LI KWOK KEE v. CHINA HK WAH LEE LIMITED

HCPI 477/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 477 OF 2013

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J U D G M E N T

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1. This is the trial of the plaintiff’s action against the defendant, his former employer, for damages for personal injuries sustained by the plaintiff in an accident occurring in the course of his employment on 5 May 2011.

Background facts

2. The plaintiff was a cross‑border container truck driver, having worked as such for over 20 years prior to the date of the accident, and had been in the defendant’s employment since 2007.

3. Since around 2010, the plaintiff had been assigned by the defendant to drive a container truck of a Swedish brand called “SCANIA” bearing the registration number of PE716 (“the Truck”).

4. The Truck and its trailer was connected by a connecting platform (“the Platform”), which was about 6.25 feet in width and about 3.5 feet above the ground.  There was a large spare tyre located horizontally underneath and protruding from the edge of the Platform (“the Tyre”) on the nearside of the Truck.  The top of the Tyre was about 2.4 feet above the ground.

5. Located next to the Platform and on the same side as the Tyre but nearer to the driving cabin of the Truck was a two‑rung vertical metal ladder (“the Ladder”), which was part of the original equipment fixed to the Truck.  The first rung of the Ladder was about 20 inches above the ground, and the second rung of the Ladder was about 13 inches above the first rung.  The Ladder was designed and intended to be used by any person wishing to get onto the Platform from the ground, and vice versa.

6. On 5 May 2011, the Truck, attached to an empty trailer, was parked at Customs Carpark of Huanggang Port, Shenzhen, People’s Republic of China, which was an open‑parking ground.

7. In the morning of that day, the plaintiff went to the said carpark to retrieve the Truck.  According to the plaintiff, prior to driving the Truck away from the said carpark, he had to get onto the Platform to inspect whether the Truck and the trailer were properly connected. At around 8 am, after he had finished the inspection, he proceeded to descend from the Platform.  However, instead of using the Ladder, the plaintiff opted to descend from the Platform via the Tyre, with his back to the Truck/trailer.

8. When he stepped on the Tyre with his left foot, he slipped and fell to his left.  To protect his head from the impact of the fall, he used his left hand to shield his head.  He fell to the ground, with his left hand and wrist hitting against the ground.  As a result, the plaintiff suffered left wrist fracture injuries.

9. There are two other matters mentioned by the plaintiff in his evidence which it is worth noting.  First, there was rain in the early morning of 5 May 2011 and, at the time of his descent from the Platform, the plaintiff knew that the surface of the Tyre was wet and he paid particular attention when descending.  Second, at the time of his fall, the plaintiff was not holding onto anything to maintain balance or for support.  According to the plaintiff, he was “going to” hold onto the metal frame of the trailer for support, but he slipped and fell before his hand could reach the metal frame.

10. After the accident, the plaintiff informed the defendant that he had been injured at work.  According to Chan Kwok Hung (DW2), a clerk of the defendant, the plaintiff called him by telephone at around 8 to 9 am on 5 May 2011 and told him that while he was boarding the Truck, he fell down carelessly and landed on the ground with his left hand first.  Chan Kwok Hung said that he had another telephone conversation with the plaintiff three or four days after the accident, during which the plaintiff told him about the circumstances of the accident which were more or less the same as on the previous occasion.

11. According to Chan Mei Yee (DW1), an accounts clerk of the defendant, she spoke to the plaintiff on the phone on 9 May 2011 to enquire about the circumstances of the accident.  The plaintiff told her that he had carelessly fallen down while he was boarding the Truck, thereby sustaining injuries. Chan Mei Yee then filled in the Form 2 and sent it to the Labour Department.  The description of the circumstances of the accident in the Form 2 is consistent with what Chan Mei Yee said she was told by the plaintiff over the telephone.  In cross examination, Chan Mei Yee retracted a little as to whether the plaintiff admitted to being careless on his part.

12. The Form 2 was signed by Chan Pong Tai, the father of Chan Kwok Hung and Chan Mei Yee.  Apparently, Chan Pong Tai was the owner, or boss, of the defendant.

13. On the other hand, the plaintiff’s evidence is that he told Chan Kwok Hung and Chan Mei Yee that he fell off from the Platform and injured his wrist.  The plaintiff also denies that he told Chan Kwok Hung he carelessly fell while he was boarding the Truck.

Issues

14. The following issues arise for determination in this action:

(1) what were the circumstances of the accident;

(2) were the accident and the consequent injuries sustained by the plaintiff the result of any breach of duties owed by the defendant to the plaintiff;

(3) was the plaintiff guilty of any contributory negligence, and if so to what extent should the damages be reduced on account of contributory negligence on the part of the plaintiff; and

(4) quantum.

15. I shall now deal with each of these issues in turn.

The circumstances of the accident

16. The only person who has given direct evidence regarding the circumstances of the accident is the plaintiff himself.  The defendant’s knowledge of the circumstances of the accident is based on what the plaintiff allegedly told Chan Kwok Hung and Chan Mei Yee subsequent to the accident. 

17. The description of the accident as allegedly related by the plaintiff to Chan Kwok Hung and Chan Mei Yee is a brief one, so is the description appearing in the Form 2.  While Chan Kwok Hung and Chan Mei Yee are related to the owner, or boss, of the defendant, it has not been suggested that they deliberately made up a story in order to obstruct the plaintiff’s claim against the defendant or for some other reason or reasons.  Apparently, neither Chan Kwok Hung nor Chan Mei Yee sought to obtain from the plaintiff the detailed circumstances in which the accident occurred.

18. Mr Ashok Sakhrani (counsel for the plaintiff) submits that the court should reject the evidence of Chan Kwok Hung and Chan Mei Yee because, amongst other things, having regard to the presence of stairs and handrails giving safe access to the driver’s cabin, it is unlikely that the plaintiff would have fallen while boarding the Truck. That may be so, but people do slip and fall because of carelessness, notwithstanding the ready availability of safety measures or devices.

19. On balance, I am prepared to accept the plaintiff’s sworn testimony that the accident occurred in the manner as described by him.  This having been said, I should make it clear that I consider Chan Kwok Hung and Chan Mei Yee to have been doing their honest best to tell the court what they believe the plaintiff told them regarding the circumstances of the accident.  It is possible that they misunderstood what the plaintiff said during the brief telephone conversations.  Equally, it is possible that the plaintiff did not think it matter very much at the time whether he fell while boarding the Truck or descending from the Platform.  It is not necessary for me to resolve these possibilities, in view of my acceptance of the plaintiff’s testimony regarding the circumstances of the accident.  As for the plaintiff’s admission of carelessness on his part, I believe that was what the plaintiff genuinely thought to be the cause of the accident at that time.

Breach of duties owed by the defendant to the plaintiff

20. The common law duty of care owed by an employer to his employees regarding safety at work is well known.  It is a single duty to take reasonable care for his employees’ safety.  In Cathay Pacific Airways Ltd v Wong Sau Lai [2006] 2 HKLRD 586, Bokhary PJ (with whom the other members of the Court of Final Appeal agreed) stated the following at paragraph 24 of his judgment:

“Of course the duty of care owed by employers to employees at common law is a single duty to take reasonable care for his employees’ safety. This is so even though it is convenient to think of the duty as involving the provision of safe co‑workers, a safe place of work, safe equipment, a safe system of work, proper instructions and supervision and (where called for) adequate training. As Lord Keith put it in Cavanagh v. Ulster Weaving Co. Ltd [1960] AC 145 at p.165, ‘[t]he ruling principle is that an employer is bound to take reasonable care for the safety of his [employees], and all other rules or formulas must be taken subject to this principle’.”

21. Mr Sakhrani also reminds me of the following observation made by Bokhary PJ at paragraph 1 of his aforesaid judgment:

“This common law duty retains its importance despite the existence today of a large body of work safety legislation. Being a duty of care, it is not absolute. But the standard of care demanded is naturally a high one since personal safety is at stake.”

22. I shall bear in mind this observation, while guarding myself against any tendency to impose a standard of care which is unrealistic or unreasonable in the circumstances of the present case.

23. I should mention the plaintiff has also advanced a cause of action based on breach of statutory duties under the Occupational Safety and Health Ordinance, Cap 509, in his Statement of Claim.  However, those duties have not been the focus of Mr Sakhrani’s opening or closing submissions, presumably because they do not add anything to the plaintiff’s claim. In this judgment, I shall therefore concentrate on the common law duty of care.

24. As I understand from Mr Sakhrani’s closing submissions for the plaintiff, the crux of the complaints in this case is that (i) there was no system of work in place, and (ii) no meaningful instructions were given by the defendant to the drivers (including the plaintiff) on how to safely ascend to or descend from the Platform.  In relation to these complaints, Mr Sakhrani makes the following specific points:

(1) the Ladder did not provide a safe means of ascent to or descent from the Platform and its use was inconvenient;

(2) the defendant did not give any safety instructions to the plaintiff regarding the use of the Ladder for ascending to or descending from the Platform;

(3) the defendant gave no warning to the plaintiff not to use the Tyre for ascending to or descending from the Platform when there was a known practice amongst the defendant’s drivers of using the tyre for such purposes; and

(4) no safety shoes were provided when the plaintiff was required to work on the Platform on rainy days.

25. In relation to point (1), Mr Sakhrani argues that the Ladder was inconvenient to use because next to the Ladder was a movable cab extender which, according to Chan Kwok Hung, could slide a distance of about 7 inches in the direction of or away from the door on the nearside of the driving cabin of the Truck (“the passenger door”).  When the cab extender was at the extreme position furthest away from the passenger door, it would cause a partial obstruction of the Ladder, which had a width of about 25 inches, but not when it was at the other extreme position nearest to the passenger door.  Chan Kwok Hung told the court that at either of the extreme positions, there was an in‑built mechanism to “lock” the cab extender in place.  I am unable to see that the presence of the movable cab extender would cause any real inconvenience, or difficulty, in using the Ladder.  In any event, there is no suggestion that moving the cab extender in either direction was a complicated or time consuming exercise.  If it was felt that the Ladder would be unduly obstructed by the cab extender when it was at its extreme position furthest away from the passenger door, it should not have been a difficult exercise to move it to the other extreme position before using the Ladder.

26. The plaintiff’s contention that the Ladder did not provide a safe means of ascent to or descent from the Platform is based mainly on two matters:

(i) the Ladder was a vertical instead of an inclined ladder; and

(ii) there were no handrails provided for the Ladder. 

While I accept that an inclined ladder would generally provide a better balance for any person climbing up or down the ladder, it is important, in my view, to have regard to the fact that the Ladder in the present case was a very short one with only two rungs.  The top rung of the Ladder was just 33 inches above the ground, and the distance between the first and second rungs was only about 13 inches.  In such circumstances I do not consider the fact that it was a vertical one made the Ladder not reasonably safe to use.

27. As for the absence of handrails, I consider that the edge of the cab extender would constitute a natural and obvious fixed object for one to hold onto for support while climbing up or down the Ladder. It is not, in my view, necessary for there to be any specially designed handrail, nor is it necessary for one to hold on to any fixed object tightly, for the purpose of getting support when using the Ladder.  All that is required is a convenient fixed object within reasonable reach which the plaintiff could hold onto for some support while he was climbing up or down the two steps of the Ladder.  I shall deal with the question or training or instruction later in this judgment.

28. In his evidence, the plaintiff said that prior to the accident, there were two to three previous occasions where he slipped when descending from the Platform using the Ladder.  However, it transpires from his evidence that on those occasions, he descended with his back to the Ladder. It is a matter of common sense that when climbing a ladder, particularly a vertical ladder, it is much safer to do with one body’s facing the ladder.  In this regard, I agree with the observation of Deputy Judge To (as he then was) in Wong Wing Chow v Lee Wing Hang Patrick, HCPI 244 of 2002 (24 October 2003) at paragraph 17 that it does not require an expert to say that “the proper manner to descend a ladder is to do so with one’s body facing the ladder and with one’s hands reaching forward and upward to hold the sides of the ladder”.  The reference to “one’s hands reaching forward and upward to hold the sides of the ladder” obviously can have no relevance to a ladder which has only two rungs with the upper rung being only about 33 inches above the ground.  In my view, the fact that the plaintiff slipped on the two to three previous occasions in the manner in which he chose to descend from the Ladder is no evidence that it was not reasonably safe to use.

29. In all, notwithstanding the fact that the Ladder was a vertical one with no handrails, I consider that it still provided a reasonably safe means of ascent to or descent from the Platform.

30. In relation to point (2), Chan Kwok Hung gave evidence that in about 2010, after the defendant had purchased a fleet of new SCANIA containers trucks (including the Truck in question), a training session was organised and given by a staff of SCANIA to a group of 10 odd drivers employed by the defendant (including the plaintiff).  Chan Kwok Hung said that he also attended the training session, and that in the course of that training session, the drivers were instructed to use the edge of the cab extender as a “handrail” when climbing up or down the Ladder.  This piece of evidence does not appear in Chan Kwok Hung’s witness statement, and was not mentioned in Chan Kwok Hung’s evidence in chief.  Further, the allegation that the plaintiff had attended the training session was not put to him in cross examination by Mr Wong Chi Kwong (counsel for the defendant).  I do not accept the evidence given by Chan Kwok Hung regarding the training session given by SCANIA, including the evidence that SCANIA specifically instructed the defendant and its drivers to use the edge of the cab extender as a “handrail” when climbing up or down the Ladder.  Having reached this conclusion, it is not necessary for me to consider Mr Sakhrani’s submission that the defendant ought to have relayed such instruction to the plaintiff (on the basis that there was indeed a training session given by SCANIA, but the training session was not attended by the plaintiff).

31. This having been said, there remains the point made by Mr Sakhrani that no training or instruction was provided by the defendant to the plaintiff to use the edge of the cab extender as “handrail”.  For my part, I regard it as a matter of common sense, and daily experience, that one would hold onto any convenient fixed object within reasonable reach for support when climbing up or down any place, in circumstances where some support is considered necessary or desirable.  As earlier mentioned, I consider the edge of the cab extender to be a natural and obvious fixed object for one to hold onto for support while climbing up or down the Ladder.  I have reservation as to whether it was really necessary for the defendant to give any special training or instruction to the plaintiff on this matter.  Nevertheless, having regard to the “high” standard of care demanded of employers in relation to the safety of their employees, I am just persuaded that some training or instruction should have been given to the plaintiff regarding the use of the edge of the cab extender as “handrail” when climbing up or down the Ladder.

32. In respect of point (3), the plaintiff gave evidence that other fellow drivers employed by the defendant also climbed onto and down from the platform via the tyre.  He also said that he had never seen his colleagues using the ladder for access to the platform from the ground and vice versa.  This evidence regarding the practice, or uniform practice, of other drivers using the tyre instead of the ladder is plainly material to the plaintiff’s case but does not appear in his witness statement.  Chan Kwok Hung gave evidence that he used the ladder to ascend to or descend from the platform, but admitted that he had also used the tyre for such purpose two to three times in the past 10 years.  It should be added that, according to Chan Kwok Hung, he would get onto the platform only about once or twice a year.  Chan Kwok Hung further admitted that he saw some drivers employed by the defendant use the tyre for going up to or down from the platform, which he said was “bad habit”. On the evidence before me, I think it is clear that some of the drivers employed by the defendant did use the tyre for going up to or down from the platform some of the times.  I am not prepared to find, however, that it was a uniform practice amongst the drivers employed by the defendant that they would use the tyre for going up to or down from the platform all the times. Quite apart from the fact that this important allegation only emerged from the plaintiff’s oral evidence, I consider it to be inherently improbable unless one takes the view that the defendant’s drivers generally have little regard for their personal safety at work.

33. Be that as it may, in view of the fact that the defendant was aware that some of its employees had adopted an unsafe work practice, the defendant ought to have warned the drivers not to do so and reminded them to use the ladder for going up to or down from the platform.  There is no dispute that the defendant gave no such warning or reminder.

34. Lastly, in relation to point (4), I do not regard it as necessary for the defendant to provide safety shoes to the plaintiff in order to discharge its duty of taking reasonable care for his safety, for the following reasons:

(1) The plaintiff was not required to go up to and down from the Platform repetitively.  On the Plaintiff’s evidence, he might need to do so two to three times a day.

(2) It has not been suggested that the plaintiff was under any time pressure or tight schedule to carry out his duties.

(3) The surface of the Platform was not smooth but appeared to be covered by some protruding stripes or patterns which, according to Chan Kwok Hung, could prevent slipperiness.

(4) Even if surface of the Platform, or of the rungs of the Ladder, should become wet because of rain, it would have been more straight‑forward for the plaintiff to remove any water on the surface by a piece of dry cloth than to change into safety shoes to minimise the chance of slipping.

35. In my view, the suggestion that the defendant should have provided safety shoes to the plaintiff would be to impose such a high standard that was not realistic in the circumstances of this case.

36. In all, I am of the view that the defendant was in breach of the common law duty of care owed to the plaintiff for failing (i) to provide training or instruction on the use of the edge of the cab extender as “handrail” when climbing up or down the Ladder, and (ii) to warn the plaintiff not to use the Tyre for the purpose of going up to or down from the Platform.

Contributory negligence

37. It seems to me clear that the plaintiff was guilty of contributory negligence, in the following aspects:

(1) Using the Tyre instead of the Ladder for descending from the Platform, with knowledge that the surface of the Tyre was wet and slippery.

(2) Failing to hold on to the metal frame of the trailer before putting his left foot on the Tyre when descending from the Platform.

(3) Descending from the Platform via the Tyre with his back to, instead of facing, the Truck/trailer.  In this regard, I accept Mr Wong’s submission that even if the plaintiff decided to descend via the Tyre, it would have been safer for him to do so with his body facing Truck/trailer, it that it would be easier for him to have a good grip of the metal frame of the trailer before starting to descend.

38. I consider it more likely than not that the accident could have been avoided had the plaintiff used the Ladder to descend from the Platform and exercised ordinary and reasonable care while doing so. On the other hand, it is by no means certain or clear that the plaintiff would have used the Ladder had the defendant (i) provided training or instruction to the plaintiff on the proper use of the edge of the cab extender as “handrail” when climbing up or down the Ladder, and/or (ii) warned him not to not to use the Tyre for the purpose of going up to or down from the Platform.

39. Looking at the matters in the round, I am just prepared to find in the plaintiff’s favour that the defendant’s breaches of the common law duty of care in these two aspects were contributing causes of the accident, but I have no doubt that the plaintiff’s contributory negligence was a major cause of the accident and I consider that he should be held guilty of 60% contributory negligence.

The plaintiff’s injuries, treatment received and resultant disabilities

40. As can be seen from the joint medical report of Dr Kong Kam Fu, James and Dr David H F Cheng dated 25 November 2013, after the accident, the plaintiff went to the North District Hospital complaining of pain, swelling and deformity of the left wrist.  He was admitted to the orthopaedic ward for treatment.  X‑ray of the wrist showed fractures at the distal radius and ulnar styloid.  Initially, a temporary splintage was given.  On 19 May 2011, surgery in the form of open reduction and internal fixation was carried out.  He recovered from the surgery uneventfully and was discharged on 20 May 2011.  He then attended follow‑up treatment and was given physiotherapy (sixty sessions between 30 May 2011 and 23 March 2012 and nine further sessions between July 2012 and October 2012) and occupational therapy (between 23 May 2011 and 23 December 2011).  The plaintiff was given sick leave from 5 May 2011 to 23 July 2012.

41. I pause to add that, although not mentioned in the joint medical report, the plaintiff was given further sick leave for the period from 23 July 2012 to 10 June 2013.

42. At the time of his medical examination by Dr Kong and Dr Cheng, it was observed that there was no deformity of the plaintiff’s left wrist.  The skin condition was normal.  There were two surgical scars of 2 cm and 1 cm in length respectively on the left wrist.  The range of movement of the left wrist showed a reduction of about 10⁰ on dorsiflexion, but was normal in other aspects.  There was some mild stiffness of the index finger at the metarcarpophalangeal joint, and the handgrip on the left side was slightly weaker on manual testing.  There was no muscle wasting, and sensation was normal.  Radiological examination showed that the fractures at the lower end of the radius and ulnar styloid region had healed in satisfactory position.  The implants had been removed.  The plaintiff complained of residual pain and stiffness in his left wrist, and that his left wrist was weaker than before.

43. Dr Kong and Dr Cheng considered that the plaintiff had reached a state of maximum improvement, and there was no need for any further treatment.  The doctors considered that the effect of the injury on the plaintiff should be mild to moderate.

44. Dr Cheng opined that the prognosis should be good.  With resumption of activities and regular exercise, the residual mild stiffness and weakness should improve.  Dr Cheng further expressed the view that the plaintiff should be able to resume his pre‑injury duty of a container truck driver, as the factures had healed and the range of movement and muscle power had been restored to a good functional level, and there should be little problem with control of a motor vehicle.

45. On the other hand, Dr Kong opined that the prognosis is fair, and that the plaintiff would likely have some residual stiffness and soft tissue residual pain in his left wrist.  Dr Kong further expressed the view that the plaintiff could not resume his previous occupation as a container truck driver because he needed strong grip in both hands.  He was advised to switch to other sedentary jobs, for instance as taxi driver, minivan driver, security guard, watchman or telephone receptionist.

46. Lastly, both doctors opined that the plaintiff’s social and other activities should not be significantly affected.

Pain, suffering and loss of amenities

47. My attention has been drawn to the following cases regarding the amount of damages awarded for pain, suffering and loss of amenities where the injuries were similar to those sustained by the plaintiff in the present case:

(1) Yu Yixin v Leung Chi Tin Andy, DCPI 1306/2007 (13 March 2008, H H Judge Marlene Ng), where an award of HK$170,000 was made for a plaintiff who fell from a ladder and suffered right wrist and forearm injury with fractures of the right distal radius and ulnar styloid;

(2) Mehmood Khalid v Million Harvest Wharves & Logistics Limited, HCPI 401/2006 (20 June 2007, Saunders J), where an award of $220,000 was made for a plaintiff who suffered a fracture of the wrist as a result of falling from a height of some 13 to 16 feet;

(3) Ho Bing Cheung v Lam Yin Tuk trading as Ocean Fast Food and Others, DCPI 66/2004 (3 December 2004, H H Judge C B Chan), where an award of HK$220,000 was made for a plaintiff who slipped and fell upon stepping on an oily or slippery substance underfoot and suffered fractures of the distal radius and ulna bone of the right wrist.

48. I consider the injuries and resultant disabilities suffered by the plaintiff to be similar to those in Yu Yixin v Leung Chi Tin Andy, although I shall also have some regard to the awards for pain, suffering and loss of amenities made in the other two cases.  In addition, I take into account the dates of those awards and the effect of inflation since those dates.  Overall, I consider that an award of HK$240,000 would be appropriate in the present case.

Pre‑trial loss of earnings

49. The plaintiff claims that he used to earn $13,345 per month while he was in the defendant’s employment.  This figure is taken from the declaration to the Labour Department in the Form 2, and was also the figure used to assess employees’ compensation. On the other hand, Chan Mei Yee’s evidence is that the figure of $13,345 was the plaintiff’s average monthly earnings for the period from April 2010 to March 2011, whereas his average monthly earnings for the 12 months period prior to the date of the accident should be HK$13,170.82.  Since assessment of damages is not a matter of exact science, I shall adopt the round figure of HK$13,260 for the purpose of assessing the plaintiff’s pre‑trial loss of earnings.

50. In relation to the period for assessment of pre‑trial loss of earnings, the first issue for determination is whether the plaintiff is able to resume his former occupation as a container truck driver.  As mentioned above, the plaintiff’s current complains include residual pain and stiffness of the left wrist and a weaker left wrist than before the accident.  The plaintiff claims that he is unable to return to his former employment as a container truck driver, and gives evidence to the effect that between June and September 2013, he attempted to drive a cement truck for a few days in or to construction sites but found that his left wrist was swollen, tender and weak. This evidence is not mentioned in his witness statement.  Moreover, it is not clear what his working hours were on those few days and whether his job duties were more, or less, strenuous than as a container truck driver.  In this regard, it should be noted that according to the plaintiff, while he was working as a container truck driver for the defendant, he effectively had substantial rest time every day because he would be spending substantial time every day just waiting for the truck to be loaded or to clear customs.  I am not prepared to attach weight to the plaintiff’s evidence regarding his previous attempt to drive the cement truck.  Lastly, as mentioned above and in the plaintiff’s favour, both Dr Kong and Dr Cheng consider that the effect of the left wrist injury on the plaintiff should be mild to moderate.

51. On the other hand, I also take into consideration the following matters:

(1) The plaintiff is right hand dominant.

(2) Both Dr Kong and Dr Cheng consider that the plaintiff has a good functional range of wrist movement on the left side, muscle power is acceptable and there is no muscle wasting.

(3) The physiotherapy report dated 24 December 2012 shows that his handgrips (with Jamar dynamometer in position III) were 22 kg (equivalent to about 48.4 lbs) on the left side and 32 kg (equivalent to about 70.4 lbs) on the right side.

(4) The Truck was equipped with power steering which enabled the steering wheel to be turned more easily.  According to Chan Kwok Hung, all the defendant’s container trucks are equipped with power steering.  It would appear that power steering is a standard feature of containers trucks in use in Hong Kong.  I bear in mind the plaintiff’s evidence that he sometimes had to open the container doors and they could become tight because of rustiness or wear and tear, and sometimes also had to connect or disconnect the Truck with or from the trailer.  However,  this evidence should be assessed having regard to the following matters:

(i) the plaintiff is right hand dominant;

(ii) the considerable strength that the plaintiff still has in his left hand; and

(iii) the substantial rest time that he would get when working as a container truck driver.

52. On the whole of the evidence before me, I do not accept that the plaintiff’s residual pain and weakness is such as to prevent him from returning to his pre‑accident job.  I accept the opinion of Dr Cheng that the plaintiff should be able to resume his pre‑injury duty as a container truck driver.

53. I assess the plaintiff’s pre‑trial loss of earnings up to 4 September 2013 (ie a total of 28 months), taking into account the fact that his sick leave expired on 10 June 2013 and allowing him a reasonable period of time to look for employment as a container truck driver.

54. Taking into account the employer’s MPF contribution, the pre‑trial loss of earnings would come to:

HK$13,260 x 28 x 1.05 = HK$389,844.

Loss of earning capacity

55. I accept that the plaintiff may suffer some disadvantage in the labour market and make an award of HK$100,000 under this head.

Special damages

56. Medical expenses, travelling expenses and tonic food of HK$10,000, HK$2,000 and HK$4,000 respectively are allowed.

Conclusion

57. In view of the employees’ compensation (in the amount of HK$586,424.40) already received by the plaintiff and my finding of contributory negligence, it would appear that the plaintiff will not make any net recovery in the present action.

58. I shall leave it to the parties to agree on the form of the judgment to be made, with liberty to apply in the event of disagreement.  I also order the plaintiff to pay the defendant’s costs of the action, to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with legal aid regulations.

59. Lastly, it remains for me to thank counsel for their helpful assistance to the court.