric symptoms and disabilities and erectile dysfunction set out above. He further reported new present symptoms/ complains (not recorded in the medical records/ reports) to Dr Lau as follows:-

(1)  Tinnitus and decreased hearing of both ears;

(2)  Decreased visual acuity in both eyes;

(3)  Pain in all his teeth;

(4)  Persistent pain in his chest;

(5)  Impaired sensation in all 4 limbs;

(6)  Intermittent (with weight bearing) ant bite sensation over both legs toes to knees;

(7)  Persistent feeling of cold in both lower limbs; and

(8)  Persistent muscle cramps in the neck, back and limbs.

74.  Dr Lau reviewed the medical records, examined Lam and conducted x-ray examinations. He gives the following opinions and conclusions on Lam’s injuries resulted from the Accident:-

(1)  Lam suffered from soft tissue injuries to his neck and back, but not the 4 limbs, with no structural involvement, in the Accident[16];

(2)  The x-rays and MRIs reveal mild to moderate degenerative changes of the spinal discs. Such degeneration was due to natural ageing and Lam’s past long history of engagement in heavy manual labour on construction sites[17];

(3)  He had received appropriate conservative treatment of physiotherapy and medication for the orthopaedic injuries[18];

(4)  Physical examination did not reveal any objective findings, such as swelling, deformity, muscle spasm, significant muscle wasting, unequal or abnormal jerks of the limbs, clonus, etc. of the neck, back, limbs and chest to support the severe pain and weakness complained of[19];

(5)  On genuineness of Lam’s complaints of severe pain and weakness, Dr Lau remarks that genuine spinal cord (myelopathy) or root involvement (radiculopathy) should be associated with a combination of motor and sensory loss in the corresponding myotome and dermatome in a persistent or segmental manner, usually supported by objective signs such as muscle wasting and diminished reflexes;

(6)  In Lam’s case, exhaustive investigations previously conducted had already ruled out any physical cause for the limbs complaints. The soft tissue neck and back injuries, with no structural involvement, should recover with time, though not necessarily completely. The deterioration of Lam’s conditions and the severe pain and disabilities do not match any known pathology nor explainable by any physical cause[20];

(7)  The diffuseness, chronicity and intensity of Lam’s complaints are not explainable by any physical cause and are out of proportion to his injuries. There are minimal objective signs to support Lam’s complaints[21];

(8)  Lam showed exaggerated response to physical stimulation during the examination. This suggests symptom magnification. The objective findings (both physical and radiological) at the examination suggest that his condition has improved after treatment[22];

(9)  The condition of Lam’s injuries should have long reached maximum medical improvement (“MMI”). He should not require further treatment;

(10)  Lam should be convinced that there was no actual physical injury, and there is no benefit for him to play the sick role, whether intentionally or not[23];

(11)  The current main problem of Lam appears to be the psychological problem rather than physical symptoms or disabilities;

(12)  Whilst accepting that Lam still suffers residual pain in his neck and back, Dr Lau considers the pain not as severe as that complained of. On work capacity, Lam should be fit to return to work as a construction worker but will continue to suffer a significant degree of decreased efficiency at work as he needs to avoid heavy manual lifting of say more than 20 catties[24];

(13)  The appropriate sick leave for Lam’s injuries should not be more than 12 months. Prolonged sick leaves usually demotivate and decondition the victim from ever returning to reality[25]; and

(14)  For the soft tissue neck and back injuries with residual pain, Dr Lau assesses permanent impairment of the whole person and LEC both at 5% in the orthopaedic perspective. He further opines that the main problem affecting Lam now is the psychological problem affecting him after the Accident[26].

Dr Lau’s Evidence in Court

75.  SJE Dr Lau gave evidence and explained with reference to the MRIs, x-rays and various clinical and radiological findings and confirmed that Lam only suffered from soft tissue injuries to his neck and back without involvement of the 4 limbs. He did not suffer nerve damage or compression, nor any neurological deficit that would support or cause disabilities, weakness or impaired sensation of the 4 limbs.

76.  Such soft tissue injuries without structural damage or nerve compression should recover with time especially when Lam had received intensive physiotherapy, rather than deteriorate over the past 3 years as Lam reports or demonstrates.

77.  Residual neck and back pain should not be so serious as that reported by Lam in the absence of any abnormal findings of swelling, deformity or muscle spasm. Movement test results of the neck, back and lumbar spine may not be reliable as they depend on the patient’s willingness to perform.

78.  Lam’s complaint of diffuse tenderness is in Dr Lau’s view a sign of exaggeration because, normally, the pain due to any spinal cord damage or nerve compression should be localised.

79.  Dr Lau referred to the 2 sets of MRIs taken in December 2020 and August 2024, and confirmed no significant interval change. No spinal cord compression or exiting nerve root impingement is shown.

80.  Dr Lau explained the developmental causation of the mild protrusion and bulging in the thoracic and lumbar discs shown in the December 2020 MRIs: They were mainly due to degeneration and mild desiccation, and were pre-existing and a phenomenon of ageing. Such mild protrusions, without sign of central cord compression or serious impingement, is not unusual and may not cause any symptoms. They could not have been caused by the traumatic injury sustained in the Accident as such degenerative changes could not have occurred so shortly thereafter.

81.  Dr Lau explained the clinical findings of nil muscle wasting, equal and normal jerks and clonus of all limbs, which in his words cannot be feigned, and are objective findings indicative of nil central cord compression, as supported by the MRIs.

82.  On the other hand, motor power tests of the 4 limbs showed cogwheel resistance, which Dr Lau explained to be indicative of voluntary underperformance.

83.  Some physical tests could not be conducted as Lam reported and demonstrated that he could not stand without support with crutches – Dr Lau opines that the severe lower limbs impairment and loss of sensation (as reported by Lam) do not match nor can be explained by pathology.

84.  Dr Lau concludes that Lam’s complaints of serious pain and weakness of the limbs cannot be explained by any structural damage, nerve compression or pathology in the orthopaedic perspective. Without any physical cause, Dr Lau opines that the current main problem is the psychological problem affecting Lam after the Accident, for which he should be assessed by a psychiatric expert.

85.  Dr Lau accepts that Lam would have some residual pain given the degenerative state of the spine, but he disagrees with the assessment of MAB of 14.5% (not taking into account persistent headache and dizziness) permanent loss of earning capacity stated in Form 9 in respect of back pain and weakness, in particular PID of the cervical, thoracic and lumbar spine as these multi-level disc findings of (mild) protrusions were pre-existing and could not be caused by a single traumatic injury.

86.  A careful review of the MRI reports of the December 2020 and August 2024 scans in fact reveals no finding or conclusion of PID, other than (mild) disc protrusions. These are, as explained by Dr Lau, not serious and resulted from desiccation (“水份流失”) which is an ageing and degeneration process in Lam’s case.

87.  On that basis, Dr Lau reiterates that his assessment of permanent whole person impairment and LEC of 5%, in the orthopaedic aspect only, is appropriate and not too low. He has not included the complaints of headache and dizziness in this assessment.

88.  When queried by Lam’s counsel why Dr Lau opines “no actual physical injury”, Dr Lau explained he meant no structural damage or injury of the spinal cord or nerve compression based on the previous MRIs and his clinical and radiological examinations conducted on 9 January 2024.

89.  Lam’s counsel Ms Chan in her closing submissions raises doubts on Dr Lau’s allegedly biased view of Lam’s exaggeration when he referred to Lam’s report during joint examination on the heavy physical demand (of “up to more than 100 catties on his own”) in his pre-accident work and remarked abruptly that it was even heavier than Lam’s previous report of “frequent handling of weight of 70-80 lbs” to the occupational therapist as recorded in the WRA report.

90.  Dr Lau was only being fair in my view to Lam in accepting the reported heavy weight handling requirement in his conclusion of “significant degree of decreased efficiency at work due to the residual pain in his neck and back” when assessing Lam’s work capacity.

91.  Ms Chan also criticises Dr Lau for going so far as to state in the SJE Report his psychiatric diagnosis of Lam to be Adjustment Disorder.

92.  This is in my view a wrong reading of the SJE Report and again unfair to Dr Lau. He states that the “psychiatric diagnosis was Adjustment Disorder” - meaning the diagnosis made previously by the treating psychiatrist as set out in the reports of YFSPC, but not of Dr Lau.

Lam’s Evidence/ Analysis

93.  Lam is on the other hand adamant that he has as a result of the Accident suffered from unresolved headache and dizziness, and multiple bodily pains of the neck, shoulders and back, gradually affecting also all 4 limbs and joints, etc.

94.  He gave evidence in court that the conditions have rendered him highly incapacitated, so much as that he could not walk or stand without crutches. He had no strength in his 4 limbs and would suddenly give way and fall. He could only manage basic ADL but not work in the past 4 years.

95.  Having considered all medical evidence summarised above, in particular the contemporaneous medical records indicating much less serious injuries than those Lam alleges and demonstrates and Dr Lau’s detailed explanation and analysis in court, this Court has no hesitation coming to the conclusion that Lam has highly exaggerated his pains and disabilities.

96.  The exaggeration and unreasonableness of Lam’s evidence is highlighted against his own evidence or the medical evidence shown in the following:-

(i)  The Accident

97.  Contemporaneous medical records do not record any loss of consciousness in the Accident, only “head and neck injury by falling heavy object…scalp had no bruise or swelling...tenderness over the cervical and lumbar spine…”. CT brain did not reveal any remarkable findings. For his attendance at the A&E of UCH on 13 December 2020, the medical report records no loss of consciousness[27].

98.  In the Amended Application filed in the EC Action and the Statement of Claim filed in the PI Action, it is pleaded that Lam, when working underground at a house, had “a brief loss of consciousness after impact” upon being hit by a big heavy canvas bag falling from the ground level.

99.  Lam explained in court that he did not know at the time of the Accident that he had lost consciousness in the Accident. He only learned from his co-workers subsequently that he had lost consciousness for about 10 minutes upon being hit. He states in WS1[28] that he was hit at his head, back and waist by a large wet canvas bag (size 1m x 1m) containing construction materials falling from an overhead height of 7 metres (“一個約1米x 1米承載建築材料的濕帆布袋…從我頭上7米左右高度的地面墜下，直接擊中我的頭部、腰部和後背部…後經同事複述我才得知我被該帆布袋擊中並隨即失去意識…過了約10分鐘我才逐漸清醒過來…”).

100.  On the other hand, he reported to Dr Chan during consultation on 29 October 2021 that in the Accident his back was hit by a bag loaded with concrete pieces that fell from 3^rd floor above, whereupon he fell to the floor with loss of consciousness.

101.  During joint examination by Dr Lau on 9 January 2024, Lam reported that he had lost consciousness for 30 minutes upon being hit in the Accident.

102.  It is obvious that Lam’s description of graveness of the fallen heavy object, the height of fall and his alleged loss of consciousness had become progressively more serious over time and as the litigation proceeded.

103.  It would have been impossible for Lam to have suffered no open wound, not even abrasion, scratches or swelling in his head and back had he been hit by a big bag filled with concrete falling from such heights. All contemporaneous reports and investigations reveal no remarkable findings other than the subjective complaint of tenderness.

(ii)  Pathology for the severe pains and disabilities

104.  When cross-examined on the lack of medical evidence or pathology to support the severe multiple bodily pains allegedly suffered, Lam replied that he was told by Dr Chan that he had nerve damage to his cervical, thoracic and lumbar spine, and that there was nerve compression by haematoma (“瘀血壓住腰椎神經”). He was also informed by the treating doctors in the hospital that he had nerve damage that would not recover (“神經傷咗唔會好返”) and that he had to live with the pains for life.

105.  This is simply untrue and not recorded in Dr Chan’s report dated 23 August 2024[29]. Dr Chan merely recites in his report the findings in the MRIs taken on 21 December 2020 and 21 August 2024. They reveal no remarkable findings, and more importantly, no significant interval change other than degenerative changes (as explained by Dr Lau in court).

(iii)  Progressive deterioration

106.  Lam’s progressive deterioration reported to the treating doctors is not explainable by pathology. When he first attended A&E of RH for treatment on the day of the Accident on 11 December 2020, the only remarkable examination finding was the subjective complaint of tenderness over left back paraspinal region. He was treated with analgesics and discharged with 4 days of sick leave[30].

107.  Initially his complaints were restricted to neck and back pain, for which he was referred for physiotherapy treatment; he attended 36 sessions of physiotherapy at UCH during January to November 2021. He started to complain of chest pain 5 days after the Accident. The report of O&T of QEH states neurological examinations… normal all along (up to November 2021).

108.  When attending the A&E of QEH on 6 and 8 January 2021, Lam presented with low mood and suicidal ideas due to multiple joint pain[31]. This is inconsistent with his complaint restricted to headache, dizziness and back pain made to the treating doctor 5 days later on 13 January 2021 at the KT GOPC. Physical examination revealed mild tenderness on the left paraspinal area and no focal neurological signs[32].

109.  Lam later complained of chest pain, bilateral ankle pain, multiple joint pain, 4 limbs pain and weakness, and gradually impaired sensation of all 4 limbs. He gradually reported other symptoms which he allegedly suffered after the Accident including impaired hearing and vision, teeth pain and erectile dysfunction. There is no mention of these complaints nor related treatment in the medical records. Nor is there medical evidence to support that these new complaints were caused by or related to the Accident.

110.  Such new complaints are in my view signs of exaggeration of the injuries and disabilities.

(iv)  Ambulatory disabilities/ Walking aids

111.  Defence counsel Ms Lam queried during cross-examination that Lam’s greatly deteriorated condition and ambulatory ability after the initial year of the Accident is not supported by medical evidence and is not genuine.

112.  Lam replied firmly that he had started using a walking stick since 15 December 2020, ie 4 days after the Accident. He first explained that though he did not require to use walking aid initially, he had started using a stick because he was worried that he might fall due to dizziness. Later in the witness box he changed his evidence and agreed that he could not walk, sometimes not even stand, if not holding a stick.

113.  Lam’s evidence is however contradicted by contemporaneous medical records which show the following:-

(i)  18.12.2020, 29.1.2021 (A&E UCH)[33]:

“walk unaided…steady gait…limb power full…no LL weakness…”

(ii)  8.1.2021 (A&E QEH)[34]: “walk unaided”

(iii)  4.5.2021 (O&T QEH)[35]: “walk unaided”

(iv)  Ample evidence in the UCH physiotherapist’s notes covering a period from 11.5.2021 to 16.9.2021: “walk unaided…mostly steady gait”.

114.  Lam also explained in court that he did not use a walking stick initially during follow ups only because he was assisted by his wife (“係我老婆幫我”) – but that does not explain why the consultation records all state “walk unaided”.

115.  The earliest record of Lam using a walking stick is found in the UCH physiotherapist’s Musculoskeletal Assessment Form dated 21 January 2021: “walks on stick due to LLs joint pain”[36] which was a new complaint (other than the initial complaints of head, neck and back pain).

116.  Lam’s ambulatory ability deteriorated further - he reported to be requiring walking stick outdoor by around September 2021, and indoor by October 2021 when he had “knee give way feeling and nearly fall”.

117.  The medical records show that Lam’s multiple bodily pains condition had become static, or had limited progress (or “20% improvement only” as stated in some records) after 36 sessions of physiotherapy treatment by October 2021. He gave evidence in court that his pain condition had in fact worsened and greatly deteriorated after 36 sessions of physiotherapy, and had gradually affected more body parts.

118.  When queried by this Court why in that case that he had continued to attend frequent physiotherapy treatment for 9 months when it did not help but made his condition worse, Lam replied that he had no knowledge of other places of treatment, and feared that the fees would be high and unaffordable.

(v)  Extension of sick leaves

119.  During cross-examination, defence counsel pointed to the consultation notes dated 4 May 2021 of O&T QEH[37] which show that after 3 months of follow up and 4 months of physiotherapy, Lam’s condition was considered static. He was advised and explained by the treating doctor that sick leave would be stopped upon his discharge from physiotherapy.

120.  Consultation notes dated 19 October 2021 of O&T QEH further show that Lam together with his wife was advised by the treating doctor that his recovery had plateaued and there was no clinical indication for further sick leave. The evidence shows that no further sick leave was granted by O&T QEH after 18 October 2021.

121.  Lam agreed with the records but said that the severe multiple bodily pains had all along persisted.

122.  Evidence shows that Lam had immediately after 18 October 2021 sought TCM treatment and was granted further continuous sick leaves of 2 days each. Lam then consulted Dr Chan regularly every 3 weeks in the following 2 years from 29 October 2021 to 29 November 2023, and was granted continuous sick leaves of 21 days upon each consultation until 20 December 2023.

123.  When put by defence counsel that he had consulted Dr Chan for the purpose of extension of sick leaves only, Lam agreed it was half-true only (“一半同意”), as Dr Chan’s sessions were helpful in that he was advised to do home exercises and arranged physiotherapy (in the same clinic).

124.  It transpires that Dr Chan did not really provide Lam with any treatment during those 2 years other than giving him advice, arranging physiotherapy in his own clinic and extending sick leaves. Dr Chan did not even prescribe Lam with medications which he had sufficient stock from government clinics.

(vi)  Unreasonable medical expenses

125.  Lam’s medical expenses incurred allegedly for treatment of the multiple bodily pains, all supported by medical receipts, ran up to an outrageously high figure in excess of $262,000. Most of the expenses were paid for consultations with private practitioner Dr Chow (at about $1,500@), TCM (at $630@) and Dr Chan (at $800@).

126.  It is noteworthy that Dr Chow, as parties agree, is a specialist in paediatrics[38]. Through a consultation period of around 3 years from December 2020 to November 2023, Dr Chow and Dr Chan did not provide any active treatment to Lam other than arranging investigations (of MRIs) and physiotherapy, and giving him advice and sick leaves.

127.  Considering the overall evidence, this Court is driven to the conclusion that the intensive medical consultations attended by Lam, particularly after the initial year post-Accident, were unreasonable and served no useful treatment or therapeutic purposes other than extension of sick leaves.

128.  On the overall medical evidence, the prolonged sick leaves of 3 years are in my view unreasonable and not justifiable.

(vii)  Psychiatric symptoms

129.  Lam gave evidence that shortly after the Accident by around January 2021 his mental condition had deteriorated greatly due to persistent severe multiple bodily pains. He became depressed and was suicidal, had wanted to jump off the building from height or run into oncoming traffic to end his life. He cried in court when recounting his predicament.

130.  Lam was referred by Dr Chow for psychiatric treatment. It is, unlike what he presented in court, recorded in the QEH Psychiatric Consultation Liaison Note dated 8 January 2021 that whilst Lam had symptoms of depression and was mildly anxious, he denied active suicidal ideation. Examination revealed that he was calm and settled…forthcoming…self contained[39].

131.  Lam was referred for psychiatric treatment at YFSPC where he has attended since 24 February 2021 and for about 4 years until the next appointment scheduled for 7 February 2025. The 2 reports from YFSPC dated 2 December 2021 and 15 June 2023 record a diagnosis of Adjustment Disorder. The impression is that Lam’s psychiatric condition was mild, and in my view much less serious than that presented in court, as clinical improvement was noted after treatment with antidepressant and supportive counseling. Prognosis was good. The treating psychiatrist specifically remarked that adjustment disorder rarely inflicted permanent impairment on vocational capability[40].

(viii)  Occupational Therapy WRA Report

132.  Lam relies on the OT WRA report in support of his case that that his work ability is significantly below that of his pre-accident work physical demand, and that early retirement was recommended.

133.  On the issue of work capacity, I have no hesitation preferring the evidence of Dr Lau’s expert opinions to the conclusions of the occupational therapist set out in the WRA report on Lam’s (i) high degree of disabilities; (ii) reliance on elbow crutches for ambulation; and (iii) low potential to resume work (§62 above). Such conclusions were understandably primarily based on the examination results as demonstrated by Lam in the physical tests, but not objective medical findings. The test results would depend on Lam’s motivation and willingness to have full exertion in the tests. The recommendation of early retirement was based on Lam’s subjective review on return to work readiness.

134.  The WRA report should be regarded as therapeutic evidence of Lam’s subjective complaints, as found by Master Ho in the judgment of So Loy Hing v The Kowloon Motor Bus Co (1933) Ltd (HCPI 910/2011; 8 August 2014) at §§162-165.

135.  In the present case where Lam is shown to be highly exaggerating his pain and weaknesses, such test results and conclusions of the occupational therapist set out in the WRA report are in my view not reliable. This Court is in a better position to assess truthfulness of any subjective medical complaints upon review of all available evidence, particularly that of the SJE, and considering counsel’s opposing arguments.

136.  To conclude, I found Dr Lau’s expert opinions and conclusions set out in the SJE Report reasonable and well supported by the medical evidence. His evidence in court has further explained the issues with clarity and conviction with a detailed analysis of the objective medical findings.

137.  I accept Dr Lau’s evidence that Lam’s condition had long reached MMI within a year after the Accident, and the appropriate sick leave should not be more than 12 months. This is in line with the decision of the treating doctors of O&T of QEH to stop sick leave by August 2021, and the discharge from physiotherapy by UCH in November 2021 after a year of intensive treatment.

138.  Lam should in my view by early 2022 the latest be able to resume work, though subject to some impaired work capacity according to Dr Lau.

139.  Lam had increasing complaints and medical problems, other than the initial head symptoms and back and neck pain, of many other body areas involving all limbs and joints, eyes, ears, teeth, erectile dysfunction, etc. over the past few years. There is no medical evidence supporting causation of the alleged conditions by the Accident. These are in my view signs of exaggeration or Lam adopting an abnormal sick role.

Adoption of a Sick Role

140.  Dr Lau remarks in the SJE Report that Lam has been playing the sick role, whether intentionally or not[41]. Despite his non-acceptance of Lam’s reported severe pain and disabilities, Dr Lau never suggests that Lam is a malingerer.

141.  I have heard Lam’s evidence in court and observed his demeanor when he broke down and cried when recounting his disabilities and suffering. In the light of the overall medical evidence analysed above, I accept Dr Lau’s conclusion that Lam’s condition was brought about by his self-induced belief, in that he had exaggerated his pain and discomfort and convinced himself into believing that he had severe pain and disabilities and was incapable of doing a job. He has been, as commented by Dr Lau, demotivated and deconditioned from returning to reality by the prolonged sick leaves, the goal of searching for pathology and the incessant pursuit of medical follow ups without real treatment.

142.  Counsel have not dealt with the issue as to whether the defence should be held responsible for the loss that flows from the adoption of an abnormal sick role. Lam’s counsel submits that these comments of Dr Lau should be disregarded without elaboration or reasons.

143.  I have derived great assistance from the detailed analyses on this issue in the judgment of Bharwaney J in Hung Sau Fung v Lai Ping Wai and Anor [2012] 1 HKLRD 1 at §§55-68 and that of Hon Chu JA (as she then was) on appeal [2016] 1 HKLRD 106 at §§56-69. The answer would be in the affirmative if such was the result of any psychiatric illness caused by or resulted from the injuries sustained in the Accident.

144.  In the present case, there is scanty psychiatric medical evidence of 2 reports from YFSPC. The treating psychiatrists who had been treating Lam for 2-3 years after the Accident, as summarised in §132 earlier herein, conclude on a mild psychiatric condition and a good prognosis. A total of only 8 days of sick leave was granted to Lam in the psychiatric aspect.

145.  There is simply no objective or medical evidence to show that Lam’s exaggeration was the result of a psychiatric or psychological condition that flowed from, or was aggravated, by the Accident and the resulting injuries.

146.  Following the principles stated in the abovecited judgments, I conclude that the tortfeasor should not be held responsible for the loss that flows from Lam’s adoption of a sick role (as opined by Dr Lau) in the present case.

Findings of the Court

147.  For the purposes of assessment of employees’ compensation and common law damages in these actions, I make the following findings:-

(1)  Lam suffered mild head, and soft tissue neck and back injuries in the Accident, from which he developed psychiatric conditions of adjustment disorder; and

(2)  The injuries should improve gradually upon treatment. He had by August to November 2021 attained MMI, with lingering mild residual pain and psychiatric symptoms. The appropriate sick leave should be no more than 12 months, after which he should be able to resume work, but subject to the limitation of weight handling capacity of about 20 catties according to Dr Lau.

QUANTUM OF EC CLAIM

148.  Lam claims employees’ compensation under sections 9, 10 and 10A of the ECO.

Lam’s Monthly Earnings

149.  Lam’s pleaded case as set out in the Re-Amended Application is that he earned $28,600 (a) for the month immediately preceding the Accident; and (b) on average during the 12 months or any lesser period of employment with R1 prior to the Accident[42]. His evidence is that he worked Mondays to Fridays every week at a daily wage of $1,300.

150.  He has adduced in evidence a cheque dated 5 December 2020 issued to him by his employer R1 for the sum of $28,600[43], which he says covers the work period from February 11 to 1 December 2020. Later in court he changed his evidence that the cheque was for his work for the month of November 2020 only, but not including 1 December 2020 (which should be included in the following month’s pay). He further explained that the $28,600 cheque was for the 21 days of work plus 1 day’s pay for the extra management work of the workers undertaken by him as requested by his employer.

151.  Section 11(1) of the ECO provides:-

“11. (1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings ―

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favorable to the employee.”

152.  R3’s counsel argues that as section 11(1)(a) prescribes, the earnings is calculated “for the month immediately preceding the date of the accident”, which should be interpreted to mean the calendar month preceding the Accident: see Chen Ziqiang v New Home Design Limited & Anor [2023] HKDC 495 at §§20-27, following the ruling of HHJ CB Chan in Lau Yiu Yee v Tung Lee Engineering Co. (a firm) & Anor (unrep., DCEC 471/2001, 7 August 2002) at §§11-12.

153.  Accordingly, in Lam’s case, the earnings that fall within section 11(1)(a) should be the earnings for November 2020 only (but not 1 December 2020). This accounts for 21 days working days (Mondays to Fridays) from 2 November 2020 to 30 November 2020. Thus, Lam’s monthly earnings at the time of the Accident should be $1,300 x 21 days = $27,300.

154.  A different interpretation of the “month” being “30 days immediately preceding the accident” was adopted in other cases, e.g. the judgment of HHJ H Au-yeung (as he then was) in Cheung Chi Ping v King Tin Engineering & Transportation Limited & Ors [2021] HKDC 12 at §§114-116 and that of DDJ Charles Wong in Ma Siu Fai v 高占遠trading as利來裝飾設計 & Ors [2021] HKDC 682 at §§21, 33-36.

155.  The fallacy in R3’s argument is that had Lam commenced working for R1 later say on 9 November 2020, the monthly earnings under section 11(1)(a) would be greatly reduced by about 5 to 6 working days despite he had in fact continued to work for R1 for more than a month up to the date of Accident on 11 December 2020. R3’s approach is rigid and artificial, and in my view not what the legislative framework of ECO intended to achieve. A proper interpretation and approach should be flexible and more favourable to the employee.

156.  I have considered the detailed analysis and approach of DDJ Charles Wong in Ma Siu Fai (supra) at §§29-36 in considering monthly earnings of the employee under section 11(1) and (2). In that case, the applicant started work on 10 October 2016 and the accident happened on 9 November 2016. The court found that adopting the “calendar month approach” under section 11(1)(a) (as contended for by the Fund Board in that case) would substantially reduce the monthly earnings and give rise to unnecessary restrains to the fair and appropriate method of calculation to casual daily workers. The record of work days for a period of 30 days or more before the accident was taken to be sufficient evidence to support a computation of the monthly earnings. Under this approach, the notion of calendar month bears no significance.

157.  This I consider to be the appropriate approach to be adopted in Lam’s case: In view of the cogent evidence and record of Lam having worked for R1 continuously for a period of more than 30 days (from 2 November 2020 to the day of the Accident on 11 December 2020), the more flexible approach under section 11(1)(b) should be applicable, ie the number of working days out of a one month period prior to the Accident should be adopted.

158.  On Lam’s evidence that he had since commencement of work on 2 November 2020 worked all Mondays to Fridays up to the date of the Accident, I adopt 22 working days (x $1,300), ie $28,600 for the computation of Lam’s earnings as proposed by Ms Chan.

Length of Sick Leave

159.  As analysed above, Lam’s evidence of continuous sick leaves for more than 3 years up to 20 December 2023 is shown to be unduly prolonged and unreasonable. The section 10(1) presumption is rebutted by the overall medical evidence in particular that of SJE Dr Lau.

160.  I reject the proposal of Lam’s counsel to adopt 33 months for calculating section 10 compensation.

161.  I have set out hereinabove the detailed discussion and my finding based on Dr Lau’s conclusion that a sick leave of 12 months would be appropriate. This is in line with the sick leaves granted up to 18 October 2021 by the treating doctors of O&T of QEH, and the discharge from physiotherapy on 9 November 2021 after 8 months of intensive treatment when Lam’s condition was considered static. I accept R3’s proposal to adopt 12 months for computation of compensation under section 10.

Permanent Loss of Earning Capacity (“LEC”)

162.  As set out in my analysis above, I accept Dr Lau’s evidence and his assessment of the appropriate LEC in the orthopaedic aspect at 5%, given Dr Lau’s conclusion multilevel mild disc protrusions (but not PID as stated in the Form 9) noted in the MRIs were not caused by the traumatic injury in the Accident but were degenerative in nature.

163.  Taking into account the 1.5% assessment of the MAB for the head symptoms of persistent headache and dizziness, I consider it appropriate to adopt LEC at 6.5% for the purposes of the ECO.

Computation of Compensation

164.  Lam was aged 59 at the time of the Accident. I quantify employees’ compensation under the ECO as follows:-

Section 9:  $28,600 x 48 x 6.5%	$89,232
Section 10:  $28,600 x 12 x 4/5	$274,560
Section 10A:  Medical expenses	(agreed) $52,330
(LESS) Advance payment	(agreed) ($63,978)
Total:	$352,144 =======

165.  Total employees’ compensation is therefore assessed at $352,144.

Interest

166.  Interest is awarded on the compensation adjudged at half judgment rate from the date of the Accident to the date of judgment, and thereafter at full judgment rate until payment.

QUANTUM OF PI CLAIM

167.  Following from my analyses and conclusions earlier in this Judgment, I assess quantum of the PI claim on the basis that Lam sustained mild head, and soft tissue neck and back injuries. His condition had improved after treatment leaving mild head and psychiatric symptoms and residual pain and weakness in the neck and back.

Pain Suffering and Loss of Amenities (“PSLA”)

168.  Lam’s pleaded claim for damages for PSLA is $300,000 as set out in the Revised Statement of Damages filed on 27 March 2024 (“RSOD”). Lam’s counsel submits a claim for $200,000 in her closing submissions with reference to the following cases involving soft tissue injuries: Yu Hiu Kit Kathy v LSG Lufthansa Service Hong Kong Limited (unrep., HCPI 920/2013, 16 August 2016) and Chu Kam Hung v Shing Lee (Meat Supplies) Hong Limited (unrep., HCPI 802/2013, 26 June 2015).

169.  R3 contends for a sum of $150,000 and refers to the following cases: Tong Chun Yip v Leung Sau Lai & Anor [2019] HKDC 48, Choy Chun Sing v Wong Kwok Chun [2019] HKDC 492 and Wong Chun Kin v Caritas – Hong Kong [2019] HKDC 556;

170.  Having considered the evidence and the abovecited authorities, I accept that the totality of Lam’s injuries and disabilities would justify an award for PSLA of $180,000.

Pre-Trial Loss of Earnings and MPF

171.  Lam had been working for 26 years as a drilling and cutting worker on construction sites prior to the Accident.

172.  Records from the Inland Revenue Department (“IRD”)[44] show that he had over the years reported for tax salary and subcontractor’s fees income received from different employers and contractors.

173.  For the 2 years of assessment prior to the Accident which occurred on 11 December 2020, he reported income to IRD as follows:-

	salary	subcontractor’s fees	Monthly Avg
2018/19	$111,750	$160,380	$22,678
2019/20	$211,900	nil	$17,658

174.  The recorded earnings are consistent with Lam’s MPF record for 2019 adduced in evidence[45].

175.  For his work with D1 at the time of the Accident, I have found as stated in §159 herein that Lam earned $28,600 ($1,300 x 22) in the month prior to the Accident.

176.  Lam’s evidence is that in the first half of year 2020 preceding the Accident, he had not worked at all until around May or June 2020. It was because he was stuck in the PRC due to travel restrictions during Covid since his departure from Hong Kong in about end-2019 or January 2020 for Chinese New Year. On that basis, if one discounts 3 months (Jan-Mar 2020) from Lam’s 2019/2020 earnings reported to IRD, monthly average income would become $23,544 ($211,900/9).

177.  The evidence shows and I have no hesitation accepting that Lam was hardworking and had made steady income of over $20,000 per month prior to the Accident. It would be reasonable to assume that such would be the likely level of Lam’s earnings but for the Accident.

178.  I reject R3’s submissions to take the scanty actual earnings received by Lam during the few months (from May or June 2020 onwards) before the Accident for calculating average monthly earnings over the whole year. This is unreasonably harsh and against the cogent evidence of steady monthly income of over $20,000 during the pre-Covid years.

179.  I accept Lam’s pleaded pre-accident average monthly earnings at $22,017.

180.  I have found that a reasonable sick leave should be no more than 12 months, and that Lam should be able to resume work thereafter.

181.  On that basis, Lam’s pleaded claims for full loss of earnings from the date of the Accident until he attains normal age of retirement at 65 are not sustainable.

182.  Lam’s evidence that his pre-accident work involves heavy manual labour and frequent handling of heavy weight of drill heads and tools is not challenged.

183.  Dr Lau, whilst concluding that Lam is fit to resume work as a construction worker, agrees that he would suffer a significant degree of decreased efficiency at work due to the residual pain in his neck and back, such that he needs to avoid heavy manual lifting (say more than 20 catties).

184.  On Dr Lau’s evidence, I do not consider it realistic for Lam to resume his pre-accident heavy work as a drilling and cutting worker on construction sites.

185.  R3’s submissions of nil loss of earnings after the sick leave is not reasonable either. It is not Dr Lau’s evidence that Lam has fully recovered from the injuries sustained in the Accident and that all his residual disabilities are due to the pre-existing degenerative spine conditions but not the Accident.

186.  Reference is made to the judgment in Khan Amar v Cheung Ying Construction Engineering Ltd & Anor (unrep., HCPI 231/2005, 14 March 2006): The agreed medical evidence of the orthopaedics experts was that the plaintiff might be able to return to his pre-accident occupation as a construction worker albeit with reduction in work efficiency. Reyes J found that it was no more than a “theoretical possibility” without real prospects. The reality was that the plaintiff would experience difficulty in finding work as companies would prefer to hire the more able-bodied before considering someone with reduced efficiency. It was ruled that the plaintiff should not be penalised by a nil allowance for lost earnings on the basis of a mere theoretical possibility. Pre-trial and future partial losses of earnings were quantified based on a monthly differential of $7,000 to $8,000 for life. The judgment was upheld on appeal (CACV 153/2006).

187.  In the circumstances, I consider it appropriate to award Lam damages for loss of earnings on the following bases:-

(1)  Full loss of earnings during the sick leave of 12 months, plus 3 months for him to find alternative light work;

(2)  He should be able to resume at least light manual work or, given his abundant experience, general labour work on construction sites, but should avoid heavy weight handling of over 20 catties;

(3)  Even if not for the Accident, he would have, in view of his pre-existing degenerative spine conditions, gradually and by no later than age 62 or 63 shifted from his pre-accident heavy manual work as a drilling and cutting worker to alternative work of lower physical demand.

188.  Evidence of Average daily wages of workers engaged in Public Sector Construction Projects (as reported by main contractors) from the date of the Accident to May 2024[46] shows that general labourers’ wages are about 30 to 40% lower than that of rock-breaking drillers. Other non-construction sites light work would likely pay lower wages.

189.  After the reasonable sick leave period, plus 3 months within which to find work, it would in my view be reasonable to adopt residual monthly earnings of $12,000 which Lam should be able to earn by resuming alternative light work. Partial loss of earnings is assessed from March 2022 up to October 2024 when he reached age 63, and no more.

190.  Pre-trial loss of earnings and MPF benefits is assessed as follows:-

11.12.2020 – 10.3.2022

$22,017 x 15 months x 1.05

$346,768

11.3.2022 – 10.10.2024

($22,017 - $12,000) x 31 months x 1.05

$326,053

191.  Total pre-trial loss of earnings and MPF benefits is thus quantified at $672,821.

Future Loss of Earnings/ Loss of Earning Capacity

192.  Lam would likely, even if not for the Accident, gradually have to shift to work in less physically strenuous work given the pre-existing degenerative spine conditions. Following from the above analysis, no award for future loss of earnings would be appropriate.

193.  It is appropriate, as accepted by R3, to make an award for loss of earning capacity to cover the risks of financial loss due to the disadvantage in the labour market faced by Lam by reason of the residual disabilities suffered as a result of the Accident.

194.  I consider an appropriate award to be in the region of $45,000 which represents about 3 to 4 months of his residual earnings in light work.

Other Special Damages/ Misc Expenses

195.  Lam’s claims for reimbursement of medical and travelling expenses incurred and paid in the respective sums of $240,117 and $9,500 are agreed by R3.

196.  As for tonic food, there is no evidence that the health supplements, vitamins, ginseng, etc. purchased, though supported by receipts, were required upon medical advice or that they would assist recovery from the injuries sustained in the Accident. See Kings Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 391 at §§44-50. I would allow a sum of $7,000 and no more.

197.  I therefore make an award of $256,617 for reimbursement of medical, travel and tonic food expenses incurred.

Interest

198.  Interest on PSLA is assessed at the usual rate of 2% p.a. from the date of the writ of summons to the date of judgment, thereafter at judgment rate until payment.

199.  Interest on all pre-trial special damages is assessed at half of the judgment rate from the date of the Accident to the date of judgment, thereafter at judgment rate until payment.

Summary of Award

200.  I summarise the award for Lam’s claim for common law damages as follows:-

PSLA	$180,000
Pre-trial loss of earnings and MPF	$672,821
Future loss of earnings	nil
Loss of earning capacity	$45,000
Other special damages/ misc expenses	$256,617
Total:	$1,154,438 ========== (plus interest)

201.  Lam’s total claim herein is thus assessed at $1,154,438 (plus interest). Credit should be given for the advance payments received by Lam from D1 and D2 in the total sum of $63,978, leaving a nett award of $1,090,460 (plus interest).

Order on the EC Action

202.  I make an order that R1 and R2 do pay employees’ compensation to Lam in the sum of $352,144 plus interest.

Order on the PI Action

203.  I make an order that D1, D2 and D3 do pay damages to Lam in the sum of $1,090,460 plus interest.

Costs

204.  I have considered the submissions of the Fund Board’s counsel Ms Lam, in particular the well stated principles on costs involving the Fund Board set out in the following cases:-

(1)  Employees Compensation Assistance Fund Board v Wo Chun Wah [2019] HKCFA 48 at §§45-47; and

(2)  Lee Wai Kin v San Xing (China) Trading Limited & Anor [2019] HKCFI 361 at §§106-114.

205.  The Fund Board, like in many other cases, seeks to be joined in these actions in discharge of its statutory duty under the Employees Compensation Assistance Ordinance (Cap 365) to “screen out unmeritorious or inappropriate claims to ensure (inter alia) that this assistance mechanism will not be abused, its recipients will not exaggerate their claims, and public funds will not be used for improper purposes.” In doing so, the Fund Board ought to “act as a filter and adopt an impartial attitude in the proceedings so as to assist the court in coming to a correct ruling”. It should not be penalised on costs for acting in discharge of such statutory duty.

206.  The Fund Board’s proposed costs orders are agreed by Lam’s counsel who submits that they would be the usual costs orders to be made.

207.  I therefore make the following costs order nisi in the EC Action, subject to the costs orders of the Amendment Application and the WS Application set out in §§23 and 47 hereinabove:-

(1)  R1 and R2 do pay Lam’s costs of the assessment of compensation, with certificate for counsel, to be taxed if not agreed;

(2)  R1 and R2 do pay R3’s costs of the assessment of compensation, with certificate for counsel, to be taxed if not agreed;

(3)  There be no order as to costs between Lam and R3 (including all costs reserved); and

(4)  Subject to the costs order stated in §47(3) herein, Lam’s own costs be taxed in accordance with the Legal Aid Regulations.

208.  I make the following costs order nisi in the PI Action:-

(1)  D1, D2 and D3 do pay Lam’s costs of the assessment of damages, with certificate for counsel, to be taxed if not agreed;

(2)  D1, D2 and D3 do pay D4’s costs of the assessment of damages, with certificate for counsel, to be taxed if not agreed;

(3)  There be no order as to costs between Lam and D4 (including all costs reserved); and

(4)  Lam’s own costs be taxed in accordance with the Legal Aid Regulations.

209.  The above costs orders nisi stated in §§23, 47, 207 and 208 above will become absolute in the absence of any application to vary the same within 14 days.

210.  Lastly, I thank counsel for their assistance.