NG WAH CHUN v. CHENG WING CHUNG AND OTHERS

HCPI 164/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 164 OF 2001

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JUDGMENT

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Background

1. The Plaintiff was a skilled formwork worker. He sustained injuries on 14th May, 1998 whilst working in the Ngau Tam Mei Treatment Works construction site ["the Site"] in Yuen Long, New Territories. The 3rd Defendant was the principal contractor responsible for the Site. The 2nd Defendant was a contractor to the 3rd Defendant. The Plaintiff contends that he was employed by the 1st Defendant to work in the Site. The Defendants maintain that the 1st Defendant was the supervisor of the 2nd Defendant and he employed the Plaintiff on behalf of the 2nd Defendant.

2. The Plaintiff claims against all 3 Defendants for breach of a common law duty of care. He further claims against the 1st Defendant for breach of an implied term in the alleged contract of employment and against the 3rd Defendant for breach of Regulations 38A and 38B of the Construction Sites (Safety) Regulations in force at the date of the accident.

Whose employee

3. The 1st Defendant admits that he was a sub-contractor of the 2nd Defendant. The 2nd Defendant paid him $1,100 per day for each formworker that he engaged. He would decide the applicable unit rate for each formworker depending on the skill and experience of the formworker in question. He retained the difference between $1,100 and the rate that he determined. He was responsible for distribution of work to his formworkers. They took instructions from him and not from the 2nd Defendant.

4. On the basis of the evidence outlined in paragraph 3 above, I hold that the relevant contract of employment was between the Plaintiff and the 1st Defendant.

Liability

5. 2 blocks were being erected on the Site at the date of the accident. I shall refer to these 2 blocks respectively as Block A and Block B. The Plaintiff says that he commenced work at about 8 a.m. The 1st Defendant instructed him to work on the 2nd Floor of Block A. He completed his assignments at about 4.30 p.m. The 1st Defendant then took him and his co-worker Mr. Cheung Siu Ping ["Mr. Cheung"] to the 2nd Floor of Block B. The 1st Defendant drew their attention to the slanting wooden formwork for one of the columns. Mr. Cheung and the Plaintiff were instructed to push the wooden column formwork back to vertical shape. The Plaintiff says that in order to do that he had to nail the timber at the top end of the formwork to its edge to prevent further movement. The formwork structure was about 11 to 12 feet high. He suggested to the 1st Defendant that he should build a platform in order to perform the work. Such a platform could be erected within 1 to 1 1/2 hours. The 1st Defendant however said to him that should he spend time in building a platform, there would be "no need for you to work". At that juncture 2 planks were found placed between an iron trestle and the formwork in question. The planks were 4 inches wide and 2 inches thick. One end of those planks was fixed onto the vertical wooden battens of the tilted formwork. The other end of the planks rested on the trestle at about 2 to 2.5 metres away from the tiled formwork. The 1st Defendant allegedly told the Plaintiff to climb up the trestle and walk across the 2 planks in order to carry out his work. The 1st Defendant then left leaving Mr. Cheung and the Plaintiff to their tasks. Mr. Cheung used timber to press against the tilted formwork to straighten it up. After the formwork was straightened, the Plaintiff walked on the planks in order to reach the top of the rectified formwork. He fell when 1 of the 2 planks broke and sustained serious injuries. It was put to him in cross examination that there were trestles nearby. He explained that those trestles were joined together. It would take 10 to 15 minutes to dismantle the iron pipes in order to obtain an independent unit. Furthermore those trestles were being used by other workers. He tried to look for a ladder in the vicinity but did not see any.

6. The 1st Defendant says that throughout the day the Plaintiff was working in Block B although 80% of his workers were working in Block A that day. He did not see the Plaintiff an hour before the accident. It was rare for him to move his workers around in the course of the day especially at 4.30 p.m. when his workers were scheduled to go off work at 5 p.m. It was the formworkers' responsibility to ensure that the formworks erected are vertical and straight. He asserts that it is not necessary to nail the top part of the battens in order to straighten the formwork.

7. There is therefore a direct conflict in the testimony between the Plaintiff and the 1st Defendant. Mr. Sakhrani, Counsel for the Defendants, submitted that the Plaintiff's case is not credible. Mr. Sakhrani drew my attention to the fact that no averment can be found in the Statement of Claim dated 7th February, 2001 to suggest any direct instruction from the 1st Defendant. The Plaintiff also made no mention of such instruction in a statement which he furnished to the loss adjuster Messrs. Toplis & Harding on 18th January, 2000. I am not prepared to accept this submission of Mr. Sakhrani. The latter statement is not designed to ascertain culpability. The express direction from the 1st Defendant was raised in paragraph 9 of his 1st witness statement dated 15th January, 2001. It is not the Plaintiff's fault that his instructions did not find its way into the Statement of Claim.

8. Mr. Cheung, Counsel for the Plaintiff, countered by referring to the alleged inconsistency between the Defendants' case and their Defence dated 1st March, 2001. The Defendants pleaded in paragraph 5(a) and (b) of their Defence that the Plaintiff fell because he lost his balance and that none of the wooden planks had broken. The Defendants further pleaded in paragraph 8 of their Defence that the accident was caused or contributed to by the negligence of the Plaintiff in failing to wear a safety belt; in failing to use a ladder and in exposing himself to a risk of injury which he knew or ought to have known. I do not give much weight to this submission. Whilst it is true that the Defendants no longer challenge the Plaintiff's case as to how he fell, the Defendants' stance is consistent with some of the particulars in paragraph 8 of the Defence.

9. In resolving the conflict between the Plaintiff and the 1st Defendant, I have borne in mind their testimony as a whole. In relation to the Plaintiff, strong criticisms were levied against him on his attempts to embellish the gravity of his injuries. In the course of the hearing before me, the Plaintiff invited me to reject the evidence of his own expert Dr. Lee Po Chin ["Dr. Lee"] on the basis that Dr. Lee is biased. In the light of these factors, I have warned myself the danger in accepting the Plaintiff's testimony on this issue. In relation to the 1st Defendant, he told me that he took no step between the date of the accident and the date of the hearing to ascertain the cause of the accident. This cavalier attitude does not engender confidence. Given his acceptance of the Plaintiff's experience and the fact that he fell from height, I find him less than candid in saying that it is not necessary to nail the top of the formwork in order to straighten the same.

10. I am prepared to accept, on a balance of probabilities, the Plaintiff's evidence that he was instructed by the 1st Defendant to walk across the planks in order to gain access to the top of the formwork. I am impressed by the details which the Plaintiff gave me in relation to his work in Block A. Given the role of the 1st Defendant as the leader of his team, I find it hard to believe that he did not seek to maximise the efforts of his team members. The work in question was not complicated. The timing of the incident adds colour to the vivid response from the 1st Defendant when the Plaintiff raised the possibility of erecting a platform. I find it likely that this is another instance when time and quick turnover of work have a premium over safety.

11. The duty of the 1st Defendant as an employer is to provide a safe system of work, effective supervision and a safe place of work [See Cheung J. (as he then was) in Lai Chi Pon v. Toto Steel & Iron Works Ltd. HCPI No. 1149/1995 and Wilsons and Clyde Coal Co. v. English [1938] A.C. 57]. This duty includes the provision of safe equipment [See Wong Woon Hei v. Dickson Construction Co. Ltd. HCPI No. 521/2000]. The 1st Defendant acted in breach of his contractual and common law duties. The Plaintiff was required to work from height. He was provided merely with 2 planks in order to gain access. It is no answer to say that there were ladders and trestles in the Site. The only equipment that the Plaintiff was provided were the 2 planks and he was instructed to use them. The Plaintiff is about 5'7 to 5'8 in height. At the date of the accident he was about 170 lbs. in weight. The 2 planks were obviously unsafe for him to carry out his work.

12. As far as the position of the 2nd and 3rd Defendants are concerned, there is no serious dispute from them that they too owed the Plaintiff a common law duty of care [See paragraph 2 of the Statement of Claim and paragraph 3 of the Defence]. Mr. Cheung referred me to Wong Woon Hei v. Dickson Construction Co. Ltd. (above cited) where Deputy High Court Judge Muttrie expressly recognised such duty on the part of a principal contractor. Mr. Sakhrani made no submission to the contrary. I find the 2nd and 3rd Defendants to be in breach of their common law duties. They failed to provide the Plaintiff with a safe system of work.

13. As far as the 3rd Defendant is concerned, I further find them to be in breach of Regulations 38A and 38B of the Construction Sites (Safety) Regulations ["the Regulations"]. They are the contractor responsible for the Site. Under Regulation 38A, they are under a duty to ensure that suitable and adequate safe access to every place of work on the site is provided. "Place of work" is defined by Regulation 2 to mean "any place which is used by any person for the purposes of ...any work activities ...in connection with, construction work". The 3rd Defendant is in breach of Regulation 38A in that they failed to provide suitable and adequate safe access to the area near the formwork for the Plaintiff to carry out his work activities. The 3rd Defendant is also in breach of Regulation 38B. According to the sketch produced by the Plaintiff, the 2 planks were well in excess of 2 metres above ground. The 3rd Defendant did not take adequate step to prevent the Plaintiff from falling from that height.

Contributory negligence

14. In face of Mr. Sakhrani's patient and skillful cross-examination, the Plaintiff admitted that he had 20 years' experience as a formworker and had sufficient knowledge of safety when working at height. He further admitted that he must have appreciated that the 2 planks were not intended for use by walking on it. On the basis of these admissions, Mr. Sakhrani submitted that the Plaintiff's contributory negligence should be assessed at 75% to 100%.

15. In approaching this issue of contributory negligence, I derive assistance from the following authorities :

(a)	In Davies v. Swan Motor Co. [1949] 2 K.B. 291 Lord Denning pointed out that one must consider not only "the causative potency of a particular factor but also its blame worthiness".
(b)	In Machray v. Stewarts [1964] 3 All E.R. 716, McNair J. observed that: "...when I find a workman...adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer's business, and I find that he has been prevented from doing the work in the way in which he would have preferred to do by the employer's breach in not providing him with the proper tackle, I am very slow to put any blame on him..."
(c)	In Wong Woon Hei v. Dickson Construction Co., Ltd. (above cited), Deputy High Court Judge Muttrie pointed out that "One must be slow to put any blame on a man who is forced, by reason of no better equipment and system being supplied to him, to work on an unsafe ladder and plank arrangement like [that before him]".
(d)	In Denwood v. Harrod [Unreported judgement of the Court of Appeal dated 22nd October, 1997], Stephen Brown L.J. stated : "When the accident is held to be caused primarily by a breach of statutory duty it has to be borne in mind that the protection afforded by the statutory requirement is one which is intended to cover inadvertence and even negligence and that it is important not to judge the actions of an honest workman too harshly"

16. Given my finding that the Plaintiff was merely provided with 2 planks as his means of access to the defective formwork, I find it difficult to attribute any fault on the part of the Plaintiff. I accept his evidence that he would be placing his job at risk should he defy the instructions of the 1st Defendant. The accident arose as a result of the defaults of the Defendants. Giving every allowance to the experience of the Plaintiff, he was left with no realistic alternative. I therefore hold that the Defendants are wholly to blame for the accident.

Damages for pain and suffering and loss of amenities

17. The Plaintiff was born on 5th March, 1958 and aged 40 at the date of the accident. Immediately after the accident on 14th May, 1998, he was admitted into the Orthopeadics and Traumatology Department of the Tuen Mun Hospital. X-ray in that hospital showed fracture of right os calcis and suspected compression fracture of the fourth lumbar vertebra. CT scan showed there was comminuted fracture of the right calcaneum but no fracture was detected in the spine. The treatment option of open reduction, internal fixation and bone grafting was offered to the Plaintiff but he preferred conservative treatment. He was discharged from the Tuen Mun Hospital on 23rd May, 1998.

18. The Plaintiff was last seen by the Medical Officer of the Tuen Mun Hospital on 25th June, 1999. The Plaintiff was then complaining of residual back and right heel pain. He needed to walk with an elbow crutch and had a limping gait. The range of motion of his right ankle was full.

19. The Plaintiff commenced receiving treatments from the Prince of Wales Hospital on 28th June, 1999. Physical examination in that hospital revealed pain over right heel with limited range of movement and back pain. X-ray revealed that his fracture was healed and there was no evidence of spinal fracture. He started receiving physiotherapy treatments in that hospital on 30th November, 1999. In view of his persistent pain and his limited walking ability, it was suggested to him on 20th December, 1999 that he should undertake an operation for fusion of his subtalar joint. The Plaintiff declined. The Plaintiff was last seen by the medical officer of the Prince of Wales Hospital on 7th August, 2000. The Plaintiff was still complaining about persistent pain and tenderness over his right heel and difficulties in walking. There was however 60% decrease in pain although the Plaintiff still used crutches for walking. X-ray taken showed collapse os calcis and subtalar arthritis.

20. The Plaintiff was examined by Dr. Lee on 20th November, 2000. In his report dated 8th December, 2000, Dr. Lee pointed out that X-rays on the day of examination showed degenerative changes in the lumbar spine. The alignment was normal but there was slight wedging of the L4 vertebral body. X-rays of the right calcaneum showed deformity in the lateral cortex of the calcaneum with bulging. Axial compression on the Plaintiff's vertex and passive pelvis rotation produced back pain. Dr. Lee was of the view that the objective findings supported the Plaintiff's claim of residual pain and stiffness in the heel. Dr. Lee reckoned that the Plaintiff should be able to walk without walking aid and the residual pain in the spine should be mild. Dr. Lee opined that the Plaintiff will encounter difficulty returning to his pre-injury job as a formworker but should be able to take on jobs of lighter nature (such as warehouse or casual worker) in a construction site or other jobs such as shopkeeper, packaging worker or cashier. Dr. Lee was of the view that "Since his condition is now stable, he can return to work anytime". Dr. Lee estimated that the injuries resulted in 11% impairment of the whole person (5% impairment due to residual back pain and 6% impairment due to fracture of the subtalar joint) and in 15% loss of earning capacity.

21. According to paragraph 2 of the Plaintiff's statement dated 27th March, 2002, it was only in or around March, 2001 that he was able to train himself to walk for 20 to 30 minutes without the aid of a crutch. Due to the severe pain over his lower back and right foot tendons as well as fatigue, he had to walk with the aid of a crutch.

22. The Plaintiff was examined by the Defendants' expert Dr. Wong Kwok Shing ["Dr. Wong"] on 29th May, 2001. According to Dr. Wong's report dated 4th June, 2001, the Plaintiff was still complaining about right heel pain and low back pain. The Plaintiff asserted that he had to use a crutch for walking. Axial compression test conducted by Dr. Wong produced back pain. Dr. Wong observed that despite the Plaintiff's subjective complaint of persistent pain, there was no objective physical finding nor radiological abnormality to support such complaints. As far as the Plaintiff's right heel is concerned, Dr. Wong pointed out that its difficult to assess the severity of such residual pain but "some right heel pain is likely to be permanent". Dr. Wong further expressed reservation on whether the Plaintiff needs a crutch for walking all the time. Dr. Wong disagreed with Dr. Lee's assessment of 11% total impairment of the whole person. He would not make any allowance for the Plaintiff's alleged back injury and would estimate total impairment at 6% of the whole person. In his 4th June, 2001 report, Dr. Wong shared Dr. Lee's view that the Plaintiff will not be able to resume his pre-injury job as a formworker but will be suitable for more sedentary type of job.

23. The Defendants engaged private investigators to conduct surveillance over the activities of the Plaintiff. On 29th May, 2001, the Plaintiff was seen walking from Argyle Centre to Mongkok railway station. He boarded a train and was later seen walking to a nearby public light bus station. He was then using an elbow-crutch with his left hand. On 5th June, 2001, the Plaintiff was observed using a walking stick instead of the elbow crutch. He left Hong Kong for Shenzhen where his family then resided. The parties agreed that the Plaintiff walked round Shenzhen between 1.35 p.m. to 3.15 p.m. without using a stick. Video recordings of the surveillance were shown to Dr. Wong. In his supplemental report dated 11th March, 2002, Dr. Wong pointed out that these recordings confirmed his suspicion that the Plaintiff "is actually not having much pain or difficulty walking on his right foot". He opined that the Plaintiff should have no problem going back to his former employment. He further revised his estimate of the Plaintiff's loss of earning capacity to 4%.

24. Both Dr. Lee and Dr. Wong gave evidence before me. Dr. Lee says that the Plaintiff's major problem relates to his subtalar joint. A decrease in the weight bearing area is likely and the joint can go into early degeneration. Dr. Lee further says that despite the Plaintiff's movement as depicted in the video recordings, he would give the same advice to the Plaintiff as set out in his earlier report. He accepts however that the Plaintiff failed both the axial compression and the pelvis rotation tests which were designed to see whether the Plaintiff had overstated his symptoms. Dr. Lee further accepts that the Plaintiff's complaints about loss of sensation of the pelvis and disruption of sleep as a result of back pain are unreliable. Dr. Lee could offer no explanation as to why the Plaintiff was seen walking with a crutch on 29th May, 2001 but only with a walking stick on 5th June, 2001. He reckons (but not with 100% certainty) that the Plaintiff should be able to lift a wooden plank of 50 lbs. and carry that plank for 2 paces. He tends to disagree with Dr. Wong's assessment that the Plaintiff could resume his previous employment but he concedes that Dr. Wong may well be right.

25. Dr. Wong points out that if a patient is not co-operative, he can give misleading results in relation to any injury to his spine. As far as the Plaintiff's foot injuries are concerned, Dr. Wong refers to his findings that the muscle bulk of both feet is more or less equal. He concludes that this throws doubt on the extent of pain on the right foot as claimed by the Plaintiff. Dr. Wong places reliance on the tape recordings submitted by the Defendants. He argues that if the Plaintiff needs a stick for support, he would be staggering left and right but the tape depicts the Plaintiff crossing the border like a normal person. Dr. Wong believes that the Plaintiff can return to work at the construction site but with reduction in efficiency; that the Plaintiff should be able to carry weight up to 50 lbs. and the risk of the Plaintiff sustaining injuries is 5% to 10% higher than a normal person.

26. The Plaintiff called 2 other witnesses to support his case. Mr. Wong Wai Sing ["Mr. Wong"] is a construction contractor. He first met the Plaintiff a long time ago when he went to his sister-in-law's home for dinner. However, he did not know the Plaintiff well. In about February this year, his sister in law asked him whether he had any job for the Plaintiff. He was then looking for a casual worker to assist him in building recreation facilities in a public swimming pool in Shing Mun Valley. The Plaintiff was engaged at the rate of $200 per day. Mr. Wong did not notice the Plaintiff having difficulty in walking. However he felt the Plaintiff was different from other workers when squatting down. The Plaintiff did not appear to him to have much strength. The Plaintiff could use a spanner to turn screws but the screws turned by the Plaintiff were often not tight enough. The Plaintiff worked on 22nd, 23rd and 25th February, 2002. He told the Plaintiff that he could not continue his employment as his performance had not been satisfactory.

27. The other witness called by the Plaintiff is Mr. Chu Muk Yuen ["Mr. Chu"]. He is the Plaintiff's cousin. On 18th March, 2002, the Plaintiff was asked to assist him in building a concrete barrier at a car parking space in Sam Pui Chau, Sai Kung. The Plaintiff tried to lift wooden planks measuring 6 mm thick, 3' wide and 6' long weighing 20 to 30 catties. The Plaintiff did not have enough strength to lift those planks for 2 - 3 paces. As a result, Mr. Chu had to engage other workers to complete the job.

28. 2 issues are relevant in assessing the appropriate award for pain and suffering and loss of amenities. First, I have to decide whether the Plaintiff failed to mitigate his loss by his refusal to accept the treatments offered to him on admission to the Tuen Mun Hospital on 14th May, 1998 and on 20th December, 1999. The law is succinctly summarised in paragraph 325 of McGregor on Damages 16th edition. Whilst a plaintiff need not risk his person too far in the hands of surgeons, a refusal to allow an operation will be a failure to mitigate on the part of the plaintiff if the operation would not be regarded by reasonable men as a risky one. As far as the offer in May, 1998 is concerned, I am of the view that the Plaintiff's decision should be viewed in light of the fact that he only attended school for 2 years. He just had a serious accident. I could understand his then desire to be cautious. However I am of the view that the advice given to the Plaintiff on 20th December, 1999 stands on a different footing. The Plaintiff says that the doctor did not advise him that the chance of success was quite high or that the risk was small. However he accepts that the doctor did say that although the recommended surgery might not be 100% good, having one is better than none. I am of the view that the Plaintiff was looking then for an absolute guarantee which no reasonable surgeon could give. Dr. Lee says that the chance of a successful reconstruction is quite high. He puts it at 80%. The fusion would reduce future risk of degeneration and the pain and discomfort associated with such degeneration. However the patient would still have difficulties walking on uneven surfaces. Dr. Wong says that the operation is designed to prevent movement between the bones so as to reduce scratching and arthritis. It is the type of operation normally recommended to patients who experience a lot of pain after fractures. On the basis of the medical evidence before me, I am of the view that the Plaintiff acted unreasonably in refusing the operation offered to him on 20th December, 1999.

29. The second issue relates to the Defendants' submission that the Plaintiff exaggerated his complaints and is malingering. I am of the view that there is force in this submission pertaining to the Plaintiff's alleged foot injuries. The Plaintiff's case that he had to train himself in March 2001 to walk for 20 - 30 minutes without the aid of a crutch is inconsistent with the video recordings of his movements in May and June 2001. Given the failure of Dr. Lee to offer any cogent reason for the Plaintiff's use of a crutch in May and a stick in June, I prefer the evidence of Dr. Wong in relation to the Plaintiff's foot injuries. As far as his back injuries are concerned, X-ray on the Plaintiff's admission to the Tuen Mun Hospital showed suspected compression fracture of the fourth lumbar vertebra. Whilst there is no subsequent objective findings to support such fracture, there is consistency in the Plaintiff's complaints to the medical officers of the Tuen Mun Hospital and the Prince of Wales Hospital. The evidence of Mr. Wong and Mr. Chu lends support to the existence of such injuries. Mr. Sakhrani invited me to reject their evidence on the ground that they are closely related to the Plaintiff. I have also reminded myself the possibility of the Plaintiff building up a case shortly before trial. However, Mr. Chu and Mr. Wong appear to me to be honest and truthful witnesses. I accept their testimony. I prefer Dr. Lee's evidence that the Plaintiff does have mild back pain and reject Dr. Wong's stance in refusing to take cognisance of such injury.

30. For these reasons, I conclude that :

(a)	the Plaintiff sustained injuries to his right foot but he failed to take reasonable step in December, 1999 to mitigate the damage to his foot.
(b)	the Plaintiff did sustain injuries to his spine but such injuries are mild.
(c)	the Plaintiff exaggerated the impact of his foot and back injuries.

31. The Plaintiff claims $380,000 under this head and Mr. Cheung relies on the following authorities in support of the Plaintiff's position :

(a) Tse Hing Wan v. Choy Yuen Keung, PI No. 889/1998;

(b) Lau Kin Wah v. Lam Shu Kan, PI No. 1028/1998 and

(c) Siu Wai Man Ada v. Lee Chi Chong, PI No. 174/1994.

32. The Defendants contends that the proper award should be the sum of $200,000. Mr. Sakhrani relies on :

(a) Lam Kwai Yip v. Yuen Yun Kui (1997) HKLRD C46;

(b) Lau Kin Wah (above cited) and

(c) Chan Ming v. Wayfine Investment Ltd. [2001] 2 HKLRD E12

33. I have considered each of the aforesaid authorities cited by Counsel. In the absence of any failure to mitigate, I would have awarded the Plaintiff $200,000 under this head. I reduce such award to the sum of $150,000 on account of his failure to mitigate as outlined above.

Pre-trial loss of earnings

34. The Plaintiff says that he started working for the 1st Defendant in April, 1998 at a daily rate of $1,100 per month. He further says that prior to the accident, he worked at least 25 to 26 days per month. Shortly before the accident, he took days off in order to chase after overdue wages from his former employer. The Defendants maintain that the Plaintiff was only paid $900 per day by the 1st Defendant. He worked for 5 days between 21st April, 1998 and 5th May, 1998. He worked for 6 days between 6th and 14th May, 1998. Mr. Cheung (the Plaintiff's colleague) worked on average 21 days per month. The 1st Defendant produced documentary records to support his contentions. I accept the Defendants' case. I find the Plaintiff wage immediately before the accident at $900 per day. I further find that he worked on average 21 days per month. His monthly income at the date of the accident was therefore $18,900 [$900 x 21].

35. The Defendants contend that the Plaintiff failed to mitigate his loss and that he should have returned to work by mid August, 1999. I reject this submission given the Plaintiff's complaints when he visited the Prince of Wales Hospital on 7th August, 2000. However, Dr. Lee said in his 8th December, 2000 report that the Plaintiff "can return to work anytime". I am of the view that the Plaintiff should have taken steps to mitigate his loss by mid December, 2000. Given the evidence of Mr. Wong and Mr. Chu, I am not persuaded on a balance of probabilities that the Plaintiff could resume work as a formworker. There is however no reason to believe that he could not assume the role of a general labourer in a construction site. The Plaintiff estimated the earnings of such general labourer at $12,500 per month. The Defendants made no submission to the contrary. I accept that figure.

36. The 1st Defendant told me that by virtue of the decline of the construction industry in the current economic climate, an experienced formworker is paid $850 per day. The pressure on that industry is fully supported by the evidence of Mr. Wong.

37. In relation to the Plaintiff's pre-trial loss of earnings, my assessments are as follows :

(a)	In respect of the 33 months period between 14th May, 1998 (date of the accident) and February, 2001 (giving the Plaintiff 2 months after the date of Dr. Lee's 8th December, 2000 report to find alternative employment) : The Plaintiff's loss was $623,700 [$18,900 per month x 33 months].
(b)	In respect of the 17 months period between March, 2001 and July, 2002 (date of trial): (i) Given the general decline in the construction industry, I am of the view that the average earning of the Plaintiff for this period would be $875 per day and he would be working 18 days per month. His monthly earnings would therefore be $15,750. (ii) Had he taken proper steps to mitigate his loss, his earnings as a general labourer would have been $12,500 per month. (iii) His net loss per month would therefore be $3,250 [$15,750 - $12,500]. (iv) He earned $600 for the 3 days which he spent with Mr. Wong. (v) His loss for this period therefore amounts to $54,650 [$3,250 x 17 - $600].
(c)	His total pre-trial loss of earnings therefore amounts to $678,350.

FUTURE LOSS OF EARNINGS

38. Given my findings in paragraphs 35 to 37 above, I am of the view that the Plaintiff is entitled to an award for future loss of earnings.

39. The parties are ad idem that I should adopt 10 as the appropriate multiplier. I adopt $3,250 per month as the applicable multiplicand. This would yield an award of $390,000 [$3,250 x 12 x 10] under this head.

Loss of MPF

40. MPF was introduced as from 1st December, 2000. According to Ng Chi Chung v. Lau Kam Ping [2000] 2 HKC 759, the Plaintiff loss under this head should be computed at 5% of his loss of earnings.

41. Between December, 2000 and February, 2001, the Plaintiff's loss is $13,230 [$18,900 per month x 14 x 5%].

42. In respect of the 17 months period between March, 2001 and July, 2002 (date of trial), the Plaintiff's loss under this head is $2,732.5 [$54,650 x 5%].

43. In respect of his future loss of earnings, the Plaintiff's loss under this head is $19,500 [$390,000 x 5%].

44. The Plaintiff's total loss under this head is $35,462.5 [$13,230 + $2,732.5 + $19,500].

Loss of earning capacity

45. I have reminded myself the following applicable principles in relation to an award under this head :

(a)	The award is intended to cover the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.
(b)	Moeliker v. Reyrolle & Co. Ltd. [1977] 1 WLR 132 indicates that consideration of this head of damages should be made in 2 stages : (i) Is there a "substantial" or "real" risk that the plaintiff will lose his job at some time before the estimated end of his working life? (ii) If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the Plaintiff will suffer if that risk materialises, having regard to the degree of the risk; the time when it may materialise and the factors which in a particular case will, or may, affect the plaintiff's chance of getting a job at all, or an equally well paid job.

46. Given the level of the Plaintiff's education, I am of the view that there is a "substantial" or "real" risk that the plaintiff will lose his job as a general labourer at some time before the estimated end of his working life. Taking into account the age of the Plaintiff and his lack of training in other vocation, I reject the Defendants' submission that the award under this head should be $50,000. I find the Plaintiff's estimate on the basis of 6 months' loss of the wage of a general labourer at the rate of $12,500 reasonable. I award $75,000 under this head.

Special damages

47. There is agreement between the parties in relation to the Plaintiff's medical expenses; travelling expenses and expenses incurred in respect of tonic food.

Summary of award

48. Claim

Interest

49. Interests will be awarded at 2% on general damages for pain and suffering and loss of amenities from the date of the writ until judgment. Interest at half judgment rate will be awarded for pre-trial loss of earnings and special damages from the date of the accident to the date of this Judgment.

Costs

50. I make a costs order nisi that the costs of this action be to the Plaintiff to be taxed if not agreed. I do not know whether the Plaintiff is legally aided. If so, I make a further order nisi that the Plaintiff's own costs be taxed in accordance with Legal Aid Regulations.