CHAN SAU CHEUNG v. CHI WO CONTRACTORS LTD AND ANOTHER

DCPI 3003/2020

[2024] HKDC 1788

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3003 OF 2020

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JUDGMENT

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A.  Introduction

1.  This action arose from an accident (the “Accident”) that took place in a construction worksite on Tai Po Road (the “Construction Worksite”) on 3^rd October 2017.

2.  It is not in dispute that:

(1)  The 2^nd Defendant was the principal contractor in respect of the construction works at the Construction Worksite.

(2)  The 1^st Defendant was the sub-contractor engaged by the 2^nd Defendant to carry out landslip prevention and mitigation works on the slopes at the Construction Worksite (the “Slope”).

(3)  The Plaintiff was employed by the 1^st Defendant to work as a casual worker (地盤雜工) at the Construction Worksite, and an employer-employee relationship existed.

3.  At the present trial, Mr Victor Lau represents the Plaintiff, and Mr Gary Chung together with Mr Jethro Pak represent both Defendants.

B.  Material Background

B1.  The Plaintiff’s Case

4.  It is the Plaintiff’s case that on 3^rd October 2017, the 1^st Defendant assigned him to work with a co-worker named Ng Siu Ping (hereinafter “Mr Ng”), who was a scaffolding worker (搭架師傅).

5.  The task required of Mr Ng and the Plaintiff was to erect aluminum hoarding boards at the boundary of the Slope. In particular, Mr Ng and the Plaintiff were requested to install another story of aluminum hoarding boards on top of the aluminum hoarding boards that had been erected already (the “Assigned Task”).

6.  According to the Plaintiff:

(1)  Each aluminum hoarding board was about 1.8 to 2 meters in height and 1 meter in width, and it weighed about 3 to 4 catties.

(2)  The inclination of the Slope was about 35 to 40 degree.

(3)  Thunderstorm warning had been hoisted for 3 consecutive days before the Accident occurred, and the ground of the Slope was muddy, loosened and slippery.

7.  Mr Ng, who testified for the Plaintiff, said that:

(1)  There was no work platform at the location where the Assigned Task was performed.

(2)  Although he wished to build a tentative work platform, he was unable to locate any aluminum tube at the Construction Worksite.

(3)  In the circumstances, he had to the carry out the Assigned Task from a ladder. The Plaintiff assisted him to carry out the Assigned Task, and he stood below the ladder.

8.  According to the Plaintiff and Mr Ng, the Accident occurred in the following circumstances:

(1)  In order to affix additional aluminum hoarding boards onto the preexisting ones, Mr Ng stood on the ladder. The Plaintiff stood below Mr Ng, such that he could lift and pass the aluminum hoarding boards to Mr Ng.

(2)  In the course of turning his body upon receiving an aluminum hoarding board from the Plaintiff, Mr Ng lost his balance on the ladder.

(3)  Thus, Mr Ng fell down together with the aluminum hoarding board, and the Plaintiff was hit. As a result, the Plaintiff lost his balance and fell down along the Slope for about 1 to 2 meters. He eventually hit the trunk of a tree on the Slope.

9.  The Plaintiff did not immediately report the Accident. However, he did attend the Accident and Emergency Department of Queen Marry Hospital in the late afternoon on 3^rd October 2017. According to the medical report dated 20^th October 2020 signed by Dr Leung Siu Cheung (who examined and treated the Plaintiff on 3^rd October 2017)[1]:

(1)  The Plaintiff complained neck and pack pain as well as bilateral forearm numbness.

(2)  The Plaintiff was fully alert and able to walk in a steady gait.

(3)  The Plaintiff’s head was examined, and there was a tender bruised swelling in the occiput.

(4)  The Plaintiff’s right elbow was tender, bruised and swollen, and was associated with reduced flexion movement.

(5)  The Plaintiff’s midline posterior neck and upper back was tender.

(6)  A rectal examination was conducted, and it revealed normal perianal sensation and anal tone.

(7)  Muscle power, light touch sensation and deep tender reflexes were normal in all limbs.

(8)  The plain radiographs of cervical and thoracic spine showed normal alignment, and there was no vertebral collapse.

(9)  The X-ray showed that there was no bony fracture in the Plaintiff’s chest, pelvic and right elbow.

(10)  Plain computed tomography of head showed that there was no intracranial bleeding or skull fracture.

10.  In the statement of claim herein, the Plaintiff accuses the 1^st and 2^nd Defendants of, inter alios, failing to (i) provide suitable equipment and/or tools (such as articulating boom lift, telescopic boom lift or crane lorry) for transporting and/or delivering the aluminum hoarding boards; (ii) provide adequate staff and/or sufficient manpower to carry out the task of transporting or delivering the aluminum hoarding boards; (iii) exercise anti-slip precaution or provide anti-slip tool, such as anti-slippery shoes; (iv) provide suitable safety harness with proper and well-maintained fall arrestor gear; (v) provide a safe and/or proper safety harness with a secure independent lifeline equipped with rope chuck and/or proper anchorage points and/or fall arrestor system; (vi) provide a proper system for performing the task in question; (vii) provide suitable and/or safe means of access to the Slope, such as a proper scaffold; (viii) provide adequate supervision; (ix) provide adequate training and/or information for performing the task in question; (x) take necessary precaution to ensure that the Plaintiff would be reasonably safe whilst performing the task in question; and (xi) inform or warn the Plaintiff of the risk of injury.

11.  The Plaintiff contends that the 1^st Defendant, as his employer, is liable for the loss and damage that he has suffered as a result of the Accident. He relies on the following causes of action:

(1)  negligence and/or breach of duty of care at common law;

(2)  breach of implied contractual duties;

(3)  breach of duties under Regulations 38A(2) and (3), 38AA(2) and (3) and 49(1) and (1A) of the Construction Sites (Safety) Regulations (Cap 59I);

(4)  breach of duties under Sections 6(1) and (2) of the Occupational Safety and Health Ordinance (Cap 509);

(5)  breach of duties under sections 6A(1) and (2) of the Factories and Industrial Undertakings Ordinance (Cap 59);

(6)  vicarious liability in respect of the negligence on the part of Mr Ng; and

(7)  breach of common duty of care required of an occupier.

12.  As regards the 2^nd Defendant, the Plaintiff contends that it is liable for his loss and damage on the following bases:

(1)  breach of duties under Regulations 38A(2) and (3), 38AA(2) and (3) and 49(1) and (1A) of the Construction Sites (Safety) Regulations (Cap 59I);

(2)  breach of duties under Sections 6(1) and (2) of the Occupational Safety and Health Ordinance (Cap 509);

(3)  breach of duties under sections 6A(1) and (2) of the Factories and Industrial Undertakings Ordinance (Cap 59); and

(4)  breach of common duty of care required of an occupier.

B2.  The Defendants’ Case

13.  It appears that the Defendants’ managerial staff did not have direct personal knowledge as to how the Accident took place.

14.  The contemporaneous medical records show that in the morning on 4^th October 2017, the Plaintiff insisted to leave Queen Mary Hospital against medical advice. As will be elaborated below, the Plaintiff left Hong Kong shortly after the discharge, and he made frequent trips to Macao throughout October and November 2017. Relying on these matters, the Defendant contend that the Plaintiff’s injury was not serious at all, and he has exaggerated his conditions.

15.  On 16^th and 19^th October 2017, Mr Ng and the Plaintiff were respectively interviewed by the Defendants’ staff, and accident investigation reports (which were respectively signed by Mr Ng and the Plaintiff) were prepared. As will be elaborated, the Defendants contend that there are inexplicable material discrepancies between the Plaintiff’s case and the contents of these reports.

16.  The Defendants also seek to rely on the following matters to contend there was no negligence and/or breach of duties on their part:

(1)  There were 12 sets of anchorage points each made of 50mm diameter steel tube embedded on the top of the Slope for tying fibrous rope of 16mm diameter that ran along the Slope. The conditions of the said anchorage points and safety lifelines were checked by a registered engineer.

(2)  Before the Plaintiff started working at the Construction Worksite, he was given induction training regarding works on slope and hazardous activities on 20^th September 2017 and 26^th September 2017.

(3)  The 2^nd Defendant provided helmets and safety life-lines to the workers before they entered the Construction Worksite.

17.  The Defendants further contend that even if they were liable to the Plaintiff, the Accident was caused by the negligence on the part of the Plaintiff, in that he failed to, inter alios,:

(1)  use safety lifelines and the anchorage points on the Slope;

(2)  maintain balance; and

(3)  exercise reasonable care and skills in the course of performing the Assigned Task.

C.  Witnesses

18.  The Plaintiff adduces evidence from (i) himself and (ii) Mr Ng.

19.  The Defendants arranged two employees, ie the 2^nd Defendant’s senior project manager and the 1^st Defendant’s safety manager, to make witness statements. However, these witnesses do not have personal knowledge as to the matters relating to the Accident, and the contents of their witness statements are based on the available documents. After the Plaintiff closed his case, Mr Chung indicated that the Defendants elected not to adduce evidence from their witnesses.

20.  Having said that the Defendants’ witnesses were not involved in the matters relating to the Accident and that their assertions are based on the information contained in documents, I am not prepared to draw an adverse inference that had the Defendants’ witnesses testified, unfavourable facts would have been exposed.

D.  Legal Principles on Assessing Credibility

21.  In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at 524, DHCJ Au (as Au JA then was) set out the well-established approach on assessing credibility. In the course of assessing the credibility of a party’s case, the Court shall consider the following matters:

(1)  whether the party’s case is inherently plausible or implausible;

(2)  whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)  where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4)  the demeanour of the witnesses.

22.  The aforesaid approach is well-established, and I will apply the same in assessing the credibility of the parties’ case and their assertions.

E.  Liability: the 1^st Defendant

E1.  Negligence or Breach of Duty of Care

Legal Principles

23.  The following legal principles on employers’ duty of care owed to its employees are not in dispute:

(1)  An employer owes a duty of care to provide a safe place of work, safe equipment, a safe system of work, proper instructions, proper supervision and proper training to its employees. The standard of care required of an employer is a high one bearing in mind that personal safety is at stake: see Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKFAR 371 at para 1 and 24 (per Bokhary PJ).

(2)  Whilst the aforesaid duty is high and non-delegable (see Gurung Krishna Jang v Previous Swing Ltd (HCPI 486/2009, 16^th November 2010) at paras 41 to 43 (per Recorder Horace Wong SC), it is not absolute. It has been suggested that an employer is entitled to entrust its employees to carry out their everyday jobs that do not entail any special risk or danger, and it is unnecessary for an employer to treat its employees as kindergarten pupils: see Lam Ka Lok Louis v Swire Properties Management Ltd (HCPI 914/2003, 30^th April 2005) at para 39 (per Suffiad J).

(3)  In Fong Yuet Ha v Success Employment Services Ltd (CACV 100/2012, 28^th December 2012) at para 19, Kwan JA (as Kwan VP then was) pointed out that “it is a question of fact in each case whether it is necessary for the employer to devise a system of work for the task in hand”.

(4)  In Lai Wah Wai v Castco Testing Centre Ltd [1996] 2 HKC 44 at 48F-I, Cheung J (as Cheung JA then was) pointed out that a safe system of work covered the following aspects: (i) the organization of the work; (ii) the way in which it was intended the work should be carried out; (iii) giving adequate instructions: (iv) the sequence of events; (v) taking precautions for the safety of the workers; (vi) the number of persons required to do the job; (vii) the part to be taken by each of the persons employed: and (viii) the moment at which they should perform their respective tasks.

How did the Accident Occurred?

24.  The foremost issue to determine in the present proceedings is how the Accident occurred.

25.  Mr Chung and Mr Pak (for the Defendants) rely on (i) the accident investigation report signed by the Plaintiff on 16^th October 2017; and (ii) the accident investigation report signed by Mr Ng on 19^th October 2017.

26.  Contrary to the Plaintiff’s case and evidence, these reports do not suggest that (i) Mr Ng lost his balance when he turned his body on the ladder after receiving an aluminum hoarding board from the Plaintiff; (ii) Mr Ng and/or the aluminum hoarding board fell upon the Plaintiff; and/or (iii) the Plaintiff fell down along the Slope after being hit by Mr Ng and/or the aluminum hoarding board.

27.  The report signed by Mr Ng suggests that when Mr Ng passed an aluminum hoarding board to the Plaintiff, the Plaintiff failed to grasp the same, and he lost his balance. Thus, the Plaintiff slipped and was injured. The relevant part of the report reads as follows:

“在3/10/2017當日，我同傷者陳壽祥[2]一齊在地盤裝圍街板，我哋將每塊街板版搬到糟鐵架位就收螺絲，期間我搬一塊街板俾亞祥時，見亞祥[3]好似滑手定失平衡被街板整到，跌低受傷。”

28.  The report signed by the Plaintiff suggests that when Mr Ng moved an aluminum hoarding board, the same bumped into him. Thus, he slipped and suffered injury. The relevant part of the report reads as follows:

“在3/10當日，我被管工安排安裝圍街版工作……在放置街板在糟鐵面準備收螺絲時，阿平[4]搬起鐵板時，我在下面，之後我被圍街版碰到跌倒受傷。”

29.  The accident investigation reports are contemporaneous records that shed light on how the Accident occurred. Unsurprisingly, Mr Chung extensively cross-examined Mr Ng and the Plaintiff in regard to their contents.

30.  Insofar as Mr Ng’s evidence is concerned:

(1)  Mr Ng could not meaningfully explain the discrepancies between the contents of his witness statement and the contents of the accident investigation report that he signed. When Mr Ng was cross-examined, he, with notable hesitation, said that he simply signed the accident investigation report without reading the contents, which were never explained to him. In my view, Mr Ng’s explanation lacks conviction, and is unconvincing, unsatisfactory and unbelievable.

(2)  It is not in dispute that Mr. Kwok King Yip (郭敬業) was Mr. Ng’s supervisor, and he was the one who prepared the accident investigation report signed by Mr. Ng[5]. During cross-examination, Mr Ng said that he could not remember whether he discussed the matters relating to the Accident with Mr Kwok. However, during re-examination, Mr Ng said that he reported the Accident to Mr Kwok on the day when the Accident occurred.

(3)  It appears to me that Mr Ng must have told Mr Kwok as to the circumstances in which the Accident occurred, and Mr Kwok prepared the contents based on what Mr Ng told him. In my view, it was very unlikely that an employee in Mr Kwok’s position would concoct the contents of the accident investigation report out of the blue and that Mr Ng would blindly sign the report without regard to the contents.

(4)  Having observed the way in which Mr Ng gave evidence in the witness box, I am of the view that Mr Ng’s recollection about the events relating to the Accident was vague and hazy, and he was uncertain as to the answers that he provided. Although Mr Ng insisted on supporting the Plaintiff’s case, he appeared to accept that he could not remember most of the details in respect of the events relating to the Accident due to lapse of time.

(5)  I am of the view that the evidence contained in Mr Ng’s witness statement and his viva voce testimony are not reliable, and I prefer the version of events set out in the accident investigation report. Whilst the accident investigation report was signed by Mr Ng about 2 weeks after the Accident occurred, Mr. Ng’s witness statement in the present action was prepared more than 5 years after the Accident took place (ie 4^th December 2022). As of the time when Mr. Ng testified in Court (ie 2^nd October 2024), almost 7 years had lapsed. Due to lapse of time, it is understandable as to why Mr. Ng could no longer give an accurate account of the relevant events relating to the Accident.

31.  As regards the Plaintiff’s evidence:

(1)  During cross-examination, the Plaintiff alleged that:

(a)  the contents of the accident investigation report that he signed were read to him;

(b)  he knew that the contents of the accident investigation report were false;

(c)  nonetheless, he still signed his name on the accident investigation report.

(2)  When asked why he would knowingly sign a report with false contents, the Plaintiff alleged he was told by the Defendants’ staff that the report was only for “symbolic” purposes and that he wished to continue working for his existing employer who was kind to him.

(3)  I reject these allegations, which are incredible, unconvincing and improbable. Although the Plaintiff is not a highly educated person, as a matter of common sense he must have appreciated that he should not have signed documents with false contents and that if the contents of the report were false as alleged, the same would be against his interest.

(4)  The Plaintiff were involved in 3 industrial accidents in the past, and he was experienced in liaising with his employers and seeking compensation from them. In light of his previous experience, I do not believe that the Plaintiff would have signed the accident investigation report, knowing that the contents therein were false.

32.  I am of the view it is more likely than not that the contents of the accident investigation reports were based on what the Plaintiff and Mr Ng respectively told the Defendants’ staff at the interviews that took place on 16^th October 2017 and 19^th October 2017. I am also of the view that the Plaintiff’s case and allegations in the present proceedings are merely afterthoughts. I prefer the version of events set out in the accident investigation reports.

33.  Furthermore, the Plaintiff’s case and evidence in the present action are flatly contradicted by the version of events that he told the doctors who treated him immediately after the Accident occurred:

(1)  According to the medical report dated 20^th October 2020 prepared by Dr Leung Siu Cheung (who examined and treated the Plaintiff at the Accident & Emergency Department of Queen Mary Hospital on 3^rd October 2017)[6], the Plaintiff alleged that he “fell from a work platform of around 3 meters high and sustained injury during his work on the same day”.

(2)  According to the medical report dated 28^th November 2020 prepared by Dr Leung Siu Ming Anderson (who examined and treated the Plaintiff at the Department of Orthopedics & Traumatology of Queen Mary Hospital on 3^rd October 2017)[7], the Plaintiff alleged that he “fell from a 3 meters working platform…”[8].

34.  The photographs[9] (which are not disputed) show that there was a platform on the top of the Slope, and it was not even near the location where Accident occurred (which was around the middle of the Slope).

35.  However, the Plaintiff told the two doctors who treated him that he fell down from the platform. This version of events materially contradicts the Plaintiff’s pleaded case in this action. The discrepancy is material and significant.

36.  When Plaintiff was cross-examined by Mr Chung, he said that he might not have explained himself clearly when he was in Queen Marry Hospital and that he felt terrible after the Accident. These explanations are unconvincing and unsatisfactory. As pointed out by both doctors in their medical reports, the Plaintiff was “fully alert”[10] and “he did not lose consciousness”[11]. Moreover, as will be elaborated, the Plaintiff’s physical condition was indeed satisfactory at the material time. This was why he left Queen Marry Hospital in the morning on 4^th March 2017 and made multiple trips (including day trips as well as overnight trips) to Macao after 6^th March 2017.

37.  For completeness, as will elaborated below in Section G, the Plaintiff’s evidence regarding his physical condition and injury are plainly incredible and unsatisfactory. This affects my assessment of the overall credibility of the Plaintiff’s case and evidence.

38.  Taking into account all the objective circumstances and the documentary evidence as well as the evidence from the Plaintiff and Mr. Ng, I am of the view that the Plaintiff’s case regarding how the Accident occurred is incredible and thus must be rejected. His complaints and assertions evolved overtime and are ever changing. I am of the view that he conjured up a series of ex post facto allegations with a view to mounting a sizable personal injury claim against the Defendants.

39.  In the premises:

(1)  I reject the Plaintiff’s case as to how the Accident took place.

(2)  I am of the view it is more likely than not that the Accident took place in the way in which the accident investigation reports described.

(3)  Based on the contents of the report signed by Mr Ng (which I prefer[12]), I find what happened on 3^rd October 2017 was that when Mr Ng passed an aluminum hoarding board to the Plaintiff, the Plaintiff failed to grasp it firmly, as a result of which he lost balance, fell down and thus suffered injury.

(4)  I reject the Plaintiff’s pleaded case that:

(a)  Mr Ng lost his balance when he was on the ladder;

(b)  Mr Ng and/or the aluminum hoarding board fell onto him, thereby causing him to suffer injury; and

(c)  He fell down along the Slope.

The Safety Measures provided by the Defendants: (i) the Safety Mechanism based on the Anchorage Points on the top of the Slope and the Safety Lifelines; (ii) Safety Belt and Helmet; and (iii) Safety Training

40.  The Defendants have produced 2 certificates dated 1^st September 2017[13] to prove that in compliance with the statutory requirements under the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear Regulations), they did install 12 anchorage points together with safety lifelines on the top of the Slope, and the devises were tested and verified by a qualified professional engineer.

41.  Despite the allegations in his witness statement[14], when Mr Ng was shown the photographs in respect of the Slope[15], he conceded that the nearest safety lifeline was only about 1 meter away from the location where the Accident occurred. It was certainly reachable.

42.  However, the safety mechanism provided by the Defendants would only be usable if and only if a worker was provided with a safety belt (to be attached to the safety lifelines). In this connection, there is no evidence showing that Mr Ng and/or the Plaintiff were provided with safety belts, such that they could make use of the safety mechanism on the Slope.

43.  Be that as it may, in light of my findings and conclusion as to how the Accident took place (see paragraph 39 above), I am not of the view that this is a valid reason to find that the 1^st Defendant is liable or responsible for the Plaintiff’s injury. As mentioned, I find and conclude that when Mr Ng passed an aluminum hoarding board to the Plaintiff, the Plaintiff failed to grasp it firmly, as a result of which he slipped and injured himself. I also reject, inter alios, the Plaintiff’s allegations that (i) Mr Ng and/or an aluminum hoarding board fell onto him from a ladder; and (ii) he fell down along the Slope.

44.  In these premises, even if safety belts were provided to Mr Ng and the Plaintiff and they attached the same to the nearest safety lifeline, the Accident would still have occurred. I cannot see how the safety belt and/or the safety mechanism installed by the Defendants could have avoided the Accident and/or reduced the Plaintiff’s injury. Whilst the safety mechanism might have prevented Mr Ng from falling from the ladder and prevented the Plaintiff from falling down along the Slope (which, as I find, did not happen), it could not have stopped the Plaintiff from failing to grip the aluminum board and losing his balance. In other words, there was simply no causal link between the use (or impossibility to use) the safety mechanism provided by the Defendants and the Plaintiff’s injury.

45.  The same observation applies to the dispute as to whether Mr Ng and the Plaintiff were provided with helmets at the Construction Worksite. I accept there is no evidence showing that the Defendants provided helmets to Mr Ng and the Plaintiff. However, in light of my conclusion and findings as to how the Accident occurred, I am not of the view that the helmets could have avoided the Accident and/or substantially reduced the injury to the Plaintiff (which, as will be elaborated in Section G below, was not serious at all).

46.  Likewise, given my findings as to how the Accident occurred, I am of the view that the safety trainings provided to Mr Ng and the Plaintiff were immaterial. In any event, it is not in dispute that the Plaintiff was required to wear, and he did wear, a pair of safety shoes with anti-slippery functions. Notwithstanding so, the Accident still occurred.

Sum Up

47.  Based on my finding and conclusion as to how the Accident occurred, I reject Plaintiff’s pleaded case (which is plainly incredible). As such, the Plaintiff’s claims based on negligence and/or breach of duty of care at common law should be dismissed: see Mak Kang Hoi v Ho Yuk Wah (2007) 10 HKCFAR 552 at para 102 (per Mortimer NPJ)

48.  For completeness, I also find and conclude that there was no negligence and/or breach of duties on the part of the 1^st Defendant. Whilst the Accident was unfortunate, it was not ascribed to the fault of the 1^st Defendant. I am unable to see how the 1^st Defendant could be blamed for the Plaintiff’s inability to grip the aluminum board from Mr Ng and inability to maintain balance when he failed to grip the aluminum board. I cannot hold the 1^st Defendant liable for the Plaintiff’s injury simply because the Accident occurred. I have to be satisfied that the 1^st Defendant was at fault and that such fault caused the Plaintiff to suffer loss and damage: see Wan & Ors v Honest Scaffold General Contractor Co Ltd [2001] 1 HKLRD 751 at para 30 (per DHCJ Longley); Dillion v Clyde Stevedoring Company Limited [1967] STL 103, 104 (Lord Milligan); and Baxter v Colvilles Limited [1959] SLT 325, 327 (Lord Justice-Clerk (Thomson).

Contributory Negligence

49.  Having said that I reject the Plaintiff’s case regarding the Accident and that the 1^st Defendant was not negligent and/or in breach of duties, the issue of contributory negligence does not arise.

50.  However, for completeness, I am not prepared to find that there was negligence on the part of the Plaintiff. From time to time, accidents occur. It cannot be said that whenever an accident occurs, someone must be negligent. In my view, the present case is similar to the scenario discussed in Dillion v Clyde Stevedoring Company Limited (supra). The mere fact that a workman loses his grip does not necessarily indicate negligence, and an accident may still occur even if reasonable standard of care is exercised. This is vicissitudes of life. Based on the materials and evidence before me, I am not prepared to find that the Plaintiff and/or Mr Ng fell below the standard required of a reasonably competent worker.

E2.  Breach of Implied Contractual Duties

51.  It is trite that an employer owes an implied contractual duty to take reasonable care for the safety of its employees: see Rai Siva Raj v Norman Liang trading as J Liang & Son & Another [2020] HKCFI 237 at para 80 (per DHCJ Raymond Leung SC).

52.  I agree with Mr Chung that the Plaintiff’s claims based on negligence and implied contractual duties rise and fall together.

53.  Following the findings and analysis set out in Section E1 above, I reject the Plaintiff’s pleaded case as to how the Accident occurred, and I also reject the Plaintiff’s assertion that (i) the injury he suffered was ascribed to the alleged breach of implied contractual duties on the part of the 1^st Defendant; and that (ii) there was breach of implied contractual duties on the part of the 1^st Defendant.

E3.  Breach of Statutory Duties under Construction Sites (Safety) Regulations (Cap 59I) and the Occupational Safety and Health Ordinance (Cap 509)

54.  The duty of care at common law and the statutory duties under the Construction Sites (Safety) Regulations (Cap 59I) and the Occupational Safety and Health Ordinance (Cap 509) are co-extensive with each other: see Rashad Muhammad v Gurung Amrit Singh trading as FEWA Company Link 200 Joint Venture (CACV 156/2000, 8^th July 2011) at para 33 (per Fok JA, as Fok PJ then was); Lam Wai Chi v Project Concern Hong Kong (HCPI 78/2002, 10^th April 2003 at para 48 (per DHCJ Fung, as Fung J then was).

55.  Following the findings and analysis set out in Section E1 above, it is unnecessary to set out the provisions relied on by the Plaintiff at length. It suffices to say that the Plaintiff’s pleaded case is rejected, and I further reject the Plaintiff’s contentions that his injury was ascribed to or caused by any alleged breach of statutory duties on the part of the 1^st Defendant under the Construction Sites (Safety) Regulations and the Occupational Safety and Health Ordinance.

E4.  Breach of Statutory Duties under the Factories and Industrial Undertakings Ordinance (Cap 59)

56.  Section 19 of the Factories and Industrial Undertakings Ordinance (Cap 59) expressly provides that the Ordinance does not confer or create a right of action in civil proceedings in respect of failure to comply with sections 6A, 6B or 6BA. Thus, the Plaintiff’s reliance on section 6A is misplaced.

E5.  Occupiers’ Liability

57.  Section 3(1) of the Occupiers Liability Ordinance (Cap 314) provides that:

“An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.”

58.  As pointed out by Cheung JA in Waan Chuen Ming v Lo Kin Nam trading as Kar Kin Engineering & Supplier Co & Anor [2009] 4 HKC 349 at para 26:

“Occupancy duty is said to be limited to dangers due to the state of the premises. Activity duty is in respect of danger from activities on the land, rather than from the state of the land itself, such duty is governed by the general rule of negligence…” [16]

59.  In the present case, the substance of the Plaintiff’s complaint is that in light of the alleged difficulty of carrying out the Assigned Task on the Slope and the alleged risk and danger in relation thereto, the 1^st Defendant should have provided a better work system, better equipment (such as a stable work platform, helmets and safety belts), better training and better instructions to Mr Ng and himself.

60.  In my view, the Plaintiff’s complaints are concerned with the activities on the Slope and the alleged inability of the 1^st Defendant to provide adequate safeguard and protective measures. These matters are governed by the law of negligence, as opposed to the law on occupiers’ duties, which concern the status of the land in question.

61.  In the premises, I reject the Plaintiff’s contention regarding occupier’s liabilities.

62.  In any event, in light of my findings as to how the Accident occurred (see paragraph 39 above), even if the 1^st Defendant owed common duty of care to the Plaintiff as an occupier, I am not of the view that the Plaintiff’s injury was ascribed to any alleged breach of duties on the part of the 1^st Defendant. I also disagree that the Slope is ipso facto so hazardous that the workers of the Defendants should not be allowed to have access thereto without special measures.

E6.  Vicarious Liability

63.  The Plaintiff also seeks to contend that Mr Ng was negligent and that the 1^st Defendant is vicariously liable for the alleged negligence of Mr Ng.

64.  As pointed out, I reject the Plaintiff’s case that Mr Ng and/or the aluminum hoarding board fell onto him, and I find that the Accident was caused by the Plaintiff’s inability to grip the aluminum hoarding board from Mr Ng, as a result of which he lost balance and fell down.

65.  In any event, my analysis set out in paragraph 49 hereinabove is applicable. It cannot be said that whenever an accident occurs, someone must be negligent. Even if reasonable standard of care is exercised, an accident may still occur: Dillion v Clyde Stevedoring Company Limited (supra). Based on the available evidence and materials, I am not satisfied that Mr Ng was at fault or had done anything that was unreasonable.

E7.  Sum Up

66.  For all the above reasons, none of the Plaintiff’s causes of action against the 1^st Defendant is made out. I accordingly hold that the 1^st Defendant is not liable for the Plaintiff’s loss and damage arising from the Accident.

F.  Liability: the 2^nd Defendant

F1.  Breach of Statutory Duties under Construction Sites (Safety) Regulations (Cap 59I) and the Occupational Safety and Health Ordinance (Cap 509)

67.  As mentioned, I find that the Accident was caused by the Plaintiff’s inability to grip the aluminum hoarding board handed to him by Mr Ng, as a result of which he failed to maintain balance and fell down. I also reject the Plaintiff’s case that (i) Mr Ng lost his balance on the ladder; (ii) Mr Ng and/or the aluminum hoard board fell onto him; and (iii) he fell down along the Slope.

68.  In light of these factual findings and conclusion, the Plaintiff has failed to establish his pleaded case. I further reject the Plaintiff’s contentions that his injury was ascribed to and/or caused by any alleged breach of statutory duties on the part of the 2^nd Defendant.

F2.  Breach of Statutory Duties under the Factories and Industrial Undertakings Ordinance (Cap 59)

69.  As pointed out in Section E4 above, the Factories and Industrial Undertakings Ordinance (Cap 59) does not confer or create any right of action in civil proceedings in respect of failure to comply with sections 6A, 6B or 6BA. There is no room for the Plaintiff to bring a claim against the Defendants based on alleged breach of duties under section 6A.

F3.  Occupiers’ Liability

70.  The analysis set out in Section E5 above is applicable. For the reasons explained, I reject the Plaintiff’s contention on occupiers’ liabilities. In light of the factual findings set out in paragraph 39 above, I further hold that even if the 2^nd Defendant owed duties to the Plaintiff as an occupier, the Plaintiff’s injury was not ascribed any alleged breach of these duties.

F4.  Sum Up

71.  None of the Plaintiff’s causes of action against the 2^nd Defendant is made out. I accordingly hold that the 2^nd Defendant is not liable for the Plaintiff’s loss and damage arising from the Accident.

G.  Quantum

72.  Since I rule against the Plaintiff on liability, the Plaintiff is not entitled to any compensation and/or damages. However, had I accepted the Plaintiff’s case on liability, the award to which he would have been entitled would be as follows.

G1.  Overview

73.  For the reasons elaborated below, the Plaintiff’s evidence about his injury and physical condition is most unsatisfactory and incredible. His allegations are contradicted by the contemporaneous medical records as well as the incontrovertible documentary evidence, and he even provided incorrect information to the parties’ medical experts.

G2.  The Events shortly after the Accident

74.  In paragraph 10 of his witness statement, the Plaintiff alleges that after the Accident occurred, Mr Ng told him not to report the matter to the Labour Department, and Mr Ng further advised him that instead of attending a public hospital, he should visit a private doctor. In his oral evidence, the Plaintiff further said that despite Mr Ng’s advice, he attended Queen Mary Hospital due to the severity of the injury and the pain that he suffered. However, Mr Ng called him over the phone when he was in Queen Mary Hospital, and urged him to leave as soon as possible; otherwise, he might not be able to work at the Construction Worksite again. The Plaintiff said it was in these circumstances that he insisted on discharging from Queen Mary Hospital against medical advice.

75.  For the following reasons, I reject the Plaintiff’s allegations. In my view, the Plaintiff conjured up these false allegations in order to cover up the truth that his injury was not serious at all and that his physical condition was indeed satisfactory at the material time.

76.  First of all, the records of the Immigration Department[17] reveal that:

(1)  On 6^th October 2017 the Plaintiff went to Macao at around 7:23, and he returned to Hong Kong on 7^th October 2017 at around 17:30.

(2)  The Plaintiff went to Macao again on 9^th October 2017 at around 18:18. He did not return to Hong Kong until 11^th October 2017 at around 16:41.

(3)  Subsequently, from 17^th October 2017 to the end of October, the Plaintiff frequently went to Macao on multiple occasions. For instance, he went to Macao twice on 21^st October 2017.

(4)  In November 2017, the Plaintiff continuously made frequent trips to Macao, including day trips and overnight trips.

77.  Had the Plaintiff suffered severe injury and felt painful, numb and fragile as alleged, he would not have arranged an overnight trip to Macao shortly after the Accident occurred; nor would he have visited Macao frequently throughout October and November 2017. There is no substance in the Plaintiff’s explanation that he went to Macao in order to stroll around, relax and ease his emotion（散心） as he was upset about his injury and poverty. I am of the view the truth is that despite the Accident, the Plaintiff’s physical condition was satisfactory, and he was highly energetic. This was why he visited Macao frequently after the Accident occurred.

78.  Second, as evidenced by the contemporaneous medical records of the Queen Marry Hospital[18], the Plaintiff was uncooperative. For instance, he refused to wear a neck collar, and he insisted on discharging from hospital against medical advice. Had the Plaintiff’s injury been serious, he would have stayed in Queen Marry Hospital, and he would have at least sought to obtain a neck collar from the doctors or nurses at Queen Marry Hospital.

79.  Third, when Mr Ng gave oral evidence, he refuted the Plaintiff’s allegations that he advised him not to attend public hospital and to seek medical assistance from a private doctor. In this regard, I prefer Mr Ng’s evidence, which makes more sense. It is unlikely that a co-worker in Mr Ng’s position would wish to meddle with the Plaintiff’s personal affairs and medical treatment.

80.  Fourth, it is Mr Ng’s evidence that he immediately reported the Plaintiff’s injury to his supervisor, ie Mr Kwok, on the day when the Accident took place. Mr Ng’s evidence in this regard is neither challenged nor disputed. It appears that the Defendants became aware of the Accident because Mr Ng reported the matter, and this led to the interviews with the Plaintiff and Mr Ng that took place on 16^th October 2017 and 19^th October 2017. Had Mr Ng intended to (i) conceal the Accident and/or the Plaintiff’s injury and/or (ii) advised the Plaintiff to conceal his injury arising from the Accident, Mr Ng would not have reported the Accident on his own volition.

81.  In my view, the injury suffered by the Plaintiff was not serious at all, and he must have vastly exaggerated the alleged conditions that he suffered.

G3.  Concoction and Exaggeration revealed by the Medical Evidence

82.  The medical evidence shows that the Plaintiff must have concocted and exaggerated some of the conditions that he alleged suffered.

83.  The following examples are notable.

Diplopia/Triplopia Eyes Condition

84.  The Plaintiff alleges that as a result of the Accident, he has suffered diplopia/triplopia eyes condition and visual blurring.

85.  As evidenced by a series of contemporaneous medical records provided by the Ophthalmology Clinic of Grantham Hospital on 16^th October 2017[19], 9^th April 2018[20] and 13^th February 2019[21], the Plaintiff repeatedly underwent tests and examinations. However, the doctors who treated and examined him opined that his alleged conditions were incompatible with the outcome of the tests and examinations, and there was no ocular cause that explained his alleged conditions. It was also pointed out that the Plaintiff’s response during optometrist assessment was inconsistent.

86.  In the circumstances, malingering tests were conducted.

87.  As stated in the medical summary dated 13^th February 2019[22] issued by Dr Yuk Wing Ki Stephanie who worked at the Ophthalmology Clinic of Grantham Hospital, the Plaintiff failed the malingering test, and as a result he lost temper. The said medical summary also recorded that the Plaintiff was very unsatisfactory with his medical reports, and he requested that the contents be changed.

88.  As stated in the orthoptic examination report dated 10^th July 2019[23], an orthoptist named Tang Wan Yan also diagnosed that this was a malingering case. It was pointed out that whilst the Plaintiff refused to answer most questions for the stereopsis test, he passed the prism reflex test.

89.  As stated in the medical summary dated 31^st July 2019 issued by Dr Chow She Wan Sharon who worked in the Ophthalmology Clinic of Grantham Hospital,[24] the Plaintiff failed the malingering test that was conducted on 10^th July 2019. Dr Chow opined that there was no ocular cause that explained the Plaintiff’s complaints, and the test and examinations reveal that the Plaintiffs’ eyes were normal.

90.  In light of the overwhelming medical evidence, I reject the Plaintiff’s allegation that he has suffered diplopia and triplopia eyes condition and visual blurring. In my view, the Plaintiff simply concocted these conditions for the purpose of inflating the quantum in respect of his claims against the Defendants.

Left Leg and Foot Injury caused by Metal Rod

91.  In his witness statement[25], the Plaintiff alleges that he suffered puncture injuries during the Accident. He said a metal rod penetrated into his left leg and left feet, but he pulled out the metal rod immediately. In his oral evidence, the Plaintiff said that the injury was so painful that he could not take off his pants when he went home. However, he allegedly managed to use some cream with medical effect provided by Mr Ng to stop the bleeding.

92.  In my view, had a metal rod penetrated into the Plaintiff’s leg/feet as alleged, the Plaintiff and/or Mr Ng would have immediately called an ambulance given the seriousness of the injury. It is incredible that the Plaintiff was still capable of (i) going home by minibus; and (ii) travelling to Queen Mary Hospital by himself after returning home.

93.  The Plaintiff’s allegations are flatly contradicted by the contemporaneous medical records. Had the Plaintiff’s allegations been true, the doctors in Queen Mary Hospital must have applied appropriate medical procedures to treat the Plaintiff, and there must have been medical records that evidence the Plaintiff’s puncture injuries. This was not the case. As pointed out by Dr Lee (whose opinion is preferable in my view) in the joint medical report (the “Joint Expert Report”)[26] filed in these proceedings, the contemporaneous medical records from Queen Mary Hospital did not record any penetrating wounds in the left lower limbs of the Plaintiff, and the superficial laceration there were likely to be abrasion scars that do not support the allegation of penetrating injury[27]. Dr Lie (who is Plaintiff’s medical expert) also observes that the medical records only documented “multiple superficial laceration on left upper and lower limbs”[28]. Dr Lie is not in a position to rebut Dr Lee’s analysis and conclusion (which are convincing). Dr Lie only vaguely suggests it was possible that the injury to the Plaintiff’s left foot/leg was caused by the Accident. He avoids the question whether there was puncture injuries as alleged by the Plaintiff.

94.  For the reasons set out above, I reject the Plaintiff’s suggestion that a metal rod penetrated into his left left/feet and that he suffered puncture injuries during the Accident. This suggestion is a complete concoction.

Occipital Wound with Bleeding

95.  The Plaintiff suggested to the parties’ medical experts, ie Dr Lie and Dr Lee, that he had occipital wound with bleeding[29].

96.  This suggestion is not consistent with the contemporaneous medical records from Queen Mary Hospital. The head examination on 3^rd October 2017 only revealed that there was a tender bruised swelling in the Plaintiff’s occiput[30].

97.  It appears that the Plaintiff exaggerated his conditions when he was examined and/or interviewed by Dr. Lie and Dr. Lee.

G4.  Providing Misleading Information to the Parties’ Experts

98.  The Plaintiff informed Dr Lie and Dr Lee that he had “no history of neck pain/injury or limb numbness” and “no history of right hand/left foot injury or pain”[31].

99.  The information provided by the Plaintiff was plainly incorrect. The Plaintiff was involved in 3 industrial accidents in the past. In this connection:

(1)  According to the revised statement of damages in HCPI 922/2014[32], the Plaintiff was allegedly suffering from “pain, stiffness and numbness” on right hands, “mild tenderness at midline C4/5 and left paracervical region of…[neck]” and “decreased [range of movement] of neck” as of September 2015.

(2)  According to a joint medical expert report prepared by Dr Peter Tio and Dr Peter Ko (who examined the Plaintiff o 15^th August 2014), the Plaintiff’s right leg was weaker than his left leg. Whilst the sensation of the whole anterior thigh and leg was decreased by 30%, the sensation of the dorsal and plantar foot was deceased by 40% to 50%[33].

(3)  According to the revised statement of damages in HCPI 1118/2004[34], the Plaintiff was suffering from “decrease in sensation over his right leg” and “bilateral leg numbness, with left side more severe” as of February 2007.

100.  Despite the Plaintiff’s untrue representations, Dr Lee was aware of the Plaintiff’s previous injuries and he studied the relevant medical records[35]. Be that as it may, the Plaintiff should not have said to the medical experts that there was no medical history in relation to his neck, left hand and right foot.

101.  There is no substance in the Plaintiff’s explanation that he had allegedly recovered already. In my view, whilst the Plaintiff endeavoured to exaggerate his injury and conditions, he also sought to attribute his alleged conditions to the Accident. The Plaintiff did these in order to inflate the quantum in respect of his claims against the Defendants.

G5.  Surveillance Videos

102.  The Defendants engaged investigators to investigate the Plaintiffs’ physical condition. These investigators followed the Plaintiff on 15^th December 2021, 7^th April 2022[36] and 13^th April 2022. A surveillance report together with surveillance videos showing the Plaintiff’s activities have been produced as evidence in these proceedings.

103.  The videos show that:

(1)  The Plaintiff walked on the streets like a normal person. He was fairly quick. He could turn his neck and look around to observe the conditions on the streets. He did not use a walking stick. He was capable of boarding a minibus and walking on stairs without any assistance and without using handrail.

(2)  When the Plaintiff crossed a road on 15^th December 2021, a motorcycle came near him. The Plaintiff spontaneously and swiftly moved his body, and he jumped slightly to the side in order to avoid collision.

(3)  On 13^th April 2022, the Plaintiff climbed over some fences on the streets twice. The Plaintiff was agile and nimble, and his movement was smooth. In one of the occasions, the Plaintiff even crossed the fence without using his hands. Throughout the process, the Plaintiff was able to maintain balance and stability.

(4)  On 13^th April 2022, the Plaintiff knelt down to feed a dog. He was capable of picking up items of the floor without any difficulty. Again, his movement was smooth.

104.  Based on the surveillance videos, it appears to me that the Plaintiff’s limbs functioned normally, and the Plaintiff managed to maintain good balance. It does not appear that the Plaintiff suffered any condition, and he acted like any other normal person.

105.  I am not persuaded and/or impressed by the Plaintiff’s explanations that he would suddenly feel painful and numb and that the videos were incomplete[37]. These bare assertions are not borne out, and indeed contradicted, by the overwhelming objective evidence before me.

106.  What the surveillance videos show are consistent with the medical evidence. In this connection:

(1)  As stated in the letter dated 20 October 2020 signed by Dr. Leung Siu Chung of Queen Marry Hospital’s Accident & Emergency Department[38], although the Plaintiff complained, inter alios, bilateral forearm numbness when he was treated on 3^rd October 2017, the examination revealed that his muscle power, light tough sensation and deep tendon reflexes were normal, albeit the front of the Plaintiff’s right elbow was tender, bruised and swollen.

(2)  The medical report dated 28^th November 2020 signed by Dr. Leung Siu Ming Anderson of Queen Mary Hospital’s Department of Orthopaedics & Traumatology recorded that the Plaintiff was examined on 27^th October 2017[39]. Although it was found that there was reduced range of motion of the Plaintiff’s neck due to diffuse pain, there was no Spurning sign and Lhermitte sign. Further, the powers of the Plaintiff’s bilateral upper limbs and lower limps were full (grade 5 out of 5), and light touch sensation on the Plaintiff’s upper limbs was preserved. There was also no sign of myelopathie hand.

(3)  The medical records from Queen Mary Hospital’s Department of Orthopaedics & Traumatology show the Plaintiff was examined on 24^th January 2020[40]. Despite the Plaintiff’s “subjective” complaint of neck pain, the MRI reveals that there was no neurological compression, and there were only features of cervical spondylosis (ie degeneration).

G6.  The Injury to the Plaintiff

107.  In the premises, the factual evidence as well as the medical evidence point towards the direction that the Plaintiff’s injury was not serious at all.

108.  Having considered the factual evidence, the medical records and evidence as well as the Joint Expert Report prepared by Dr Lie and Dr Lee, I find that:

(1)  The Plaintiff did not suffer diplopia, triplopia eyes and/or visual blurring as alleged.

(2)  The Plaintiff did not suffer puncture injuries to his left foot and left leg, and no metal rod had penetrated and/or into his left foot and left leg.

(3)  As a result of the Accident, there was a tender bruised swelling in the Plaintiff’s occiput. As revealed by the brain scans[41] and medication examinations, the Plaintiff did not suffer brain injury.

(4)  There was only soft tissue injury to the Plaintiff’s neck, and his upper back was also tender. However, there was no central cord syndrome at all. In this connection, it is unsafe to rely on the Plaintiff’s subjective complaints about pain and numbness as the Plaintiff is plainly unreliable and incredible. In my view, it is preferable to place weight on the objective medical evidence as well as the outcome of the medical examinations (such as MRI findings, brain scans and malingering tests). In the premises, I prefer Dr Lee’s opinion to Dr Lie’s opinion. Even if the Plaintiff has been persistently suffering numbness and/or pain as alleged (which I disbelieve), this is ascribed to his pre-existing degeneration.

(5)  As a result of the Accident, there was hematoma over the Plaintiff’s right elbow. There was no bone fracture, and the motor power, sensation and reflex in respect of the Plaintiff’s limbs were normal.

(6)  Based on the report dated 15^th September 2020 issued by Dr Liew Cho Hwei Julianna of Queen Mary Hospital’s Dental Department[42] and as conceded by the Defendants, the Plaintiff injured 3 teeth[43] as a result of the Accident.

(7)  The Plaintiff did not suffer any psychiatric condition as a result of the Accident. As evidenced by the medical records[44], it appears that the depression and/or psychiatric conditions suffered by the Plaintiff were caused by the death of his wife, the social unrest in 2019 and Covid-19 (which took place after the Accident).

G7.  Pain, Suffering and Loss of Amenities (PSLA)

109.  I accept Mr Chung and Mr Pak’s submissions that the Court should adopt a holistic approach to assess the overall situation of the Plaintiff. It would be wrong in principle to grant separate award in respect of each of the injuries to different parts of the Plaintiff’s body, and then add them up together arithmetically: see Chui Po Hing by her father and next friend Chui Sun v Lo Suen (HCA 1434/1988, 12^th February 1990) at p 6.

110.  Whilst each case will have to be decided on its own facts, I have considered the cases cited by counsel from both sides as reference. In my view, the following cases are appropriate comparison:

(1)  Chung Yin Ting v Chan Miranda [2019] HKCFI 270;

(2)  Wu Kin Ho v Wong Kong Hop Kenneth [2018] HKDC 527;

(3)  Ng Wai Tao v Siu Patrick Chun Wai & Anor [2023] HKDC 93; and

(4)  Diu Chun Ming v Li Man Ha Judy [2019] HKDC 1161.

These cases involved neck sprain and/or back sprain with soft tissue injury, and there was no neurological deficit or bony damage.

111.  I am of the view that an award of HK$150,000 under this head would be adequate, and I would have awarded such amount in favour of the Plaintiff had he succeeded on liability. I would also have awarded interest at 2% per annum from the date of the service of the writ of this action up to the date of the present judgment (and thereafter at judgment rate until payment).

G7.  Pre-Trial Loss of Earnings

112.  It is not in dispute that:

(1)  The Plaintiff was 58 years’ old when the Accident occurred on 3^rd October 2017.

(2)  The Plaintiff earned average monthly salary of HK$21,935 at the time when the Accident occurred.

(3)  The Plaintiff is now 65 years’ old.

113.  In Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited [2008] 5 HKLRD 210 at para 18, Le Pichon JA held that the Court is not bound by the mere issue of sick leave certificates, and the same are no more than a piece of evidence that has to be evaluated in light of all the available evidence.

114.  As explained by His Honour Judge Harold Leong in Cheung Sau Lin v Tsui Wah Efford Management Ltd [2018] HKDC 941 at paras 18-22, doctors are trained to manage patients based on trust, and they are not expected to be dismissive towards patients who make subjective complains about aches and pains.

115.  In the premises, the Court has to form its own opinion on the sick leave granted based on the totality of the evidence: see Rai Surya Prakash v Pacific Crown Security Services Ltd & Anor [2020] HKCFI 917, para 42 (per DHCJ Anson Wong SC).

116.  Having carefully considered the factual evidence as well as the contemporaneous medical records, I accept Dr Lee’s opinion that sick leave of 6 months should be reasonable and adequate in the circumstances.

117.  In this connection, I prefer Dr. Lee’s opinion to Dr. Lie’s opinion. As pointed out above, it appears that Dr Lie relies on the Plaintiff’s subjective complaints of alleged pain and numbness. These complaints are not credible and not consistent with the objective evidence, such as the fact that the Plaintiff made frequent trips to Macau in October and November 2017 and the fact that (as evidenced by the surveillance videos) the Plaintiff was nimble and capable of crossing fences and avoiding a motorcycle in an agile manner. In contrast to Dr Lie’s approach, Dr Lee’s opinion is based on analysis of the objective medical findings and examinations (which are, in my view, reliable). As such, I do prefer Dr. Lee’s opinion to Dr. Lie’s opinion.

118.  In the premises, had the Plaintiff been entitled to compensation, I would have awarded him damages in the amount of HK$138,190.50 (ie HK$21,935 x 6 months x 1.05 (MPF) for pre-trial loss of earnings. I would also have ordered that the Plaintiff be entitled to interest on this sum at half of the judgment rate from the date of the Accident (ie 3^rd October 2017) up to the date of the present judgment (and thereafter at judgment rate until payment).

G8.  Loss of Future Earnings and Loss of Earning Capacity

119.  Due to his age, the Plaintiff does not pursue the claims for loss of future earnings and loss of earning capacity.

120.  In any event, in light of the factual evidence, medical evidence and the medical opinion expressed by Dr Lee, I am of the view that the Plaintiff should be able to return to his previous job(s) after the 6-month period. Thus, I would not have awarded him any further damages in addition to the aforesaid sum of HK$138,190.50.

G9.  Special Damages/Pre-Trail Expenses

121.  In the revised statement of damages[45], the Plaintiff alleges that he incurred (i) medical expenses of HK$800; (ii) travelling expenses of HK$2,000; and (iii) tonic food and other expenses of HK$5,000.

122.  However, the Plaintiff has not adduced any receipts and/or documentary evidence to prove that he incurred the said expenses. When the Plaintiff gave oral evidence, he even alleged that due to the Accident he became so poor that he could not afford buying tonic food.

123.  In the premises, had the Plaintiff’s case on liability been accepted, I would only have awarded him special damages of HK$2,000. I would also have awarded interest on this sum at half of the judgment rate from the date of the Accident (ie 3^rd October 2017) up to the date of the present judgment (and thereafter at judgment rate until payment)

G10. Employee’s Compensation

124.  It is not in dispute that the Plaintiff has received employee’s compensation in the sum of HK$730,456.82, and he should give credit in respect thereof[46].

G11. Sum Up

125.  Had the Plaintiff succeeded on liability, I would have awarded damages in his favour as follows:

PSLA	HK$150,000
Pre-Trial Loss of Earnings & MPF	HK$138,190.50
Loss of Future Earnings and Loss of Earning Capacity	HK$0
Special Damages	HK$2,000
	Sub-total: HK$290,190.50
Less Employee’s Compensation	(HK$730,456.82)
	Total: Nil

126.  Even if the Plaintiff’s case on liability were accepted, his compensation and/or damages would only be HK$290,190.50. This is less than that employee’s compensation that he has already received, ie HK$730,456.82.

127.  In the premises, the Plaintiff is anyhow not entitled to any award at all. This is another reason why the Plaintiff’s claims in the present action should be dismissed.

H.  Order and Disposition

128.  For all the above reasons, I order that the Plaintiff’s claims against the Defendants in the present action be dismissed.

129.  Costs should follow the event.

130.  I make a costs order nisi that:

(1)  The Plaintiff’ do pay the Defendants’ costs incurred in the present action, including all costs previously reserved, to be taxed if not agreed (with certificate for one counsel); and

(2)  The Plaintiff’s costs (before the discharge of legal aid) be taxed in accordance with the legal aids regulation.

131.  Any application to vary the said costs order nisi shall be made within 14 days.

132.  Lastly, I express my gratitude to Mr Lau, Mr. Chung and Mr Pak for their helpful assistance.