WONG KAI FUN v. SUN ON LOGISTICS LTD AND ANOTHER

HCPI 196/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 196 OF 2015

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is the assessment of damages hearing pursuant to the interlocutory judgment on liability which was entered on 10 May 2015 against the 1^st defendant in favour of the plaintiff for the accident happened on 27 March 2012 (“Accident”) with damages to be assessed.

2.  On 26 May 2015, the Employees' Compensation Assistance Fund Board was joined as the 2nd defendant.  The 1^st defendant has not filed any witness statement, expert report and not appeared at the hearing whereas the 2^nd defendant has elected not to adduce any evidence from any factual and expert witness.

BACKGROUND

3.  The plaintiff born in May 1966 is now aged 51 years at the date of the judgment and has secondary education level up to Form 5.  He was married with 3 children and aged 45 at the time of the Accident.

4.  The plaintiff was employed as a container‑truck driver by the 1^st defendant and was required to arrive at the warehouse on Hong Po Road, Tuen Mun at about 7:30 am on 27 March 2012 to take a container truck for his work.

5.  The Accident took place at around 4:55 pm.  At that time, the plaintiff drove the container truck to a container yard located at Tin Ha Road, Ha Tsuen, Lau Fau Shan.  Upon arrival at the container yard, the plaintiff went to process the documentation for taking delivery of a container at an office nearby.  Afterwards, the plaintiff proceeded to inspect the container in accordance with the instructions of the 1^st defendant. Because the electricity of the refrigerated container was turned off, this caused condensation and moisture to form on the interior of the container.  While the plaintiff was inspecting the interior of the container, the plaintiff fell off from the container to the ground at a height of about 1.5 meters due to the wet surface of the container.  As a result, the plaintiff injured his head and lost his consciousness.

INJURIES AND TREATMENTS

6.  After the Accident, the plaintiff was admitted to the Accident and Emergency Unit of Tuen Mun Hospital (“TMH”) for treatment.  He was found to have had a concussion, hemorrhage in the brain, fractured temporal bones, and showed signs of vomiting and amnesia.  Glasgow coma scale (“GCS”) was found to be 15/15.  Thereafter, the plaintiff was referred to the Department of Neurosurgery for further examination and treatment.  There were bilateral ears bleeding.  CT scan of the plaintiff revealed the following:

i. Bilateral subarachnoid hemorrhage;

ii. Subdural hemorrhage overlying right cerebrum and along bilateral tentorium;

iii. Hyperdense contusions in left frontal and right temporal lobes; and

iv. Extraaxial hematoma in left frontal region, could be subdural or epidural hematoma.

7.  Repeated CT Brain on 31 March 2012 showed increase in size of the bifrontal and right temporal contusions.  Later, serial CT Brain showed decreasing size of contusions.  The plaintiff was discharged from the hospital on 10 April 2012.

8.  In April 2012, the plaintiff was first seen at the Department of Ear, Nose and Throat (“ENT”) of TMH.  Bilateral post injury haemotympanum causing bilateral mild conductive hearing loss was diagnosed.  When he was reviewed on 24 July 2012 in the out‑patient clinic, bilateral haemotympanum was completely resolved and there was no more conductive hearing loss on the pure tone audiogram.  However, he still complained of post injury bilateral postural vertigo and bilateral episodic low tone non-pulsatile tinnitus.  Dix‑Hallpike examination confirmed that he had bilateral post injury bengin paroxysmal positioning vertigo.  Bilateral Epley’s maneuver was performed.  After the follow‑up on 19 October 2012, the postural vertigo improved but the bilateral episodic tinnitus was the same. 

9.  On 23 May 2012, the plaintiff attended the Department of Ophthalmology of TMH, complaining of both eyes intermittent blurring of vision after the Accident.  Physical examination of both eyes were unremarkable.  Visual fields of both eyes were full on 20 June 2012.  His best‑corrected visual acuity was 6/6 for both eyes on 19 September 2012.

10.  Between 12 June 2012 and 8 January 2013, the plaintiff attended 4 sessions of occupational therapy.

11.  Sick leave certificates were granted to the plaintiff for the period from 27 March 2012 to 18 July 2014.

12.  The plaintiff complains that he has occasionally suffered from dizziness, headache, loss of concentration and memory, insomnia, blurred eyesight and also auditory hallucination.  In addition, he has also suffered from a change of character with irritable moods.  He throws tempers on his wife and children easily, thus affecting the relationship with his family. Owing to the dizziness and the headaches, the plaintiff also claims to suffer from depression and has to receive psychiatric treatments and medication which has adversely affected his responses and working capabilities.  By reason of his injuries and condition, he has not been able to return to his pre‑injury job as a container ­truck driver.

EXPERT REPORTS

13.  Apart from the medical records and notes from the government hospitals, the plaintiff has adduced the following expert medical reports:

i. the report by Dr Kan Yiu Ting (Neurosurgery) dated 11 March 2014 with examination on 13 December 2013,

ii. the report by Dr Lo Siu Sing (Otorhinolaryngology) dated 14 March 2014 with examination on 21 November 2013;

iii. the report by Dr Peter Ho Pang Nin (Psychiatry) dated 28 March 2014 with examination on 19 December 2013;

iv. the supplemental report by Dr Lo Siu Sing (Otorhinolaryngology) dated 3 June 2014; and

v. the supplemental report II by Dr Lo Siu Sing (Otorhinolaryngology) dated 8 August 2014.

14.  Dr Kan Yiu Ting’s report is briefly as follows:

i. A Post‑Traumatic Amnesia (“PTA”) of about 2 weeks would entitle the injury sustained by the plaintiff to be “very severe”. Coupled with the findings of brain contusions and intracranial hemorrhages (subarachnoid and subdural) on CT scanning, there should be no doubt that the plaintiff’s injury was substantial and that significant psychomotor impairments are likely to be present as sequels.

ii. The plaintiff suffered a severe head injury: cognitive impairment {5% whole person impairment (“WPI”)}; headache (1% WPI); giddiness and tinnitus (3% WPI); total WPI was assessed at 9%.  He was assessed to be unsuitable to work as a heavy vehicle driver because of the giddy spells. The essentially menial nature of any job that he may take up is not expected to command the use of intellectual power beyond his present cognitive capacity.  The loss of working capacity was assessed at 20%.  The plaintiff was advised to receive psychological and psychiatric treatments.

15.  Dr Lo Siu Sing’s report and supplemental reports are briefly as follows:

i. The severe head injury caused ear injury involving both the hearing and the balancing components.  Recurrent dizziness and left tinnitus should be related to the head injury on 27 March 2012.

ii. There was no significant hearing loss and the left tinnitus did not affect speech discrimination.  Hence, there is no associated disability.  As far as ENT is concerned, the plaintiff has no permanent impairment of the whole person.

16.  Dr Peter Ho Pang Nin’s report is briefly as follows:

i. The plaintiff was diagnosed to have suffered from adjustment disorder with mixed anxiety and depressive reaction.  He might also have been suffering from symptoms of organic hallucinations.  He had suffered from a severe head trauma and some degree of subtle brain damage would not be unexpected.  He has experienced symptoms of auditory hallucinations after the Accident.  There is a possible relationship between the development of such hallucinations and his brain trauma.  The plaintiff has a WPI of 3‑5%.

ii. Purely from the psychiatric perspective alone, he could still be considered as “capable” of returning to his previous work.  However, in view of the nature of his job being a container driver, minor impairment of his work performance in relation to his mental symptoms could have disastrous consequences. Overall his working capacity as a container driver would be more affected by symptoms arising from his neurological condition than his psychiatric condition.

iii. The plaintiff was advised to receive psychiatric and clinical psychological treatment with 6 to 9 months of sick leave purely from a psychiatric perspective.

FINDING OF PLAINTIFF’S INJURIES

17.  Ms Leong for the 2^nd defendant submitted that Dr Kan’s comments are based on the plaintiff’s subjective report and she invited the court to go through the medical records and notes.  She also submitted that the PTA referred to in the discharge summary of TMH is not the same as PTA referred to by Dr Kan. With due respect, I cannot agree with her submission since she had never cross‑examined or requested to cross‑examine Dr Kan at the assessment hearing and the 2^nd defendant had never adduced any expert report on any of the medical issues.  I am of the view that she is not in a position to make this submission.  In other words, if the 2^nd defendant considers the comments of Dr Kan are unreliable due to the subjective complaints of the plaintiff, the 2^nd defendant shall adduce her own expert report or ask for joint reports by the parties’ experts.

18.  In the circumstances, I entirely accept the comments of Dr Kan as set out in his report. Similarly, I do not have any reason not to accept the comments of Dr Lo and Dr Ho in their respective reports.  In short, I find that the plaintiff suffered a severe head injury with mild adjustment disorder as a result of the Accident.  I consider that his psychiatric condition which is comparatively mild has significantly improved and that no further psychiatric treatment is necessary.  Indeed, Mr Lin for the plaintiff confirmed not to make any future claim for psychiatric medical expenses.

19.  I further accept the plaintiff’s complaints of occasionally suffering from dizziness, headache, loss of concentration and memory, insomnia, blurred eyesight, auditory hallucination. As to his complaint of suffering from a change of character with irritable moods, I decline to accept as this complaint is not supported by any medical evidence.

PSLA

20.  The plaintiff claims $600,000 under this head whilst the 2^nd defendant suggests $400,000.

21.  In Wong Man Kin v Golden Wheel (C&HK) Transportation Company Limited^[1], it was said by Bharwaney J at §48 and footnote 3 that the starting point of PSLA awards for the Serious Injury category should be increased to $510,000.  In my view, it is not necessary for me to determine if the plaintiff’s injuries fall within the Serious Injury category. I will simply consider all the relevant and comparable authorities concerning PSLA as cited by the parties’ Counsel and determine the amount under this head.

22.  In Chan Sau Wai v Lam Kin Sum^[2], the plaintiff who was aged 49 at trial and was a saleswoman was hit by rolling rocks during course of employment and lost consciousness.  She was hospitalised for a week and suffered from a concussion from head injury with 3 stitches sutured to head wound.  She complained of persistent headaches, vertigo, dizziness and nausea and was found to have psychiatric impairment brought about by post‑concussional syndrome which also affected memory.  She was awarded $500,000 for PSLA.  In my view, the psychiatric impairment suffered by the plaintiff in the present case is much less serious than that in Chan Sau Wai’s case.

23.  In Yan Kwok Yue v. Dong Shu Kei^[3], the plaintiff (aged 35 at trial) was assaulted by the defendant and was hit on the head.  Following the accident, he became anxious, irritable and had recurrent nightmares and vivid day‑time recollection of the assault, and became nervous and depressed.  His psychiatric complaints included depressive mood, suicidal ideas, agitation, restlessness, cold sweat and palpitations, feelings of worthlessness.  He was diagnosed with post‑traumatic stress disorder in moderate to severe degree and post‑concussional syndrome in moderate degree and depressive disorder in moderate degree.  Treatment would have to continue indefinitely.  He was awarded $500,000.00 for PSLA.  Similarly, I also consider that the psychiatric impairment suffered by the plaintiff in the present case is much less serious than that in Yan Kwok Yue’s case.

24.  In Yu Heung Yuk v. Ho Man^[4], the plaintiff was assaulted by the defendants and was found to have sustained a traumatic rupture of the left eardrum and was diagnosed as suffering from post‑concussion syndrome and depressive disorder.  She complained of dizziness, headache, vomiting and numbness over her body and limbs as well as depression, anxiety, irritability, fatigue, poor concentration, loss of sleep and weight loss.  It was held by the court that even though her disability might be classified as in the mild to moderate range from a medical point of view, the change in personality occasioned by the accident had and would have a significant effect on the quality of her life, and it was appropriate to place her injury at the lower end of the serious injury.  She was awarded $440,000 for PSLA.

25.  In Wong Leung Chi v Luen Fat Civil Engineering Ltd^[5], the plaintiff who was aged 61 and a drainage worker was injured while working on construction site when heavy sheet of plywood fell from two storeys above ground and struck him on head and left shoulder and rendered him immediately unconscious.  He was admitted to hospital with skull laceration, which was sutured.  He suffered from continuing neck pain, left upper limb numbness, persistent dizziness and depression.  He also suffered from paraesthesia over his left upper limb and was diagnosed to be suffering from cervical spondylosis with cervical radiculopathy.  He was also diagnosed and treated for post‑concussional syndrome.  Apart from two brief periods he had not been able to return to work.  He was assessed to have 4% permanent loss of earning capacity.  His post‑concussional syndrome precluded him from returning to construction work until symptoms had responded to treatment.  He also suffered from a reduced capacity for future work.  He was awarded $400,000 for PSLA.

26.  In Kami Lohar Bahadur v Ng Yuk Tong^[6], the plaintiff fell from height and suffered right parietal scalp haematoma, fracture right clavicle, right haemothorax and fractures to right 1^st to 8^th ribs.  The scalp wound was sutured; chest drain was inserted; fractures of right clavicle and ribs were treated conservatively.  His right clavicle healed with overlapping, with alignment preserved; and his fractured 1^st to 8^th ribs had healed with mild‑misalignment.  He had persistent right upper back and chest pain.  PSLA was awarded at $400,000.

27.  In Rai Narayan Parshad v Chit Hing Construction Engineering^[7], a mini lorry which was lifted up by a crane fell down onto the plaintiff.  When he was sent to hospital, GCS was 12/15.  There was laceration at the left frontal scalp and bruises at the left parietal scalp, left ear, left side of the neck, left arm and both lower limbs.  X‑ray showed fractures in the left clavicle and right superior pubic ramus.  CT scan showed left frontal epidural haematoma, bilateral parietal brain contusions and small left pneumothorax.  He underwent operation of craniotomy, clot evacuation and insertion of EVD for intracranial pressure monitoring.  He was in intensive care unit from 23 to 30 August 2005 and was discharged from hospital on 9 September 2005.  Thereafter, he attended follow‑up at various clinics.  He complained of diplopia and residual headache.  When examined by the orthopaedic expert, the victim was found to have a 20 cm surgical scar at the forehead.  He complained of tenderness at the forehead, left temporal and occiput; numbness of his left face; numbness of left side body; numbness of whole left upper limb and whole left lower limb; and tenderness at left groin. His clavicle fracture healed in good alignment with bony prominence. Neurological expert opined that the victim had residual headache, non‑specific dizziness and subjectively impaired memory, akin to the diagnosis of post‑concussional syndrome.  There was no cognitive, vestibular or physical deficit.  He had diplopia on downgaze, suggestive of a fourth cranial nerve palsy. Ophthalmology expert commented that the plaintiff suffered from bilateral trochlear nerve paresis, which caused binocular diplopia which was worse on looking down.  PSLA was agreed at $500,000, which amount was endorsed by the court.

28.  In Siu Kin Keung Anthony v H & M Hennes & Mauritz Ltd^[8], the plaintiff fell from 2.4 metres and sustained a severe head injury.  He was conscious on arrival to A&E but he developed generalized convulsion soon. His conscious level dropped to GCS 8/15 after admission.  CT scan revealed skull fracture and a large epidural hematoma over right parietal and occipital region, small frontal brain contusion.  Emergency operation was performed for evacuation of hematoma and repairing of torn transverse sinus as life-saving procedure.  He recovered without neurological deficit and was discharged after about 1 week.  He suffered from headache, recurrent vertigo, impairment of memory and weight loss.  He became irritable, without physical violence. The specialist in neurology whom the plaintiff attended opined that he has mild post‑concussional syndrome.  The neurological experts agreed that he sustained a severe head injury complicated by an epidural haematoma from a torn transverse sinus.  He had PTA of about 30 hours.  They assessed him as having 1% IWP for his headache; 4% IWP for his neurocognitive impairments; and 1% IWP for neurobehavioural impairments.  The specialist in clinical and health psychology commented that the plaintiff suffered from residual symptoms of head injury, characterized by temper outbursts, reduced frustration tolerance, poor physical stamina, headaches, poor concentration and short‑term memory problems. He also developed condition of Height Phobia.  On recommendation, the plaintiff attended 7 more sessions of psychological treatment.  PSLA was allowed at $400,000.

29.  I have thoroughly considered the above authorities and the submissions made by the parties’ Counsel.  Taking into account of the relevant circumstances including inflation^[9] and being guided by the authorities, I award $480,000 under the head of PSLA.

PRE‑TRIAL LOSS OF EARNINGS

30.  In DCEC No.5 of 2013, the employees’ compensation case commenced by the plaintiff against the 1^st defendant, in which the 2^nd defendant is the 2^nd respondent therein, HH Judge Levy found that the plaintiff’s monthly pre‑accident earnings as a container‑truck driver should be $28,086.

31.  In §64 of the plaintiff’s witness statement dated 2 November 2015, he said he believed that the monthly salary of container truck drivers had been adjusted to around $34,000 at that time.  In §4 of his supplemental witness statement dated 1 November 2016, he mentioned about 5% annual increase in salary due to lack of manpower in the field and believed that the monthly salary would be around $36,000 by then.  Mr Lin for the plaintiff submitted that on an average increase of 5% per annum, the plaintiff should have earned as a container truck driver at least $34,139 (i.e. $28,086 x 1.05 x 1.05 x 1.05 x 1.05) at the time of the assessment hearing but for the Accident.  Mr Lin submitted a rounded off median of $31,113^[10] per month, which the plaintiff could have earned during the pre‑trial period.

32.  Ms Leong for the 2^nd defendant contended that the plaintiff’s evidence in his witness statements concerning monthly income of $34,000 or $36,000 is hearsay and put the plaintiff to strict proof of an annual increase of 5% as alleged.

33.  In my view, the plaintiff has no reasonable or objective basis to form the belief of 5% annual increase as he had already left the field of container truck driver since the Accident in 2012.  His explanation as to why he had such belief in his supplemental witness statement, namely lack of manpower in the field, is not acceptable to me since such evidence must be hearsay and therefore unreliable.  Lack of manpower in any event is only one of the factors for review of the salary, but not the only one.  Furthermore, his earnings depended very much on the type and amount of containers transported save with a guaranteed basic monthly salary of $15,000.

34.  In the circumstances, I am of the view that the plaintiff fails to discharge his burden of proof of 5% annual increase in his salary and I also disagree to accept $36,000 as the present average monthly salary of container truck drivers.  Without any other admissible evidence such as the statistic on the earnings of container truck drivers from the Census and Statistic Department before me, I adopt $28,086 to be his notional monthly salary but for the Accident he would have earned by now as a container truck driver for the purpose of this assessment.

35.  The plaintiff was granted sick leave for about 27 months 22 days from 27 March 2012 to 18 July 2014.  Although Dr Kan did not express any opinion on the reasonable duration of sick leave of the plaintiff’s neurological condition, this period of sick leave has been accepted by HH Judge Levy in §§64 to 70 of her Judgment in DCEC No.5 of 2013.

36.  It seems to me that Ms Leong for the 2^nd defendant was trying to persuade me not to accept the reasonableness of this sick leave period.  To start with, I consider that the finding of HH Judge Levy in her Judgment is binding on the 2^nd defendant.  Even if it is not binding, in the absence of the contrary medical opinion adduced by the 2^nd defendant, I will have no doubt to accept this period of sick leave which is well supported by the medical certificates.

37.  After his sick leave expired in July 2014, he attended a 2‑day course in October 2014 to enable him to work as a security guard.

38.  Dr Kan is of the opinion that the plaintiff was assessed to be unsuitable to work as a heavy vehicle driver.  Further it was held by HH Judge Levy in §44 of her Judgment in DCEC No.5 of 2013 that the plaintiff suffered from a neurological impairment of giddy spells that has prevented him from returning to his pre‑accident occupation as a container truck driver.

39.  I accept the submission of Mr Lin for the plaintiff that the partial pre‑trial loss of earnings should be awarded for extra 3 months after the end of the sick leave period to cater for adjustment and the time for finding a job, namely until 18 October 2014 when he attended a 2‑day course to enable him to work as a security guard.

40.  Thus, I assess the plaintiff’s pre-trial loss of earnings from 27 March 2012 to 18 October 2014 to be $863,176.40 (i.e. $28,086 x 30 months 22 days).

41.  After the expiry of sick leave and the 3–month adjustment period allowed by me, the plaintiff should be able to find a job of security guard.  However, he was only able to secure a job as a security guard commencing on 6 March 2015 earning $7,440 per month which was increased to $8,320 per month in or around June 2015.  As no explanation was made by him as to why he could not find a job within a reasonable time after October 2014, I am of the view that he simply failed to mitigate his loss.

42.  Ms Leong for the 2^nd defendant also contended that the sum of $8,320 is probably not the reasonable notional monthly income that the plaintiff is capable of earning at present since according to the Quarterly Report of Wage and Payroll Statistics in June 2016, the average monthly salary of building attendant/guard was $11,699, among whom those employed under 2‑shift system was $12,119 and those employed under 3‑shift system was $10,897.  HH Judge Levy indeed found at §57 of her Judgment in DCEC No.5 of 2013 that the plaintiff would be able to earn a median wage of $10,700.00 as his reduced income after the Accident by working as a messenger/office assistant or general office clerk.  In view of the plaintiff’s condition, I accept that he should be able to work as a security guard under 3‑shift system but I will not accept $8,320 as the reasonable notional income which is well below the average income of a security guard.  I will adopt the figure in the Quarterly Report of Wage and Payroll Statistics in June 2016, namely $10,897 per month as the plaintiff’s notional monthly income.

43.  From 19 October 2014 up to the date of judgment, I assess his loss of earnings to be $536,869.77 {i.e. ($28,086 - $10,897) x 31 months 7 days}. The total pre‑trial loss of earnings is $1,400,046.17 (i.e. $863,176.40 + $536,869.77).

PRE-TRIAL LOSS OF MPF BENEFITS

44.  Ms Leong for the 2^nd defendant rightly submitted, which is also agreed by Mr Lin for the plaintiff, that the plaintiff’s loss of MPF benefits should be subject to the maximum amount of MPF contribution by the employer under the MPF legislation for different periods of time as follows:

(1) At the time of the Accident on 27 March 2012, the maximum relevant income under the relevant MPF legislation was $20,000, and the maximum amount of MPF contribution by the employer was $1,000 per month.

(2) As from 1 June 2012, the maximum relevant income was increased to $25,000 per month, and the maximum amount of MPF contribution by the employer was $1,250 per month.

(3) From 1 June 2014 to the present, the maximum relevant income was $30,000, and the maximum amount of MPF contribution by the employer was $1,500 per month.

45.  Accordingly, from 27 March 2012 to 31 May 2012, the loss of MPF benefits is $2,129 (i.e. $1,000 x 2 months 4 days).  From 1 June 2012 to 31 May 2014, the loss of MPF is $30,000 (i.e. $1,250 x 24 months).  From 1 June 2014 to 18 October 2014, the loss of MPF is $6,432.6 (i.e. $28,086 x 5% x 4 months 18 days).  From 19 October 2014 to 26 May 2017, such loss is $26,837.02 {i.e. ($28,086-$10,897) x 5% x 31 months 7 days}.

46.  The total pre‑trial loss of MPF benefits is $65,398.62 (i.e. $2,129 + $30,000 + $6,432.6 + $26,837.02).

FUTURE LOSS OF EARNINGS

47.  The plaintiff was born on 13 May 1966 and is now aged 51 at the date of this judgment.  He said that he would retire at the age of 65 but the 2^nd defendant puts him to strict proof.  In Wong Man Kin v Golden Wheel (C & HK) Transportation Co. Ltd.^[11], Bharwaney J found that the plaintiff in this case would not have worked as local container truck driver up to the age of 65 due to the degenerative condition of his lower back and assessed the multiplier based on his retirement at 62.  In my view, since there is no evidence before me as to any degenerative condition of the plaintiff or any evidence showing that he is not able to work until 65, I therefore accept his retirement age at 65.

48.  I consider that the discount rate to be applied to select the appropriate multiplier is a net rate of return, net of inflation, of 2.5% per annum: see the judgment of Chan Pak Ting v Chan Chi Kuen^[12]. Table 9 of Personal Injury Tables Hong Kong 2016 gives a multiplier of 11.52, calculated with allowance for projected mortality and a net rate of return of 2.5%, for a male person aged 51 at the date of this judgment who would work to age 65.

49.  His future loss of earnings is assessed at $2,376,207.36 {i.e. ($28,086-$10,897) x 12 x 11.52} and further loss of MPF benefits is $118,810.37 (i.e. $2,376,207.36 X 5%).

LOSS OF EARNING CAPACITY

50.  The plaintiff claims $90,000 under this head on the ground that his injuries and permanent disabilities would put him at a real risk of disadvantage in the labour market.

51.  Ms Leong for the 2^nd defendant submitted that there is no evidence to show any substantial or real risk of losing the plaintiff’s present job as a security guard.  She cited Yu Kok Wing v Lee Tim Loi[13], in which the Court of Appeal referred to a two-stage test in consideration of this head of damage and said:

“The consideration of this head of damages should be made in two stages. (1) Is there a “substantial” or “real” risk that a plaintiff will lose his present job at some time before the estimated end of his working life? (2) If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materializes, having regard to the degree of risk, the time when it may materialize, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.”

52.  Based on my findings of the residual disability suffered by the plaintiff, I am satisfied on balance of probability that there is a substantial and real risk that the plaintiff will lose his present job at some time before the estimated end of his working life.  Premised upon his notional monthly income of $10,897 and the multiplier of 11.52, I award $63,000 as general damages under this head on the basis that he would be out of work for about half a month every year.

SPECIAL DAMAGES

53.  The plaintiff and the 2^nd defendant agreed, which I accept, the medical expenses in the sum of $7,400, travelling expenses at $1,000 and tonic food at $3,000, total of $11,400 under this head.

SUMMARY

54.  In light of the above, I come to the conclusion as follows: ‑

Item	Description	Amount (HK$)
(i)	PSLA	480,000.00
(ii)	Pre-trial loss of earnings with MPF (i.e. $1,400,046.17 + $65,398.62)	1,465,444.79
(iii)	Future loss of earnings with MPF (i.e. $2,376,207.36 + $118,810.37)	2,495,017.73
(iv)	Loss of earning capacity	63,000.00
(ii)	Special damages	11,400.00
	Total	4,514,862.52

55.  Credit will be given for the sum of $1,605,684 being the total compensation awarded in DCEC No.5 of 2013. Hence, the net sum of the damages assessed is $2,909,178.52.

56.  Interest will be awarded at 2% per annum for PSLA from date of service of the writ (i.e. 2 March 2015) to the date of judgment.

57.  Interest will be awarded on pre-trial loss of earnings, pre‑trial loss of MPF and special damages at 4% per annum from the date of accident (i.e. 27 March 2012) to the date of payment of the compensation awarded in DCEC No.5 of 2013 and thereafter, at the same rate up to date of judgment on the remaining balance of such damages after deduction of the said compensation.

COSTS

58.  Ms Leong for the 2^nd defendant argued that the court has no jurisdiction to order costs against the 2nd defendant and that even if this court does not agree with her on the jurisdiction issue, the court still has a wide discretion to exercise on the question of costs.  She suggested no order as to costs as between the plaintiff and the 2^nd defendant.

59.  With due respect, Ms Leong must be wrong to argue that the court has no jurisdiction to order costs against the 2nd defendant in view of the various authorities[14] she is well aware of, in particular Chu J’s judgment in Chak King Por v Wong Chun Fai[15] which is binding on me.

60.  Regarding the discretion even if I have, I fail to see any good reason for me to depart from the usual rule, namely costs are to follow event.  The 2^nd defendant joined in as an interested intervener upon her own application and has taken an active role in the assessment of damages, such making thorough submissions challenging the quantification of almost all the plaintiff’s claim etc.  I also note that Ms Leong for the 2nd defendant had already fully argued before HH Judge Levy in DCEC No.5 of 2013 on the question of costs but failed.  The learned judge eventually made a costs order against the 2^nd defendant who has not lodged any appeal to my best understanding.

61.  Further, at the hearing of closing submission, I asked Ms Leong if it is possible for the 2^nd defendant to make any sanctioned payment pursuant to Order 22 RHC with a view to protecting her interest concerning the question of costs, she made no submission in this regard.  In the circumstances, I refuse to exercise my discretion in favour of the 2^nd defendant and make the order that:

i. The 1^st defendant do pay costs of this assessment of damages to the plaintiff and the 2^nd defendant with certificate for counsel, to be taxed if not agreed;

ii. The 2^nd defendant do pay costs of this assessment of damages to the plaintiff from the date of its joinder with certificate for counsel, to be taxed if not agreed;

iii. The plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.

62.  Pursuant to my order dated 16 November 2016, I reserved the question of costs as between the plaintiff and the 2nd defendant regarding the plaintiff's summons dated 3 November 2016, and the plaintiff's solicitors have given their undertaking not to claim such costs against the plaintiff and the Director of Legal Aid.  As discussed with Mr Lin for the plaintiff at the hearing on 16 November 2016, I am of the view that the costs of the plaintiff's summons dated 3 November 2016 were incurred as a result of the improper act or omission on the part of the plaintiff's solicitors and that it is appropriate for this court to make a wasted costs order against the plaintiff's solicitors personally on its own motion under Order 62 rule 8A RHC.  I now make an order nisi that the costs as between the plaintiff and the 2^nd defendant regarding the plaintiff's summons dated 3 November 2016 including the hearing on 16 November 2016 be paid by the plaintiff's solicitors personally to the 2^nd defendant with certificate for counsel, to be taxed if not agreed, which shall become absolute unless any of the parties apply to vary the same by summons within 14 days.

63.  Last but not least, I must express my gratitude to both counsel for their very helpful assistance to this court.