TSANG KAM FOOK v. SHEK HAU TONG t/a LUEN LAM ENGINEERING CO (A BANKRUPT) AND OTHERS

HCPI 711/2017

[2021] HKCFI 2292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 711 OF 2017

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BETWEEN

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JUDGMENT

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The Application

1.  This is the hearing for the assessment of damages claimed by the plaintiff.   

2.  Very briefly, the plaintiff was employed by the 1^st defendant as concrete repairer working on 24 October 2014 at a construction site at Kwai Shing West Estate.  He and a co-worker Lai Kam To (“LKT”) were working on a gondola to carry out concrete plastering on the external wall.  While at the level of the 7^th floor, the gondola tilted to one side.  The plaintiff fell and his right leg was hit by some concrete and machine on the gondola.  As a result, the plaintiff suffered injuries and brought this action to claim his loss. 

3.  Partial liability has been admitted by all the defendants, and by a consent order dated 4 November 2020, judgement on liability was entered in favour of the plaintiff against the defendants for 90% of his loss and damage, such damages to be assessed. 

Plaintiff’s case on Injuries

4.  I refer to paragraphs 1 & 2 of the Revised Statement of Damages.  The plaintiff was sent to A & E Department of Princess Margaret Hospital (“PMH”) after the accident for treatment and later admitted to the orthopaedic department. 

5.  Close reduction and intramedullary nailing were done on 27 October 2014.  The plaintiff was discharged on 1 November 2014 and had been referred to receive physiotherapy treatment and full weight-bearing occupational therapy treatment with followed up in Orthopaedic clinic.  He also attended other clinic for treatment and was last followed up in PMH on 22 June 2016.  Sick leave was granted from 24 October 2014 to 20 October 2015 by PMH and intermittently by other clinics during the period from 21 October 2015 to 29 January 2016.  There is also sick leave from 6 - 9 June 2016 granted by New Territories East Cluster YCK GOPC (Family Medicine).  I shall come back to the medical evidence on his injuries and treatment in details later. 

6.  The plaintiff claims that he could not return to his pre-accident job as concrete repairer or to undertake work which would require climbing ladders, squatting, standing for long period of time and lifting heavy object due to his right leg pain, numbness and weakness.  And due to his low education level, he has difficulty to find alternative job and is unemployed.  And for the purpose of assessment, he is prepared to assume he takes up a light duty job 3 months after the sick leave period earning $8,320 per month, which represent a daily income of $320 and working for 26 days. 

7.  The plaintiff claims the following damages –

a. PSLA	$400,000.00
b. Pre-trial loss of income and MPF	$3,528,288.39
c. Post-trial loss of income and MPF	$3,697,294.00
d. Loss of Earning Capacity	$50,000.00
e. Further medical expenses	$52,480.00
f. Special damages	$30,260.00
Sub-total	$7,758,322.39
Less: Employees’ Compensation	($381,250.48)
Total	$7,377,071.91
With 90% on liability, the total claim is $6,639,364.72.

Issues for determination

8.  Having considered the submissions by counsel for the parties, there are a few issues for determination in order to assess the loss of the plaintiff: -

a. whether the plaintiff could return to his pre-accident work, and if so, when.  And if not, what alternate job he could attend to and when;

b. the pre-accident earning of the plaintiff;

c. without the accident, when would the plaintiff have retired;

d. other special damages (which has been agreed).

9.  I shall take these issues one by one. 

The Plaintiff’s Injuries and Recovery

10.  I shall first consider the injury of the plaintiff, his treatment received and his recovery. 

11.  There are 3 witnesses for the plaintiff but the plaintiff is the only factual witness on his injuries and his ability to work.  The other witnesses are more on the retirement age of a concrete repairer, and his pre-accident earnings which I shall come to later.  A joint orthopaedic expert report on his injury and recovery has been adduced without calling the makers.

12.  The plaintiff adopted his witness statement dated 20 September 2019 as his evidence-in-chief.  It is the evidence of the plaintiff, that he was born in China on 10 September 1956.  He was aged 57 at the time of the accident.  As at today, he is 64 and just 3 months to his 65^th birthday.  It is the defendant’s submission that he should retire by 65, but the plaintiff claims that he could and intended to work until 68.  He was forced to retire because of his disability as a result of the accident. 

13.  The plaintiff said he had not received formal education in China, though he has attended some Chinese classes and understood some Chinese words.  He estimated that his education level is of primary one or two.  He came to Hong Kong in 1979.  He had done a number of jobs, including construction site workers, concrete worker and concrete plastering worker.  At around 2005, he obtained the construction industry workers registration-concrete repairer (spalling concrete) skilled worker and the safety training certificate in construction industry. 

14.  He explained in examination that as a concrete repairer, his work included removing concrete and using machines to polish rusty metal, applying rust prevention oil, mixing concrete, repairing spalling concrete and painting wall.  And he had to work at height, climb ladder, and to mover some heavy tools and materials. 

15.  At the time of the accident, he was employed by the 1^st defendant as concrete repairer to work at Kwai Shing West Estate.  The 3^rd defendant was the principal contractor and the 2^nd defendant was also a subcontractor of the 3^rd defendant.  It is not disputed that the plaintiff has only worked 10 days for the 1^st defendant.  His pre-trial earning is in issue and I shall consider in details later. 

16.  On the day of accident, 24 October 2014 at about 8:30 am, the plaintiff was assigned by the 1^st defendant to carry out concrete plastering work at the external wall of Room 19 of Block 8 with LKT on a gondola.  LKT was responsible for checking and operating the gondola at the material time.  They originally planned to raise the gondola to the top floor of Block 8 and start plastering from top to bottom.  But the machine of the gondola had some unusual noise.  As a result, they stop at 8^th floor and started working. 

17.  After completing the work at 8^th floor, LKT lowered the gondola to 7^th floor, when it suddenly tilted sideways.  As a result, both the plaintiff and LKT fail to the right hand side of the gondola.  There was equipment and bucket of mixed mortar in the gondola.  The right leg of plaintiff was hit and trapped by the bucket, mixed mortar and other equipment.  As a result, the plaintiff suffered injuries. 

18.  After the accident, the plaintiff was sent to A & E Department of Princess Margaret Hospital (“PMH”) for treatment.  X-ray of right leg showed he suffered from comminuted fracture over middle shaft of right tibia and spiral fractures of middle shaft and distal shaft of fibula.  Right leg gutter splint was applied.  He was admitted to orthopaedic ward of PMH for treatment.  Close reduction and intramedullary nailing were done on 27 October 2014.  He was discharged on 1 November 2014.  He was followed up at the out-patient clinic.  Healing fracture was found on follow-up X-ray. 

19.  I also refer to the medical record adduced by parties on his treatment.  On 1 November 2014, the plaintiff was referred to have in-patient physiotherapy treatment at Caritas Medical Centre for post-operative rehabilitation.  Integrative rehabilitation program was provided.  He was discharged on 14 November 2014.

20.  The plaintiff was referred to have physiotherapy starting on 10 December 2014 in Prince of Wales Hospital (“PWH”). The treatment stopped after the last session on 14 July 2015.

21.  According to the report by Dr Wesley Ng of PMH dated 20 July 2016, subsequent X-ray showed satisfactory bone union.  After completion of rehabilitation, the plaintiff was referred to medical assessment board, which was held on 20 October 2015 with 2% permanent disability.  On follow up on 22 June 2016, he was able to walk unaided.  There was residual pain and swelling over right leg.

22.  The plaintiff said he disagreed with the assessment by the medical assessment board.  But his DCEC action has been settled and hence he has not appealed against the finding.  This finding has been referred to the experts and I would further consider their opinion on his disability later.

23.  Sick leave was issued by PMH from 24 October 2014 to 20 October 2015.  The plaintiff had attended the outpatient clinic of PWH on 26 October 2015 and 20 November 2015.  Sick leave was granted for 26 – 28 October 2015 and 20 – 22 November 2015 by PWH. 

24.  The plaintiff also attended Lek Yuen General Outpatient Clinic between 21 October 2015 to 26 January 2016.  Intermittent sick leave has been given and the last period is from 26 -29 January 2016.

25.  The plaintiff said in his evidence that his injury still hurt from time to time.  When the weather changed, the condition became more serious.  The injury caused weakness to his right leg.  He could not carry very heavy objects.  He could not climb metal ladder or scaffolding, or work at height.  He could not squat down to work for a long period of time. As a result, he could not return to work as a concrete repairer. 

26.  According to the plaintiff, without this accident, he would have work as a concrete worker at least up to 68.  When receiving occupational therapy treatment at PWH, he was told by the therapist that his right leg injury was very serious and could not go back to work as concrete repairer after recovery.  It was suggested that he should retire. 

27.  The plaintiff has supplemented his evidence when examined by Mr Lin, counsel for the plaintiff.  He explained that his work would involve using a jackhammer to break the concrete, operating a grinder to remove the rust on the steel bar, to repair the opened concrete slab.  He had to stand on the gondola when working.  He need to climb scaffolding and to use ladder.

28.  The plaintiff had been cross examined by Mr Chan, counsel for the defendant.  He had been asked about the place where he had been working before the accident.  The plaintiff confirmed that he did concrete plastering in difference working condition/environment, including working on rooftop, platform/balcony.  He agreed that he did not have to use ladders to work on rooftop or platform/balcony. 

29.  The plaintiff repeated that he had ankle pain and numbness.  It affected him when going downstairs. 

30.  He was referred to a consultation summary by PMH on 10 December 2014.  It was recorded that he had mild pain around right mid anterior shin on weight bearing.  Range of movement of ankle was full.  The plaintiff disagreed with the record on movement. 

31.  Similar finding was recorded in another consultation summary by PMH on 4 March 2015 showed further improvement. It recorded that the fracture site non-tender, no pain on weight bearing, right knee range of movement 0- 100 degree.  The plaintiff disagreed and said the doctor only read the file. 

32.  During another consultation on 15 April 2015, it was recorded that the fracture site non tender.  Plaintiff also disagree saying that if he had no pain, why painkiller was recommended.  Mr Chan pointed out that no medication had been prescribed according to the records, which Mr Chan disagreed. 

33.  Mr Chan referred to a report from the physiotherapy department of PWH dated 7 March 2016.  It was recorded that the treatment stopped after the last session on 14 July 2015.  After 7 months of treatment, there was about 90% overall improvement subjectively reported by the plaintiff.  Objectively, the plaintiff had persistent right mid-shin tenderness and walked independently with limping gait.    

34.  The plaintiff said he was asked by the physiotherapist to do exercise and he had not been asked about his recovery. 

35.  Mr Chan pointed out to the plaintiff that he had no further sick leave from PMH after 20 October 2015. Assessment by medical assessment Board was done on 20 October 2015.  Later, he had visited Lek Yuen General Out Patient Clinic on 21 October 2015, 12 November 2015, 16 November 2015 and 26 January 2016 for treatment.  According to the report from Lek Yuen GOPC dated 29 February 2016, the plaintiff claimed that he had on and off pain over right lower leg and could not resume duty.  Sick leave was granted on 21-24 October 2015, 12-14 November 2015, 16-18 November 2015 and 26-29 January 2016.

36.  It was put to the plaintiff that he visited Lek Yuen GOPC just for sick leave certificate.  The plaintiff said his leg was swollen and painful.  But he accepted that the doctors at Lek Yuen GOPC said he should go back to PMH for sick leave.  There is no record that he had returned to PMH.

37.  The plaintiff had also visited PWH on 26 October 2015 and 20 November 2015 for treatment.  Analgesics were prescribed and sick leave was granted. 

38.  Mr Chan referred to the treatment record of PWH on 26 October 2015.  It is recorded that he requested for sick leave extension.  Physical examination showed that he could walk unaided, with normal gait.  No local tender at right leg.  The plaintiff disagreed with the record. 

39.  According to the witness statement of the plaintiff, he had had an injury at work in 1983 when he was working at a printing factory.  He left hand had been compressed by a printing machine, with 3 fingers were distorted.  After treatment, he was fully recovered and had no material effect on his work as concrete repairer. 

40.  Mr Chan put to the plaintiff that he had exaggerated his injuries.  The plaintiff disagreed.  Mr Chan referred to the joint orthopaedic expert report and pointed out that the plaintiff had not complained to the expert that his right leg or right knees were weak.  The plaintiff disagreed and said he did complain. 

41.  It was reported in the joint report that the plaintiff had a limping gait.    

42.  A surveillance video had been showed to the plaintiff.  It is not disputed that the person in the video is the plaintiff.  It was taken on various dates including 25 February 2019, the date when the plaintiff was examined by the experts.  He was then walking with another person which the plaintiff confirmed was his son. 

43.  The plaintiff agreed that he could go up stair in the video without support.  He appeared to walk faster than his son and was about to step swiftly away from a cart on the way.  He walked with a normal gait.  Mr Chan put to him that he had exaggerated his injury by walking with a limping gait before the experts, which the plaintiff denied and said he just walked as usual for examination by the experts. 

44.  The pre-accident health condition is not much in dispute but relevant to my finding later.  The plaintiff said in his statement that in around 1984, he contracted tuberculosis.  He had recovered and did not cause impact on his work. 

45.  In around 2009, the plaintiff suddenly fainted after meal.  He had a shock and a mild stroke.  Upon examination at the hospital, he was discharged on the following day.  He said he did not have to take medication.  He did not have stroke again and it did not affect his body or working capacity. 

46.  On the medical history of the plaintiff before the accident, it is important to note that the document from the clinic presented in the case recorded that the plaintiff had active problem of brain lacunar infarct that happened on 16 November 2011.  I presume it refers to the same incident. 

47.  On the injuries of the plaintiff, I would move on to consider the joint orthopaedic expert report by Dr Fu Wai Kee and Dr Daniel K H Yip dated 17 June 2019, and their supplemental report dated 16 September 2019 and consider their opinion to assess the injury and the recovery of the plaintiff. 

48.  It is recorded that on the date of examination, the plaintiff still complained of right leg (mid tibia area) intermittent pain and ankle swelling.  The pain would be aggravated by weather change and prolonged walking (for more than 30 minutes).  He needed rest after 1-hour walking.  He needed analgesic 2 times a month to relieve his pain.  Activities of daily living were independent.  And he could manage public transport. 

49.  The experts have reviewed the documented history of the present injury, including the medical notes and records on his treatment which I do not repeat.  They have also considered his past medical history, including his mild stroke and his tuberculosis and treatment, and his left hand injury under the printing machine mentioned above. It is noted that he had residual deformity and weakness of left-hand but the plaintiff informed the experts step he could manage his work including scaffolding climbing. 

50.  Experts have also considered the surveillance video mentioned above.  Dr Fu agreed that the plaintiff had a normal walking gait and arm swing, that he could walk upstairs and downstairs normally.  He did not show any distress during his movement.  There was no apparent restriction in his walking tolerance within the time of recordings. He opined that his lower limb movement did not exceed that shown in the examination and he was not shown to have strenuous activities. 

51.  Dr Yip referred to various scenes in the video.  In summary, he opined that the plaintiff demonstrated a normal consistent walking gait without any evidence of limping or discomfort over a two-month period of surveillance.  But he demonstrated a limping gait even in the confined arear of a small space as the consultation room, and instability in standing on single leg during the joint examination.  The surveillance video after examination show a normal gait and the ability to walk large strides and brisk pace with ease.  He opined that the disability demonstrated during examination is unlikely to be genuine. 

52.  Both experts agree that the clinical picture of the plaintiff is compatible with closed fracture of the right tibia and fibula and is due to the subject accident.  They agreed that the treatment is appropriate.   He had reached maximum improvement and no further treatment is needed. 

53.  They also agree that surgery for removal of implants is optional and there is no absolute need for plaintiff. Dr Yip opines that in patients over 60, removal of implant is usually not recommended as the potential risk outweighs the potential benefit.  But Dr Fu opines that the plaintiff can have it done any time.  The costs of the operation in private sector would be around $40,000 and he would need 6 weeks of rests and rehabilitation thereafter. 

54.  Dr Fu opines that the plaintiff’s condition is static.  The plaintiff suffered fracture of tibia and fibula, and the fracture in the tibia is a comminuted one.  This is caused by high energy trauma.  Residual impairment like pain, weakness and stiffness of knee/ankle is expected.  The plaintiff would have some difficulty in heavy manual lifting or long period of walking. 

55.  Dr Yip opines that the reported subjective tenderness at the joint assessment is not expected given the fracture has healed completely and anatomically.  The plaintiff has been documented by Government Out-patient Department (New Territories East Cluster) on 18 December 2015, 13 months after the injury to be walking with a normal gait and no tenderness. 

56.  Dr Yip opines that this injury is not necessarily a high energy injury.  Full recovery is in fact the norm when the healing is uneventful and without complication.  And the benefits of the intra medullary nailing is that the ankle and knees are allowed pretty much immediate mobilization.  The plaintiff’s claim of knee and ankle problems are not supported by the medical evidence. 

57.  Dr Yip opines that further symptomatic treatment is not expected.  Heavy lifting appropriate for his age (62 years old when examined) and physique should not be a problem.  Appropriate walking tolerance for his age is also expected to be unaffected. 

58.  On working capacity, Dr Fu opines that the pre-injury job of the plaintiff required heavy manual lifting, climbing and squatting.  In view of his condition, he would have difficulty in performing these tasks especially when he had impairment in his left hand due to previous injury.  He will also be prone to have fall injury when he climbs as a result of his leg weakness.  He recommended the plaintiff to shift to lighter duties such as car park attendant or security guard that does not need long time of standing/walking. 

59.  Dr Yip opines that the plaintiff could return to his pre-injury work, if he is motivated and if there is a market for it, given his age.  Dr Yip further added that given his age and history of cerebrovascular accident, history of pulmonary tuberculosis, his suitability for strenuous work and working at height is extremely questionable and may not be wise. 

60.  On sick leave, Dr Fu opines that the sick leave given by treating doctor is appropriate.  Dr Yip opines that 1 year of sick leave given by the orthopaedic department tile 20 October 2015 is reasonable by referring to the documented improvement and absence of objective tenderness around that period.  The active physiotherapy treatment has been stopped earlier on 14 July 2015.  Subsequent sick leave from other clinic including Lek Yuen GOPD who are non-specialists and without continuity of care and without access to his previous records should not be supported. 

61.  The supplemental report is prepared by Dr Yip to explain the difference between pain and tenderness which I do not go into details.

Discussion and Ruling on Working Capacity

62.  The above is the evidence on the working capacity of the plaintiff.  I should first rule on when he reached his maximum medical condition. 

63.  It is not disputed that sick leave from PMH is given only up to 20 October 2015.  Dr Yip consider one year of sick leave is sufficient.  Dr Yip explained that there has been documented improvement to the plaintiff, and the physiotherapy treatment has ended in July 2015. 

64.  And Dr Fu endorsed all the sick leave given.  While some of the sick leave given after 20 October 2015 are not continuous, Mr Lin submits that I could allow compensation for the whole period.

65.  My concern is whether the plaintiff could return to work.  The sick leave certificate is not an absolute proof that a plaintiff cannot return to some form of work.  It is a piece of evidence to be consider against the background of ongoing treatment, if any, and other evidence to rule on the residual disability. 

66.  There may be on and off sick leave given after the plaintiff may return to work which is a matter to be taken into account in assessing the loss of earning capacity even if the plaintiff could return to work.  I agree in appropriate cases, when the intermit sick leave is frequent and so close that it would be impracticable for the plaintiff to look for work, this Court could allow full compensation.  It would all be matter of degrees.  No injured employee has to be 100% recovered before he could return to work.  It depends on the degree of recovery, his residual disability if any, and the nature of his pre-accident work.  I have to consider the credibility of the plaintiff’s evidence of his disability or complaints in seeking sick leave and to rule whether the complained issue is true and would prevent him from returning to work.  The expert evidence could also assist and I start with the expert opinion to consider the disability of the plaintiff.

67.  Having also considered the opinion of the two experts, I prefer the opinion of Dr Yip that the sick leave should end on 20 October 2015 when all the active treatment including physiotherapy have ceased. 

68.  Reading across the medical notes and record as hereinabove analysed, there was documented improvement which support the conclusion of Dr Yip.  I have considered the answer given by the plaintiff in cross examination on the medical notes as hereinabove mentioned. I do not see any reason why the record from different medical practitioners treating him all made incomplete records.  It showed that the plaintiff was trying to escape from responding to the questions put to him.  In fact, which I would analyse further, the plaintiff is not a credible witness. 

69.  There is doubt on the genuineness of the plaintiff in seeking treatment after October 2015 from clinic than other PMH.  To say the least, if he needed treatment, one would expect he would return to PMH for consultation.  On the balance, I am not satisfied that these treatment record and sick leave certificate showed that he could not work.  It may be matter I should take into account when assessing his loss of earning capacity. 

70.  I therefore find that the sick leave should end on 20 October 2015. 

71.  And for record, his last sick leave from PWH and Lek Yuen GOPC end on 29 January 2016.  There is a gap of 5 months before he returned to New Territories East Cluster YCK GOPC (Family Medicine) for consultation and was granted 3 days of sick leave.  Even on the best case of the plaintiff, the sick leave that he could claim to support his disability to work should have ended on 29 January 2016.  Any sick leave thereafter would be matter that I would take into account in assessing his loss of earning capacity.  The submission of Mr Lin that the sick leave ended only on 6 June 2016 cannot be correct.

72.  As whether the plaintiff could return to work after the sick leave and the type of work that he could return to, I have to consider his then physical condition. 

73.  Mr Lin referred to the evidence of the plaintiff that his work involved using a grinder to cut the concrete and remove the rust, a jackhammer to break the concrete and an electric mixer to mix the concrete.  But these are hand held machine.  There is no suggestion of upper limb problem.  Mr Lin said the plaintiff also needed to carry heavy materials, do climbing and work at height.  He needed to stand the whole day to carry out his work.  It is submitted that the plaintiff could not return to his pre-accident work.

74.  The main complain of the plaintiff is pain and weakness to his right leg.  But even according to his information given to the experts, he need analgesic 2 times a week.  That is not a serious handicap on his working capacity.  I agree with Dr Yip that his claim for limited movement and leg weakness is not documented by the treatment clinic and this speak against his claim of unable to return to pre-accident work.  He had not complained to the experts for leg weakness.

75.  The surveillance video taken in 2019 also indicates that the plaintiff could walk normally and swiftly.  There is no indication of difficulty.  And as Dr Yip analysed, there is exaggeration of his condition in the examination.  This is a matter that I would weigh against his credibility, in particular on his evidence that he was painful and could not stand or work for long period.

76.  While Dr Fu opines that the plaintiff cannot return to his pre-injury work because of his difficulty in performing tasks.  This depends on the credibility of the plaintiff is given the information of his physic to the experts.  I found that his complained difficulty including pain and weakness is not credible.  I do not accept the opinion of Dr Fu.  And Dr Fu refers to his left hand weakness, which is not caused by the accident.  And the plaintiff claims that it does not affect his work before the accident. 

77.  I also adopt the opinion of Dr Yip that the implant should not affect the plaintiff’s mobility. 

78.  In summing up all the available evidence, I accept the opinion of Dr Yip that the plaintiff could return to his pre-injury job after the sick leave period. 

79.  For the period that the plaintiff could not return to any form of work, I accept the submission of Mr Lin that I should allow a further period of 3 months for the plaintiff to look for a new job after the sick leave.  I therefore round up his period of total disability from date of accident to 31 January 2016. 

80.  While I found that the plaintiff could return to his pre-injury work by 31 January 2016, I accept that there would be some reduction in efficiency.  I am prepared to allow another 6 months after 31 January 2016 when the plaintiff may only attend to lesser days of work and I would assess it at 50% of his usual pre-accident average working days per month.

Retirement Age

81.  Following my earlier finding, the plaintiff should have no future loss of earning.  If I were wrong that the plaintiff could return to his pre-accident job, the retirement age would be relevant.  To be complete, it may be convenient to consider his retirement age. It is the evidence of the plaintiff that he intended to work until 68. 

82.  The plaintiff has called an additional witness, Mr Lai Yuen Sing.  He is also a concrete repairer and has been employed by the 1^st defendant.  

83.  Mr Lai said he is now 69 and still working.  He also said he had no pain or sickness.  The evidence of Mr Lai only shows that worker up to 69 may be employed.  It must be view as no higher than an example, as he is not giving expert evidence on work statistic in the trade.

84.  Mr Lin submits that it is not unreasonable for the plaintiff to expect to work until 68. 

85.  My consideration must be, without the accident, would the plaintiff continue to work beyond 65 (which is not disputed as the usual retirement age) and work until 68, and earning the same level of income.  I bear in mind the opinion of Dr Fu that the weaken left hand (which is not caused by the subject accident) would affect his working ability.  I also accept the opinion of Dr Yip that given his cerebrovascular accident and his tuberculous history, it is unwise for him to work at height or strenuously.  This must be taken into account in assessing the genuineness of the wish of the plaintiff that he would work beyond 65 as a concrete repairer.

86.  I found that without the accident, he would have retired by 65. Mr Lai has no pain and no sickness.  But the plaintiff has an unfortunate history of injury and sickness.  I do not believe his claim that he could physically handle the work of a concrete repairer beyond 65. 

Earnings

87.  According to the Revised Statement of Damages, the earnings of the plaintiff ranged from $1,200 to $1,500 per day depending on the job nature either on daily wages basis or measurement of work done.  It is clear in his evidence that he is not always a daily waged worker.  But he claims on the basis that he worked 26 days a month with earnings from $31,200 (1,200 x 26) to $39,000 (1,500 x 26) with an average monthly income of $35,100. 

88.  According to the plaintiff’s witness statement, he had been working as odd job worker, subcontractor, and employee at different construction sites.  No details have been set out in his own witness statement as to how he had been paid when he was working as a subcontractor.  And as he pleaded, he sometimes work according to measurement of work done.  Again there was no evidence as to how he was paid.  It was only at the cross examination when the plaintiff admitted that for the latest job with the 1^st defendant, he was paid by measurement. But he had not elaborate on the terms of his contract on how he was paid.

89.  The plaintiff said his income was paid in cash.  Other than the document disclosed in this action, he had not received any other salary receipts or document on income proof.  And he relies on his own evidence to support his claim.  It is incredible that a worker who received payment by cash would not have any record to check if his employer paid him the correct sum.  The burden is on the plaintiff to prove his pre-accident earnings.  I would do my best to assess his earning and I would start with the available documents. 

90.  The first set of document from Inland Revenue Department (“IRD”) do not support the plaintiff claim of monthly earnings.  According to the analysis of Mr Chan on the Notifications of Remuneration paid to persons other than employees submitted by various parties to IRD from December 2010 to 31 March 2013, the plaintiff has an average earning of $11,985 per month.  And for the tax return submitted by the plaintiff’s employer to the IRD for 2013/2014, it shows that he was paid a sum of $50,000 for that year with an average monthly income of $4,166. 

91.  Mr Lin submits that the lack of IRD document does not preclude this Court from finding the plaintiff earns more than the reported income.  I agree.  But the burden still rest on the plaintiff to produce credible evidence to prove his earnings is higher than the reported income. 

92.  The second set of documentary records are payment records from Yau Sai Engineering Co (“Yau Sai”) on the payment to the plaintiff from June to September 2014 as follows –

a) June – 18 days of work = $19,800

b) July – 22 days of work = $24,200

c) August – 20 days of work = $22,200

d) September – 22 days of work = $24,200

93.  The proprietor of Yau Sai, Mr Sai Khoo Somphong has been called to give evidence.  He confirmed the payment records (for the said months).  It is noted that the payment record had not been signed by the plaintiff notwithstanding there was a space for acknowledgment of receipt.  Mr Sai also confirmed that these payment records had not been report to IRD as the plaintiff was an odd job worker.  Mr Chan submits that Mr Sai’s evidence is not credible.  And in any event, the average daily earning of the plaintiff, appearing from the payment record is around $1,100. 

94.  The plaintiff also said he worked for Luen Tat Engineering Company (“Luen Tat”) for 7 days in September 2014, earning $7,000.  His average daily earning would be $1,000.  An attendance record from Luen Tat has been produced showing the plaintiff worked from 16 to 22 September 2014.  A receipt had been produced. 

95.  I agree with Mr Chan that the plaintiff’s average daily earning with Yau Sai and Luen Tat is less than what he claimed to earn between $1,200 to $1,500 per day.  And the average earnings from these 4 months is $24,350 from Yau Sai, and Luen Tat.

96.  The next documented evidence is his employment with the 1^st defendant.  He had been working for 10 days for the 1^st defendant before the accident in the month of October 2014 and had received a payment of $12,500.  It is only at the cross examination when he explained that his earning was based on measurement of work done.  But he had not informed this Court the unit price.  He did say that he had been working for a second unit before the accident and it had not been completed.  If he worked for 2 more days to complete the work, he would have earned $20,000 odd instead of $12,500. 

97.  Yet he had not elaborated on his agreed contract in his witness statement or when he was cross examined.  I paid no weight to this averment of a future payment.  The plaintiff also added that he had taken up a waterproofing job at roof of Tak Tin Estate from 2 to 6 October 2014 for a lump sum of $15,000.  There is no supporting document and had not been stated in his witness statement.  No details of the work done and the number of days have been given.  No weight could be attached. 

98.  The last documentary evidence is his 2013 Family Income Declaration given to the Hong Kong Housing Authority. He declared that he worked as a causal construction worker earning an average monthly income of $9,019.  In the 2015 Declaration, he stated that his average monthly income is $10,000.  On being cross examined, the plaintiff said the document was drafted by his daughter.  But no explanation had been given why these figure had been stated.  We all know that this is a declaration which the Housing Authority relied on to assess if a tenant should pay higher rental due to income. 

99.  The Declarations are serious documents.  The plaintiff tried to shift the duty to his daughter, which is a convenient excuse.  His daughter has not come forward to give evidence.  I do not accept his explanation.  These document casted great doubt on his evidence that he had an average monthly earnings of over $35,000.  The way how the plaintiff handled the declaration also discredit his evidence on his monthly earnings.  Yet, to be fair to the plaintiff, from the available information, the plaintiff could earn more than $10,000 per month and I have to consider all available evidence further to come to a just assessment.

100.  Mr Chan submits that based on his earning with the 1^st defendant, the monthly earnings of the plaintiff should be no more than $12,500/23 x 30 = $16,304.00.  I do not follow the logic of Mr Chan as the $12,500 should represent the earnings for 10 days.  But as the plaintiff is remunerated on measurement bases, it is wrong to assume he earns $1,250 per day from the 1^st defendant.

101.  Summing up the above, I do not accept the evidence of the plaintiff that he earned $1,200 to $1,500 a day and worked 26 days a month before the accident.  From the evidence, and taking into account that he worked sometime as daily worker and sometime with pay by measurement, I found that his average daily wages before the accident is between $1,000 to $1,100.  And this would be the average earnings when he worked as a sub-contractor or paid by measurement.  Based on the 4 months before the accident, I assess his days of work per month at 20 days. 

102.  I also take into account that his earning is lower than the average worker as submitted.  I am not prepared to given the equivalent increase according to the statistic for a concrete worker as he was sometime a worker and sometime a contractor.  I can only the best assessment by board brush approach and assess his pre-accident earning at $22,000 per month. 

Loss of Earnings

103.  The plaintiff would be entitled to full loss of earning from 24 October 2014 to 31 January 2016, i.e. $22,000 x (15 months & 8 days) x 1.05 = $352,461.29. 

104.  As I found that he could return to work by 31 January 2016, and for the first 6 months, he could work 50% of the days.  He would suffer a loss of $(22,000/2) x 6 = $132,000.  And there is no future loss thereafter except there would be compensation for loss of earning capacity which I shall come to later. 

105.  And as I found that he would retire by 65, there would not be any loss after 65 in any event.

Loss of Earning Capacity

106.  Loss of earning capacity is claimed at $50,000. 

107.  Mr Lin submits in his opening submission that the plaintiff is aged 64 and received on formal education.  He is a person under some physical disability and would be at a disadvantage at the job market.  Lack of mobility could hamper a person’s effectiveness.  (He refer me to the judgment of Cheung Lee Man v Chan Wai Wing CACV 179/2006, 11 January 2007 which I do not repeat.) 

108.  I agree with the principle relied on by Mr Lin.  Further, I have mentioned that the plaintiff would have some reduction of efficiency in my early ruling.  Hence, an award to cover the period from earlier 2016 to date of assessment is reasonable. 

109.  Mr Chan submits that the sum should be $50,000.  Mr Lin submits that if future loss is disallowed, a higher award should be given. 

110.  I only have to repeat the decision on assessment I gave in Chan Hon Yu v Chun Lee Engineering Co Ltd HCPI 87/2019. 

129. Having say that, I am prepared to consider an award over $120,000.  The claim by the plaintiff at that stage is based on loss of future earnings being allowed.  But similar to the case of Rai Surya, the plaintiff’s future loss of earnings has been disallowed.  Yet there is an element in the future loss that I have to assess, namely, his residual pain and modification to work as suggested by Dr Lam.  As I have said earlier on, this is to be consider in the claim of loss of future earnings.  Hence, when I am considering what is fair and reasonable for the loss of earning capacity, I am looking at 2 heads of claim.

111.  Taking both claim into account, I grant an award of $100,000 to the plaintiff for his loss of earning capacity. 

PSLA

112.  Mr Chan submits that $250,000 should be allowed.  The judgment set out in the written submission have been considered and I do not repeat.  Mr Lin submits that $400,000 should be allowed and the judgment set out in his written submission have been considered and I do not repeat. 

113.  Taking into account the injury and the period of recovery, I agree with Mr Lin that the reasonable award for PSLA should be $400,000. 

Future Medical Expenses

114.  The plaintiff claims the costs for the surgery to remove the implant of nails from right leg and the loss of earning for the rehabilitation period thereafter.  The sums of $40,000 being surgery fees and $12,480 for loss of earning has been claimed.  The figures are not in dispute. 

115.  The defendant objects the claim.  It relies mainly on the opinion of Dr Yip that for patient over 60, removal of implant would not be recommended.  Mr Chan also refer to the medical history of the plaintiff in support.  He also submits that, if the plaintiff wishes to have the surgery, it could be done in the government hospital. 

116.  It is well established that the plaintiff is not bound to have the surgery done at government hospital.  My consideration is whether the removal of implants is a reasonable step to improve the well-being of the plaintiff.  

117.  Both doctors agree that removal of implants is optional and there is no absolute indication in the plaintiff case that it is necessary.  

118.  While Dr Yip opines that removal is not recommended for patients over 60 years of age, he has no objection that it could be carried out.  Dr Fu opines that if the plaintiff prefers to have the surgery, he could have it at any time as the fracture has healed. 

119.  Having considered the expert opinion, I see no reason to reject the claim for the future medical expenses and I allow at $40,000.  I do not award any loss of earning as by then, the plaintiff had retired. 

Summary of awards

120.  Further to the above awards, the parties have agreed a total of $15,000 for special damages.  The summary of the awards is –

PSLA	$400,000
Loss of earnings Partial loss of earnings	$352,461.29 $132,000
Loss of Earning Capacity	$100,000
Special Damages Future Medical expenses	$15,000 $40,000
Total =	$1,039,461.29
90% of the assessment =	$935,515.61
Less: DCEC Compensation	($381,250.48)
Total Damages	$554,265.13

121.  I assess the award for the plaintiff at $554,265.13. 

122.  There be interest on general damages at 2% per annum from the date of writ to the date of assessment.  On pre-trial loss of earnings and special damages, there be interest at half judgment rate from the date of accident to the date of assessment. 

123.  And there be an order nisi that the plaintiff do have costs of the assessment (including all cost of assessment reserved) to be taxed at District Court scale with certificate for counsel as the award is less than $3 million.  The order nisi shall become absolute within 14 days from today. 

124.  Finally, I shall thank counsel for their able assistance.