SIT KA CHUN v. WING WONG SCAFFOLDING LTD AND OTHERS

HCPI 144/2020

[2022] HKCFI 1730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 144 OF 2022

________________________

________________________

________________________

J U D G M E N T

________________________

A.  Introduction

1.  This is the trial for an assessment of damages for personal injury. 

2.  Mr Sit Ka Chun (P)  was born on 22 June 1966.  He was a scaffolding worker. 

3.  On 13 May 2017, he became involved in an accident at his work site and was injured.  

4.  Hip Hing Engineering Company Limited (D3)  was the principal contractor of the said work site.  Wing Lee Scaffolding Limited (D2)  was the sub-contractor.  Wing Wong Scaffolding Limited (D1)  was the sub-sub-contractor.  D1 was the employer of P.  

5.  As a result, P sued Ds for his personal injury.  The Writ was issued on 7 May 2020.  On 12 Mar 2021, by way of consent, interlocutory judgment on liability was entered against Ds with damages to be assessed [1/76].  This was said to be made “…without prejudice to any issue on quantum of the Plaintiff’s claim and without admitting the circumstances of the accident…”. 

B.  The Facts

B-1.  The Accident

6.  The accident happened against the following context. 

7.  As part of his work as a scaffolder, P had to carry bamboo sticks around.  

8.  On the date of the accident (13 May 2017), he was carrying some bamboo sticks; and in order to avoid hitting another worker who suddenly emerged, P stepped on a piece of debris and fell.  As a result, he was injured (the Accident).  

B-2.  P’s Case of How the Accident Occurred

9.  P had, in his witness statement, described how the Accident occurred.  In contradistinction, the two witness statements put forward by Ds, ie, one by楊賽玭 (Yang), the 高級安全主任of D3, and one by 胡啟越 (Wu), a director of D1, made clear that neither Yang nor Wu witnessed the Accident. 

10.  P’s description of the Accident was as follows:-

(a)  At the time of the Accident, he fell in the following manner:

“最後令到我的左腳腳踝扭一扭，失去平衡跌倒。當時我的左膝蓋撞向梯級角邊， 整個人倒在地上…” [P WS §7(f)]

(b)  “由於在發生意外時，我的左腳撞到梯級而令到當時所穿著的牛仔褲左膝蓋位置被擦穿咗及左腳膝有擦傷痕跡…” [§12(g)]

11.  As to his treatment after the Accident, inter alia:-

(a)  “由於附近另有一組棚工友在工作，聽見我大叫後便幫我通知 “呀偉”…大約10分鐘後，“呀偉”便到達事故意外現場，及將我扶到設置在地面的安全部，然後在 “呀偉”的協助下將左腳的鞋脫下，以冰敷來減輕痛楚。” [§7(g)]

(b)  “2017年5月13日大約中午到達廣華醫院急症室…” [§12(a)]

(c)  “…因左腳踝的劇烈痛楚覆蓋咗左膝的痛，所以未有即時向急症室醫生提出…” [§12(g)]

(d)  “當服食醫院提供的止痛藥之後的第二天早上，我就感覺左腳膝蓋有疼痛情況。於是在2017年5月25日到廣華醫院的骨科覆診日，當日跟醫生講述左膝蓋疼痛情況。” [§12(c)]

B-3.  The Medical Records and Contemporaneous Written Records

12.  Apart from P’s description, there also exists a number of medical treatment records and relatively more contemporaneous written documents.  Without being exhaustive, the following summary assists in forming a picture of what happened. 

13.  In gist, P visited 5 departments/doctors:-

(a)  Kwong Wah Hospital’s (KWH’s)  A&E Department (A&E). 

(b)  KWH’s Department of Orthopaedics (DoO). 

(c)  KWH’s Occupational Therapy Department (the OTD). 

(d)  KWH’s Physiotherapy Department (Physio). 

(e)  Dr Irene Lo, a private doctor. 

14.  On the date of the Accident (13 May 2017), P was first treated at KWH’s A&E.  The medical records are as follows:-

(a)  A sheet headed “Fast Track Clinic – Nursing Record Sheet” at 1726 hours recorded inter alia as follows [3/537]:-

(i)  “Tender: [Left] Lateral malleolus

  Non-tender: [Left] knee, [Left]…head, [Left] tibia…”

(ii)  “Provisional Diagnosis/Impression: [Left] ankle sprained.”

(iii)  On the sheet, there is also a pre-printed diagram of the human body.  A mark was made at the left ankle position, with the following additional information written down:- 

“swollen+. Bruise0. Wound0. Deformity0. Redness0. Hotness0.”

(iv)  No other mark was made on the diagram. 

(b)  A sheet headed KWH Accident and Emergency Department with triage data at 1905 hours [3/536].  It records inter alia as follows:- 

(i)  “Chief complaint: …Sprained left ankle pain+. Swelling+. [Decreased Range of movement]+…”

(ii)  “Provisional Diagnosis: [Left] ankle # tip of lat. malleolus”.

15.  A document titled 僱員/工人受傷呈報表 under D3’s letterhead can be found at [2/290] of the bundle.  It is undated, but on the face of it, it contains the phrase “此表格之正本必須於意外發生後七天內填妥後連同假紙交總字樓保險組…”, and thus is prima facie relatively contemporaneous to the accident.  It was signed by the Plaintiff, and recorded inter alia the following (those in bold in handwriting):- 

“受傷情況:

日期：2017 年5月13日

時間：上午9:30

受傷部分：左腳腳踝

引致受傷性質：[ ]擦傷/ [ ] 割傷/ [ ] 壓傷/ [x]骨折/ [x] 扭傷/ [ ] 撞傷及瘀傷

詳述意外發生位置及經過：在4樓搬運竹枝時閃避燒焊工人，踏中地上雜物扭傷腳部及跌倒”

16.  On 25 May 2017, P visited the DoO.  The consultation notes, prepared by Dr Michael Tse, read relevantly as follows [3/531]:  

(a)  “Left ankle sp[r]ain injury; XR: undisplaced fracture of tip of left lateral malleolus; Walk unaided; Mild tenderness over lateral malleolus.  Left ankle DF 15, PF 45…”.

(b)  Radiology request was for “Ankle”. 

(c)  64 days of sick leave was granted until 27 Jul 2017. 

17.  On 22 Jun 2017, P visited the DoO again.  Notes were similar to the previous visit and again prepared by Dr Michael Tse; it is indicated that P was “healing+” [3/532].  Another radiology request was made for “ankle”.  Sick leave was granted until 17 Aug 2017 [627]. 

18.  On 5 July 2017, P visited OTD.  A “Lower Limb Assessment Form” appears in the records [534].  The “Pain Site” was described as “[Left] ankle”.  For “Abnormality Observed”, there was mention of “swelling over [left] knee & ankle”.  Another record of the OTD (named the “Out-Patient Progress Sheet”, also made in July 2017 but the exact date was difficult to read)  mentioned “[complained of] [left] ankle and [left] knee and [right] back pain…swelling over ankle & knee” [535]. 

19.  On 9 July 2017, P visited OTD again.  It records as follows [535]:

“…[complained of] [left] knee & ankle pain

Mild swelling over [left] knee…”

20.  On 17 Aug 2017, P had a follow-up with the DoO.  Apart from the issue with the left ankle, the Doctor recorded inter alia as follows [612]: 

(a)  “also occ left knee pain

Creps+

ROM 0-110

No effusion

Occu: continue”

(b)  Radiology request was for “Knee, Ankle”.

(c)  43 days of sick leave was granted until 28 Sep 2017. 

21.  On 25 Aug 2017, A&E issued a Medical Report [1/247].  It read as follows:-

“The abovenamed registered our Emergency Department at 12:08 on 13/5/2017, for an alleged left ankle sprain injury sustained whilst on duty on the day of consultation. Examination of his left ankle revealed swelling and tenderness over the lateral malleolus. The ankle joint was stable. X-ray of the left ankle showed a fracture at the tip of the lateral malleolus. He was referred to Occupational Therapy Department for the furnishing of a short leg brace, and to Physiotherapy for walking aid. He was also referred to the Fracture Clinic for follow up…”

22.  On 28 Sep 2017, P had yet another follow-up with the DoO.  The Doctor recorded, inter alia, as follows [611]: 

(a)  “still left knee pain, creps+, ROM 0-110, no effusion, can’t fully squat, tenderness over ant. lateral joint line, valgus stress test +ve, McMurry test +ve…”

(b)  Radiology request was for “Knee”. 

(c)  43 days of sick leave was granted until 9 Nov 2017. 

23.  On 11 Oct 2017, P saw Dr Irene Lo, a private doctor.  She wrote, inter alia, the following in her report [3/623]:-

“How the injury occurred…

Tripped, Left Ankle Sprain, Left Knee Contusion

…

Diagnosis: Left Knee & ankle Injury”

  An MRI of the left knee was also suggested. 

24.  On 13 Oct 2017, P took an MRI over the left knee.  A report was issued on 14 Oct 2017 [1/253].  It says inter alia as follows:- 

“FINDINGS:

BONY STRUCTURES, CARTILAGE AND JOINT CAVITY

Alignment of the left knee joint is satisfactory, No fracture or dislocation.

There is cartilage thinning at the medial patellar facet with reactive marrow signal. This would be consistent with patellar chondromalacia.

Mild effusion is seen.

There is mild irregularity for the medial femoral condyle cartilage which can be due to degenerative change. No full-thickness defect.

MENISCI

Medial meniscus shows some heterogenous signal in the posterior horn and body consistent with degenerative signal. No full-thickness tear is seen. No displaced fragment.

Lateral meniscus appears to be intact and normal.

CRUCIATE LIGAMENTS

The anterior cruciate ligament shows normal size and shape and signal intensity and intact.

The posterior cruciate ligament shows normal size and shape and signal intensity and intact.

COLLATERAL LIGAMENTS

The medial collateral ligament is intact with no evidence of tear.

There appears to be a cluster of cysts at the posterior aspect of the medial collateral ligament. The total diameter of this is vertical of 1.3cm, transverse of 0.4cm and AP of 1cm and these are consistent with ganglion cysts.

The lateral collateral ligament is intact with no evidence of tear.

TENDONS

Biceps tendon and iliotibial band tendon appear normal.

Patellar tendon appears normal.

COMMENT:-

1. Patellar and trochlear chondromalacia.

2. Mild effusion.

3. Cysts at the posterior aspect of the medial collateral ligament. These can be ganglion.

4. Degenerative signal in the medial meniscus.

5.  No meniscal tear. No cruciate or collateral ligament or tendon tear.”

25.  On 18 Oct 2017, P visited Dr Irene Lo again.  Her records show that the diagnosis was “Left ankle & knee injury”.  Her Clinical Examination and Findings noted that, on x-ray, the ankle fracture has healed; for left knee, she mentioned “mild popliteal…fulness… no joint effusion…patello femoral joint pain with deep flexion.” [3/624]

26.  On 6 Nov 2017, KWH’s OTD issued a Work Rehabilitation Assessment (WRA).  It recorded inter alia the following information [3/575]:-

“Date of Injury: 13/05/2017

Clinical Information: IOD on 13/5/17, sprained L ankle during work

XR: undisplaced # L lateral malleolus

on POP 13/5/17 – 22/6/17

Past Medical History & Work Disability: MRI L knee: no meniscal tear, no cruciate or collateral ligament/tendon tear, degenerative in medial meniscus

..

Major Subjective Complaint: Left ankle and knee pain on movement and exertion

…

Subjective Review on Return to Work Readiness: Not ready

Limited by left knee and ankle pain and unable to climb the scaffold at this moment

…

Preliminary Future Work Plan: Return to previous job post.

…

Degree of Match between Work Capacity and Job Demands: Not match, with significant degree of limitation”

27.  On 9 Nov 2017, P visited the DoO again.  The Doctor recorded inter alia as follows [610]: 

(a)  “still left knee pain…”

(b)  “Private MRI in 10/2017: patellar and trochlear chondromalacia; degenerative signal in medial meniscus; cysts at the posterior aspect of medial collateral ligament, these can be ganglion; no meniscal tear, no cruciate or collateral ligament or tendon tear.”

(c)  43 days of sick leave was granted until 21 Dec 2017. 

28.  On 17 Nov 2017, P gave a statement to D3. In that, when asked where he was hurt, P had inter alia the following to say [2/287-288]:-

“問：請問你現在受傷部位在那處？

答：左腳腳踝，及後醫生報告指左膝膝蓋亦有受傷。”

“問：請描述一次意外事件經過？

答：…左腳向後踏…我左腳腳踝扭一扭，全身倒在地上，左膝蓋撞到梯級受傷…

“問：請問你傷勢如何？有否醫生證明？

答：有，左腳腳踝骨裂及韌帶受傷。有醫生證明。”

29.  On 20 Dec 2017, KWH’s OTD issued another WRA.  It recorded inter alia the following information [3/579]:-

“Major Subjective Complaint: Left ankle and heel pain on exertion. Left knee pain.

…

Subjective Review on Return to Work Readiness: Not ready

Limited by left knee pain and ankle pain and unable to climb the scaffold

…

Preliminary Future Work Plan: Change to new job

…

Return to Work Recommendation: Not ready to return to previous work”

30.  On 21 Dec 2017, P went to the DoO again.  The Doctor wrote down inter alia the following [608]:-

(a)  “Left ankle pain improving…”

(b)  “Left knee pain persistent…”

(c)  “Occu: Degree of match between work capacity and work demand not matched, for a short course of work training first.”

(d)  57 days of sick leave was granted until 15 Feb 2018. 

31.  On 12 Jan 2018, KWH’s Physio prepared a “Physiotherapy Musculoskeletal Assessment Form”.  It records both ankle and knee issues in the “Brief Summary of Onset”.  When it came to “Assessment Highlights”, however, it seems to deal only with the knee issue: “…c/o L knee pain under patella while movement, esp up/downstairs…” [3/566]. 

32.  On 22 Jan 2018, KWH’s Physio prepared a “Physiotherapy Progress Note”.  It deals with the left knee: “c/o inc in L knee pain over infra-medial joint line upon movement last week, better after 3 days of rest and gentle ex.” [3/564].  

33.  On 29 Jan 2018, KWH’s Physio prepared another “Physiotherapy Progress Note”.  Again, it deals with the left knee: “c/o better, less pain upon walking, still pain upon stairs climbing.” [3/562] 

34.  On 5 Feb 2018, KWH’s Physio prepared another “Physiotherapy Progress Note”.  Again, it deals with the left knee: “c/o better, less pain upon walking, still pain upon stairs climbing.  Overall 50% subjective improvement.” [3/562] 

35.  On 9 Feb 2018, KWH’s OTD issued another WRA [3/583], saying inter alia:-

“Major Subjective Complaint: L ankle pain in squatting

…

Subjective Review on Return to Work Readiness: Not ready

Limited by left ankle pain and unable to climb the scaffold

…

Preliminary Future Work Plan: Change to new job

…

Return to Work Recommendation: Recommend job change & with vocational resettlement services”

36.  On 15 Feb 2018, P went to the DoO again.  The Doctor wrote down inter alia the following [607]:-

(a)  “Left ankle pain improving…”

(b)  “Left knee pain persistent…”

(c)  “Occu: Degree of match between work capacity and work demand not matched. Suggest to stop work training and proceed to MAB.”

(d)  71 days of sick leave was granted until 26 Apr 2018. 

37.  On the same day, the DoO issued a “Referral for Arranging Employees’ Compensation (Ordinary Assessment)  Board” [3/588].  It read as follows:- 

“Please arrange the OAB for the above named client, as the condition is stable after optimal medical treatment and rehabilitation.

Diagnosis: Fracture Left ankle”

38.  Also on the same day, Physio prepared yet another “Physiotherapy Progress Note” [3/558], recording progress re physiotherapy on the left knee.  

39.  On 26 Feb 2018, Physio prepared yet another “Physiotherapy Progress Note” [3/556], recording progress re physiotherapy on the left knee. 

40.  On 5 Mar 2018, Physio prepared yet another “Physiotherapy Progress Note” [3/554].  Unlike the previous notes which dealt with issue regarding the left knee, there is mentioned issues with the ankle:

“1)  mild L ankle pain after prolong walking 20 mins”, and also “…DF/IR pain on med ankle & ATFL side p+. Mild tender over inferior-medial patella region. Walks unaided independently, no limping. Squat; fair 1/2ROM.”

41.  On 12 Mar 2018 [3/552], 21 Mar 2018 [3/550], 28 Mar 2018 [3/548], 18 Apr 2018 [3/546] Physio prepared further “Physiotherapy Progress Notes”, recording progress re physiotherapy on the left knee and ankle. 

42.  On 26 Apr 2018, P went to the DoO again.  The Doctor wrote down inter alia the following [606]:- 

(a)  “Left ankle & knee not much pain.  ROM good.  No need analgesics…P/E: Left ankle: No effusion / focal tenderness; AROM comparable to Rt side; Ant drawer -ve; Left knee: No effusion / focal tenderness; AROM 0-120”

(b)  56 days of sick leave was granted until 20 Jun 2018. 

43.  On 26 Apr 2018 [3/544] Physio prepared further “Physiotherapy Progress Notes”, recording progress re physiotherapy on the left knee and ankle.  It is mentioned that “Condition static.” 

44.  On 21 May 2018, Physio prepared a “Physiotherapy Discharge Summary”, noting inter alia due to condition being static, P is discharged from further physiotherapy sessions.

45.  On 21 Jun 2018, P visited the DoO for the last time.  The Doctor wrote down inter alia the following [3/605]:- 

(a)  “Left ankle & knee not much pain. ROM good.  No need analgesics…P/E: Left ankle: No effusion / focal tenderness; AROM comparable to Rt side; Ant drawer -ve; Left knee: No effusion / focal tenderness; AROM 0-120” 

(b)  14 days of sick leave was granted until 4 Jul 2018. 

46.  On 18 Jul 2018, the Employees’ Compensation (Ordinary Assessment)  Board issued a Certificate of Assessment, certifying that an assessment had been made on 4 Jul 2018, with the injury being described as “LEFT ANKLE FRACTURE RESULTING IN LEFT ANKLE STIFFNESS AND PAIN”, and evaluating P’s loss of earning capacity as 6% [2/291]. 

47.  On 23 Jul 2018, KWH’s A&E Department issued a Medical Report [1/248].  It read as follows:-

“The above named registered our Emergency Department at 12:08 on 13/5/2017. He claimed to have had injured his left ankle due to a sprain injury while at work.

On examination of the left ankle, swelling and tenderness were found over the anterolateral ankle joint area.

X-rays of the left ankle showed a fracture at the lateral malleolus.

He was referred to Occupational Therapy Department to have a short leg brace furnished, and to Physiotherapy for a walking aid. He was also referred to the Fracture Clinic of the Department of Orthopedics for further management.”

48.  On 16 Aug 2018, the DoO wrote the following report [1/250]:- 

“…The above named patient was first seen in our clinic on 25/5/2017. He had an alleged injury on duty on 13/5/2017 with his left ankle sprained. XR showed undisplaced fracture of the tip of left distal fibula. Patient was able to walk unaided with mild tenderness over the fracture site. Patient was followed up regularly since then with work training and rehabilitation arranged.

On his clinical visit on 17/8/2017, he reported that he also suffered from occasional left knee pain.  Crepitation was noted on examination and his left knee’s range of motion was 0-110.  No knee effusion was noted.  XR showed no fracture over left knee and the previous distal fibula fracture showed signs of healing.  Private MRI left knee arranged subsequently showed patellar and trachlear chondromalacia, degenerative signal in medial meniscus, cysts at the posterior aspect of medical collateral ligament (these can be ganglion)  with no meniscal tear, no cruciate or collateral ligament or tendon tear…” 

49.  On 13 Sep 2018, P defaulted upon the final scheduled appointment with the DoO [3/622]. 

50.  On 20 Sep 2019, KWH’s Physio issued a “Physiotherapy Report” [1/251].  It recorded, inter alia, as follows:- 

“1. The above-named patient had suffered from left knee pain after injury on 13.5.2017. He was referred to our outpatient physiotherapy department on 21-12-2017. by the Department of Orthopedic and Traumatology of Kwong Wah Hospital.

2. The patient started physiotherapy in our department on 12-1-2018. He complained of left knee pain. Physical examination done on the same day revealed marked decrease in active ranges of motion of left knee….Single leg standing was also impaired…

3. The latest assessment was done on 21-5-2018 and the patient reported around 50% improvement. Improvement was shown on active ranges of motion of left knee…Single leg standing was also improved…The patient had received 13 physiotherapy treatment sessions in total and was discharged as condition was static…” 

51.  On 25 Sep 2019, two medical experts, Dr Tio Man Kwun Peter and Dr Ho Ching Lun Henry, examined P.  The Joint Expert Report expressed inter alia the following views [1/255]:- 

(a)  “Hobbies: Before accident: none”

(b)  “Past Health: Claimed no previous problem with the left ankle before subject accident

Previous work injury around 8-10 years ago: left wrist sprain, sick leave three months, treated at Ruttonjee Hospital, claimed fully recovered. No assessment by MAB

Previous work injury around 30 years ago: right wrist fracture, treated non-operatively with cast, treated at Ruttonjee Hospital, sick leave for half a year, no assessment by MAB.  Occasional residual soreness of right wrist. 

Good past health otherwise.” 

(c)  “Pre-injury occupation: At the time of the accident, he was a scaffolder for 30 years; Required to lift bamboo and metal objects and dismantle scaffolds. 

Present occupation: After sick leave ended in July 2018, tried to work as scaffolder but could not cope.  Changed to work as cleaner from November 2018 until now.  Cleans windows and general cleaning after interior decoration/renovation work. On daily wages working up to 10 days a month until now.” 

(d)  “History according to the patient:

1.  Sit Ka Chun gave a history of an injury on 13/5/2017.

2.  He sprained his left ankle while walking down some steps while carrying a bunch of bamboos.

3.  He missed a step and his left foot stepped on a metallic object and sprained his left ankle. 

4.  He then fell on the ground onto his left side. 

5.  He heard a pop sound and his left ankle was painful. 

6.  He could not get up. 

7.  He was taken to the A&E of KWH by company car. 

8.  He was seen and discharged without admission. 

9.  He was referred to the occupation therapy department for an ankle foot orthosis (ankle walker). 

10.  He was then seen at the orthopaedic clinic at KWH.

11.  He received physiotherapy and occupational therapy which have now finished. 

12.  He has not attended the orthopaedic clinic after his assessment by the Medical Assessment Board. 

13.  He also attended a private orthopaedic specialist, Dr Irene Lo for left knee abrasion at the time of the injury.  He did not receive further treatment such as operation or physiotherapy for his left knee.”  

(e)  “Present Complaints:

1.  Taking painkillers about twice a month

2.  Left ankle pain – on and off, triggered by weightbearing such as walking 10-20 minutes, walking up more than 10 steps, and squatting 

3.  Can manage activities of daily living and travelling on public transport” 

(f)  “Diagnosis and Causation

We:

The diagnosis was a fracture of the tip of the lateral malleolus of the left ankle.  It is consistent with the injury mechanism described by the patient.  His alleged left knee symptoms should be unrelated to the subject accident since there is no mention of left knee injury in the medical report from A&E of KWH.  He did not complain about his left knee until he attended the orthopaedic clinic three months later on 17/08/2017.  The subsequent X-rays and MRI scan of his left knee showed only degeneration of the cartilage.  There was no sign of injury in his left knee.” 

(g)  “Present condition

Dr Tio:

He was still complaining of residual left ankle pain which could be consistent with injuries he sustained in the captioned accident.  Clinical examination showed that there were residual tenderness over the lateral ankle with some reduction in the range of movement and weakness but there was no instability or disuse atrophy.  The overall recovery was considered to be satisfactory.  His ambulation ability has also been slightly reduced. 

Dr Ho:

At the present examination, he was complaining of

1.  Left ankle pain – on and off, triggered by weightbearing such as walking 10-20 minutes, walking up more than 10 steps, and squatting.

2.  Requires painkillers about twice a month. 

3.  He can manage activities of daily living and travelling on public transport. 

During the examination, he appeared to have difficulty walking on tiptoes, heels, squatting and standing on his left leg.  However, objectively, there was no evidence of muscle wasting in his left lower limb to suggest that he was genuinely suffering from ambulatory difficulties.  The examination of his left ankle was also unremarkable with no signs of residual inflammation such as swelling or increased temperature.  The ankle was stable and the range of movement was good. 

The overall objective clinical examination showed a normal looking ankle.  He has actually recovered well from the injury and has resumed his normal daily activities despite his current alleged complaints.” 

(h)  “Treatment

Dr Ho and Dr Tio agree:-

He was treated with an ankle orthosis and rehabilitated with physiotherapy and occupational therapy. These were standard and appropriate for his injury. 

Further treatment is not necessary.” 

(i)  “Maximal medical improvement

Dr Ho and Dr Tio agree:

He has reached Maximal Medical Improvement”

(j)  “Medical Prognosis

Dr Tio:

The overall prognosis is considered to be fair with expected on and off pain over his left ankle, residual stiffness, residual weakness and reduced endurance etc.  His pain could be aggravated by prolonged standing/walking, extreme range of movement and climbing etc. 

Dr Ho:

The prognosis is excellent.  He should have no difficulty carrying out his daily activities.  His alleged symptoms, if any, should be rather minor.  However, he will continue to have symptoms from the chronic pre-existing degeneration of his left knee joint.  This will affect his working capacity.” 

(k)  “Employment

Dr Tio:

He should be able to carry on his duty as a scaffolder if he is allowed to avoid prolonged walking/standing and climbing etc.  His overall endurance would be reduced.  His ability in lifting or carrying heavy objects would be reduced.  He may need intermittent breaks of 15 minutes after each 1.5 hours’ work.  Alternatively, his current employment as a cleaner could be a better alternative for him in view of his current left ankle condition. 

Dr Ho:

He should be able to return to duty as a scaffolder and work normally.  However, the chronic degeneration of his left knee joint will likely cause pain from time to time since his job requires frequent climbing, squatting and lifting.” 

(l)  “Sick leave period

Dr Tio:

In view of the severity of the injury, his pre-injury job nature and the overall recovery process, those sick leaves given should be endorsed. 

Dr Ho:

The recommended sick leave for his left ankle injury should not be more than six months.  This should have been adequate for the fracture to heal and for the left ankle to be rehabilitated.  His long sick leave was caused by the pain from his degenerating left knee and should be unrelated to the subject accident.”

(m)  “Assessment of impairment and loss of earning capacity

Dr Tio:

The degrees of WPI and LOEC for her left ankle injuries are assessed to be 7%. 

Dr Ho:

The whole person impairment and the loss of earning capacity for his left ankle are both 1% at the very most.” 

52.  On 26 Oct 2019, OTD issued a report [1/249], which said, inter alia, as follows:

“The final assessment conducted on 9 Feb 2018. He still complained persistent left ankle and knee pain. His self-reported standing and walking tolerance was still poor. According to the last assessment results, his physical ability did not match with the mentioned job demands and he was advised to change job in the future. He was then discharged from our department after Orthopedic Specialty follow up on 15 Feb 2018.”

C.  The Claimed Amounts

53.  Against the above background, the parties’ respective positions as to the correct quantum of damages at trial was as follows:-

	Heads of Damages	P’s Position [P Closing §90]	Ds’ Position [D Closing §42]
1.	PSLA	$410,000	$150,000
2.	Pre-trial Loss of Earnings & MPF	$1,661,836	At most $191,280
3.	Post-trial Loss of Earnings & MPF	$2,607,494	NIL
4.	Loss of Earning Capacity	$200,000	$80,000
5.	Special Damages:- Medical Expenses Travelling Expenses Tonic Food	$21,000 (agreed)
	Less: EC Compensation	-$605,680
	Total	$4,294,650	-$163,400

D.  The Issues

54.  Based on the above facts, and also the parties’ submissions, the following issues require resolution:-

(a)  Issue 1 - Was P’s knee issue caused by the Accident? P says the Accident caused issues to both his left ankle and his left knee; Ds’ position is that the Accident only related to P’s left ankle, not his left knee. 

(b)  Issue 2 - Did the Accident cause P to be unable to go back to his previous job as a scaffolding worker?

(c)  Issue 3 – What are P’s loss of earnings?

(d)  Issue 4 – What is P’s loss of earning capacity?

(e)  Issue 5 - What should be the quantum for PSLA?

E.  Analysis

E-1.  Issue 1 – Was P’s knee issue caused by the Accident?

55.  One issue that arose at trial is whether or not P’s knee issue was caused by the Accident. 

  i.  P’s Case

56.  P’s primary case is that the left knee injury was suffered at the time of the Accident. 

(a)  P’s witness statement evidence in this regard has already been stated in Section B-2 above.  P heavily relies on the fact that Ds had not produced any witnesses to contradict P’s testimony. 

(b)  P also highlights that, insofar as medical records are concerned, the left knee issue appeared, at the latest, on 5 Jul 2017, and consistently featured thereafter [see §18 above and the records that followed].  In particular, P places reliance on the medical records of Dr Irene Lo [see §§23 and 25 above], which described the accident as involving “left knee contusion” and “left ankle & knee injury”.  

(c)  At trial, P, by way of his oral evidence, added to the description of what happened in his first few medical visits:-

(i)  In relation to the day of the accident, when he went to the A&E, there was an open wound at his knee (損左), and a nurse helped him clean his wound at the knee and cover it with gauze [19 Jan 12:37pm approx].  P then said he did not understand why the Doctor did not write it down in the medical records.  When further probed, he said that he did, on that occasion, in fact tell the Doctor at A&E about his bone pain at the knee – he added that he pointed out to the Doctor that there is a wound (我重話比佢知包左個傷口)  [19 Jan 12:40pm approx]. 

(ii)  In relation to the visit on 25 May 2017, his recollection is that:-

1.  The Doctor did not examine his knee in the beginning. 

2.  P therefore explicitly pointed out to the Doctor that he had knee pain as well (我膝頭哥都痛)[19 Jan 12:47pm approx.].

3.  The Doctor then retorted that there is no record of any knee injury. 

4.  P then insisted he had pain, and he remembered that the Doctor then wrote a recommendation for him to undergo X-ray for the knee. 

5.  When it was pointed to P that the records did not include any X-ray conducted over the knee (but only over the ankle), he accepted that he may have remembered wrongly.  

6.  However, when it was put to him that, if P could be forgetful about the X-ray, he could also be forgetful about the knee issue, he strenuously denied.  He said he could not have forgotten the pain. 

(iii)  He also insisted he did tell the Doctor at the DoO on his visit on 22 Jun 2017 about his knee pain, although he accepts that the medical records do not show it [19 Jan 12:51pm]. 

(d)  Further still, P makes a further argument that adverse inferences should be drawn against Ds. The argument goes like this [P Closing §§7-8]:-

(i)  P argues that “The Court should draw the adverse inference from D3’s failure to call witness to give evidence” [P Closing §7]. 

(ii)  The reason, it appears, is as follows:-

1.  In Wu’s (D1’s witness’)  cross-examination, Wu accepted that, after the accident, P was brought to the 安全部 (Safety Department), a make-shift container at the construction site (run by D3)  for first aid treatment. 

2.  Wu said that, after the incident on the 2^nd day, he went to the Safety Department, and he had seen a handwritten document (手寫白紙)  which recorded the incident, including a description of the injury (done by people at the safety department of D3)  [20 Jan 10:40am approx].  

3.  However, this document had not been disclosed in these proceedings [P Closing §8(b)].  When cross-examined, all Wu said was that one should ask D3 about that matter.  P therefore invites the Court to draw the adverse inference that the document, if produced, would be unfavourable to Ds’ case. 

4.  Additionally, P also argues that this is part of a wider pattern of suppression of evidence by Ds.  The allegation is based on the fact that Ds failed to voluntarily disclose Dr Irene Lo’s reports until being specifically asked by P in and around 11 Jan 2022 [P Closing §35].  

(e)  Finally, insofar as Ds rely on the Joint Expert Report whereby both experts were agreed that his left knee symptoms had nothing to do with the accident [see §51(f)  above], P argues that such an opinion is unreliable:-

(i)  It contained a factual error, ie it recited the fact that P did not complain until 17 Aug 2017, when in fact the records showed that P complained by 5 Jul 2017 at the latest. 

(ii)  The experts’ view that the knee issue was due to degeneration does not sit well with swelling of the knee observed in the medical reports. 

(iii)  The experts did not have the benefit of Dr Irene Lo’s reports. 

57.  Finally, P had at §12(i)  of his Witness Statement also made an alternative case, ie, even if the knee injury was not caused directly by the accident, it may have been caused by his change of posture after the injury: “意外後，腳踝傷令我行動不方便，走路等用腳的動作變了不自然，和以前正常動作不一樣，我覺得這樣時間長了也導致了我膝蓋問題。”

  ii.  Ds’ Case

58.  Ds do not accept P’s case.  Ds point towards the following to contradict P’s case:-

(a)  P’s assertions are inconsistent with the contemporaneous written records. 

(i)  The A&E records show that there was no complaint of left knee pain; in fact, the records show that the left knee was examined, and was described as ‘non-tender’: see §14 above. 

(ii)  While P claims that he notified the DoO of left knee pain on 25 May 2017 [see §11(d)  above], did not appear in the DoO’s records [see §15 above]. Ditto with the 22 Jun 2017 visit to the DoO [see §17 above].  

(iii)  The first time that there was any knee complaint was on 5 Jul 2017 [see §18 above]. 

(b)  Both experts were agreed on the view that the knee issue had nothing to do with the accident [see §51(f)  above].  As to P’s criticisms (eg, the experts assumed that P first complained of knee pain on 17 Aug 2017 when in fact he did complain to the OTD by 5 Jul 2017 at the latest), this is an unfair criticism:-

(i)  The experts were provided with the 5 Jul 2017 OTD records which recorded the reference to knee pain [see §18 above], and there is no reason to suggest that the experts did not consider them.  In fact, elsewhere in the Joint Expert Report (internal page 6-7, 1/260), the experts explicitly quoted from OTD’s report dated 26 Oct 2019 [see §52 above], which mentioned P had complained of knee pain in his initial assessment on 5 Jul 2017.  There is no basis to suggest that the experts were unaware that P had made such complaints to the OTD.  The first time P complained to the treating doctor at the DoO was 17 Aug 2017, which the experts noted correctly.

(ii)  Further, if P had wished to challenge aspects of the Joint Expert Report which are agreed as between the two experts, P should have raised the issue early and/or chosen to cross-examine the experts.  It is wholly unfair for P to raise the point only in the Opening after having agreed to dispense with cross-examining the experts. 

(iii)  In any event, the 5 Jul 2017 complaint is still far from contemporaneous with the Accident. 

(c)  As to P’s alternative argument, ie, that his knee issue is a result of the modification of his posture after the ankle injury caused by the accident, this is inconsistent with P’s viva voce evidence, whereby under cross-examination, he attributed his knee pain only to the alleged contusion at the time of the Accident. In any event, as a matter of common sense, if P genuinely felt pain in his left ankle, he would have avoided to bear weight on his left leg.  It is inherently unlikely that this would cause issues with his left knee. 

iii.  Analysis

59.  It remains to analyse the above evidence/arguments. 

60.  The first plank of P’s case is of course his viva voce evidence.  

61.  In considering such, I bear in mind the following legal principles helpfully summarized by DHCJ Eugene Fung SC in Hui Cheung Fai v Daiwa Development Limited (HCA 1734/2009, 8 April 2014):-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep at 431 (Lord Pearce)…

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011)  §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80.  I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002)  5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics)  Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

62.  Applying such principles, the first port of call is to compare P’s evidence against the contemporaneous documentation.  

63.  In this regard, first, P’s account of what had happened is inconsistent with the medical records in material respects.  

(a)  First, in relation to the date of the Accident:-

(i)  The A&E record at the date of the Accident made clear that the medical staff did do a relatively detailed examination of P, including specifically, the left knee, which was described as “non-tender” [see §14(a)  above]. 

(ii)  Further, the markings on the left ankle of the pre-printed diagram of the human body shows that the medical staff concerned is quite detailed in his/her approach, and would specifically check for wounds and bruises.  If, as P had testified, there was an open wound to his left knee, it is inherently very unlikely that the medical staff would not have recorded that down.  This is even more unlikely if, as P had said in his oral testimony, he specifically drew to the medical staff’s attention pain at his left knee [see §56(c)(i)  above].  

(b)  Second, in relation to the visit to the DoO on 25 May 2017, P again insisted that he had specifically notified the doctor of his knee pain [see §56(c)(ii)  above].  However, the medical records again recorded nothing about his knee [see §15 above].  

(c)  Third, in relation to the visit to the DoO on 22 Jun 2017, P again insisted that he had specifically notified the doctor of his knee pain [see §56(c)(iii)  above].  However, the medical records again recorded nothing about his knee [see §17 above]. 

64.  The contemporaneous medical evidence thus strongly contradicts P’s viva voce evidence. Even if one can accept that medical records are not always complete and medical staff may sometimes omit to record some symptoms/complaints, it is inherently extremely unlikely that two medical teams (A&E’s medical team, and DoO’s Dr Michael Tse)  would on three occasions all omit recording P’s alleged knee injury amidst his alleged explicit complaints in relation thereto. 

65.  Second, the document titled 僱員/工人受傷呈報表 [see §15 above] signed by P (which on its face was relatively contemporaneous, although one would have to accept it is not dated per se and thus its weight would have to be discounted)  also did not record any knee issue – instead, the injured part referred to is the left ankle; and despite there being an explicit option of “擦傷”, and P’s claim that his knee has been 擦傷, the option was not ticked. 

66.  Third, one can take little comfort as to the reliability of the evidence of P.  

(a)  First, P’s viva voce evidence is inconsistent with his witness statement.  In his witness statement, his evidence was that he did not feel pain on his knee until the next day when the analgesics’ effect subsided: see §11(d)  above.  In P’s oral testimony, however, his evidence was that he felt pain the knee and actually told the A&E doctor about it: see §56(c)(i)  above. 

(b)  Second, as noted in §56(c)(ii)  above, when P described his visit on 25 May 2017 in his viva voce evidence, he went so far to state, rather confidently, that on that occasion the doctor recommended that he underwent X-Ray of his left knee, because he so complained.  It was only after it was pointed out to him that there was no such X-Ray record that he relented and said he may have remembered wrong.  

67.  On balance, therefore, I do not find P’s viva voce evidence based on his recollection reliable, and I do not accept such.  I do not find him to be a credible witness.  Instead, the contemporaneous medical records show that it is unlikely that the left knee issue was raised until 5 July 2017 (almost 2 months after the Accident).  

68.  The second plank of P’s case is to rely on medical records from 5 July 2017 onwards, ie, around 2 months after the Accident, which shows that there were issues with swelling with the left knee and pain complained of in the left knee, with particular weight being placed on Dr Irene Lo’s reports prepared in Oct 2017, ie, around 5 months after the Accident.  

(a)  The issue of pain in the left knee featured in records produced by the DoO and the OTD.  It also appears that since early 2018, P was referred to KWH’s Physio, which deals with the left knee issue (see §31 above onwards). 

(b)  So far as Dr Irene Lo’s reports dated Oct 2017 are concerned, P relies heavily on the fact that, in her first report dated 11 Oct 2017, under the heading “How the injury occurred”, she mentioned “left knee contusion” (or bruising); and her diagnosis was “left knee & ankle injury”. 

69.  I accept that the records of swelling and pain and Dr Irene Lo’s reports are evidence that P suffered from a knee problem.  

70.  It remains, however, necessary to view such in the context of other medical evidence, and see how relevant they are to the ultimate issue in question, ie, whether the knee problem is causally linked to the Accident.  In general, the medical evidence suggests that the knee problem is not related to the Accident:- 

(a)  The 25 Aug 2017 (see §21 above)  and 23 Jul 2018 (see §47 above)  A&E Medical Report only mentioned issues with the ankle, not the knee.  

(b)  The 6 Nov 2017 WRA issued by KWH’s OTD [see §26 above] regarded the knee issue as one of “Past Medical History”, rather than being related to the Accident. 

(c)  The 15 Feb 2018 “Referral for Arranging Employees’ Compensation (Ordinary Assessment)  Board” [see §37 above], the DoO, which by that time would have been fully aware of the knee pain complaints (see §§20, 0, 27, 30, 36), still put the diagnosis as “Fractured Left ankle”, and did not mention anything about the knee; as a result, it appears that the Employees’ Compensation Board also assessed loss of earning capacity on the basis that the injury was left ankle fracture resulting in left ankle stiffness and pain (see §46 above). 

(d)  The Joint Expert Report also made it clear that both experts agreed that “His alleged left knee symptoms should be unrelated to the subject accident” for 2 reasons, ie:

(i)  “since there is no mention of left knee injury in the medical report from A&E of KWH. He did not complain about his left knee until he attended the orthopaedic clinic three months later on 17/08/2017.”

(ii)  “The subsequent X-rays and MRI scan of his left knee showed only degeneration of the cartilage. There was no sign of injury in his left knee.”

71.  In this regard, I note of course that the Joint Expert Report is being challenged by P: see §56(e)  above.  However, I am not convinced that those arguments would substantially subtract from the strength and reliability of the Joint Expert Report:- 

(a)  First, as to the argument that the Joint Expert Report is unreliable because the experts referred to 17 Aug 2017 as the date P first complained of knee issues when in fact the records show that P complained to the OTD by 5 Jul 2017 at the latest, I agree with Ds that this argument is not tenable.  

(b)  Although it is true that in the Diagnosis and Causation section of the Joint Expert Report [see §51(f)  above] the experts focused on the first date the knee issue was complained to the treating doctor at DoO, this does not mean that the experts were unaware of the earlier complaint to OTD.  In fact, the experts cited OTD’s 26 Oct 2019 Report which mentioned P’s complaint of knee pain at the initial assessment on 5 July 2017 [see §58(b)(i)  above]. 

(c)  There is also considerable force in Ds’ argument that the point taken by P is an unfair one, as the issue is apparent on the face of the Joint Expert Report since its inception (9 Dec 2019)  but P had never raised this point with them, nor had afforded them an opportunity to respond by way of cross-examination [see §58(b)(ii)  above].  Given P has the burden of proof, if P wished to point out any alleged errors in the factual assumptions made by the experts (especially by both experts), he ought to have sought clarification and/or called the experts to testify.  This was a point made by DHCJ Paul Lam SC in Tamang Tikaram v Tong Kee Co Ltd(HCPI 19/2013, 1 Apr 2015)  at §52:- 

“Mr Wright sought to criticize Dr Chun’s opinions on various grounds including that they were inconsistent with the contemporaneous medical notes. I take the view that, if the defendants wished to run those points against Dr Chun, they should have invited the experts to make a supplemental report on those specific points; and if there were material disagreements which could not be resolved on paper, they should have sought leave to cross examine the experts. For the above reasons, I prefer Dr Chun’s opinions.”

(d)  In fact, at trial, when this point was first raised, I asked P’s counsel whether P would consider making an application to adjourn the trial in order to seek a further expert report – after taking instructions, I was told that P would not make such an application.

(e)  In any event, I do not think the date issue would have a significant impact on the experts’ analysis.  The point the experts were making was that the complaint in relation to the knee was not contemporaneous.  Even if one used the earlier date of 5 July 2017, P’s complaint was only made almost 2 months after the Accident, and was far from contemporaneous. 

(f)  As to the non-availability of Dr Irene Lo’s report to the experts, again, I do not think they would have made a material difference:-

(i)  Dr Irene Lo’s reports were short one-page documents.  While on the first occasion (11 Oct 2017)  it records “Left knee contusion” under the heading “How the injury occurred”, given that P did not see Dr Irene Lo until 5 months after the Accident, this is more likely what she was told rather than an observation based on the physical examination.  

(ii)  The more significant objective evidence available, ie, the MRI that Dr Irene Lo ordered and the report thereof [see §24 above], was made available to the two experts.  In fact, this MRI report was part of the basis upon which the experts agreed that P’s condition was due to degeneration rather than due to injury from the Accident.  

72.  The third plank of P’s case is to argue that an adverse inference should be drawn against Ds, based on the failure to call D3’s witness (ie Yang)  to explain the handwritten document which Wu testified was created when P was first injured and brought to the Safety Department at the construction site, operated by D3 [see §56(d)  above].  

73.  In this regard, P relies upon the case of Telings International Hong Kong Ltd v John Ho & Ors (CACV 10/2010, 22 Oct 2010)  at §79, which in turn cites Tullett & Tokyo International Securities Ltd v APC Securties Co Ltd[2001] 2 HKC 713 at 723B-E:-

“285. Failure to produce evidence, as indicating unfavorable tenor of evidence: (1) In general. ... The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.

The non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause. Ever since the case of the Chimney Sweeper's Jewel [Armory v. Delamirie] this has been a recognised principle.” [emphases added]

74.  Telings [at §79] also cited the case of Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434, where at §28, the Court noted as follows:- 

“…In Cavendish Funding Ltd v Henry Spencer & Sons Ltd [1998] 6 EG 146 at 148-149, Aldous LJ cited the following passage from the judgment of Newton and Norris JJ in O'Donnell v Reichard [1975] VR 916 at 929:

“It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a person without explanation fails to call as a witness a person who he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference then they may properly take it into account against the party in question for two purposes, namely:

(a)  in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; ...” [emphases added]

75.  A yet more recent Court of Appeal case provides further guidance.  In Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22, one issue was whether or not the plaintiff was entitled to overtime payment [§8(1)].  The plaintiff gave evidence, and asserted that she had been promised overtime pay by a person named “Lo Yu” [§8(2)].  The plaintiff argued that, since the defendant did not call “Lo Yu” as a witness, an adverse inference should be drawn so as to convert P’s assertion into proof [§§12, 26]. In this regard, the Court of Appeal had this to say:-

“27.   Mr Lim relies on the English Court of Appeal decision in Wisniewski v Central Manchester Health Authority [1998] PIQR 324. At page 340 Lord Justice Brooke said he derived the following principles from his examination of the case law:

“(1)  In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2)  If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3)  There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4)  If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

28.  In the application of these principles he relies for further support on the comment by Lord Justice Brown in Benham Limited v Kythira Investments Ltd [2003] EWCA Civ 1794 at paragraph 30 when he said of the position where the defendant elects to call no evidence:

“… the only issue then is whether the claimant has established his claim on the balance of probabilities. But it must be recognized that he may have done so by establishing no more than a weak prima facie case which has then been strengthened to the necessary standard of proof by the adverse inferences to be drawn from the defendant’s election. Such adverse inferences can in other words tip the balance of probability in the claimant’s favour.”

…

33.  The following propositions can be derived from the case law:

(i)   the Wisniewski principles do not constitute a presumption; consequently, the mere failure of a party to call a witness does not automatically confer an evidential benefit on the opposing party;

(ii)  the Wisniewski principles concern the drawing of inferences and whether any inference is drawn will depend upon the quality of the primary facts on which the inference is based; this is necessarily a fact sensitive matter and will vary from case to case;

(iii)  the primary facts must allow of the inference to be drawn in the sense that the inference logically flows from those facts;

(iv)  in the circumstances of the case the judge must be persuaded that it is appropriate to draw the inference; and

(v)  one circumstance where it will not be appropriate to draw the inference is where there is an explanation for the party’s failure to call the witness.

34.  One of the relevant circumstances in the present case is that the judge was dealing with a bare assertion from a plaintiff whom he regarded as totally unreliable as a witness and who was prone to exaggerating the seriousness of her medical condition. This is an assessment of the witness that the judge was perfectly entitled to make and his assessment that the plaintiff was lacking in credibility and that he could not rely on her was not challenged on appeal. Put simply, the witness who was the source of the assertion was not capable of belief.

35.  A second relevant circumstance of this case was that the plaintiff’s claim was unsupported by any other evidence and no records were produced by her in support of her claim that she was entitled to overtime. Yet another circumstance is that the plaintiff could be said to be contradicted by her own evidence in that she was claiming she had worked 86 hours overtime from November 2007 to March 2008 but had never been paid for any of it. This anomaly the plaintiff sought to explain away by claiming that the agreement she had with Lo Yu was that she would be paid the overtime, not monthly, but at an uncertain date in the future when the work at the construction site was finished. This is an explanation which is itself inherently incredible. Other contradictions were that, as the Master noted, the plaintiff had not asserted an entitlement to overtime pay when she made her ECO claim and notwithstanding that she realised her employer would have no record of the number of hours overtime she worked, she discarded her only record of those hours.

36.  Thus, the Master was faced with a bare assertion made by an unreliable witness supported by explanations which were inherently incredible and contradicted by the plaintiff’s own conduct. These are all circumstances relevant to whether any adverse inference should be drawn against the defendant. Mr Lim seeks to make use of the Wisniewski principles to transform an unbelievable witness making an unbelievable claim into a proven claim. The Wisniewski principles were never intended to be used in this way. The Master was entitled to decide that in the light of these circumstances it was not a proper case for the drawing of an adverse inference…” [emphases added]

76.  Based on the above authorities, in my view, the doctrine of adverse inference can be summarized as follows:-

(a)  While there is no general duty to assist an opponent in litigation and a claim can be struck out for lack of supporting facts, once there exists a sufficiently particularized claim whereby an issue is crystallized, it is the policy of the law that parties generally have to put forward all evidence (whether witness or documents)  which they control/possess, whether favorable or unfavorable, to help elucidate the truth.  

(b)  As such, if a party can be reasonably expected to provide certain evidence but fails to proffer such without good reason, an issue arises as to whether he has violated the policy of the law, and imposed an illegitimate impediment upon his opponent’s ability to challenge the party’s case/prove the opponent’s case. 

(c)  If this happens, the law has tools in its armoury to compensate for such in the fact-finding process.  In gist, depending on the factual matrix, the fact finder can be persuaded to draw an inference from the party’s conduct that the unavailable evidence is materially unfavorable to such party, and will be sufficient to bridge an evidential lacuna in his opponent’s case on the available facts.  

77.  As is apparent from the case law and the summary above, the decision whether or not to draw an adverse inference is highly fact sensitive. 

(a)  First, it is necessary to consider whether or not a party is reasonably expected to provide the evidence in question, yet failed to do so without good reason. Potentially relevant (but non-exhaustive)  factors include:-

(i)  whether, and if so, how accessible/available the evidence is to the party;

(ii)  whether, and if so, how accessible/available the evidence is to the opposing party (eg whether the witness is equally available to both sides); 

(iii)  whether, and if so, how aware the party is of the need to disclose such evidence.  This may, in turn, depend on the procedural history, eg, how the parties pleaded their cases, how the evidence panned out, what applications had been made (eg request for discovery), and what submissions had been made; 

(iv)  how material/useful the evidence is. This may, in turn, depend on:-

1.  the strength of the case put forward by the opponent;

2.  how important the issue is;

3.  how relevant the evidence is to the issue;

4.  how probative the evidence is expected to be (eg a witness who suffers a conflict of interest may not have much probative value); 

(v)  whether the party is given an opportunity to explain the non-provision, and if so, the explanation given.  Examples of explanations include privilege, confidentiality, embarrassment etc, even if such explanations are not wholly justified. 

(b)  Second, even if it could be said that a party can be reasonably expected to provide the evidence (which is often a matter of degree)  but failed to provide it, there is still the question of whether or not the tribunal can be persuaded to draw the requisite inference after taking into account all relevant facts. Potentially relevant factors (again non-exhaustive)  include:-

(i)  the strength and nature of the case put forward by the opponent.  As the case law makes clear, a meaningful inference can only be drawn if there is a strong enough case upon which the unavailable evidence can potentially bridge the gap; in contradistinction, an inference cannot create a case when there is originally no case, turning “an unbelievable witness making an unbelievable claim into a proven claim”; 

(ii)  the nature of the unavailable evidence, and the inherent probability that such evidence would plug the evidential gap and remedy the evidential lacuna. 

78.  Applying these principles, it is important to first understand the issue and evidence in question, and how the matter panned out in the litigation process. 

(a)  The overall issue in contention is whether or not P injured his knee on the day of the Accident.  

(b)  The evidence in contention is what transpired at the Safety Department after the Accident [see §56(d)  above]. 

(c)  Looking through the procedural history, such evidence was not the focus of the parties.  For example, in P’s Revised Statement of Damages (dated 6 Jan 2021), P did not assert facts in relation to his Accident, much less what transpired at the Safety Department.  He only recited the relevant medical records/report, the first mention of his knee being “On 17 August 2017, [P] reported that he also suffered from occasional left knee pain.” [1/46/§2.3]  

(d)  As to witness statements (which were prepared in Dec 2020, prior to the settlement on liability dated 12 Mar 2021):-

(i)  P’s witness statement (dated 23 Dec 2020)  did mention him hurting his knee on that day (see §10 above).  P also mentioned that he was taken to the Safety Department after the Accident (see §11(a)  above).  However, there was no suggestion that meaningful conversations/acts took place there.  There was no mention of any written records/photos being taken by anyone at the time.  

(ii)  Consistent therewith, Ds’ witness statements also did not deal with the issue.  Neither Yang’s (witness for D3)  nor Wu’s (witness of D1)  witness statement (dated 14 and 21 Dec 2020)  dealt with the Accident, as both witnesses made clear they did not witness it.  In fact, Yang’s statement was solely focused on the issue of liability, giving evidence as to inter alia the safety training that P received, the fact that P ought to have taken into account the existence of debris on the floor and avoided the Accident etc. 

(e)  The first time P raised the issue of what transpired at the Safety Department was shortly before trial, when on 29 Dec 2021 P’s solicitors wrote a letter to Ds’ solicitors, asserting as follows [Appendix 2 to Ds’ Closing]:-

“We are instructed by our client that immediately after to the industrial accident, our client was taken to the first aid station situated at concerned construction site and at the material times, a female site safety officer did take some photos of our client’s injuries, including his left knee injury. Please let us have all the coloured photos taken.”

(f)  On 11 January 2022, Ds’ solicitors responded as follows:-

“1. A coloured photo of your client’s injury taken on or before 18 July 2017 by the female site officer. We do not have record of the exact date as to when the said photo was taken, and we are instructed that this photo is the only one retained by our clients showing the condition of your client’s injury.”

The photo was inserted into the bundle as [2/528-1], and is a photo of P’s ankle. 

(g)  In P’s Opening dated 14 Jan 2022, no mention was made in relation to what transpired at the Safety Department; nor was there any suggestion that the discovery provided by Ds was incomplete. 

(h)  It was against this background that, in Ds’ Opening dated 17 Jan 2022, Ds made clear that they will not call Yang as a witness “as her evidence only relates to the issue of liability.”

79.  Against the above procedural background, I am of the view that it could not be said that Ds are reasonably expected to procure Yang (or someone else from D3 who was at the Safety Department)  as a witness.  P has simply not put what transpired at the Safety Department in issue in a clear and timely manner.  The point was only belatedly and tangentially raised very shortly before trial by way of an informal documentary request, and once that request was answered, P’s Opening still did not put the point fairly and squarely in issue.  Against such background, it could not be said that Ds should reasonably be expected to procure Yang (or someone else from D3 who was at the Safety Department)  as a witness.  When a matter had not been properly put in issue by a party in a timely manner, one cannot reasonably expect the opposing party to field a witness to answer the point. 

80.  It remains to deal with a related but slightly different point, ie, the alleged non-disclosure of the handwritten document prepared at the Safety Department which Wu testified he had seen at the tail-end of the trial during cross-examination, which was apparently prepared by D3’s staff (20 Jan 2022), as per noted in §56(d)  above. 

81.  In this regard, the starting point is again to consider whether Ds could be reasonably expected to have provided such evidence. 

82.  On the one hand, there are factors in support of such.  For example, (i)  the handwritten document prima facie once existed in the hands of D3 (according to Wu); (ii)  the existence of the photo from the same occasion [see §78(f)  above] suggests that there is some record keeping by D3’s Safety Department; and (iii)  the handwritten document would also prima facie be of relevance to the issue of whether or not P injured his knee on the day of the Accident. 

83.  On the other hand, there are also countervailing factors: (i)  as already analysed above, the evidence relates to what had occurred at the Safety Department, which P had failed to put in issue in a proper and timely manner [see §79 above].  Even after the Safety Department issue arose via the belated photo request, the scope of the request did not include documents.  This impedes upon Ds’ awareness of the need to disclose such evidence, and its opportunity to explain the non-disclosure; (ii)  there is also already in existence other reliable contemporaneous documentary evidence, eg, the A&E records; (iii)  it is far from clear whether or not Ds still have the document in their possession, custody or control such that they are able to produce it. 

84.  Taking into account all of the above, on balance, I am of the view that Ds could not have been said to have been reasonably expected to provide the evidence pre-trial. 

85.  The question then arises as to whether a different conclusion is merited when the existence/relevance of the document became apparent when Wu was cross-examined. When the existence/relevance of a once neglected document is revealed in cross-examination, what is the proper approach if a party who allegedly at least once prima facie possessed the document remains silent and makes no disclosure? 

86.  In this regard, the case of Rai Pabitdara v Vegatable Marketing Organization (HCMP 921/2011, 1 September 2011)  is instructive.  In that case, the plaintiff claims for personal injuries was dismissed.  In seeking leave to appeal, the plaintiff argued that the trial judge failed to consider the drawing of an adverse inference from the defendant’s failure to disclose daily reports, which existence only became known to the plaintiff at trial.  The Court of Appeal refused leave, and had this to say:- 

“18. Thirdly, it is contended that the Deputy Judge failed to consider that the employer had failed to make discovery of documents, in the form of the daily reports prepared by its supervisors, which would support the applicant’s case. The existence of such daily reports was only made known to the applicant in the course of the oral evidence of one of the respondent’s witnesses at trial. It was submitted, in reliance on the principle in Armory v Delamirie (applied in Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKLRD 356 at 365-366)  that the failure to produce these reports should lead to an adverse inference against the respondent that the daily report for 17 October 2006 would support the occurrence of the 1^st accident.

19. The difficulty with this argument is that it does not appear that any attempt was then made to seek discovery of the relevant daily report. It would have been open to the applicant to request the production of the document but this was not done. In the circumstances, we do not think that it would be appropriate to draw the adverse inference we were invited to draw, namely that the report or reports in question would support the applicant’s case that she injured her back as a result of the 1^st accident.”

87.  The above passage makes it quite clear that the Court of Appeal takes the view that, at least generally speaking, when a document which existence and relevance was previously neglected came to light during trial, it is for the party who wishes to rely upon it to take the initiative and seek discovery, rather than to sit back and rely on adverse inferences.  

88.  This, in my view, makes good sense.  

(a)  As is apparent from the discussion above, the doctrine of adverse inference is a fact-finding device designed to fill, as a last resort, evidential lacuna when the evidence cannot be obtained.  It is the last port of call, not the first.  A Court will always prefer relying on actual evidence rather than inferences as to what unavailable evidence would contain.  If a party identifies documents which exist and which it seeks to rely upon, and it is within its power to at least try to obtain it, it should normally seek to obtain it from the opposing party in the first instance. 

(b)  In contradistinction, in the scenario at hand, it is generally not open to simply sit back and rely on an opposing party’s inaction, and invite the Court then to draw adverse inferences from such inaction.  Afterall, such inaction can be a result of many different factual scenarios, some of them perfectly innocent, eg, it could simply be that the document is not within the power, possession and/or control of the opposing party and thus there is nothing to disclose.  Such ambiguity is not conducive towards a firm basis upon which to draw adverse inferences, and the Court will be slow to do so especially when such ambiguity could have been clarified via a discovery application. 

89.  Applying such, I am not satisfied that the fact that the existence/relevance of the document became apparent when Wu was cross-examined, read together with Ds’ subsequent inaction, would allow the requisite adverse inference to be drawn. 

90.  Finally, I would note that, even if I were wrong in my conclusions above, and that Ds could be said to be reasonably expected to provide the handwritten document, I would in any event have declined to draw the requisite adverse inference.  As noted above, the basis of any inference is P’s own case based on the available evidence.  In this regard, I have already analysed P’s case in detail at §§60-71 above.  I did not find P’s case, which is based primarily on his viva voce evidence, credible, as against all the contemporaneous documentation available.  The later medical evidence is also against his case.  There is thus no proper factual basis upon which to draw the requisite adverse inference.   

91.  Finally, the fourth plank of P’s case is his alternative case, ie, insofar as the knee issue was not caused by the Accident directly, it was cause by P’s change of posture due to his ankle injury. 

92.  With respect, I do not accept P’s case.  P bears the burden of proving such a case.  However, there is no medical evidence which, objectively, supports his hypothesis at all.  All we have is the assertion/surmise of P.  This is not sufficient.  I further accept the common sense point raised by Ds, ie, if P genuinely felt pain in his left ankle, he would have avoided to bear weight on his left leg. It is inherently unlikely that this would cause issues with his left knee.  

iv.  Conclusion

93.  To conclude, therefore, after weighing the various evidence concerned and on the balance of probabilities, I find that P’s knee issue is not factually or casually connected to the Accident. 

E-2.  Issue 2 – Did the Accident cause P to be unable to go back to his previous job as a scaffolding worker?

94.  The next issue is whether the Accident caused P to be unable to go back to his previous job as a scaffolding worker. 

i.  P’s Case

95.  At the outset, P reminds me that I am not bound by the experts’ opinion.  Instead, I have to give due weight to P’s own evidence in this regard: see Lee Chit Ming v Man Siu Hung[2018] HKCA 66 at §23.  

96.  As to evidence, P relies on his own evidence that he is unable to return to scaffolding work, despite having tried.  He is unable to stand or walk for more than 20 minutes continuously without pain; nor can he squat for more than 3 minutes without pain [P WS §14]. In his own words [P WS §13(a)]:-

“…我曾經嘗試返回工作，但由於左腳踝傷患，不能攀爬上竹棚工作，也不能負擔竹枝的重量。我的狀況是不夠應付搭竹棚的工作。”

97.  At trial, P also supplemented his evidence orally.  He testified that the scaffolding process requires the anchoring of the body with two legs involving the use of one leg’s ankle to翹住枝直竹 (wrap around the vertical bamboo)  so as free up the upper limbs to perform scaffolding (which Wu confirmed), and his ankle injury therefore does not allow him to continue in his role.  He also emphasized that, given that scaffolders work at height, they cannot simply rest when they want to [P Closing §§44-46]. 

98.  Further, P’s evidence is that he went on to do a number of less demanding jobs from Nov 2018 onwards: P WS §13(b), such as painting, clearing debris, etc.  On this basis, P’s counsel submitted that, unless I do not accept P’s account of his post-accident employment, I should accept P’s case that he could not do scaffolding work – “the simple reason being that it is absurd that P would avoid the much higher paying scaffolding work” to take up lesser paying jobs. 

99.  P also relies on the views offered by KWH’s OTD in its report dated 26 Oct 2019 [see §52 above], ie “According to the last assessment results, his physical ability did not match with the mentioned job demands and he was advised to change job in the future.” 

100.  Finally, P relies on Dr Tio’s view that P will suffer expected on and off pain, stiffness, weakness and reduced endurance etc.: see §51(j)  above.  P’s counsel asks me to consider this in conjunction with the demanding and dangerous nature of scaffolding work: see for example Leung Po Chun v Yat Lee Booth(HCPI 1099/2006, 14 Sep 2007)  at §§6, 37-42. 

ii.  Ds’ Case

101.  Ds’ case relies on inter alia the following points. 

102.  First, Ds rely on the Joint Expert Report, and the experts’ consensus there that P can go back to becoming a scaffolder: see §51(k)  above.  

(a)  Although Dr Tio’s view is somewhat qualified, Ds say this should not stand in the way of the Court finding that P can return to work after the Accident, citing Tamang Tikaram at §77 and emphasizing that the burden of proof rests on P to say that he cannot return to his previous job. 

(b)  Further, Ds also rely on the case of Gurung Bhakta Bahadur v Green Valley Landfill Ltd (HCPI 333/2009, 28 Jan 2011), whereby Bharwaney J held that, one has to be careful to distinguish between cases where the plaintiff is unable to go back to his own job, and cases where the plaintiff could do so with added vulnerability – the latter case of which should be compensated with damages for loss of earning capacity, but not loss of earnings. 

103.  Second, Ds also point out that the medical records show that:-

(a)  P’s ankle pain has improved over time, so much so that P did not return to seek analgesics by Jun 2018 [see §43 above].  

(b)  His physiotherapy sessions, which began in Jan 2018, was only related to pain in his left knee, not his left ankle, for the first 6 sessions [3/556-567; see also §§31-34, 38 and 39 above].  It is only at his 7^th session that he first complained of ankle pain [554; see also §40 above].  In fact, the complaint in relation to ankle pain was so subsidiary in nature that, when KWH’s Physio issued its Physiotherapy Report, it only focused on the knee issue [see §50 above].  

104.  Third, Ds also suggest that P has been exaggerating the problem with his ankle. 

(a)  As noted above, P did not raise issues with his ankle in his physiotherapy sessions in the beginning. 

(b)  Even after he did complain of pain in his session on 5 Mar 2018, the range of movement (ROM)  of his left ankle was full [3/544].  This continued on 12 Mar 2018 [552]; 21 Mar 2018 [550]; 28 Mar 2018 [548]; 18 Apr 2018 [546]; 26 Apr 2018 [544]; 21 May 2018 [542].  

(c)  However, when P was the subject of the expert’s assessment on 25 Sep 2019, he apparently suffered from reduced ROM, with a reduction of 20 degrees of plantar flexion and 25 degrees of dorsiflexion [1/262]. 

(d)  As P accepted under cross-examination that there were no further injuries caused to his left ankle between 5 Mar 2018 to 25 Sep 2019 [19 Jan 2022 2:45pm], it is inexplicable why the ROM would have been reduced [Ds Closing §11.4].  When asked, P was unable to provide any explanation – his answer was “I don’t know” [19 Jan 2022 2:46pm]. 

105.  Fourth, Ds also suggest that P’s behaviour of only relying on DoO and finally, defaulting on his DoO appointment [see §49 above] did not make sense if his pain is as debilitating as he says it is: see Liu Yuk Lin v Johnson Cleaning Services Ltd [2019] 1 HKLRD 382 at §§60-61.  P’s explanation that he did so because he had forgotten to attend, and/or felt hopeless, did not make common sense.  Further, in his cross-examination, P confirmed that, after DoO, he did not seek any further or other treatment – on the excuse that he had no money.  However, this is contradicted by the fact that he received HK$300,000 in August/October 2019 [3/396-400] – an amount which he alleged he lent to friends.  

iii.  Analysis

106.  The starting point is that the burden falls upon P to put together sufficient evidence to prove that he is unable to get back to his old job: see §102(a)  above. 

107.  I accept P’s reminder that I should not take the experts’ opinion as gospel, and that I should give due weight to P’s own evidence. 

108.  P’s own evidence, of course, is that he is unable to return to scaffolding work, despite having tried; and that he could only do, and did do, only lighter duties, from Nov 2018 onwards.  

109.  However, the following matters impinge heavily on P’s credibility:-

(a)  I accept Ds’ argument that the objective medical records show that his ankle had improved over time – see in particular the two last DoO visits in 2018: see §§39-43 above.  In fact, it was his knee which became the real pain issue and thus the target of his physiotherapy: see §103 above.  This is also consistent with Dr Ho’s opinion that the real pain issue arises from “the chronic degeneration of his left knee joint”. 

(b)  I also accept Ds’ argument that P has more likely than not been exaggerating problems with his ankle at the time when he was examined by the two experts: see §104 above.  This cuts heavily across his credibility, and shows the lengths to which he is willing to go in order to obtain more compensation.  This, in turn, weakens P’s argument that his actual engagement in lower paying and less demanding jobs since Nov 2018 should mean that he was in fact unable to engage in scaffolding work, for, if given a choice, he would of course go for a higher paying job [see §0 above]. 

(c)  I also accept that there is some strength to Ds’ arguments that P’s behaviour in relation to the termination of his medical care, and his lack of attempts to seek second opinions, cast doubt on his assertion that his pain is debilitating: see §105 above.  P’s conduct is inconsistent with a person trying his reasonable best to get back to his old job. 

110.  Further still, P’s own evidence is inconsistent with the two experts who prepared the Joint Expert Report.  Both experts opined that they regard him as being able to resume his job as a scaffolder, albeit that Dr Tio was more guarded in his assessment and took the view that his endurance would be reduced and he would need to take intermittent rests.  I would add that:-

(a)  The experts’ evidence is based on sound analysis, and I do not see the minor factual error and non-availability of Dr Irene Lo’s reports as having a material impact on its credibility (see §71 above).  

(b)  In particular, both experts noted that, despite P’s complaints of pain and reduction of range of movement (ROM), there was “no instability or disuse atrophy” (Dr Tio), and “there was no evidence of muscle wasting in his left lower limb to suggest that he was genuinely suffering from ambulatory difficulties. The examination of his left ankle was also unremarkable with no signs of residual inflammation such as swelling or increased temperature. The ankle was stable and the range of movement was good…He…has resumed his normal daily activities despite his alleged complaints.”  In my view, had there been debilitating pain, common sense dictates that one would use one’s left limb less – but the objective observations of the experts show that this was not the case. 

(c)  P of course relies on the assessment of OTD as being evidence in support of his contentions (and which is inconsistent with the experts’ assessment): see §99 above.  However, it appears to me that OTD’s assessment is very much dependent on P’s subjective views and on the assumption that he tried his best, as is evident from the OTD’s WRAs [see §§26, 29, and 34] and also the final report itself [see §52 above].  Moreover, as the final report made clear, his last training session was on 7 Feb 2018, and its final assessment was on 9 Feb 2018. This was more than 1.5 years prior to joint examination by the experts which took place on 25 September 2019.  Given the issues with P’s credibility [see §109 above], and the fact that its assessment is relatively stale (as compared to the Joint Expert Report), not much weight can be put on OTD’s assessment.  

(d)  Finally, I note that P seeks to discredit the Joint Export Report by suggesting that the joint examination by the two experts was rather short and therefore the experts could not have comprehensively considered P’s situation.  However, if that were the case, and if there were anything that the two experts had not taken into account, or if there were anything that he had forgotten to mention to the two experts in the joint examination, P could have applied to the Court, or seek Ds’ consent, to have a further examination or compile a supplemental report.  Having failed to do so, such complaints are unfair and cannot be accepted. 

111.  Taking matters in the round, I do not accept P’s assertions.  He has not proven, on the balance of probabilities, that he cannot return to his scaffolding job.  In contradistinction, I find that he can return to his scaffolding job.  

112.  As to the difference of opinion between Dr Tio and Dr Ho:-

(a)  Dr Tio’s view is that, while P can carry on his duty as a scaffolder, this is subject to him avoiding prolonged walking/standing and climbing and that he may need intermittent breaks.  

(b)  Dr Ho’s view is that P can carry on his duty and work normally, although he mentions that he may suffer from pain due to his knee issue. 

(c)  On balance, I prefer the views of Dr Ho. 

(i)  Dr Tio’s views are expressed in tentative language.  His view is that P “may need” breaks; and that his currently employment “could be” a better alternative.  This does not inspire confidence. 

(ii)  Dr Tio asserts that intermittent breaks of 15 minutes after 1.5 hours’ work is required, but no reasoning/basis has been provided for these figures. 

(iii)  In contradistinction, Dr Ho’s view is more straightforward.  It also ties in with the evidence that P’s ankle has healed well and P’s physiotherapy did not deal with the ankle issue at the outset at all: see §103 above.  

iv.  Conclusion

113.  All in all, I find that P is unable to prove, on the balance of probabilities, that he could not go back to his old job as a scaffolder after the sick leave period.  In contradistinction, I accept Dr Ho’s view that P’s ankle has healed well, and find that he is able to do return to his scaffolding job.  Any issue of pain that may affect his working capacity relates to his knee, which, as I have held at §93 above, is not causally linked to the Accident.  

E-3.  Issue 3 – What are P’s Loss of Earnings?

114.  I will then deal with the issue of loss of earnings.

115.  To do so, I have to determine the sub-issues of:-

(a)  What should be the number of sick leave days?

(b)  What were P’s daily wages of P pre-accident?

(c)  What were the average number of days P worked per month pre-accident?

i.  Sick Leave

116.  The public hospital (KWH)  gave sick leave for a total of 418 days (13 May 2017 to 4 July 2018). 

117.  As to the experts [see §51(l)  above]:-

(a)  Dr Tio’s (P’s expert)  is of the view that the public hospital’s sick leave period should be endorsed. 

(b)  Dr Ho takes the view that only 6 months’ sick leave should be given, on the basis that the ankle should have healed within 6 months and the sick leave thereafter was granted more based on the issue with his left knee, rather than his left ankle.

118.  P, of course, urges me to adopt KWH and Dr Tio’s views; while Ds argue that Dr Ho’s views should be accepted.  Ds point out, in particular, that P’s fracture showed signs of healing as early as 22 Jun 2017 [see §17 above]; and at the time of the commencement of his physiotherapy sessions, P did not complain of ankle pain [see §103(b)  above]. 

119.  Taking into account the above, and also the contemporaneous medical records, I am of the view that the sick leave period should end on 26 April 2018.  This is the date on which P visited DoO and told the Doctor that he did not have much pain, and his range of movement is good; so much so that the left ankle has range of movement comparable to his right uninjured ankle: see §39 above. 

120.  P further asks me to extend the pre-trial loss period to after expiration of sick leave, such being “a reasonable period of time for him to come to realise his disability and to find alternative employment”:  Shek Kam Ching v Po Kee Construction Engineering [2002] 3 HKLRD 796 at §17 [P Opening §66]. 

121.  In my view, it is reasonable to give some time to P to adjust and to find a new job after his sick leave expires.  On the facts, P’s sick leave ended in July 2018, and he took until Nov 2018 to find a job (ie, approx 4 months).  I find this period acceptable, considering P’s age.  I will therefore allow P a period of 4 months. 

ii.  P’s Pre-Accident Daily Wage

122.  The parties’ positions are as follows:-

(a)  P’s case is that he is able to earn HK$1,800 per day. This is based on:-

(i)  The fact that he earns HK$1,800 per day from Wing Kei Flower Store (HK)  Limited (Wing Kei), another employer he worked for in the period prior to his Accident.  Wing Kei did issue two income proofs (薪金證明)  which tabulated P’s employment in 2016/2017 (including the number of days he worked and the amount he received (from which one can work out that his daily rate is HK$1,800)  [2/313 and 313-1]. 

(ii)  The Census and Statistics Department of the Government states that the average daily wage of scaffolding workers at the relevant time hovered around HK$1,800. 

(iii)  While P only earned HK$1,400 per day when he worked at the Accident site for D1, this was due to his friendship with the person who introduced him the work [P Closing §19(c)]. 

(iv)  P’s cross-examination of Wu.  During cross, Wu testified that: (i)  workers with more than 20 years’ experience are general regarded as of master’s grade (大工); (ii)  at the time of the Accident, master grade workers can get up to HK$2,000, and it is not quite possible to employ a master grade worker at HK$1,400 [P Closing §19(a)-(b)]. 

(b)  Ds’ case is that he should be confined to the HK$1,400 he earned from D1.  In gist, Ds argue that:- 

(i)  Insofar as he earns HK$1,800 from Wing Kei, this should be viewed with circumspect. 

1.  While two income proofs were provided, these were not contemporaneous.   

2.  While there were ‘receipts’, they were all undated and all payments were made in cash [2/307-312] and untraceable in P’s bank account – in stark contrast to Wing Kei’s later payments in 2021 which were made electronically and could be found in P’s bank account statements [2/424-5 to 424-10].   

3.  There is also a lack of employer’s tax returns filed by Wing Kei.  If P did in fact worked for Wing Kei since the 1980s, it does not make sense for Wing Kei not to file any employer’s tax return.  

(c)  If P could have earned HK$1,800 elsewhere, P would not have continued to work for D1 [Ds’ Closing at §32.3]. HK$1,400 thus reflects P’s earning ability. 

123.  In my view, while there is some force in Ds’ criticism of the quality of evidence put forward in relation to P’s employment with Wing Kei, the fact remains that Wing Kei did certify, via the income proofs, P’s employment details with it.  I am not satisfied that the arguments and doubts raised by Ds are sufficient to lead to a conclusion that the Wing Kei income proofs are inaccurate or otherwise not reflective of the true situation. 

(a)  While it is true that subsequent payments in 2021 made by Wing Kei to P were made electronically, there is no evidence that Wing Kei’s practice back in 2016-17 were the same.  

(b)  As to the issue of employer’s tax returns, the evidence shows as follows: after a request was made by P’s solicitors to IRD for returns from the years of assessment from 2017/2018 to the present, IRD said there were none [2/359-360].  If it were the practice of employers always to file employer’s tax returns, one would have thought that D1 would have filed one for 2017/2018 (since it employed D1 from Dec 2016 to May 2017).  The fact that D1 did not do so means that it is not invariable that employers will always file employer’s tax returns.  One therefore cannot infer much from Wing Kei’s failure to do so.  

124.  I therefore find that P did receive HK$1,800 per day for his work with Wing Kei.  This figure is also in line with the Census and Statistics Department’s statistics. 

125.  As to Ds’ argument that P would not have worked for HK$1,400 for D1 if he could find a job earning HK$1,800 elsewhere, I think there is some strength in it.  I do not regard P’s explanation that the reduced rate was based on ‘friendship’ as a complete answer, as P did work for quite some days for D1 over a period of at least 4 months, despite such being relatively less than the time P worked for Wing Kei. 

126.  In this regard, from May 2016 to April 2017, P worked approximately 226 days for Wing Kei (roughly 84% of the time), and approximately 42 days for D1 (roughly 16% of the time, although the cut-off date is 20 Apr and not end of month).  Utilizing such percentages, P’s weighted average daily income across the two jobs would be roughly as follows:- 

HK$1,800 x 84% + HK$1,400 x 16% = HK$1,736

127.  Balancing all of the above factors, I find that P’s daily wage to be slightly lower than claimed, ie, HK$1,750.  

iii.  P’s Average Working Days Pre-Accident

128.  P’s case is that he worked 22.3 days a month on average.  This is calculated based on the number of work days for P from June 2016 to April 2017 (ie shortly prior to the Accident)  [P Closing §14]. 

129.  Ds’ case is that the figure should at most be 21 days [Ds Closing §34].  So far as I understand it, Ds’ argument is that P worked for an average of 10.5 days for D1; and that “Ds consider that [P] would, at best, have similar number of working days with [Wing Kei] and with [D1]”.  On this assumption, Ds’ working days would be 10.5 x 2 = 21. 

130.  With respect, I am unable to understand the basis of Ds’ assumption.  It also involves a challenge on the accuracy of the income proofs put forward by Wing Kei, which for reasons stated in §123 above, I do not accept. 

131.  I therefore accept the figure put forward by P, ie, 22.3 days. 

iv.  Conclusion

132.  Based on the findings above, the loss of earnings during P’s sick leave is as follows:-

Daily wage x average working days per month /30 x no. of sick leave days

which translates to:-

HK$1,750 x 22.3 days / 30 days x 349 days (ie, 13 May 2017 to 26 Apr 2018)  = HK$453,991

133.  There is a further need to take into account MPF, which is at HK$1,500 per month:

HK$1,500 x 349 days / 30 days = HK$17,450

134.  As noted at §§120-121 above, I shall allow a further 4 months’ period for adjusting and finding employment after the sick leave period.  The loss of earnings is as follows:-

Daily wage x average working days per month / 30 x no. of post-sick leave days

which translates to:-

HK$1,750 x 22.3 days / 30 days x 120 days (ie, 4 months)  = HK$156,100

135.  There is a further need to take into account MPF, which is at HK$1,500 per month:

HK$1,500 x 120 days / 30 days = HK$6,000

136.  The total loss of earning is thus HK$633,541.  

137.  Given my finding that P can return to his scaffolding job, there will be no loss of future earnings. 

E-4.  Issue 4 – What is P’s Loss of Earning Capacity?

138.  P’s case is that:-

(a)  “…in view of his residual conditions…it is submitted that there is very real risk P suffers from disadvantage if thrown back into the labour market searching for jobs.  Thus, a global award for loss of earning capacity in addition to the award for loss of further earnings was appropriate and the quantum for such an award would be more than the conventional figure.  P submits that the amount pleaded, i.e., a lump sum of $200,000 is reasonable.” [P Opening §74]

(b)  P also refers to Yuen Wai Chuen v Chan Wing Pui [2019] HKCFI 1521, where HK$150,000 was awarded on top of loss of future earnings, on the basis that this was approximately 10 months’ salary [§107]. 

139.  Ds’ case is that:-

“…since P’s residual symptoms in his left ankle should be minimal, his disadvantage in the labour market (if any at all)  should be minimal. Any award must be modest reflecting the extent of the risk. His remaining working life (at most 5-10 years)  is not long. Hence Ds’ plea of $80,000 is appropriate. As compared to [Ng Ka Cheuk v Welcome Construction Co. Ltd. (DCPI 865/2007, 16 Aug 2007)], which is comparable in terms of the extent of injuries, the court dismissed the claim for loss of earning capacity as the disadvantage could not be said to be significant: see §§44-45. Ds’ concession already takes into account the possible argument that the work of a scaffolder may be more strenuous at times.” [Ds Closing §40]

140.  In my view, a useful starting point is the case of Tamang Tikaram.  In that case:-

(a)  The plaintiff, an aluminum formwork erector, suffered an accident when he was 36 whereby he hurt is right ankle and suffered from a fracture of the right medial malleolus [§§1,4,43,45].  

(b)  He claims he has chronic pain [§46]. 

(c)  The Court found that he had exaggerated his pain to the experts [§54].  The Court also found that, contrary to his assertions, he can go back to his previous job [§77]. 

(d)  In discussing an award of loss of earning capacity, DHCJ Paul Lam SC had this to say:-

“82…the burden is on Tamang to adduce evidence to prove that there is a real or substantial risk that he will lose his employment in the future, and that there is a real or substantial risk that he will suffer financial loss because of his disadvantage in the labour market…

…

84…Both orthopaedic experts agreed that Tamang will suffer a small degree of physical impairment and loss of earning capacity. In practice, as mentioned, one must not exclude the possibility that he will suffer from some ankle problems in the future. Such possibility will be increased if he returns to work in the construction site, which is a more strenuous job. It is not fanciful to take the view that he may be prevented from working from time to time because of such ankle problems – and that, as a result, he will suffer financial loss.

85. For the above reasons, I am satisfied that there is sufficient evidence to support an award for loss of earning capacity. It is impossible to quantify the extent of the risk in monetary terms. In Lam Kam Fai v Yau Shing Scaffolding Co Ltd, HCPI 894/2011 (31 October 2013), §§98-100, DHCJ Hartmann awarded $ 245,000 after a 30% discount (which would have been $350,000)  under this head although he found that the plaintiff should have been able to return to work in the construction site. In Yu Kwok Wing v Lee Tim Loi [2001] 2 HKLRD 306 at 313C-D, Keith JA acknowledged that the assessment is highly speculative; but doing the best he could, he would estimate that the plaintiff would experience 15 days’ unemployment a year as a result of his reduced capacity. Each case must depend on its own facts.

86. Doing the best I can in the light of the totality of the evidence, I take the view that a lump sum of $250,000 is a fair and reasonable award in this case. I have cross checked the reasonableness of this sum in the following manner. Assuming that Tamang is entitled to claim a future loss of earnings on a multiplier/multiplicand approach, the multiplier should be 15.54 (adopting a discount rate of 2.5% and assuming that he will retire at the age of 60). Applying such a multiplier, a sum of $250,000 will mean $16,087.52 a year. According to the government statistics and evidence given by Tamang’s then co-workers, the present daily age of an aluminum formwork erector is now around $1,500 a day. A sum of $16,087.52 will represent about 11 days’ wages at such daily rate. In other words, the sum of $250,000 means that Tamang’s risk of financial loss due to his reduced earning capacity is assessed on the estimate that he will lose about 11 days’ wage a year if he returns to work as an aluminum formwork erector in the future up to his retirement. Such an estimate appears to be reasonable.”

141.  The facts of this case are not dissimilar to Tamang Tikaram.  I am therefore satisfied, for similar reasons, that I am entitled to make an award for loss of earning capacity. 

142.  As to quantum, as the authorities have acknowledged, its determination is not a science.  Testing the HK$200,000 amount claimed by P as per in Tamang Tikaram at §86:-

(a)  In the present case, P’s multiplier should be approximately 9.28 (assuming a 1% discount rate)  [P Opening §72]. 

(b)  Applying such, a sum of HK$200,000 will mean approx HK$21,551.72 per year.  On P’s daily rate of HK$1,750 per day, the sum of HK$21,551.72 will represent approximately 12 days’ wages.  In other words, P’s risk of financial loss due to his reduced earning capacity is assessed on the estimate that he will lose around 12 days’ wage a year if he returns to work as a scaffolder.  This does not appear to be unreasonable. 

143.  I therefore allow loss of earning capacity at HK$200,000. 

E-5.  Issue 5 – What should be the quantum for PSLA?

144.  P seeks HK$410,000 for PSLA [P Opening §63].  In gist, P relies on the following cases [P Opening §60]:-

(a)  Lam Kwong Ting v Ho Yau Yuen (HCA A1582 of 1990, 21 Aug 1990)  – compound fracture of left ankle with skin loss of about 4cm, hospitalization for approx 3 months, confined to wheelchair and crutches for 2 months - HK$180,000 (HK$428,182 adjusted for inflation); 

(b)  Siu Wai Man Ada v Lee Chi Chong (HCPI 174/1994, 9 Nov 1998)  – bimalleolar fracture to left ankle – hospitalized for 10 days, underwent 3 operations for fixation – HK$400,000 (HK$521,011 adjusted for inflation);

(c)  Wong Woon Hei v Dickson Construction Co Ltd (HCPI 521/2000, 3 July 2001)  – left calcaneum fracture – surgery and grafting – sick leave for 2.5 years – HK$400,000 (HK$564,158 adjusted for inflation);

(d)  Ng Tin Chuen v 黃宗強(HCPI 209/2013, 4 Nov 2014)  -  left calcaneum fracture – short leg cast with no surgery – reduced range of movement and stiffness of left ankle – HK$300,000 (HK$339,423 adjusted for inflation). 

(e)  Lam Tuen Ming v Perfect Logistics (HK)  Ltd (HCPI 200/2011, 12 Mar 2013)  – right lateral malleolus fracture – 3 operations – able to return to pre-injury sports - HK$300,000 (HK$354,360 adjusted for inflation)

(f)  Lam Kam Fai v Yau Shing Scaffolding Co Ltd [2014] 2 HKLRD 488 – fell 1.5 meters and fracture of left ankle requiring surgery – HK$325,000 (HK$383,890 adjusted for inflation), with 10% reduction due to separate old injury. 

145.  Ds’ case is that HK$150,000 is reasonable [D Opening §16]. Ds rely on the following cases:-

(a)  Yvonne Ng v Royal Hong Kong Yacht Club [2021] HKCFI 31 – weber b fracture right distal fibula and left ankle injury with mild tenderness over lateral malleolus – operation – HK$200,000. 

(b)  Dhillon Chamkaur Singh v Yiu Sze Yuen[2019] HKDC 1393 – fracture of left ankle lateral malleolus – walk with crutches for 3 months – HK$150,000.  

(c)  Ng Ka Chuk v Welcome Construction Co Ltd (DCPI 865/2007, 16 Aug 2007)  – weber b fracture of distal fibula – walk unaided with limp and pain for 15 months – HK$150,000. 

146.  In my view:-

(a)  The bulk of cases cited by P related to more serious cases which required surgery.  While not devoid of reference value, they are not very comparable. 

(b)  In comparison, the cases cited by Ds are more analogous to the situation faced by P. 

147.  Taking the above into reference, in my view, a fair and reasonable award should be HK$200,000.

F.  Conclusion

148.  Based on my findings on each of the issues above, I assess damages payable to P as follows:-

	Heads of Damages	Damages Assessed	P’s Position	Ds’ Position
1.	PSLA	$200,000	$410,000	$150,000
2.	Pre-trial Loss of Earnings & MPF	$633,541	$1,661,836	At most $191,280
3.	Post-trial Loss of Earnings & MPF	NIL	$2,607,494	NIL
4.	Loss of Earning Capacity	$200,000	$200,000	$80,000
5.	Special Damages:- Medical Expenses Travelling Expenses Tonic Food	$21,000 (agreed)
	Less: EC Compensation	-$605,680
	Total	$448,861	$4,294,650	-$163,400

149.  P should be entitled to interest:-

(a)  pre-Judgment:-

(i)  for PSLA, at 2% per annum from the date of the Writ (7 May 2020)  to the date of Judgment;

(ii)  for loss of earnings and special damages, at half judgment rate from the date of the Accident to the date of payment of EC Compensation; and thereafter on the remaining balance.

(b)  post-Judgment, at the judgment rate.

150.  I therefore order as follows:-

(a)  Ds to pay P the sum of HK$448,861. 

(b)  Ds to pay interest on the sum of HK$200,000 at 2% per annum from the date of Writ (7 May 2020)  to the date of Judgment; and after that, at the judgment rate until payment. 

(c)  D to pay interest on the sum of HK$654,541 at half judgment rate from the date of the Accident to the date of payment of EC Compensation; and thereafter at half judgment rate on the remaining balance until the date of Judgment. 

(d)  There be a costs order nisi that Ds shall pay P’s costs of this assessment (including all costs reserved), with certificate for counsel, to be taxed if not agreed. 

(e)  P’s own costs be taxed in accordance with the Legal Aid Regulations. 

151.  Finally, I thank Counsel for their helpful assistance.