WU TANGLUN v. CK ENGINEERING (HONG KONG) CO LTD AND ANOTHER

DCPI 4033/2022

[2026] HKDC 555

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 4033 OF 2022

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JUDGMENT

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INTRODUCTION

1.  This is the trial of the claim by the Plaintiff Mr Wu Tanglun (“P”) against his employer the 1^st Defendant and the principal contractor the 2^nd Defendant (respectively “D1” and “D2”, and collectively “Ds”)  for damages for personal injuries arising out of an accident at work allegedly occurred to him on 19 November 2020 (“Accident”) when working on a construction site at Lai Cho Road, Kwai Chung, New Territories, Hong Kong (“Site”).

2.  Both liability and quantum are in issue.

3.  P called 1 witness of fact, namely himself, at trial. Ds called D1’s director 伍民添 (transliterated “Ng Man Tim”) whose evidence is mainly on P’s earnings and periodical payments made to P after the Accident.

4.  P is represented by Ms Percy Yue of counsel.

5.  Ds are represented by Ms Agnes Kwok of counsel.

LIABIITY

6.  It is admitted that P was at all material times employed to work by D1 as a construction worker on the Site of which D2 was the principal contractor.

7.  P’s evidence is that as at the time of the Accident, he had about 7 years’ experience working on construction sites, and had gradually specialised to work as a welder in metalworks for 4 years.

The Accident

8.  There is no dispute that on 19 November 2020 whilst working on the Site, P was assigned to erect a temporary metal platform (“Platform”) with his co-workers.

9.  P’s main duties on the day included preparation of construction materials and rigging and laying of sheet piles. The sheet piles were transported by a crane to be unloaded on top of the I-beam structure to build the Platform where P was working.

10.  Whilst working on the Platform at around 11 am on the day of the Accident and standing on an I-beam, P lost balance and fell through a distance of approximately 7.27m to the ground. As a result, he sustained multiple injuries.

The Platform

11.  As stated in the Accident Report dated 12 May 2021[1] commissioned by the Occupational Safety Section of the Labour Department pursuant to their investigation of the Accident, the semi-constructed Platform was erected above a slope. It was constructed by fixing long sheet piles (each of measurements of 12m L x 30cm W x 20 cm H) side by side on top of an I-beam structure. The I-beams were of a width of 30cm.

12.  There was no fixed access ladder nor other fixed structures as means of access to/egress from the Platform, nor was there guardrail around the Platform. To reach the top of the Platform, the workers including P had to walk up a slope and climb up the bamboo scaffold adjacent to the Platform.

The Criminal Prosecution

13.  As a result of the Accident, D1 and D2 were prosecuted and convicted on 10 July 2021 of the following offences in breach of statutory duties on industrial safety as follows[2]:-

D1: Being the contractor having direct control or the proprietor of the Site:-

(1)  Failing to provide and maintain, so far as was reasonably practicable, a safe system of work for the erection of the Platform contrary to Sections 6A(1), (2)(a) and (3) under the Factories and Industrial Undertakings Ordinance, Cap. 59 (“FIUO”) in summons WKS6268/2021;

(2)  Failing to take adequate steps to prevent a person from falling from height of 2m or more contrary to Regulations 38B(1A), 68(1)(a) and (2)(g) of the Construction Sites (Safety) Regulations (“CSSR”) made under the FIUO in summons WKS6270/2021; and

(3)  Failing to ensure that, so far as was reasonably practicable, suitable and adequate safe access to and egress from a place of work at the Platform was provided and properly maintained contrary to Regulations 38AA(2), 68(1)(a) and (2)(g) of the CSSR made under the FIUO in summons WKS6271/2021.

D2: Being the proprietor of the Site, it was convicted of the like offence as D1 stated above in WKS6268 of 2021 in accordance with Section 13(1) of the FIUO in summons WKS6264/2021.

14.  The convictions against D1 and D2 establish a prima facie case on liability. The burden of proof in this civil action is shifted to the defence who bears the burden to show that Ds were not negligent on the balance of probabilities by operation of Section 62 of the Evidence Ordinance, Cap. 8. See the dictum of Lord Denning in Stupple v Royal Insurance Company Limited [1971] 1 QB 50:-

“(the conviction)…not merely shift the evidential burden as it is called. It shifts the legal burden of proof …. Take a running down case where a plaintiff claims damages for negligent driving by the defendant. If the defendant has not been convicted, the legal burden is on the plaintiff throughout. But if the defendant has been convicted of careless driving, the legal burden is shifted. It is on the defendant himself. At the end of the day, if the judge is left in doubt, the defendant fails because the defendant has not discharged the legal burden which is upon him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities that he was not negligent but he must show it nevertheless. Otherwise, he loses by the very force of conviction.”

15.  Ds plead a simple denial of liability in their Defence filed on 14 March 2023 (“Defence”), and that the Accident was caused or contributed to by P’s own negligence as he (i) had failed to use the safety belt provided by Ds; (ii) should not stand on the I-beam which was not designed as an access on the Platform; and (iii) had failed to pay attention to his own safety when gaining access to the Platform.

16.  Ds have not called any evidence on liability in support of their pleaded allegations against P or to argue that they have discharged the burden of disproving negligence.

P’s Case/ Evidence

17.  P’s evidence on liability, as stated in his supplemental witness statement filed on 11 November 2024, is as follows:-

(1)  He had to walk up the slope and climb onto the Platform via the vertical bamboo scaffold on the side as there was no ladder or fixtures installed for access onto the Platform;

(2)  Whilst working and standing on an I-beam (of a width of 30cm), he lost balance and fell to the ground through a height of 7.27m and sustained multiple injuries; and

(3)  Ds did provide a safety harness but he did not wear it, as there were no fixed guardrails around the Platform, and no independent life lines or any other fixed anchorage points for attaching a safety belt or harness.

18.  In court under cross-examination by Ds’ counsel, P gave the following evidence:-

(1)  He agreed that he was an experienced construction worker and had received general safety trainings from different employers/companies when working on construction sites and had obtained the green card;

(2)  He had trainings and experience working at heights and on scaffolds, and erecting temporary metal platforms. He was trained and knew about the hazards associated with working at heights, the necessary safety precautions and the use of personal protective equipment including safety belts and harnesses;

(3)  He could not recall whether the foreman who assigned him work on the day of the Accident had carried out morning briefing on safety matters that morning;

(4)  He had previously complained to the foreman that it was unsafe for the workers to work on the unguarded Platform. He first went up the Platform wearing a safety harness at around 8 am on the morning of the Accident. Upon seeing that there was nowhere to anchor the safety harness, he went down to complain again to D2’s foreman, but to no avail. He was told by the foreman to get on with the urgent work;

(5)  P went back up the Platform to continue with the work. He then took off the safety harness as it could not be used and there was no point in carrying the heavy weight. He noticed that all other workers working on or around the Platform were not wearing safety belts or harnesses;

(6)  When challenged by Ds’ counsel that he should not have stood on the narrow I-beam when working on the Platform, P explained that he had to move to one side (the unconstructed side of the Platform) on the I-beam structure in order to make way for the sheet piles to be transported and unloaded onto the Platform (for laying on and building the half-built Platform). Also he was looking at the overhead crane which was transporting the sheet piles and had to step back from the completed surface of the Platform to stand on the I-beam. He then lost balance and fell through the void between the I-beams to the ground.

Ds’ Case

19.  Ds did not adduce evidence from any witness to challenge P’s case on liability. Their counsel Ms Kwok seeks to highlight some inconsistencies in P’s evidence and attack the general credibility and reliability of P’s evidence given in court on the following matters and argues that his account of the Accident should not be accepted:-

(1)  P’s evidence as stated in his declaration dated 26 January 2021 to the Labour Department is that on the morning of the Accident, he had stayed and worked on the Platform from 8am until the Accident happened. This is contradicted by P’s evidence given in court for the first time that he had initially worn the safety harness when first accessing the Platform, had gone down to complain to D2’s foreman on safety matters on the morning of the Accident before he went up the Platform to work again, and had taken off the harness to work after that;

(2)  He could not recall whether his foreman had conducted morning briefing on safety matters on the morning of the Accident; and

(3)  As recorded in the medical report[3], P had admitted initially that he was not able to recall details of the Accident as he had lost consciousness upon the fall. Hence his later account of the circumstances of the Accident was not reliable.

Analysis

20.  Despite Ds’ challenge of general credibility/reliability of P’s evidence on liability, the parties have no dispute on the circumstances of the Accident.

21.  In my view, Ds’ arguments on inconsistencies in P’s evidence concern some peripheral matters of P’s previous complaints on safety matters to his foreman, the time during which P had been working, whether continuously or not, on the Platform on the morning of the Accident and reliability of his memory of the circumstances of the Accident. They do not touch upon the central issues regarding the unsafe features of the system of work on the half-built Platform, more specifically on causation of the Accident. Such inconsistencies do not impact on P’s credibility on matters material to consideration of liability of Ds in this case.

22.  P’s evidence of the circumstances of the Accident is clear and firm, and unshaken during cross examination. I found him a frank, straightforward and credible witness. His evidence on the circumstances of the Accident, not challenged, is accepted.

23.  The place and system of work provided by Ds on the half-built Platform are shown to be obviously unsafe. Workers were required to work and move around on the unguarded Platform being built on the I-beam structure, without any anchorage points to attach a safety belt/harness, and onto which an overhead load of sheet piles was being transported by a crane.

24.  It would be reasonably foreseeable that a worker working on the Platform would be subject to the risks of fall from height as what had happened to P in the Accident.

25.  Ds have not shown any evidence which would help them in any way discharge the burden of disproving negligence in causing the Accident presumed against them in light of the criminal convictions in breach of the relevant statutory safety duties and regulations regarding working on the Platform.

26.  I have no hesitation coming to the conclusion and find Ds jointly and severally liable for causing the Accident to P in this action in their respective capacities as the employer and principal contractor.

Contributory Negligence

27.  Ds argue that P was an experienced construction worker who had received safety trainings. He should have known and taken safety and precautionary measures for his own safety whilst working on the Platform.

28.  Ds plead that the Accident/P’s injuries were caused or contributed to by P’s own negligence, when working on the Platform, particularised as follows[4]:-

(1)  failing to use a safety belt provided by Ds;

(2)  standing on the I-beam which was not designed as an access to the semi-constructed Platform; and

(3)  failing to pay attention to his own safety when gaining access to the Platform.

29.  In order to establish such failure and argue contributory negligence on the part of P, the burden is on Ds to prove that P had unreasonably done or omitted to do some act in the circumstances to such an extent that he could be said to have failed to exercise reasonable care for his own safety, and that it had cause/resulted in or contributed to the occurrence of the Accident.

30.  P’s case all along is that there was no suitable independent support or fixture available for fixing a safety belt or harness.

31.  Ds have no answer nor evidence in reply.

32.  At the closing submissions stage, Ds’ counsel confirmed that they no longer rely on the alleged failure of P in using the safety belt provided by Ds to argue contributory negligence.

33.  Ds maintain that P was contributorily negligent in standing on the I-beam instead of the built/completed metal surface of the Platform. Upon P’s explanation given during cross-examination that he had lost balance whilst stepping aside (to stand on the I-beam) in order to make way for the sheet piles being transported and unloaded onto the Platform and at the same time paying his attention to and looking up at the overhead moving sheet piles load, Ds’ counsel further argue that P was negligent in walking on the uncompleted Platform without paying attention to his step, but was looking up at the moving sheet piles being transported.

34.  The evidence reveals that the work of P at the time of the Accident was to stay on the half-constructed Platform to wait for the crane to transport and unload sheet piles onto the Platform. He would then help unload the sheet piles and align them on top of the I-beam structure in building and completing the Platform floor. P had to move around on the Platform without guardrail in order to make way for the unloading onto the I-beam structure of the moving load of sheet piles being transported overhead by the crane, and at the same time pay attention to the overhead moving load, yet without any safety precautions which would prevent him from falling off the Platform.

35.  In my view, P could not be blamed for paying attention to the overhead moving load or moving around to make clearance for the sheet piles which were to be unloaded on the I-beam structure. P’s stepping aside to stand on the I-beam when paying attention to the overhead moving load could not in my view be said to be an unreasonable act or failure to take care of his own safety that had caused the Accident. There is no question nor evidence of deliberate taking of risks, as opposed to mere inattention or momentary lapse in the present case, that would constitute contributory negligence on the part of P. See Sit Kan Tat v World-Class Talent Ltd & Anor [2024] HKDC 420 at §61.

36.  On the evidence, I find that the sole cause of the Accident was the unsafe place and system of work that had posed reasonably foreseeable risks of falling from height to any worker working thereon, and had resulted in the Accident to P.

37.  On the present evidence, P is not shown to have unreasonably done or omitted to do some act that could be said to be causative or the co-operating cause of the Accident, or consciously accepted a risk of injury.

Conclusion on Liability

38.  No case of contributory negligence is made out on the evidence. I find Ds wholly liable to P in this action.

QUANTUM

Personal Background

39.  P was aged 32 at the time of the Accident and is now 38 years old.

40.  Since he came to Hong Kong in 2013, he had been working as a construction worker for 7 years. He became specialised in metalworks earning higher income for about 4 years up to the time of the Accident.

41.  He is the sole breadwinner of his family with 2 young children. He has been working hard over the years to support his family. He usually worked 6 days a week when work was available. He seldom took long leave from work, except for a few days over the Chinese New Year when he returned to his hometown in the Mainland.

42.  He had fallen through a height of over 7m to the ground in the Accident, as a result of which he sustained multiple head and left arm and wrist injuries.

43.  Despite repeated operations to the left elbow dislocation and left wrist fractures and lengthy rehabilitation treatment, P has suffered and permanently suffers left arm and hand functional impairment limiting heavy manual work capacity, and pain, stiffness and weakness of the left arm and wrist. He also suffers residual neurological symptoms resulted from the head injury. He was incapacitated from resuming the heavy and physically demanding pre-accident work as a construction metal worker.

Issues in Dispute

44.  P was as a result of the injuries sustained in the Accident granted continuous sick leaves up to 22 August 2022 as endorsed in the Form 9 issued on 4 May 2023[5]. He had tried to find work by end March 2022. The parties are agreed that P should be entitled to full loss of earnings from the date of the Accident up to 24 March 2022, ie 16.2 months.

45.  Credit is agreed to be given for employees’ compensation received by P at $768,399.

46.  P had resumed, initially intermittently, other work since April 2022 but at lower earnings due to various residual disabilities. He had suffered partial loss of earnings. Since March 2024 he was able to find non-heavy work on construction sites gradually making earnings comparable to those of the pre-accident times. He makes no claim for loss of earnings as from March 2024.

47.  On that basis and in light of the diminished claim for pre-trial loss of earnings up to February 2024 only and nil claim post-trial, P claims damages for loss of earning capacity in the sum of $200,000, higher than the $100,000 pleaded in the Revised Statement of Damages filed on 11 November 2024 (“RSOD”).

48.  The parties’ respective positions at the time of closing submissions are summarised in the table below (on 100% liability basis):-

	P’s case	Ds’ case
PSLA	$500,000	$300,000
Pre-trial loss of earnings & MPF	$842,730	$463,200.12
Post-trial loss of earnings & MPF	nil	nil
Loss of earning capacity	$200,000	nil
Future medical expenses	$50,000	nil
Misc expenses/ other special damages	$23,437	$12,000
Total:	$1,616,167	$775,200.12
[LESS] EC received:	[$768,399]
Nett:	$847,768	$6,801.12
	(plus interest)

Injuries, Treatment and Disabilities

49.  Medical evidence on the injuries and treatment of P’s head and left arm and wrist injuries sustained in the Accident is not disputed.

50.  Upon the fall in the Accident through a height of more than 7m to the ground, P lost consciousness. He was immediately sent by an ambulance and admitted to the Accident and Emergency Department of the Princess Margaret Hospital (“PMH”) for emergency treatment. Trauma call was activated upon arrival.

51.  Examination showed left forehead lacerations, a GCS score at 14/15, left wrist swelling and tenderness, and reduced motor power of the left upper limb.

52.  CT scan revealed the following[6]:-

(a)  right frontal lobe traumatic subarachnoid haemorrhage;

(b)  right frontal bone fracture with extension into the frontal sinus and across the right sphenoidal sinus wall;

(c)  fractured base of anterior cranial fossa, pneumocephalus, blood and fluid in paranasal sinuses; and

(d)  subtle non-displaced fractures of the orbital wall and maxillary antral wall but no gross displaced fracture.

53.  X-rays of the left wrist showed compound fractures of the left distal radius and ulnar styloid fracture, and posterior dislocation of the left elbow with avulsion fracture over the lateral epicondyle[7].

54.  P was admitted to the Intensive Care Unit (“ICU”). Other injuries noted included: blood stains over the nostrils, face and ears, right haemotympanum, left supraorbital and forehead laceration, left periorbital bruises and left subconjunctival haemorrhage, laceration over the left volar wrist, left wrist joint deformity, and swelling of the left elbow.  Subsequent CT brain showed interval new bilateral subdural haemorrhage and enlargement of the left frontal epidural haematoma. Conservative management was provided[8].

55.  On the following day on 20 November 2020, emergency operation of wound debridement, closed reduction and external fixation for compound fractures of the left distal radius and posterior dislocation of the left elbow, and left carpal tunnel release, suturing of left supraorbital and forehead lacerations was performed. P was put on a long arm slab after the operation. He was transferred out of the ICU to the General Surgical Ward on 21 November 2020 for rehabilitative treatment.

56.  On 4 December 2020 P underwent a further operation of reconstruction of medial and lateral collateral ligaments of the left elbow with anterior transposition of the left ulnar nerve; open reduction and internal fixation with bone grafting of the left distal radius fracture. He remained in the Orthopaedic Ward post-operatively, and was managed and fitted with a left elbow hinge brace[9].

57.  The dental surgeons of PMH assessed P’s facial bone fracture and suggested a course of antibiotics and avoidance of nose blowing. The otorhinolaryngologist attempted close reduction of the fracture nasal bone under local anaesthesia but P could not tolerate the procedure. He declined surgery and accepted the suboptimal cosmetic outcome[10].

58.  The ophthalmologists of PMH examined P on 24 November 2020, and noted limited left subconjunctival haemorrhage, visual acuity at 20/30 and 20/20 for the right and left eye respectively, and mild limitation in left abduction without subjective diplopia. He was treated conservatively until 5 January 2021 when his visual acuity became normal[11].

59.  Other than the head and left arm and wrist injuries, P exhibited psychiatric/psychological symptoms. He had sleeping difficulties, nightmares, attempts to hit himself and worries related to his recovery and future livelihood. He was anxious and fearful when he saw construction sites. He became easily agitated and had increased conflicts with his wife. He was distressed by multiple life stresses including worries related to rehabilitation, recovery, compensation, and marital relationship issues. He received 4 sessions of in-patient clinical psychology treatment from 25 November 2020 to 8 December 2020, and was diagnosed to be suffering from acute stress reactions and adjustment difficulties due to stress of pain and disabilities related to his injuries.

60.  After hospitalisation for about 3 weeks, P was discharged from PMH on 9 December 2020. He continued to attend active rehabilitative treatment and follow up consultations until mid-2022 at different clinics and departments of government hospitals such as the Neurosurgery Clinic, Orthopaedic (Hand) Clinic, Clinical Psychology Clinic, Physiotherapy Department and Occupational Therapy of PMH, Otorhinolaryngology Clinic of Yan Chai Hospital and Ophthalmology Clinic of Caritas Medical Centre[12].

61.  He continued to suffer from left forehead numbness and occasional headache and dizziness and attended follow up at the Neurosurgery Clinic of PMH until 21 February 2021. Follow up CT scan of the brain done on 6 and 26 January 2021 revealed resolved haematoma and right encephalomalacia related to the head injury.

62.  He received intensive physiotherapy treatment (a total of 48 sessions) during the period from 24 December 2020 to 23 September 2021 for his left elbow, forearm and wrist injuries.

63.  He continued to attend clinical psychological outpatient service after discharge until 22 October 2021. His condition improved upon treatment after a year, and he was discharged in early 2022[13].

64.  P was admitted to PMH again during 26 and 27 March 2021 for a further operation of removal of implants for the left wrist fractures.

65.  He received occupational treatment/work rehabilitation service from 27 May to 19 August 2021. He suffered permanent pain over the left wrist and hand. At the latest work ability assessment done on 19 August 2021, his overall work capacity was assessed to be not-matched with the previous job demands of a metal worker.

66.  He also attended about 10 sessions of Traditional Chinese Medicine treatment.

67.  As a result of the injuries sustained in the Accident, P was granted sick leaves from 19 November 2020 to 22 August 2022 (ie for about 21 months)[14].

68.  P was assessed by the Medical Assessment Board to be suffering from 7% permanent loss of earning capacity (“LEC”) in respect of the injuries sustained in the Accident as set out in a Certificate of Assessment (Form 7) dated 4 August 2022. The assessment was revised to 10.5% upon review in respect of multiple injuries resulting in (i) residual left wrist pain, stiffness and weakness (3.5%); (ii) left elbow pain and stiffness (1.5%); (iii) residual headache, slow in mentation, insomnia, parethesia over left supra-orbital and occasional muscle twitching (4%); (iv) hyposmia and nose discomfort (1%) and (v) psychiatric impairment (0.5%) as set out in a Certificate of Review of Assessment (Form 9) dated 4 May 2023. The sick leaves granted from the date of the Accident on 19 November 2020 up to 22 August 2022 were endorsed.

69.  P’s case is that despite numerous operations to the left elbow and wrist and lengthy rehabilitative treatment, he has suffered and continues to suffer the following permanent residual symptoms and disabilities:-

(1)  Intermittent left elbow and wrist pain (intensity 2-4 out of 10), exacerbated by wet and cold weather, wrist movement, and upon holding heavy objects weighing more than 2-3kg for 5 minutes;

(2)  Weakness, stiffness and numbness of the whole left hand and wrist;

(3)  Intermittent left-sided dragging headache and discomfort;

(4)  Mildly impaired sense of smell;

(5)  Pain over base of nasal bridge and numbness around the left eye and forehead regions;

(6)  Nightmare, poor focus and memory; and

(7)  Personality change, hot temper and increased irritability.

70.  P cannot resume sports which he enjoyed weekly prior to the Accident such as playing badminton and basketball. He can now only swim which is a new hobby developed after the Accident.

Medical Expert Evidence

Orthopaedic Experts

71.  For the purposes of this action, P was jointly examined by orthopaedic experts Dr Andrew Miu (“Dr Miu”) and Dr Danny Tsoi (“Dr Tsoi”) on 24 October 2023, about 4 years after the Accident.

72.  P still suffered most of the symptoms set out in §69 hereinabove.

73.  Physical examination revealed extensive scars over the left forearm, elbow and wrist with tenderness. Left arm and wrist weakness and stiffness is supported by muscle wasting and girth reduction.

74.  As set out in the Orthopaedic Joint Expert Report dated 4 March 2024, Dr Miu and Dr Tsoi consider P’s complaints genuine; they are more or less agreed on the following[15]:-

(1)  P sustained head and left forearm and wrist injuries as diagnosed and recorded in the medical records, all directly caused as a result of the Accident;

(2)  He had received appropriate and necessary treatment and had long reached Maximum Medical Improvement (“MMI”);

(3)  The prognosis of P’s condition is fair; and

(4)  He still suffers from residual left wrist and elbow, pain, weakness, and stiffness resulted in impaired weight handling capacity. He would have difficulty resuming the physically demanding and heavy pre-accident job as a construction site metal worker. It would be suitable for him to take up jobs of low manual demand such as a cleaning worker, restaurant worker, car park attendant, petrol station attendant, etc.

75.  Dr Miu and Dr Tsoi give slightly different opinions as follows:-

(1)  Dr Miu considers P would require frequent symptomatic treatment in the form of medication and physiotherapy on a need-to basis. The cost of private physiotherapy is estimated at $1,200 to $1,500 per session, and he would need treatment twice a week for 3 to 6 weeks upon episodes of symptom exacerbation;

Dr Tsoi considers further treatment or rehabilitation not necessary, and deterioration not expected;

(2)  Dr Miu endorses all sick leaves granted (up to 16 August 2022) by the treating doctors;

Dr Tsoi considers sick leaves up to 24 March 2022 reasonable and appropriate when P’s condition had reached MMI after treatment had completed in 2021;

(3)  On permanent impairment of the whole person, Dr Miu assesses 3% and 2% respectively for the left wrist and elbow injuries, and LEC 5% and 2% respectively, ie 7% in total;

Dr Tsoi’s assessment on permanent impairment of the whole person is the same, with LEC totalling 5%.

Neurology Experts

76.  P was jointly examined by specialists in neurology Dr Gardian Fong (“Dr Fong”) and Dr Yu Yuk Ling (“Dr Yu”) on 17 October 2023.

77.  As set out in the Neurological Joint Expert Report dated 26 October 2023, Dr Fong and Dr Yu give more or less agreed opinions on P’s head injury and current condition as follows[16]:-

(1)  P sustained a moderate traumatic brain injury in the Accident, with orbital, facial and skull lacerations and fractures and skull haemorrhage and haematoma as recorded in the medical reports;

(2)  He still suffers neurological symptoms and disabilities set out in §69 hereinabove, for which there is no specific treatment;

(3)  He has residual head discomfort, dizziness, subjective impairment of cognition and memory and irritability, which are compatible with a mild post-concussional syndrome (“PCS”);

(4)  He had received appropriate monitoring, conservative treatment and rehabilitation, and his neurological condition was stable and had reached MMI. Further neurological or neurosurgical consultations would not be necessary; and

(5)  From the neurological perspective, the mild PCS incapacitate him from resuming his pre-accident work on construction sites; the major impediment is the orthopaedic injuries of the left elbow, forearm and wrist.

78.  The opinions of Dr Fong and Dr Yu differ slightly on the following:-

(1)  On the duration of sick leaves, Dr Fong endorsed and considered it appropriate for P to resume work as from September 2022, ie about 1 year and 9 months after the Accident;

Dr Yu considers a sick leave of 9 months appropriate in relation to the PCS;

(2)  On permanent impairment of the whole person in the neurological perspective, Dr Fong assesses 1.5% for the PCS, 1% for olfactory sense impairment and 1% for sensory loss, totalling 5%; and LEC at 3%;

Dr Yu’s assessment on permanent impairment of the whole person is 3% for the PCS, 1% for olfactory sense impairment and 1% for sensory loss, totalling 5%; and LEC at 1.5%.

Analysis of the Medical Evidence

79.  There is no dispute by the parties on the medical evidence, nor argument that P’s multiple head and left forearm, elbow and wrist injuries sustained and residual orthopaedic and neurological symptoms and complaints are not genuine or in any way exaggerated.

80.  Having heard P’s evidence in court, I found him an honest and straightforward witness who was frank about the stable recovery and ability to resume work a year after the Accident. He frankly admitted that he had not required any treatment in the past few years since around 2022.

81.  I accept all medical and expert evidence which is on the whole agreed on the diagnoses, periods of hospitalisation required, treatment and recovery progress and permanent residual disabilities and impairments.

82.  The minor differences in the medical experts’ opinions on the reasonable sick leaves and permanent impairment and LEC ratings do not impact on the assessment on quantum in light of the parties’ agreement on (i) the length of sick leave (up to 24 March 2022) for calculating full loss of earnings and (ii) the incapacity of P in resuming his pre-accident work on construction sites as a metal worker/welder.

Pain Suffering and Loss of Amenities/ PSLA

83.  The medical evidence is that P sustained moderately serious head, facial and orthopaedic injuries to his left forearm, elbow and wrist with multiple fractures. He was hospitalised for over 3 weeks. He underwent 3 operations to fix the fractures and required suturing of the open wounds and abrasions. The injuries, though recovered without complications upon lengthy rehabilitative treatment, have resulted in permanent residual disabilities, and impaired functional and work capacity.

84.  He also suffered neurological symptoms exhibiting depressive and Post-Traumatic Stress Disorder (“PTSD”) features after the Accident.

85.  Ds argue that the orthopaedic left elbow, forearm and wrist injuries should not impact on P greatly on his work capacity nor should cause great inconvenience to his daily life given he is right-hand dominant.

86.  I disagree. It cannot be disputed that the work of a construction metal worker is strenuous and requires frequent manual handling of heavy tools and construction materials with both hands. The agreed medical expert evidence is that P as a result of the orthopaedic injuries has been and will be incapacitated from resuming the heavy pre-accident manual work.

87.  In assessing the appropriate award for PSLA, I have considered the authorities submitted by both counsel.

88.  The authorities submitted by Ds’ counsel Ms Kwok, including Choi Chun Tai v Lam Sze Ling [2025] HKDC 944, Siu Kin Keung Anthony v H & M Hennes & Mauritz Ltd (unreported, HCPI 81/2011, 31 October 2012), Ip Chee Wai Jeffrey v Ho Wai Pan [2024] HKDC 102 and Mehmood Khalid v Million Harvest Wharves & Logistics Limited & Ors (unreported, HCPI 401/2006, 20 June 2007), support a range of PSLA awards of $200,000 to $350,000. These cases involve either mild head injuries with abrasions and swelling only resulting in mild post-concussional symptoms, or mild fracture injuries only – these are in my view much milder injuries compared to those sustained by P in the present case.

89.  I found the following authorities referred by Ps’ counsel Ms Yue comparable to P’s injuries for assessing damages for PSLA:-

(1)  In Kwong Kin Yin v Shun Lee Copper & Decoration Ltd & Anor (unreported, HCPI 285/2008, 28 July 2011), the plaintiff fell to the ground when installing galvanized iron plates. He sustained left wrist fractures and right knee injuries. No surgery was required but the right knee injury turned out to be complex and resulted in disabilities. He had mild PTSD symptoms and was unable to return to his pre-accident job as he feared heights. He could not kneel down nor lift heavy objects. His injuries were considered to fall within the “serious injury”. PSLA was assessed at $400,000.

(2)  In Wan Chuen Hoi v Wing Shun Engineering Transportation Limited (unreported, HCPI 530/2008, 14 June 2011), the plaintiff sustained fractures to the left wrist and left hip and underwent operations of close reduction and external fixation of the left wrist, and open reduction with internal fixation with metal implants of the left femur under general anaesthesia. He was hospitalised for 3 months, and suffered from residual pain and stiffness that limited his walking, standing, and sitting tolerance as well as his ability to carry heavy loads. The court awarded $370,000 for PSLA.

(3)  In Hussain Shoukat v Ma Chi Tat t/a Kan Tat Engineering & Building Materials & Ors (unreported, DCPI 2470/2009, 27 July 2010), the plaintiff fell from the roof through a height of 8-12 feet; he lost consciousness and had post-traumatic amnesia for about 9 hours. He sustained fractures of both wrists and the left hip, and multiple facial and skull fault fractures. He had operations for the left forearm and hip fractures, and conservative treatment with plaster of the right wrist. He suffered post-concussion syndrome with headache and dizziness, and PTSD. He was hospitalised for 1.5 months and was granted sick leaves for almost 2.5 years. He had impaired weight handling capacity and could not return to work as a construction site worker. The court awarded $420,000 for PSLA.

(4)  In Wong Cheung Chung v MTR Corporation Ltd (unreported, DCPI 956/2009, 2 July 2010), the plaintiff tripped and fell down the stairs, landing on his right face, right arm and right knee. He suffered comminuted fractures of the right elbow and wrist, fracture of the right orbital floor, and soft tissue swelling at the right periorbital and occipital scalp region. He was hospitalised for over a month and had operations to his right elbow, and for removal of the external fixator and implants from the right elbow and wrist. Sick leaves of 22 months were granted. He continued to suffer from knee pain. Orthopaedically, the experts agreed that his right elbow injury was a severe one and had resulted in post-traumatic degenerative osteoarthritis. He could not resume his pre-accident job which required constant patrol and handling heavy weight. An award of $440,000.00 was granted for PSLA.

(5)  In Tsang Hing Yuen v Nishimatsu Kumagai Joint Venture (a firm) & Anor [2000] 1 HKLRD 796, the plaintiff fell through a height of about 2 floors in a construction site and lost consciousness for a short while. He sustained injuries of scalp laceration, and fractures of his left hip and left wrist. The scalp laceration was sutured. He had 3 operations to fix the hip and wrist fractures, and later adjustment and removal of the fixators and screws. He could walk independently but required to carry a stick, and had residual left hip and wrist pain. He suffered a mild head injury resulting in post-concussional syndrome and cognitive dysfunction, and his concentration and memory was impaired. He was hospitalised for over 7 months and granted sick leaves for almost 2 years. He had osteoarthritis of the left wrist joint. He could not undertake work that requires strength and dexterity of both wrists. He had walking difficulty due to hip fracture.  Award for PSLA was made at $450,000.

90.  Having considered the evidence and the abovecited authorities, also taking into account inflation since the judgments, I am of the view that an appropriate award for PSLA for P’s injuries and disabilities would be about $480,000.

Loss of Earnings and MPF Benefits

91.  The parties agree that P should be entitled to full loss of earnings from the date of the Accident up to 24 March 2022, ie for 16.2 months. This is the sick leave endorsed by all medical experts, despite further sick leaves were granted up to 22 August 2022.

92.  P claims partial loss of earnings during the period from 25 March 2022 up to 28 February 2024 gradually when he had gradually resumed work, but made reduced earnings. This is agreed by Ds.

93.  P makes no claim for loss of earnings after 28 February 2024 as he has since March 2024 gradually been able to make earnings comparable to those of pre-accident times despite he could only take up less physically demanding and non-heavy work on construction sites due to the permanent left arm and wrist disabilities.

94.  The parties dispute on (i) P’s pre-accident earnings; and (ii) residual earnings which he was/should be able to make during the period from 25 March 2022 to 28 February 2024.

Pre-Accident Daily Wage/Monthly Earnings

95.  P’s case is that he was a daily paid/casual metal worker earning a daily wage of $1,300 when working for Ds.

96.  In the RSOD he pleads pre-accident monthly earnings of $31,200 based on 24 days work per month. At trial, he contended for 21 workdays per month, hence his monthly earnings were about $27,300 ($1,300 x 21).

97.  P has adduced in evidence 2 employment contracts dated 5 July 2019 and 16 June 2020[17] signed by him with D1 for work as a metal worker in different construction projects at the daily wage of $900.

98.  P explains in his supplemental witness statement that the $900 daily wage stated in the contract was paid by D1 to him through bank transfer (“大糧”), whilst the supplement of $400 daily wage was paid by the subcontractor to him in cash (“細糧”). This kind of wage payment arrangements, namely “big and small wages” (“大細糧”), is common in the construction field.

99.  P relies on the following documentary evidence in support of his pleaded daily wage of $1,300 and average monthly earnings at the time of the Accident:-

(i)  Post-Accident payment records issued by D1 evidencing calculations of periodical payments made to P (covering a period from 20 November 2020 to 30 June 2022) based on $27,300 monthly earnings and $1,300 daily wage[18];

(ii)  D2 in its capacity as the principal contractor submitted to the Labour Department a Form 2 Notice dated 24 November 2020 in respect of the Accident to P. In the Information Amendment Sheet dated 17 March 2021, P’s average monthly earnings were stated to be $27,300 and the average number of working days was 21[19]. This is equivalent to a daily wage of $1,300;

(iii)  P’s daily wage is stated to be $1,300 in the salary records adduced by Ds covering the period from June to October 2020 in 2 construction projects[20]. Wages paid to P in respect of the Castle Peak Bay (青山灣) site[21] were based on $1,300 daily wage; whilst those paid in respect of the Lai Cho Road (麗祖路) site were based on $900 daily wage, but supplemented by a separate column in cash (“現金補差額”) of $400 daily wage – this supports P’s evidence that he was paid “大細糧” of $900 per day by the company and supplemented by $400 per day in cash;

(iv)  The List of Earnings filed on 6 April 2023 (“List of Earnings”) in the related employees’ compensation action DCEC 571/2022 by Ds (as the Respondents therein) show that P’s earnings shortly before the Accident when working for Ds were as high as $28,600, $27,300 and $32,500 respectively for the months of July, August and September 2020. Such level of monthly earnings is consistent with P’s pleaded daily wage of $1,300 rather than the low daily wage of $900 argued by Ds; and

(v)  The average/recommended daily wage of a metal worker during 11/2019 to 11/2021 was $1,300, and increased to $1,500 in 11/2024 as published by the Hong Kong Construction Industry Employees General Union[22].

100.  Ds argue on the other hand that P’s daily wage was only $900 as stated in the employment contracts[23]. Their witness Ng Tim Man (“Ng”), director of D1, adopted his witness statement dated 5 March 2024 and gave evidence in court that when working for Ds, P worked 6 days a week and was not entitled to any other allowance. He denied that there were any “大細糧”  arrangements of daily wage of $900 paid via bank transfer plus $400 supplement in cash as alleged by P.    

101.  Ng’s evidence seems to be inconsistent with what Ds have pleaded in the List of Earnings of P’s earnings received when working for Ds as follows:-

Jan 2020	$8,100
Feb 2020	$9,900
June 2020	$20,800
July 2020	$28,600
Aug 2020	$27,300
Sept 2020	$32,500
Oct 2020	$1,300

102.  Upon cross examination as to how P could earn as much as $28,600, $27,300 and $32,500 in the respective months of July, August and September 2020 (which would equate to more than 30 working days in a month) as stated in the List of Earnings, Ng could not give any explanation. At the end he admitted that he was not certain and that the suggested daily wage of $900 was likely incorrect.

103.  I find on the overall evidence, in particular the documentary evidence of earnings and periodical payments records, that P was telling the truth. His pre-accident daily wage was $1,300. I have no hesitation rejecting Ds’ pleaded daily wage of $900 which could not explain P’s high monthly earnings for the months of July to September 2020, and finally admitted by Ds’ witness Ng in the witness box to be incorrect.

104.  As to the pre-accident monthly earnings, P argues at 21 working days in a month and proposes to adopt $27,300 ($1,300 x 21 days) in this quantification. This tallies with Ds’ records set out in §§99(i) and (ii) above.

105.  P sets out in his supplemental witness statement a table of his earnings with some employment details working in different projects during the 12-month period (11/2019 to 10/2020) prior to the Accident (“Table of Earnings”). The stated earnings covering June to September 2020 tally with those provided by Ds in the List of Earnings. P has not adduced documentary evidence in support of the alleged earnings.

106.  P’s evidence as stated in the Table of Earnings is that he had also worked for other contractors on other sites earning a total of $24,700 in Jan 2020, $26,000 in Feb 2020, $29,900 in March 2020, $32,500 in April 2020 and $31,200 in May 2020. For the months of Jan 2020 and Feb 2020 when he also worked for D1, he had received supplements (likely the “細糧”) of $3,600 and $4,400 respectively, equivalent to 9 days and 11 days of work for D1 in those months.

107.  When cross-examined on the details set out in the Table of Earnings, P explained that he had retrieved the information partly from his hand-written records made in a calendar that he kept for calculating his earnings towards the end of the month, and partly from his memory. He did not keep or produce the calendar in evidence.

108.  The Table of Earnings record monthly earnings of P within a range of $20,800 to $32,500, or about $28,800 per month on average during the 11-month period from 11/2019 to 9/2020.

109.  Though P strikes me as an honest witness, I do not consider it safe to accept the earnings figures set out in the Table of Earnings not supported by records, but from P’s memory or allegedly from some handwritten records which P has not adduced in evidence.

110.  I however have no doubt and accept that P was a hardworking person as supported by the evidence of his pre-Accident earnings records in the few months working for Ds and his numerous attempts to find work post-Accident.

111.  For the month of 10/2020, it is stated in the Table of Earnings and P further explained in court that he had returned to his hometown in the Mainland for a month on some important personal matters (on which he gave some details in court). He did not work and had almost nil income for that month until he returned to work for Ds in November 2020, and later met the Accident on 19 November 2020.

112.  P gave evidence that the non-working month of Oct 2020 was exceptional. He normally worked all months in a year and would only take leave and return to his hometown in the Mainland for a few days during Chinese New Year.

113.  Ds’ case as pleaded in the Answer to RSOD filed on 10 December 2024  is that P’s pre-accident monthly earnings were much lower at $20,366.67, by calculating the monthly average of P’s earnings for the 3 months prior to the Accident in Aug-Oct 2020 as pleaded in the List of Earnings as follows:-

($27,300 + $32,500 + $1,300)/3 = $20,366.67

114.  Such calculations are in my view unreasonable in that it has taken into account the full non-working month of October 2022 when P earned minimal income of $1,300.

115.  I consider a more reasonable approach in light of the evidence of the List of Earnings would be to take the monthly average of P’s full months of work with Ds during June to Sept 2020, not counting the month of October 2020 in which P did not work, as follows:-

($20,800 + $28,600 + $27,300 + $32,500)/4 = $27,300

116.  This would equate to 21 working days in a month based on my finding of $1,300 daily wage – this is consistent with (i) the documentary evidence on average number of working days of 21 and average monthly earnings of $27,300 provided by D2 in the Form 2 Information Amendment Sheet[24] and the periodical payments records provided by D1[25]; (ii) Ng’s evidence that P worked 6 days a week; and (iii) the Table of Earnings provided by P.

117.  I find on the overall evidence P’s proposed pre-accident monthly earnings of $27,300 reasonable, and adopt the same in this assessment of damages.

Post-Accident Work and Earnings

118.  P’s case is that after the Accident, he had since April 2022 tried to resume construction work despite he was still attending medical follow up and was granted sick leaves until 22 August 2022. Being the sole breadwinner of his family with 2 young children, he had to work hard to support them and could not afford to remain on sick leave without income for too long.

119.  As stated in his supplemental witness statement and supplemented by his evidence in court, P’s post-Accident work and earnings are as follows:-

(1)  4-6/2022: He had tried hard to resume construction work with his former foreman Wong Tak Man at the previous daily wage of $1,300, but he could not cope with the heavy work as his injured left arm and wrist remained weak and painful, and got worse upon exacerbation. He could only work for 2 to 3 days in a month;

(2)  7-8/2022: He could not find work despite numerous attempts;

(3)  9/2022-1/2023: He worked at the McDonald’s as a barista apprentice and earned about $13,000 per month;

(4)  3-4/2023: He worked as a leaflet distributor for 2 months and earned about $12,000 per month;

(5)  5-9/2023: He worked as a food processing worker at Tong Kee Bao Dim, earning average monthly income of $16,280;

(6)  10/2023: He returned to leaflet distribution work for a month and earned around $12,000;

(7)  11/2023: He took up exhibition booth setup, clearance, and unloading work for a month and earned around $16,000;

(8)  12/2023-2/2024: He could not find work and was unemployed for 2 to 3 months; and

(9)  Since 3/2024: He found a job working in non-heavy duties on construction sites at the daily wage of $800 plus overtime allowance. He earned about $21,000 per month initially and gradually through hard work managed to make earnings comparable to those of pre-accident times. He makes no claim for loss of earnings as from March 2024.

120.  Other than the agreed period of 16.2 months (from the date of the Accident to 24 March 2022) in which full loss of earnings would be payable, the parties agree that P should further be entitled to damages for partial loss of earnings during the period from 25 March 2022 till 28 February 2024, ie 23.13 months.

121.  P’s counsel submits that the proper approach and calculations should be the full earnings (at $27,300 per month) which P would have earned continuously from his pre-accident job but for the Accident during the period from 25 March 2022 to 28 February 2024, to be deducted by the actual earnings received by P.

122.  Curiously P’s counsel has not included in her calculations partial loss covering the period from 25 March 2022 to 30 June 2022[26]. There is no reason in my view why P should not be entitled to claim partial loss of earnings for this period.

123.  Ds’ counsel argues at monthly earnings of $20,366.67 and proposes deduction for residual monthly earnings of $15,000 in calculating partial loss of earnings covering the period from 25 March 2022 to 28 February 2024.

124.  I accept that P was incapacitated by the multiple residual disabilities suffered as a result of the Accident from working full time after he resumed work in various odd and light jobs from 25 March 2022 to 28 February 2024. On the overall evidence, I consider it reasonable to adopt average residual monthly earnings of $11,000 in calculating partial loss of earnings.

Calculations on Loss of Earnings Plus MPF Benefits

125.  On the basis of my findings of P’s (i) pre-accident monthly earnings of $27,300; and (ii) average residual monthly earnings of $11,000 during the period from 25 March 2022 to 28 February 2024, I quantify loss of earnings plus 5% MPF benefits in the total sum of $860,243 as follows:-

Full loss (19.11.2020 - 24.3.2022)

$27,300 x 16.2 months x 1.05                              $464,373

Partial loss of earnings (25.3.2022 - 28.2.2024)

($27,300 - $11,000) x 23.13 months x 1.05          $395,870

                                                                                 $860,243

Loss of Earning Capacity

126.  It is common ground and the agreed opinion of the orthopaedic experts that by reason of the permanent residual left arm and wrists symptoms and disabilities, P would not be able to resume the heavy and physically demanding pre-accident work of a construction metal worker.

127.  He would suffer impaired work capacity and reduced efficiency at work. His choice of work will be limited to non-heavy manual labour.  will suffer disadvantage in the labour market compared to the able-bodied workers. His condition may be aggravated upon exertion at work and he may require intermittent leave absence from work.

128.  I accept and find that an award for loss of earning capacity would be appropriate upon the submissions of P’s counsel and the well-established legal principles laid down in the judgment of the Court of Appeal in Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, citing Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132: -

"It is important to remember what an award for loss of future earning capacity is actually for. As was said by Lord Fraser of Tullybelton in the Privy Council in Chan Wai Tong v. Li Ping Sum [1985] HKLR 176 at 183B-D, it is intended… to cover the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk — see Moeliker v. A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140, where Browne L.J. dealt fully with this matter…"

129.  The usual awards for loss of earning capacity range between $60,000 to $150,000 for mild to moderately serious injuries, depending on factors such as the nature and extent of injuries, personal circumstances of the injured worker, and strenuousness of the alternative work available.

130.  In view of the severity of P’ injuries, his relatively young age of 38 hence the long working life ahead in which he would be impacted adversely by the permanent residual neurological and orthopaedic symptoms and disabilities, and the strenuousness of the alternative work that he has taken on, I consider it reasonable to make an award towards the higher end of the range.

131.  Also bearing in mind the fact that P has made no claim for loss of earnings beyond February 2024 or for future loss, when in fact he was earning lower income of $21,000 a month when resuming construction work in February 2024, I award damages for loss of earning capacity at the slightly generous sum of $200,000 as claimed.

Other Special Damages/ Misc Expenses

132.  As pleaded in the RSOD, P claims reimbursement of medical, travelling and tonic food expenses in the respective sums of $5,000, $2,000 and $5,000. This is agreed by Ds as pleaded in the Answer to RSOD.

133.  According to the Schedule of Medical Expenses[27] updated after filing of the RSOD as explained by P’s counsel, hospitalisation and medical expenses incurred and paid to the government hospitals and clinics up to April 2022 came to a higher total sum of $16,437. These are reasonable expenses all supported by records and receipts, and should be allowed.

134.  The claims for travelling and tonic food expenses, though without receipt in support, are reasonably modest and agreed by Ds as pleaded in the Answer to RSOD.

135.  I therefore make an award of $23,437 as claimed for reimbursement of medical, travelling and tonic food expenses incurred.

Future Medical Expenses

136.  The overall agreed expert evidence by Dr Miu, Dr Tsoi, Dr Fong and Dr Yu is that P’s medical condition had long reached MMI both orthopaedically and neurologically by end-2021 or 2022.

137.  There is no medical evidence on the need for future medical treatment, apart from the evidence of Dr Miu, orthopaedic expert engaged by P, that he “would require frequent symptomatic treatment (in the form of medication and physiotherapy) on a need-to basis”.

138.  P’s own evidence given in the box is that he has in the past few years (since end-2022) not required any further medical treatment for the injuries sustained in the Accident.

139.  In the absence of evidence that P has plans or would require to attend any treatment or procedure in the near future, no claim for future medical expenses should be allowed (See Lam Kwong Ting v Ho Yau Yuen & Anor [1990] 2 HKC 381).

Summary of Award

140.  I summarise the award of P’s claims for common law damages as follows:-

PSLA	$480,000
Pre-trial loss of earnings and MPF	$860,243
Loss of earning capacity	$200,000
Other specials/misc expenses	$  23,437
Future medical expenses	nil
Total:	$1,563,680
	(plus interest)

141.  Giving credit for the employees’ compensation received by P, agreed in the sum of $768,399, the nett award of damages is thus $795,281 (plus interest).

Interest

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

143.  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.

ORDER

144.  I therefore make an order that judgment be entered for P against Ds for damages in the sum of $795,281 plus interest.

145.  Costs should follow the event. I make an order nisi that Ds do pay P the costs of this action, with certificate for counsel, to be taxed if not agreed.

146.  P’s own costs should be taxed in accordance with the Legal Aid Regulations.

147.  In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute.

148.  Lastly, I thank counsel Ms Yue and Ms Kwok for their assistance.