LEE WAI KIN v. SAN XING (CHINA) TRADING LTD AND ANOTHER

HCPI 1323/2015

[2019] HKCFI 361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1323 OF 2015

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J U D G M E N T

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1.  This is an assessment of damages in an action for damages for personal injuries suffered by the Plaintiff on 9 March 2013 in an accident at work (the “Accident”).

2.  The 1^st Defendant, the Plaintiff’s employer, did not give notice of intention to defend, and interlocutory judgment for damages to be assessed was entered against the 1^st Defendant on 15 February 2016.  The 1^st Defendant has since been ordered by the Court on 31 May 2017 to be wound up pursuant to the Plaintiff’s Petition presented on 16 March 2017. 

3.  Upon the application of the Employees Compensation Assistance Fund Board (the “Board”), by an Order dated 3 June 2016 the Court granted leave for the Board to intervene, limited to the issue of assessment of damages.  The Board was joined as the 2^nd Defendant.  

4.  The Plaintiff has been awarded the sum of HK$637,643.00 as employees’ compensation in DCEC 421/2014.  See the Judgment of Master Simon Ho dated 26 September 2016, paragraph 22.  The Plaintiff has also received advanced payment in the sum of HK$18,900. 

A.   Background

5.  The Plaintiff was born on 21 July 1969, and was 43 years old at the time of the Accident.  He is now 49 years old.  

6.  The Plaintiff received education up to Form 1 level.  After ceasing his studies, the Plaintiff was engaged in a variety of work, including with respect to the maintenance of air-conditioners, the installation of air-conditioning ducts, demolition work and bicycle maintenance work, as well as serving as a waiter and catering captain in a Chinese restaurant.  From about 28 October 2011, the Plaintiff was employed by the 1^st Defendant as a production worker, and he was employed as such when the Accident occurred.  His work responsibilities included daily sorting, maintenance, operating and cleaning production machines, and crushing waste materials.  

7.  On 9 March 2013, when the Plaintiff was working at the 1^st Defendant’s recycling workshop at 30 Tai Tong Shan Road, Yuen Long, New Territories, he met with the Accident and was injured.  When the Plaintiff was using a broom to clear metallic debris from the magnetic roller of a conveyor belt machine, the broom head and the Plaintiff’s left hand were pulled and caught between the roller and the belt, resulting in injury to his left hand and elbow (including a 12.5cm deep laceration over the left axilla (armpit) and a 2.5cm V-shaped laceration over the left index finger pulp), fracture of his left clavicle, and ligamentous injury.  

8.  The Plaintiff attended the A&E of Tuen Mun Hospital on the day of the Accident for immediate treatment, and emergency exploration and repair were performed.  Open reduction and internal fixation of clavicle with repair of ligaments, muscles and skin was done uneventfully.  Post-operatively he was put on shoulder immobilizer and splintage with physiotherapy.  MRI of the Plaintiff’s left brachial plexus showed suspicious avulsion injury (forcibly detached) of C5, C6, C7 and C8 root without pseudomeningocele formation.  Serial electrophysiological studies and clinical examination showed progressive recovery of nerves except left musculocutaneous nerve.  He was hospitalised from 9 to 21 March 2013.  

9.  The Plaintiff was later re-admitted to hospital on 5 September 2013 for Oberlin neurotisation (ie ulnar nerve fascicle transfer to musculocutaneous biceps branch, as a result of which the function of the Plaintiff’s bicep and elbow flexion was partly recovered) and manipulation of left shoulder.  

10.  On 20 January 2014, there was further recovery in the left median and radial nerve with recruitment in the left hand intrinsic muscles.  There was also early innervation of left biceps and brachialis.  On 28 January 2014 there was grade 2 power of left biceps contraction associated with active flexor carpi ulnaris (muscle of the forearm that acts to flex and adduct the hand) contraction. 

B.    The Plaintiff’s Summons dated 28 September 2018

11.  By a Summons dated 28 September 2018, the Plaintiff applied for leave to file a Re-Revised Statement of Damages dated 24 September 2018 (the “Re-Revised Statement of Damages”) and the 3^rd Supplemental Witness Statement of the Plaintiff dated 24 September 2018 (the “Plaintiff’s 3^rd Supplemental Witness Statement”).

Re-Revised Statement of Damages

12.  Mr Roger Phang, appearing for the Board, had no objection to the Plaintiff filing the Re-Revised Statement of Damages, and accordingly I granted leave for the same as well as gave leave for the Board to file and serve an Answer in response.  

Plaintiff’s 3rd Supplemental Witness Statement

13.  As for the Plaintiff’s 3^rd Supplemental Witness Statement, Mr Phang had the following objections:  

13.1  Mr Phang objected to the admissibility of the Plaintiff giving opinion evidence as to why he faced difficulty in gaining employment (to be distinguished from evidence of a particular employer having given him a specific reason, which Mr Phang fairly accepted would be a factual matter).  See the last sentence of paragraph 2 of the Plaintiff’s 3^rd Supplemental Witness Statement, and the last two sentences of paragraph 3. 

13.2  Mr Phang submitted that since the Plaintiff’s girth measurements as set out in paragraph 6 of his 3^rd Supplemental Witness Statement were not carried out or agreed upon by medical experts, such measurements should not be admitted.  Mr Phang pointed out that the orthopaedic experts had already measured the Plaintiff’s girth, and that the Plaintiff’s measurements of his left forearm were in fact even greater than the measurements recorded by the medical experts, which would seem to run contrary to the Plaintiff’s case about the effect of his injuries.  See p14 of the Joint Medical Report dated 14 October 2016 (the “Joint Medical Report”). 

14.  Mr Patrick Lim, appearing for the Plaintiff, submitted that the Plaintiff’s evidence about his difficulties in gaining employment should be dealt with as a matter of weight, not admissibility.  I have reservations about the admissibility of such evidence from the Plaintiff since opinion evidence is generally not admissible, but as Mr Lim confirmed that I need not attach any weight to the Plaintiff’s own view as to why he did or did not get a job, I was prepared to allow the parts of the Plaintiff’s 3^rd Supplemental Witness Statement on this topic.  

15.  Upon hearing Mr Phang’s objections to paragraph 6 of the Plaintiff’s 3^rd Supplemental Witness Statement (about the Plaintiff’s girth measurements), Mr Lim did not insist upon paragraph 6 being admitted, but instead proposed that the medical experts measure the Plaintiff’s girth the following morning so that the Court could have the latest measurements.  Mr Phang objected to such proposal as this would mean that parties do not have advance notice of the evidence to be adduced, and it was also unsatisfactory for there to be cherry-picking of which part(s) of the medical examination should be reopened.  

16.  I directed that if Mr Lim wished to apply for a medical examination of the Plaintiff to be conducted the following morning, he could make the application and I would deal with his application.  Ultimately, no such application was made.  

17.  In the premises, I granted leave for the Plaintiff’s 3^rd Supplemental Witness Statement save and except paragraph 6.  

C.   Nature and extent of the Plaintiff’s injuries

18.  An important matter for the Court’s determination is the nature of the Plaintiff’s injuries as well as the extent of the Plaintiff’s residual disability and impairment as a result of the Accident.

C1.  The Plaintiff’s injuries

19.  I turn to the expert evidence.  The Plaintiff’s medical expert was Dr Chan Wai Fu (“Dr Chan”), and the Board’s medical expert was Dr Wong See Hoi (“Dr Wong”).  

20.  Prior to the commencement of trial, the parties had prepared an agreed list of issues on which the medical experts would be cross-examined. 

21.  The first group of questions centred around the reliability of dynamometer grip strength tests in assessing the strength and function of an injured or normal hand, and whether the Plaintiff’s grip tests results showed submaximal efforts or inorganic elements.  In the Supplementary Joint Medical Report dated 24 May 2017 (the “Supplementary Joint Medical Report”), the two experts had discussed the Plaintiff’s grip test results during the joint medical examination, and also compared them to the results from the Plaintiff’s earlier grip test carried out at Tuen Mun Hospital.  They discussed whether the tests results were evidence of rapid deterioration of the Plaintiff’s general health condition (which was the view of Dr Chan),[1] or whether the results showed submaximal efforts or inorganic elements (as was the view of Dr Wong).[2]

22.  However, in my view the importance of the experts’ discussion about the Plaintiff’s dynamometer grip strength test results greatly diminished because in Dr Chan’s oral evidence in Court, he explained that the dynamometer grip strength test was initially for medical use only, and that extending use of it into the medicolegal field is not established.  Indeed, his evidence was that many papers have suggested that such use in the medicolegal field is not reliable.  It also appears that there are different methods of carrying out the grip test, and that it may not be easy to compare results where different methods are used.  In light of such evidence, I do not find it helpful to try to compare the Plaintiff’s various grip strength test results.  

23.  The other area in which the parties agreed that the two medical experts should be cross-examined on concerned their overall assessment of the loss of function of the Plaintiff’s injured left hand.  

24.  Dr Chan’s diagnosis is that the Plaintiff suffers from acute whole brachial plexus[3] injury neurotmesis type.[4]  With respect to the musculocutaneous nerve, in Dr Chan’s words the damage was such that the musculocutaneous nerve was “gone”.  On the other hand, Dr Chan stressed several times that the Plaintiff’s median nerve or radial nerve may not be injured[5]; rather, in his view the damage was further up the brachial plexus, namely in the lateral cord, posterior cord and medial cord area.  Dr Chan explained that when assessing injuries to the brachial plexus, the peripheral nerves (that is, the median nerve, radial nerve, ulnar nerve or musculocutaneous nerve) which go up to the cords area are tested to indirectly assess the brachial plexus injury and recovery therefrom, and that “because of convenience”, doctors would usually refer to improvement of the results with respect to the nerves even though the nerves were not in fact injured.  

25.  By contrast, Dr Wong’s view[6] is that branches of nerve from the Plaintiff’s brachial plexus were injured, rather than that the whole brachial plexus was injured.[7] According to Dr Wong, the nerve injury involved chiefly the whole musculocutaneous nerve, and part of the radial nerve and median nerve.  Further, Dr Wong was of the view that the injury was not of neurotmesis type.  

26.  In light of the different diagnoses of the two experts, I need to determine:  

26.1   Whether the whole of the Plaintiff’s brachial plexus was injured or only certain branches were injured, and where the injury was; and

26.2  Whether there was neurotmesis, ie whether any nerve was cut.

27.  As can be seen from the above summaries of the experts’ diagnoses, the two experts both agree that there was damage to the Plaintiff’s musculocutaneous nerve.  However, they do not agree on whether there was there was injury to the Plaintiff’s median and radial nerve.  

28.  I am unable to accept Dr Chan’s view that the Plaintiff’s median nerve or radial nerve may not have been injured.  As Mr Phang pointed out to Dr Chan in cross-examination, there is reference in the medical notes to recovery in the Plaintiff’s left median nerve and radial nerve,[8] and I find it very difficult to accept Dr Chan’s suggestion that: (1) the notes do not mean what they say on the face of the notes (namely that there had been injury to median and radial nerve, from which there was recovery); and (2) the notes refer to recovery in those nerves only out of convenience when it was in fact the whole of the brachial plexus that was injured.  

29.  As mentioned above, Dr Chan opined that the site of the Plaintiff’s injury was more in the clavicle area around the cord level, being the lateral cord, the posterior cord and the medial cord, and his view was that these cords were the damaged area, as well as the musculocutaneous nerve.  When asked for his basis for saying that all three of those cords were injured, Dr Chan stated “based on anatomy” and that “this is a logical deduction”, with his deduction being from the first nerve conduction test by Dr Alex Chow (“Dr Chow”)[9] and also the operative records.[10]  

30.  Dr Chan appeared to accept that neither Dr Chow’s report nor the operative records actually stated that all three cords were injured; rather, this was his deduction.  On my part, I would expect that if all three cords were injured, the medical reports would be likely to say so.  When I asked Dr Chan several times whether it is normal for medical reports and notes not to say so if all three cords are injured, but to leave it to the reader to deduce, Dr Chan responded that Dr Chow had said that there was brachial plexus injury, and that this must mean that the three cords were injured.  However, I am not satisfied that there is sufficient evidence to show on a balance of probabilities that Dr Chan’s reading of the medical reports and notes is correct, or that his views represent a correct deduction.

31.  Further, while Dr Chow referred in his report to there being a “left brachial plexus lesion”, that does not seem to me to take matters much further.  There is no dispute that at least part of the Plaintiff’s brachial plexus was injured (in particular, some nerves), and the question is whether there was whole brachial plexus injury or a less pervasive injury to the branches.  Dr Chow’s report does not clearly indicate either way.  

32.  I also have difficulty in seeing how the various operative records show that there was injury to the whole of the brachial plexus as suggested by Dr Chan.  For example, I note that:  

32.1   In the Operation Record relating to the Plaintiff’s operation on 9 March 2013 prepared by the surgeon, Dr Tang, Yan Ho Bruce,[11] there was reference to “Injury to brachial plexus”, and the procedure carried out was “Operation on cranial and peripheral nerves (exploration of left brachial plexus (infraclavicular portion)”, and in the Procedure Record, it was noted that “exploration of infraclavicular portion of brachial plexus was done, nerves grossly intact”.  In my view, this Operation Record does not indicate whether there was injury to the whole brachial plexus or to branches from the brachial plexus. 

32.2   In the Operation Record relating to the Plaintiff’s operation on 9 March 2013 prepared by the surgeon, Dr Chan, Ping Tak,[12] reference was made again to “Injury to brachial plexus”, and the procedure carried out was “Operation on cranial and peripheral nerves (exploration of infraclavicular Brachial Plexus and PIN)”.  The findings included “MCN [which appears to be a reference to the musculocutaneous nerve] is in continuity but is attenuated and elongated” and “lateral cord and medial cord gross appearance intact, however, only minimal muscular activity on stimulation by nerve stimulator”.  Dr Chan opined that even though an operating record may say that a cord is intact, that does not mean that there are no injuries to the cord, but I find it difficult to understand why there would not be a reference in the medical reports to injury to the cords if there were such injuries.  By contrast, there is clear reference to injury to the musculocutaneous nerve. 

33.  At p16 of the Joint Medical Report, Dr Chan had explained that brachial plexus injury can be divided into three types: (1) upper brachial plexus injury; (2) whole brachial plexus injury; and (3) lower brachial plexus injury.  He explained that in his view, the Plaintiff suffers from whole brachial plexus injury, which includes injury to both the upper brachial plexus and the lower brachial plexus.  Yet he accepted that in the present case, the Plaintiff suffered neither what is known as “Waiter’s tip deformity”, which is characteristic of upper brachial plexus injury (though it is not a must), nor Klumpke’s paralysis, which usually results from lower brachial plexus injury.  Given that the Plaintiff does not seem to have the usual symptoms for either upper or lower brachial plexus injury, and Dr Chan has not been able to point to any particular symptoms in the Plaintiff which show injuries to the whole of the brachial plexus, I have difficulty in accepting Dr Chan’s view that there was whole brachial plexus injury that includes injury to both the upper and lower brachial plexus.  

34.  On the other hand, Dr Wong’s opinion that certain branches of the nerves from the brachial plexus were injured, rather than that the whole of the Plaintiff’s brachial plexus was injured, is supported by the medical evidence.  

34.1   As Dr Wong pointed out at p18 of the First Joint Medical Report,[13] the brachial plexus injury was described by the O&T of Tuen Mun Hospital on 9 April 2013 as: 

“patchy brachial plexus injury involving whole musculocutaneous nerve, radial nerve prox to triceps and part of median nerve (FDS and FDP of II/III digits, sparing FPL”.[14]

34.2   In light of the brachial plexus injury being described as “patchy” (which can for example be contrasted with the injury to the “whole musculocutaneous nerve” (emphasis added); and in this regard, I accept Dr Wong’s explanation that “patchy” is a descriptive term which indicates that not the whole of the brachial plexus was injured), and since specific reference was made to which nerves were injured, I accept Dr Wong’s view that the diagnosis of the O&T at Tuen Mun Hospital indicates that particular branches of nerves from the Plaintiff’s brachial plexus were injured, rather than that the whole brachial plexus was injured. 

35.  As to the question of whether the Plaintiff’s injury was of neurotmesis type or not (ie whether the nerve was cut), I also prefer Dr Wong’s view over Dr Chan’s.  According to Dr Chan, the nerve was cut in that there was discontinuity.  When asked which nerve was cut, Dr Chan’s evidence was that the operative records stated that the musculocutaneous nerve was attenuated and elongated, and that unless there is breakage of the nerve sheath, there cannot be elongation.  Later on, in re-examination, during an exchange with the Court, an analogy was drawn with a rubber brand, and it appeared that Dr Chan meant that the situation was similar to that of pulling a rubber band: the rubber band may not snap but parts of the rubber may fray when stretched, and the fraying would mean that there was discontinuity even though the rubber band had not snapped.  Dr Chan further explained that with respect to the musculocutaneous nerve, it is made up not of a single fibre, but lots of fibres, so one of them might have snapped, but not all.  My difficulty however is that I cannot see in the medical reports or notes any description of the musculocutaneous nerve being elongated to the extent or in such a way that there was discontinuity or fraying or a cut in one or some of the fibres in the nerve.  

36.  I would also add that when I read Dr Chan’s description in the Joint Medical Report of what neurotmesis means, namely “the nerve is cut, there is discontinuity.  Paralysis of muscles occur.  Surgical intervention is needed.  Results are no [sic] optimistic.”,[15] my understanding was that neurotmesis is much more serious than the type of discontinuity that Dr Chan referred to in his oral evidence.  

37.  In summary therefore, I reject Dr Chan’s diagnosis of the Plaintiff, and accept the evidence of Dr Wong.  In my view, branches of the nerve from the Plaintiff’s brachial plexus were injured, and the injury was not to the whole brachial plexus.  I do not accept that the injury was of neurotmesis type.  

38.  The experts’ diagnoses have an important impact on the way that the two experts assess the Plaintiff’s whole person impairment (“WPI”).  With respect to WPI, the Courts have commented that it is acceptable and indeed helpful to assess the permanent impairment of the injured person according to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (6^th ed, 2008) (the “AMA Guide”).  See Chan Yuet Keung v. Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599, paragraph 62.[16]  

39.  In the Joint Medical Report, Dr Chan had suggested 45% total WPI (with 40% being attributable to the Plaintiff’s left brachial plexus injury) whilst Dr Wong had suggested 22% WPI (with 17% being for the Plaintiff’s nerve injuries and upper limb injuries).[17]  

39.1   There is agreement between the two experts with respect to 4% WPI for the Plaintiff’s left clavicle fracture with pain, and 1% for left elbow radial head with residual pain (which percentages are included in the abovementioned figures for total WPI), and I see no reason why I should not accept those assessments.[18]

39.2   However, there is a significant difference in the way that the two experts calculated the WPI for the brachial plexus injury (per Dr Chan) or nerve injury and upper limb injuries (per Dr Wong). 

40.  On the one hand, Dr Chan considered the Plaintiff’s WPI on the basis of the Plaintiff suffering from whole brachial plexus injury.  Dr Chan relied upon Table 15-20 of the AMA Guide (entitled “Brachial Plexus Impairment: Upper Extremity Impairments”), and in his view, the Plaintiff’s degree of upper limb extremity impairment was around 68%, which converted to around 40% WPI.[19] Thus, Dr Chan was of the view that the WPI for the Plaintiff’s whole brachial plexus injury was 40%.[20]  

41.  By contrast, Dr Wong arrived at the WPI of 17% for the Plaintiff’s nerve injuries and upper limb injuries by using the Table 15-21 of the AMA Guide (entitled “Peripheral Nerve Impairment: Upper Extremity Impairments”) to calculate the Plaintiff’s upper limb extremity impairment on the basis of four different nerves, namely the musculocutaneous nerve, the ulnar nerve, the median nerve and the radial nerve, as well as motor deficit, adding them up (which comes to 28%) and then converting the upper limb impairment into WPI, ie 17% WPI for the Plaintiff’s nerve injuries and upper limb injuries.[21] In other words, Dr Wong does not proceed on the basis that the Plaintiff had whole brachial plexus injury.  

42.  Dr Chan tried to avoid saying that Dr Wong’s method is incorrect, and tried to say that their calculations were simply different.  However, in order to assist my determination of PSLA, I consider that I do need to decide which calculation is correct.  In particular, as both doctors accepted, Dr Wong’s methodology would give a lower WPI than Dr Chan’s methodology.  First, Dr Wong’s methodology focuses on the impairment of the four nerves, but the brachial plexus is made up not solely of those nerves.  Secondly, the possible range of classes of injuries in the AMA Guide are different for injury to particular nerves as compared with injury to the whole brachial plexus.  For example, for injury to the whole brachial plexus, there can be a Class 4 injury (which is the most severe class of injury).  By contrast, there could only be a Class 1 or 2 injury for the musculocutaneous nerve, and there can only be a Class 1 injury with respect to the median nerve.  In the present case, the percentage of 68% for whole brachial plexus injury assessed by Dr Chan falls within Class 4.  

43.  As Dr Wong summarised, the two experts’ differences in views about WPI arise from their different diagnoses of the Plaintiff’s injuries.  As I have explained above, I accept Dr Wong’s view that branches of the nerve from the brachial plexus were injured rather than that there was whole brachial plexus injury.  I therefore also accept Dr Wong’s way of analysing the Plaintiff’s WPI, namely by reference to the particular nerves that were injured, rather than on the basis that there was whole brachial plexus injury.  

44.  Although the question of loss of earning capacity relates to employees’ compensation proceedings and is not directly relevant to the present proceedings, in helping me assess the accuracy and reliability of the experts’ views, I also find it helpful to contrast the experts’ assessments of loss of earning capacity with that of the Employees’ Compensation (Ordinary Assessment) Board.  In the present case, the Employees’ Compensation (Ordinary Assessment) Board assessed the Plaintiff’s loss of earning capacity permanently caused by the injury as 26%.[22]  Dr Wong agreed with that assessment,[23] whilst Dr Chan recommended the significantly higher figure of 45% as the loss of earning capacity.[24]  Dr Chan’s much higher recommendation than the determination of the Employees’ Compensation (Ordinary Assessment) Board fortifies my view that Dr Chan has been overly generous towards the Plaintiff when assessing the severity of the Plaintiff’s injuries.  

45.  Finally, I note that Dr Chan’s view as expressed in the Joint Medical Report was that the Plaintiff has a “major disability especially almost completely [sic] loss of the left hand function”,[25] whereas Dr Wong believed that the Plaintiff “may have weakness and loss of dexterity function of left hand in contrast with a total loss of left hand function”.[26]  During cross-examination however, Dr Chan agreed with Dr Wong’s description of the Plaintiff having “weakness and loss of dexterity function of left hand”, and he did not insist that the Plaintiff had almost completely lost his left hand function.  Thus, the experts are now in agreement that the Plaintiff’s injuries can be described as having “weakness and loss of dexterity function of left hand”.  

C2.  The residual disability and impairment of the Plaintiff

46.  I found the Plaintiff to be a credible witness who was candid about improvements in his injuries after the Accident. I do not consider that he has deliberately exaggerated his symptoms or difficulties, and indeed Mr Phang made clear that he was not suggesting that the Plaintiff had dishonestly exaggerated his conditions.

47.  Mr Phang confirmed that the Board does not dispute that the Plaintiff’s conditions include: 

47.1   Frequent severe pain and numbness from left forehand to left palm and left shoulder;

47.2   Inability to sleep on the left side, affecting sleep quality; and

47.3   Inability to lift up heavy objects by the left hand,

with the pain having improved about 60% since the injury.

48.  As to how much the Plaintiff could bend his left elbow, the Plaintiff accepted during cross-examination that he was not completely unable to bend his left elbow, but rather, he had a reduced degree of flexion.  Further, in terms of reduction in the motion of the Plaintiff’s left hand, the Plaintiff demonstrated in Court that he could lift up two books with his left hand, although he could not turn his wrist 180 degrees and had to rely on his forearm muscles to lay the books flat back on the witness stand.  As to the Plaintiff’s difficulty in maintaining body balance, the Plaintiff accepted in cross-examination that there was a lot of improvement.

D.   PSLA

49.  With respect to PSLA, the Plaintiff’s case in the Re-Revised Statement of Damages is that the Plaintiff’s injury and disability falls in the upper end of the serious injury category or the lower end of the substantial injury category, and that PSLA should be awarded in the amount of HK$700,000.[27]  On the other hand, the Board contends that the Plaintiff’s situation falls within the lower end of the serious injury category, and agrees to an award of no more than HK$550,000.

50.  The serious injury category and the substantial injury category are the two lowest categories out of the four categories set out in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.  As Mr Lim pointed out, in David John Slater v. Commissioner for Police, HCPI 646/2012, 7 July 2017, paragraph 22, Bharwaney J held that taking into account inflation, awards in the serious injury category would start at $530,000 as at that date.  That decision was applied at paragraphs 100 and 101 of Chan Ho Kwan v. Mo Man Ho and Or [2018] HKCFI 2174 (28 September 2018), and the serious injury category was held to range from $530,000 to $716,000, whilst the substantial injury category ranged from HK$716,000 to $874,000.  The parties are in agreement that I should proceed on the basis of the abovementioned figures  

51.  As explained in Section C1 above, I accept Dr Wong’s view that branches of the nerve from the Plaintiff’s brachial plexus were injured, rather than Dr Chan’s view that there was whole brachial plexus injury.  I also do not consider that the Plaintiff’s injury was of neurotmesis type.  Further, I accept Dr Wong’s view that the Plaintiff’s total WPI arising from the Accident is around 22%.  At the same time, I bear in mind that it is not disputed that the Plaintiff continues to suffer pain and numbness, even though the pain had improved 60% since the injury.  I also note that the Plaintiff still has to take painkillers twice a day. 

52.  Further, I fully accept that the Plaintiff has reduced function in his left hand, though there has been improvement, including as a result of the Oberlin transfer performed on 6 September 2013. As Dr Chan accepted under cross-examination, the surgery was successful, even though it did not result in full recovery.  I accept that the Plaintiff has practical difficulty lifting heavy objects.  At the same time, the improvement that the Plaintiff has experienced is such that he successfully completed a course as a barista, for which he needed to use both his hands to operate the coffee machine, though there are not many details as to exactly what he needed to do with his injured arm when operating the coffee machine. 

53.  My view is that the Plaintiff’s injuries fall within the serious injury category with reference to the categories set out in Lee Ting Lam. 

54.  I have considered the cases relied on by the parties. 

54.1   In Ho Ho Ming v Tse Po Wah & Ors, HCPI 1168/2003, 25 September 2006, the plaintiff suffered a complete brachial plexus injury with limited recovery after surgical intervention, and his orthopaedic injuries constituted 90% impairment of the upper extremity or 54% WPI (paragraph 88(f)).  The plaintiff sustained a mild to moderate injury at the time of the fall (rendering him unconscious, and resulting in amnesia with respect to the events of the first few hours of his hospitalisation), and suffered from residual headache; further improvement in his neurological functions was not expected (see paragraphs 91(a) and (d)).  In addition, the plaintiff suffered psychologically, and had symptoms of depression, adjustment problems and post-traumatic stress disorder (see paragraph 92).  The Court was of the view that the plaintiff’s injuries were in the serious or substantial categories, and awarded HK$750,000 as PSLA (paragraph 104).  In my view:

(a)  The orthopaedic injuries of the plaintiff in Ho Ho Ming v Tse Po Wah & Ors, supra, are plainly much more serious than those of the Plaintiff in the present case.  This is so because the plaintiff in that case suffered complete brachial plexus injury, as opposed to injury to certain branches of the brachial plexus.  The WPI suffered by the plaintiff as a result of the abovementioned injuries (namely 54%) was significantly higher than that of the Plaintiff in the present case. 

(b)Further, the plaintiff in that case suffered head injuries which had resulted in loss of consciousness and amnesia, as well as psychological injuries.  By contrast, the Plaintiff has not suffered similar injuries in the present case. 

54.2   In Leung Kwun Chuen v Li Shing Kong trading as Lung Hint Design Decoration Co, HCPI 749/2011, 22 March 2013, the plaintiff suffered from several lacerations on his arm and wrist, and had complete cut of median nerve, brachial artery and vein, musculocutaneous nerve, biceps, branchialis and common nerve origin (paragraphs 3 to 5).  The plaintiff was seen by a clinical psychologist as he had persistent fear and flashback after his injury (paragraph 15).  The expert in that case assessed the plaintiff’s WPI for upper extremity and lower limb at 34% and 1% respectively, making the total WPI 35%.  The Court considered that the plaintiff’s injuries and disability came near the upper range of the serious injury category (paragraph 72), and awarded him $580,000 for PSLA.  In my view:

(a)  The injuries suffered by the plaintiff in Leung Kwun Chuen v Li Shing Kong, supra, are more serious than those of the Plaintiff in the present case.  In particular, that plaintiff suffered complete cut of median nerve, brachial artery and vein, musculocutaneous nerve, biceps, branchialis and common nerve origin, and the expert’s view of WPI for upper extremity was 34%. 

(b) Further, that plaintiff’s psychological state was such that he needed to see a clinical psychologist. 

(c)  At the same time, I bear in mind that the award in Leung Kwun Chuen v Li Shing Kong trading as Lung Hint Design Decoration Co, supra, was made a few years ago in 2013. 

54.3   In So Yuk Kam v. Lau Kam Yuen trading as Ngai Shing Construction & Or, HCPI 5/2011, 24 May 2013, the plaintiff sustained a right shoulder dislocation with fracture and much associated pain and bruising to his face and knee (paragraph 3).  The plaintiff was left with a significant impairment, continual right shoulder pain and stiffness not entirely ameliorated by physiotherapy, and an inability to lift heavy objects; he also lost his ability to return to work as a welder (paragraph 13).  The Court awarded the plaintiff HK$450,000 for PSLA.  In my view:

(a)  The nature of the injuries suffered by the plaintiff in So Yuk Kam v. Lau Kam Yuen trading as Ngai Shing Construction & Or, supra, are rather different to those in the present case. 

(b) Thus, I consider that So Yuk Kam v. Lau Kam Yuen trading as Ngai Shing Construction & Or, supra, is of limited assistance to determining PSLA in the present case. 

54.4   In Francine Louise Collings v. The Star Ferry Company Limited, HCPI 491/2000, 26 April 2001, the plaintiff did not suffer severe physical injuries, though she suffered pain in the neck, jaw, mouth, left hand and fingers, left forearm, left upper arm and left shoulder.  The psychological and psychiatric harm that she suffered was moderate and had been chronic.  The Court was of the view that her injuries were at the lower end of the serious injury category, and awarded her PSLA in the sum of HK$475,000.  See p25.  I would observe as follows:

(a)  The nature of injuries of the plaintiff in Francine Louise Collings v. The Star Ferry Company Limited, supra, is very different from those of the Plaintiff in the present case.  In particular, that plaintiff’s injuries were more psychological and psychiatric than physical. 

(b)  I do not consider that case to be particularly comparable to the present situation. 

55.  Having considered the above matters and cases, I award the sum of HK$550,000 to the Plaintiff as PSLA. 

E.   Pre-trial loss of earnings

56.  At the time of the Accident, the Plaintiff was earning HK$13,650 per month.  See the Judgment of Master Simon Ho dated 26 September 2016, paragraph 16.  The Board accepts this. 

57.  The Plaintiff has adduced evidence by way of newspaper advertisements dated 14 September 2018 to show that the current salary of a production worker in the recycling industry is about HK$800 per day.  On the basis of 26 working days a month, the current monthly salary of a production worker would come to around HK$20,800 at the date of this assessment of damages.  The Plaintiff also gave evidence that in his industry, wages would usually include food and over-time pay. 

58.  The Board has not challenged the assumption of 26 days working days a month, and has also proceeded on that basis in the Board’s calculations.  Nor has the Board adduced evidence to suggest any other daily rate.  I see no reason not to accept the evidence adduced by the Plaintiff that HK$800 is the daily rate of a production worker in the recycling industry at around the date of the assessment of damages.

59.  I would add that although the Plaintiff had earlier adduced newspaper advertisements to show that the wages of a production worker in the recycling industry in about 2017 ranged from HK$650 to HK$800, as mentioned above the figure of HK$800 appears in the advertisements that bear dates closest to the assessment of damages.  For the purposes of calculating the current notional wages of the Plaintiff, I am prepared to use a daily rate of HK$800 rather than an average of HK$650 and HK$800 as proposed by the Board. 

60.  Thus, I proceed on the basis that the current monthly salary of a production worker in the recycling industry is HK$20,800, which already does not take into account food and over-time pay. 

61.  I agree with Mr Lim that in calculating the Plaintiff’s losses in earnings, the average figure of HK$17,225 should be used, ie (HK$20,800+$13,650) ÷ 2, to represent the wages that the Plaintiff would be earning as a production worker.  Although the Board argued that the Plaintiff’s wages of HK$13,650 should be used when calculating the Plaintiff’s loss of earnings for the period 9 March to 8 September 2016 (which period is discussed in Section E1 below) on the basis that the Plaintiff has not adduced evidence of any increase in wages during that period, I do not agree with such an approach.  The Plaintiff’s proposed method of averaging the available wages is often used in personal injuries cases, which I also find acceptable. 

E1.   9 March 2013 to 8 September 2016

62.  The Board accepts that the Plaintiff should be entitled to full loss of earnings for the period from 9 March 2013 to 8 September 2016, which is the entire period of sick leave granted to him (which both experts agree was reasonable and appropriate), plus a period of around three months from the expiry of the sick leave period for the Plaintiff to find and resume employment.  

63.  For the period 9 March 2013 to 8 September 2016, I award loss of earnings to the Plaintiff as follows: HK$17,225 x 42 months = HK$723,450.  

E2.   9 September 2016 to 4 October 2018

64.  From 9 September 2016 until the date of the assessment of damages, the Plaintiff contends that he should be awarded full loss of earnings (though with credit given for the period that the Plaintiff was employed as a school caretaker from 3 July 2017 to 31 August 2018), whilst the Board proposes that the Plaintiff be awarded partial loss of earnings.  The Board argues that it was because the Plaintiff had failed to mitigate his loss that he was only able to secure gainful employment as a school caretaker from 3 July 2017 onwards (which is discussed in Section E2.2 below).  Further, the Board argues that the figure of HK$10,000, which was the Plaintiff’s salary as a school caretaker, should be taken as the minimum monthly income that the Plaintiff ought to have been able to earn. 

65.  In considering the parties’ abovementioned contentions, I divide the period from 9 September 2016 to 4 October 2018 into two: (1) from 9 September 2016 to 2 July 2017, ie the period before the Plaintiff worked as a school caretaker; and (2) 3 July 2017 to 4 October 2018.  

E2.1   9 September 2016 to 2 July 2017

66.  I bear in mind that both Dr Chan and Dr Wong agree that the Plaintiff could not resume his pre-injury work but that he could undertake sedentary work such as a security guard.[28]  To that end, the Plaintiff attended a training course for security guards in August 2016 and obtained certification on 29 August 2016.  However, the Plaintiff’s evidence was that he could not in fact work as a security guard due to the long shifts (usually 12 hours,[29] which was long for the Plaintiff in particular because he is on painkillers, which affects his quality of sleep), needing to go up and down a building, and having to memorise various matters when his memory was affected by his taking painkillers.  In fact, the Plaintiff had tried to seek work as a part-time security guard, but he did not hear back from the prospective employers after he suggested that.  In my view, the Plaintiff acted reasonably in trying to explore the possibility of finding a job as a security guard, and I accept his evidence that he encountered practical difficulties.  

67.  I would add that Dr Chan and Dr Wong both mentioned that the Plaintiff would be suited to working as a cashier, but the Plaintiff’s evidence was that he could not in fact be a cashier as his mathematical ability is not good.  I accept the Plaintiff’s evidence as being credible. 

68.  Having found that it was not feasible for him to be a security guard, the Plaintiff then took a course to become a barista.  The course was for 160 hours, and spanned 8 December 2016 to 19 January 2017.  He tried to look for a job as a barista, but was unsuccessful.  He gave evidence that coffee shops generally look for younger people who speak English.  The Plaintiff fairly accepted that often, he did not hear back from potential employers because of his level of education.

69.  I do not accept the criticisms of the Board that the Plaintiff did not properly actively seek employment in a timely manner or in a reasonable way (with respect to the types of jobs[30]).  In particular, I take into account that even during the period with respect to which there is no dispute that he should be awarded full loss of earnings, he obtained certification as a security guard.  I consider that the Plaintiff did not fail to mitigate his loss in this regard. 

70.  Taking into account all the above, I consider that the Plaintiff’s attempts to mitigate his losses were reasonable in all the circumstances during the period from 9 September 2016 until 2 July 2017.  See Yuen Chung Shun v. On Ascent Ltd [2016] 4 HKLRD 250, paragraph 110.  I do not consider that the Board has satisfactorily adduced evidence of available jobs that the Plaintiff ought to have been able to find.  See Lau Wing Shing v. Chung Fat Mechanical Works Company & Or [1988] 1 HKLR 435, 439, which was also cited in a case relied on by the Board, Chan Tak Chi v. Wong Siu Tao, HCPI 1223/1996, p 7-8. 

71.  For the period 9 September 2016 until 2 July 2017, I award the Plaintiff full loss of earnings: HK$17,225 x 9.8 months (ie 9 months and 24 days) = HK$168,805. 

E2.2   3 July 2017 to 4 October 2018

72.  The Plaintiff was able to find a job as a school caretaker for the period from 3 July 2017 to 31 August 2018, where the hours from 7:00 am to 5:15 pm were not much shorter than shifts for security guards, but which involved work that was less manual in nature than that of a security guard. The Plaintiff’s evidence was that the school principal had exempted him from carrying out the heavier duty tasks, and the Plaintiff carried out lighter tasks instead.  As a school caretaker, the Plaintiff undertook cleaning tasks such as sweeping the floor and wiping down tables after meals, and also tasks including delivering mail and lining up chairs into neat rows.  However, when the Plaintiff’s contract with the school expired on 31 August 2018, the school did not renew his contract. 

73.  The Plaintiff has since tried to look for other jobs as a school caretaker, and has attended both face-to-face interviews as well as telephone interviews, but as at the date of the assessment of damages he had not found another job.  

74.  The reason why the Plaintiff’s contract as a school caretaker was not renewed is important.  In paragraph 2 of the Plaintiff’s 3^rd Supplemental Witness Statement, the Plaintiff had said that the school principal had not explained to him why his contract was not renewed, but that he expected that it was because he could not carry out the heavier duties.  However, under cross-examination the Plaintiff’s evidence was that the school did not renew his contract probably because of his relationship with other staff.  Other staff at the school thought that the Plaintiff seemed to have special privileges as the principal had exempted him from the heavier duties, and the Plaintiff admitted that he did not know how to handle such matters well, so his relationship with the other staff was not good.

75.  When asked in Court under cross-examination, the Plaintiff admitted that he lost his job as a school caretaker 90% because of his interpersonal skills, and 10% because of some conflicts (磨擦) he had with the staff at the school office (校務處), as a result of which they had complained about the Plaintiff’s attitude.

76.  I bear in mind these reasons for the Plaintiff being unable to keep his job as a school caretaker.  Whilst disagreements seem to have arisen between the Plaintiff and other colleagues because of the Plaintiff having been exempted from the heavier tasks due to his residual injuries, the Plaintiff frankly admitted that he is weaker in interpersonal skills and is not a smooth person.  Ultimately, as the Plaintiff admitted, the main reason why the Plaintiff could not keep his job was because of his weakness in interpersonal skills, in other words not because of his injuries.  

77.  Under those circumstances, Mr Phang submitted that the figure of HK$10,000 should be adopted as a minimum monthly income which the Plaintiff ought to have been able to earn. 

78.  Whilst the Plaintiff made no proposal as to the Plaintiff’s notional earnings for the pre-trial period, I note that in the Plaintiff’s claim for future loss of earnings, the Plaintiff proposed that the Court proceed on the basis that the Plaintiff would have a notional income of HK$8,000 (as per the Re-Revised Statement of Damages) or HK$8,550 (as per the Plaintiff’s written Closing, in which the Plaintiff relied on school caretaker advertisements adduced by the Plaintiff and took the average).

79.  Conceptually, it is not clear to me why the Plaintiff is willing to accept that he should have notional earnings for the purposes of calculating future loss of earnings, but not for pre-trial loss of earnings.  Further, as explained above, in my view the true cause of the Plaintiff being unable to continue earning HK$10,000 per month as a school caretaker was his poor interpersonal skills and not his injuries.  Under these circumstances, I adopt HK$10,000 as the Plaintiff’s notional earnings per month. 

80.  Thus, for the Plaintiff’s pre-trial loss of earnings for the period from 3 July 2017 to 4 October 2018, I award the Plaintiff as follows: (HK$17,225-HK$10,000) x 15.1 (ie 15 months and 2 days) = HK$109,097.50. 

E3.   Total pre-trial loss of earnings

81.  The Plaintiff’s total pre-trial loss of earnings would be the sum of: (1) HK$723,450; (2) HK$168,805; and (3) HK$109,097.50.  The total would therefore be HK$1,001,352.50.

F.   Future loss of earnings

82.  The Plaintiff claims for future loss of earnings on the basis that he would have worked as a production worker until the age of 65.  On the other hand, the Board queries whether the Plaintiff would have continued as a production worker given that the Plaintiff previously had a number of career changes.  Further, the Board suggests that even if the Plaintiff were to carry on as a production worker, a retirement age of 60 would be reasonable in light of the manual labour requirements of a production worker. 

83.  I accept the Plaintiff’s evidence that had it not been for the Accident, he would have continued as a production worker rather than change to another job.  I accept his evidence that he had started at the bottom, accumulated experience and moved up, and was almost a master (師傅). 

84.  Further, the Plaintiff’s evidence was that people over the age of 60 could continue as production workers as they could, for example, be responsible for repairing certain machinery.  The number of employees of the 1^st Defendant fluctuated, ranging from 4 people to 12 people.  The Plaintiff’s evidence was that three were over the age of 60: those three workers were aged 63, 64 and 64. 

85.  The Board relied on Raj Raj Kumar v. Pacific Crown Security Services Ltd [2017] 4 HKLRD 593, where Sakhrani J considered it unrealistic to expect the plaintiff in that case, a construction site supervisor who was required to frequently handle heavy construction materials, gear and equipment, to carry on such work until the age of 65.  Sakhrani J held that a reasonable retirement age would be 60.  See paragraph 75. 

86.  I note that there are cases such as Raj Raj Kumar v. Pacific Crown Security Services Ltd, supra, but in my view, the appropriate retirement age depends on the particular factual circumstances in each case.  In the present case, I accept the Plaintiff’s evidence that there is suitable work, namely repair work, for productions workers who are older.  I accept the Plaintiff’s evidence that he would have continued as a production worker in the recycling industry until the age of 65. 

87.  For the reasons explained above, I proceed on the basis that the Plaintiff would have earnt HK$17,225 per month as a production worker had he not suffered any injury, and that he should have been able to earn HK$10,000 per month even after he was injured (after sick leave and a three-month period for him to look for and find a job). 

88.  Given that the Plaintiff was 49 years old at the date of the assessment of damages and on the basis that he would work until 65, the presumed discount rate would be 2.5% per annum,[31] and I agree with the Plaintiff that according to Table 9 of the Personal Injury Tables Hong Kong 2016, the multiplier should be 12.89 in the present case. 

89.  I award future loss of earnings to the Plaintiff as follows: (HK$17,225-HK$10,000) x 12 months x 12.89 = HK$1,117,563. 

G.    Loss of Mandatory Provident Fund (“MPF”)

90.  There is no dispute that the Plaintiff’s loss of MPF is 5% of his loss of earnings.  Thus, the Plaintiff’s loss of MPF can be calculated as follows:

Pre-trial loss of MPF: HK$1,001,352.50 x 5% = HK$50,068

Post-trial loss of MPF: HK$1,117,563 x 5% = HK$55,878

Total loss of MPF: HK$105,946.

H.    Loss of earning capacity

91.  The Plaintiff asks for HK$300,000 by way of loss of earning capacity, whereas the Board’s stance is that a sum of not exceeding HK$50,000 would be reasonable for loss of earning capacity. 

92.  The purpose of this head of claim is to compensate a plaintiff where there is a substantial risk that during his working life, he will lose his employment and suffer financial loss because of his disadvantage in the labour market due to his disability. See Moeliker v. A Reyrolle & Co. Ltd [1977] 1 WLR 132, 141.  The Court should have regard to the degree of overlap, and the possibility of overcompensation, when awarding damages under both the heading of future loss of earnings and also the heading of loss of earning capacity.  See Clarke v. Rotax Aircraft Equipment Ltd [1975] 1 ICR 440, 445. 

93.  Mr Lim has shown me examples of cases where relatively high figures were awarded for loss of earning capacity.  In Lung Kwong Ying v. So Sai Lo and Ors [2002] 3 HKLRD 185, Seagroatt J stated that the risk of periods of unemployment could not be measured on a mathematical basis, and on an arbitrary basis he awarded HK$300,000 for loss of earning capacity (paragraph 47).  Further, in Thapa Surendra v. E W Cox Hong Kong Limited & Or, HCPI 451/2009, 11 July 2011, DHCJ Seagroatt stated observed that there is always an element of crystal-gazing, and awarded HK$264,000 for loss of earning capacity, being 2½ years at the plaintiff’s salary of HK$8,800 per month (paragraph 48). 

94.  In the present case, the evidence before me is that the Plaintiff lost his school caretaker job not because of his disability, but mainly because of his interpersonal skills.  At the same time, I note the Plaintiff’s evidence about his practical difficulties in finding a job.  Even though the difficulties may be in part because of the Plaintiff’s level of education, in my view the Plaintiff’s injuries are also likely to have some impact on his ability to secure a new job when thrown into the labour market.  I accept that the reality is that employers would prefer to employ fully able-bodied persons if they can.  See Khan Amar v Cheung Ying Construction Engineering Limited & Or, HCPI 231/2005, 14 March 2006, paragraph 103; upheld on appeal in CACV 153/2006, 17 May 2007, paragraph 54. 

95.  In my view, HK$100,000 is a reasonable figure to award for loss of earning capacity. 

I.   Special damages

96.  The Plaintiff claims a total of HK$22,700 for special damages, which is agreed by the Board save and except with respect to the Plaintiff’s claim for tonic food in the sum of HK$10,000.  The Board agrees to a sum of no more than HK$5,000 for tonic food.

97.  The receipts produced by the Plaintiff with respect to tonic food come to HK$4,692.20.  In paragraph 21 of Witness Statement on 11 August 2016 (the “Plaintiff’s First Witness Statement”), the Plaintiff had said that he had spent not less than HK$5,200 on painkillers, pain relief stickers and tonic food, but had not explained how he had used the full sum of HK$10,000 for tonic food. 

98.  The Plaintiff explained in Court that the sums not evidenced by receipts were spent on buying chicken and more expensive soup ingredients to boil soup and Chinese ginseng (田七) once a week for around a year.  He did not have receipts from the market. 

99.  Whilst it is not entirely satisfactory that no attempt had been made to explain the full HK$10,000 for tonic food in the Plaintiff’s First Witness Statement, I do not have a full picture of why that is.  Having seen the Plaintiff give evidence in Court, I consider him to be credible on this point as well as other points discussed in this judgment, and I am therefore prepared to award the Plaintiff the sum of HK$10,000 for tonic food.

100.  Thus, I award HK$22,700 to the Plaintiff for special damages. 

J.   Summary of award

101.  In summary, I award the Plaintiff damages as follows:

PSLA	HK$550,000
Pre-trial loss of earnings	HK$1,001,352.50
Future loss of earnings	HK$1,117,563
Loss of MPF	HK$105,946
Loss of earning capacity	HK$100,000
Special damages	HK$22,700
Total (before taking into account employees’ compensation and advanced payment)	HK$2,897,561.50
Less employees’ compensation and advanced payment received by the Plaintiff	HK$656,543
Total	HK$2,241,018.50

102.  The Plaintiff claims interest on PSLA from the date of the writ to the date of the judgment at 2% per annum.  The Plaintiff also claims interest on pre-trial loss of earnings, pre-trial loss of MPF, and special damages from the date of the Accident to the date of the judgment at half the judgment rate.  The Board does not oppose that.  I so award.

103.  The award of damages and interest is as against the 1^st Defendant, not the Board.  See Tu Zhiqiang v. Hap Sang Co (a firm) [2012] 1 HKLRD 1075, paragraph 48. 

K.    Costs

104.  The Plaintiff relies on Kwan Kam Pui v Fung Man & Ors [2014] 6 HKC 361, paragraph 67, and Hussain Kamran v Khan, Amar formerly trading as Three Star Recycling Co (a firm) & Or, CACV 255/2014, 5 October 2016, paragraph 67.  He argues that costs should follow the event, and seeks: (1) costs against the 1^st Defendant for the entire action; and (2) costs against the Board from the date of the application for joinder, which Mr Lim emphasises was described as the “usual order” by Bharwaney J in at paragraph 67 of Kwan Kam Pui v Fung Man & Ors, supra, and Chu JA at paragraph 67 of Hussain Kamran v Khan, Amar, supra.  On the other hand, the Board contends that its intervention in these proceedings was necessary to contest the excessive quantum claimed by the Plaintiff, and asks that there be no order as to costs as between the Plaintiff and the Board.[32] The Board also submits that the real party at fault is the 1^st Defendant, and asks for an order that its costs be paid for by the 1^st Defendant. 

105.  I have no difficulty in awarding the Plaintiff costs against the 1^st Defendant. 

106.  As to the position concerning the Board, at the outset I bear in mind that the Court’s discretionary jurisdiction to make costs orders is well established.  See Jiang Zhong v Yeung Chun Leung [2018] 1 HKLRD 886, paragraph 6.10; Wo Chun Wah v Chau Kwei Yin and Other [2018] HKCA 789,[33] paragraph 30. 

107.  It is not the case that whenever the Board intervenes to contest claims, it should be liable to pay the plaintiff’s costs when judgment is in favour of the plaintiff.  What is sometimes described as the “usual order”, for example as in paragraph 104(2) above, is simply the starting point in the exercise of discretion.  See Wo Chun Wah v Chau Kwei Yin and Other, supra, paragraph 32. 

108.  In exercising my discretion on costs, I take into account the matters set out in Order 62 rule 5(1) of the Rules of the High Court, especially the conduct of the parties as per rule 5(1)(e) and rule 5(2). 

109.  I bear in mind the special position of the Board as explained by DHCJ To in Wo Chun Wah v Chau Kwei Yin [2018] 3 HKLRD 897, paragraph 47, and also the Court of Appeal’s approval of DHCJ To taking this factor into account (see Wo Chun Wah v Chau Kwei Yin and Other [2018] HKCA 789, paragraph 34).  The Board’s function in participating in proceedings is to ensure that employees in need can obtain such damages as they are entitled to.  The Board has a duty to screen out unmeritorious or inappropriate claims to ensure, inter alia, that the assistance mechanism will not be abused, its recipients will not exaggerate their claims, and public funds will not be used for improper purposes.  Generally speaking, unless it is necessary to contest false claims or suspected fraudulent claims, the Board should not adopt an antagonistic attitude in the proceedings, and should act as a filter and adopt an impartial attitude in the proceedings so as to assist the Court in coming to a correct ruling.  See also paragraph 50 of DHCJ To’s judgment concerning situations where the Board contests quantum but not liability. 

110.  I bear in mind that in the present case, the Plaintiff had by his Re-Revised Statement of Damages claimed HK$3,472,623 plus interest,[34] and I have awarded HK$2,241,018.50 plus interest.  In other words, the Plaintiff’s claim, which was a substantial one, was over 1.5 times what I have awarded.  In my view, the Plaintiff’s claim was too high, in particular because of Dr Chan’s diagnosis that I have rejected.  I consider it reasonable for the Board to challenge the amount claimed, and to take part in the proceedings to safeguard the interest of the Employees Compensation Assistance Fund and the public. 

111.  I agree with the Board that the important question is whether the Board adopted a “filtering” role or an “adversarial role”, rather than (as submitted by the Plaintiff) whether the Board took an “active role” or not.  In the present case, the Board took on what I consider to be a “filtering” role and not a positive adversarial stance.  The Board’s participation has been of assistance to the Court.  In particular: 

111.1  The main contention of the Board was that the diagnosis of Dr Chan was incorrect, and on that important question I agree with the Board.  I would also add that I found Dr Wong to be of significant assistance to the Court, and it would have been very difficult for me to assess the correctness of Dr Chan’s view without the assistance of Dr Wong.

111.2  The Board had rightly accepted that the Plaintiff could not resume his pre-accident work, and although there were differences between the parties as to some matters, such as the way in which the Plaintiff’s notional earnings should be computed, some of which the Plaintiff was successful on, I do not find the Board’s conduct to be such that the Board should bear the Plaintiff’s costs.

111.3  The cross-examination by Mr Phang on factual matters was also of assistance to the Court, for example as to the reason why the Plaintiff’s contract as a school caretaker was not renewed by the school.

112.  I consider that there should be no order as to costs between the Plaintiff and the Board.  I also agree with Mr Phang that the real party at fault is the 1^st Defendant, and I order that the Board’s costs be paid for by the 1^st Defendant. 

L.    Conclusion

113.  In summary, I find that the 1^st Defendant is liable to pay to the Plaintiff damages in the sum of HK$2,241,018.50 together with: (1) interest on PSLA from the date of the writ to the date of the judgment at 2% per annum; and (2) interest on pre-trial loss of earnings, pre-trial loss of MPF, and special damages from the date of the Accident to the date of the judgment at half the judgment rate. 

114.  As to costs, I order that:

114.1  The 1^st Defendant do pay: (1) the Plaintiff’s costs, with the Plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations; and (2) the Board’s costs; and

114.2  There be no order as to costs between the Plaintiff and the Board.