SANDHU HARPREET SINGH (formerly known as HARPREET-SINGH) v. LOU SAI TONG

DCPI 390/2020

[2024] HKDC 469

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 390 OF 2020

----------------------------

----------------------------

----------------------------

JUDGMENT

----------------------------

A.  Introduction

1.  The present action arose from a traffic incident (the “Traffic Incident”) that took place at the junction of Possession Street and Hollywood Street at around 5:35 pm on 12 March 2017.

2.  It is not in dispute that when the Traffic Incident took place:-

(1)  The Plaintiff, who was a food delivery driver, was driving a motorcycle bearing registration number NT3925 (the “Motorcycle”) along Possession Street towards Hollywood Road.

(2)  The Defendant was driving a private vehicle bearing registration number UG4339 (the “Private Vehicle”) along Possession Street towards Hollywood Road.

(3)  The traffic was light. The weather was fine, and the road surface was dry.

3.  It is also not in dispute that the Motorcycle and the Private Vehicle did collide, and after the collision took place, the Motorcycle was on the left-hand side of the Private Vehicle towards its front.

4.  The key dispute in these proceedings is how the Traffic Incident occurred.

B.  Summary of the Parties’ Respective Case

B1.  The Plaintiff’s Case

5.  The Plaintiff alleges that shortly before the collision took place, he stopped his Motorcycle at the double white line at the end of Possession Street. At the time, there was no vehicle ahead of him. As he intended to turn left, he checked the traffic condition on the Hollywood Road (on his right). Suddenly, the Private Vehicle hit the delivery box at the rear of his Motorcycle from behind. Despite the force of the collision, he was able to maintain balance using his physical strength, and as such the Motorcycle did not fall onto the ground.

6.  Although the Plaintiff managed to complete a few delivery orders after the Traffic Incident, he soon felt substantial discomfort on his left foot and knee. As the pain increased on the next day, ie 13 March 2017, the Plaintiff attended a public hospital for treatment. Subsequently, he was examined and treated. There was lateral collateral ligament, soft tissue and patellofemoral joint cartilage injuries on the Defendant’s left knee. He was referred for physiotherapy and advised to walked with aids.

7.  As a result of the injury, the Plaintiff was granted sick leave from 13 March to 21 July 2017. According to the Employees’ Compensation (Ordinary Assessment) Board, the Plaintiff suffered 4% permanent impairment. The Plaintiff suggests that 10% of the permanent impairment was ascribed to pre-existing knee degeneration, and 90% of the permanent impairment was ascribed to the injury that was caused by the Traffic Incident.

8.  The Plaintiff says that the Defendant is responsible for his injury. In short, the Plaintiff complains that the Defendant should not have caused his Private Vehicle to hit his Motorcycle from behind. The Plaintiff says that the Defendant was negligent and/or in breach of the duties required of a reasonably competent driver.

B2.  The Defendant’s Case

9.  Contrary to the Plaintiff’s assertions, the Defendant alleges that his Private Vehicle was the first vehicle on Possession Street at the time of the Traffic Incident, and the Motorcycle was not ahead of him at all. The Defendant says that shortly before the Traffic Incident took place, he duly stopped his Private Vehicle behind the double white lines at the end of Possession Street, and he observed the traffic condition of Hollywood Road (on his right). Before the Plaintiff begun to check the traffic conditions on the left, the Defendant’s Motorcycle suddenly crashed into and scratched the left front of his Private Vehicle.

10.  In these premises, the Defendant denies that he was negligent and/or in breach of any duties of care. He contends that the Plaintiff was the one who drove negligently and/or breached his duties of care.

C.  Liability

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

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

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

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

(4)  the demeanour of the witnesses.

12.  In Joint and Several Trustees of Yeung Wing Sing v Yeung Wing Sing & Anor [2021] HKCFI 2018, at para 26, Yvonne Cheng J pointed out that:

(1)  contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2)  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;

(3)  regard should be had to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence;

(4)  care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’ character; and

(5)  witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be had to their motives and to the overall probabilities.

13.  These legal principles on facts finding and assessment of credibility are well-established.

14.  However, the difficulty in the present case is that there is minimal objective evidence that directly sheds light on how the Traffic Incident took place. The Traffic Incident was not captured by any video recording nor witnessed by any independent witnesses (such as the pedestrians and other drivers). The Police had carried out investigation but was unable to draw a conclusion. As stated in their letter dated 14 September 2021, “[b]oth drivers gave their versions in their own favour and blamed the other”, and no prosecution was contemplated due to insufficient evidence.

15.  Relying on The Popi M [1985] 1 WLR 948 at 951D, Mr Simon So[1] (for the Defendant) submits it is open to me to conclude that the cause of the Traffic Incident, even on a balance of probabilities, remains in doubt, and it follows that the Plaintiff has failed to discharge his burden of proof.

16.  As pointed out by Au-Yeung J in Chen Mei Lan v The Registrar of Companies & Ors (HCA 849/2015, 30 December 2016) at para 47:

“A judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. It is open to him the 3^rd alternative of saying that the party on whom the burden of proof lies has failed to discharge that burden. No judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. See Rhesa Shipping Co Supplemental Agreement v Edmunds [1985] 1 WLR 948, 955H-956A, Lord Brandon of Oakbrook; Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd & anor, HCA 1957/2005, 28 July 2011, at §§15-21, Poon J (as he then was)” (emphasis added)

17.  In my view, this is not an extreme case where the Court is not able to make findings at all, such that the parties’ dispute will have to be decided on burden of proof. Despite some difficulty, I am able to make affirmative findings based on the available evidence.

18.  Having considered the available evidence (including the viva voce evidence of the parties), the available materials (such as the photographs taken at the scene after the Traffic Incident took place), all the circumstantial factors, the inherent probabilities, the apparent logic of events and the parties’ submissions, I am of the view that the Defendant’s case is preferable to the Plaintiff’s case. I take this view for a number of reasons.

19.  First, I am of the view it was inherently unlikely that the Defendant’s Private Car would hit the Plaintiff’s Motorcycle from the back in the circumstances of the present case:

(1)  The evidence shows that the Plaintiff was not driving, and could not be driving, the Private Vehicle at a high speed at the time when the Traffic Incident took place.

(2)  In this connection:-

(a)  The Plaintiff alleges that he did not see how the Private Vehicle hit his Motorcycle (as he allegedly focused on the traffic conditions on Hollywood Road). However, it is the Plaintiff’s evidence that when the collision took place, he was able to use his body strength to maintain balance, and thus Motorcycle did not fall onto the ground. Had the Defendant driven the Private Vehicle at a high speed, the force generated by the collision would have been enormous, and the Defendant would not have been able to maintain control and balance. As such, it appears that even on the Plaintiff’s allegations, the Defendant did not drive the Private Vehicle at a high speed. Otherwise, the Motorcycle would have fallen, and the injury on the part of the Plaintiff would have been much more serious.

(b)  It is the Defendant’s evidence that he was driving the Private Vehicle at about 30km/hour at the time, and he was well aware that he had to stop at the end of Possession Street (ie the juncture). Hence, the Defendant begun to apply brake about 3 seconds before the Private Vehicle reached the junction. The Private Vehicle (which was already slow) then gradually decelerated, and eventually stopped before the double white lines at the end of Possession Street.

(c)  It appears to me that the Defendant’s evidence is consistent with the objective circumstances. It is not in dispute that Possession Street is on an upward slope, and there is no suggestion that the Private Vehicle (ie a BMW 2-series seven-seater) was a powerful vehicle that could accelerate quickly.

(d)  Having observed his response to the questions posed to him during cross-examination (the details of which will be further elaborated below), I am of the view that the Defendant is truthful and reliable witness. I accept his evidence as set out hereinabove. I accept that he was driving the Private Vehicle at a speed that was below 30km/hour, and the Private Vehicle was decelerating gradually in a controlled manner. I also accept the Defendant’s evidence that at the time when the Traffic Incident took place, he was driving home after he finished work and purchased some food. It appears that the Defendant was not in a hurry at all, and he had no reason to drive fast.

(3)  It should be pointed out that the Defendant has an impeccable driving record. At the time when the Traffic Incident took place, the Defendant had been driving for around 15 years. As of the time when the present trial took place, the Defendant had not been convicted of any traffic offence, and not been involved in any traffic accident (except the present Traffic Incident). The Defendant’s evidence in this regard was neither challenged nor contradicted.

(4)  For completeness, it should also be pointed out it is the Defendant’s evidence that he purchased the Private Vehicle (ie a BMW 2-series seven-seater) as a family car, and he used it to carry his mother (who was an elder) and other members of the family. I accept the Defendant’s evidence (which was not challenged and which seems credible). Bearing in mind the Defendant’s impeccable driving record as well as the purpose and function of the Private Vehicle, I am not of the view that the Defendant was a person who had the tendency of driving carelessly and/or speedily in disregard of traffic conditions.

(5)  Furthermore, it is not in dispute that at the time when the Traffic Incident took place, the weather was fine, and the road surface was dry. Further, the traffic was also light.

(6)  Taking all the aforesaid circumstances into account, I am of the view that the inherent probabilities lie against the Plaintiff’s case. I fail to see how the Defendant (who was an experienced driver with an impeccable record) might cause his Private Vehicle (which must be moving at a very low speed even according to the Defendant’s allegations) to hit the rear of the Motorcycle when the road conditions were fine and when his vision was not blocked by any object.

(7)  In my judgment, the Defendant could not have lost control of the Private Vehicle and could not have failed to observe the vehicle (if any) in front of him. These were very unlikely.

20.  Second, I am of the view that the Plaintiff’s evidence on the material aspects of the dispute is not satisfactory and not consistent with the objective circumstances. I am sceptical about his account of events:

(1)  When the Plaintiff was cross-examined by Mr So in the morning on the first day of trial, he insisted that the Motorbike was stationary despite the collision. He stressed that he was able to use his body strength to maintain balance.

(2)  In the afternoon on the first of day of trial, the Plaintiff was asked about the photograph at page 202‑2 of the Trial Bundles. This photograph showed that after the collision took place[2], the Motorcycle stopped at a position that was between the first white line and the second white line at the junction between Possession Street and Hollywood Road.

(3)  When asked about the position of the Motorcycle after the collision with reference to the said photograph, the Plaintiff begun to suggest that he and the Motorcycle was pushed forward due to the force arising from collision. However, before the collision took place, the Motorcycle was behind the double white lines.

(4)  These allegations were not only new, but also inconsistent with the previous evidence. When the Plaintiff was further cross-examined by Mr So in regard to the discrepancy and the reason why he did not mention these new allegations in his previous evidence as well as the police statement, the Defendant said that he and the Motorcycle were only pushed forward by a few centimetres. The Plaintiff also said this was a minor matter, and as such it did not come across his mind that it was necessary to address the same.

(5)  The Plaintiff’s explanations were unconvincing. I find it difficult to accept the same.

(6)  More importantly, the photograph at page 202-2 of the Trial Bundles showed that the Motorcycle went beyond the first white line at the junction substantially. It could not be the case that the Motorcycle was initially behind the first white line but pushed forwarded only by a few centimetres. The Defendant’s allegation did not sit comfortably with the photograph.

(7)  The fact that the Motorcycle went beyond the first white line was detrimental to the Plaintiff’s case. It appears to me that the Plaintiff knew that this was the case, and this was why he alleged that the Motorcycle was pushed forward by a few centimetres when he was asked about the photograph at page 202‑2 of the Trial Bundles.

(8)  For the reasons explained above, I am not of the view that what the Plaintiff said was true, and I am not impressed by the Plaintiff’s evidence.

(9)  In my view, contrary to the Plaintiff’s allegations, what happened was that the Plaintiff did cause the Motorcycle to go beyond the first white line at the junction, and the Motorcycle was already in such position at the time immediately before collision took place. This showed that the Plaintiff was in a hurry at the time, and this was why he did not wait behind the double white lines. It appears that instead of waiting patiently, the Plaintiff caused the Motorcycle to overtake the Private Vehicle from the left-hand side[3], and in the course of overtaking the Private Vehicle and turning left, the delivery box at the rear of the Motorcycle hit the left front of the Private Vehicle.

(10)  In this connection, the photographs (see eg pages 202‑1, 202‑2 and 202‑4 and 516 of the Trial Bundles) show that the Motorcycle was on the far left of Possession Street and it was close to the pedestrian pavement. In my view, this tends to show that the Motorcycle was not first vehicle on Possession Street, and at the time of the Traffic Incident, the Defendant was attempting to overtake the Plaintiff’s Private Vehicle from its left-hand side. Otherwise, there was no good reason why the Defendant did not drive around the middle of the lane.

(11)  I accept that a driver who seeks to turn left may sometime slightly lean towards the left of the lane. However, it would be unnatural to cling to the far left. It is not seriously in dispute that Possession Street is fairly wide. Although it is a single-lane road, it is wide enough for two private cars to go in parallel (see eg the photograph produced at page 202‑2 of the Trial Bundles). Whilst the Defendant was all along adamant that no vehicles parked on the driving lane on Possession Street at the time, when the Plaintiff gave oral evidence in the morning on the first day of trial he also said that there were no vehicles on his right and his left at the time. In the circumstances, I see no good reason why the Plaintiff would drive so close to the pedestrian pavement on the left. Bearing in mind the position of the Motorcycle as shown by the photographs, I do not believe that it was the first vehicle on Possession Street as alleged by the Defendant. I am of the view that the Motorcycle was behind the Private Car, and the Plaintiff was seeking to over-take the Private Vehicle from its left.

21.  Third, I am of the view the Defendant was a truthful and reliable witness. Despite the effort of Mr Ricky Li (for the Plaintiff), the Defendant was unshaken during cross-examination. He was able to provide convincing answers to the questions posed to him. On the evidence, I am not of the view that there is room to criticize the Defendant’s conduct as a driver, and I am not of the view that the Defendant was discredited:

(1)  Mr Li extensively cross-examined the Defendant as to whether he paid attention to the traffic condition on his left hand-side and applied the left indicator before the collision took place. The Defendant accepted that he was duty-bound to check the traffic condition on his left-hand side and applied the left indicator before he caused his Private Vehicle to turn left. It is the Defendant’s evidence that there was no vehicle around him when he was driving along Possession Street. As soon as he stopped at the junction at the end of Possession Street, he begun to observe the traffic conditions on the Hollywood Road on the right-hand side. However, before he had the opportunity to perform a “shoulder check” on his left and applied the left indicator, the Motorcycle bumped into his Private Vehicle. The Defendant’s evidence made sense and was coherent. I accept his evidence. In my view, the Defendant cannot be criticized. At the time, the Private Vehicle was stationary. Whilst the Defendant focused on the traffic conditions on his right-hand side, he did not lose sight of his duty to check the traffic conditions on his left-hand side. It just transpired that the Motorcycle bumped into the Private Vehicle before the Defendant proceeded to check the traffic conditions on the left and applied the left indicator.

(2)  The Defendant was cross-examined as to the position of the Private Vehicle after the collision. This was shown in the photographs produced at pages 202‑2 and 516 of the Trial Bundles. Unlike the Motorcycle (which was on the far left of the lane), the Private Vehicle was around the middle of the lane, though it was inclined towards the left. I cannot see how the Defendant can be criticized. The Defendant explained that the slight inclination towards the left enabled him to have a better angle in the turn and a better vision of the traffic conditions on the right. These explanations make sense to me.

(3)  Mr Li criticized the Defendant for not pulling the hand brake of the Private Vehicle after he caused the same to stop at the junction. In my view, this was not directly relevant to the question as to how the Traffic Incident occurred. In any event, it was the Defendant’s evidence the Private Vehicle had an auto-brake function, ie when the driver pressed the brake hard enough, the wheels would be locked as if the hand brake was pulled. This auto brake function could not even be turned off. I accept the Defendant’s evidence. From a practical point of view, I disagree that his conduct as a driver was unsatisfactory.

(4)  The Defendant was cross-examined on the photograph produced at page 202‑5 of the Trial Bundles, which showed that there was a scratch mark in the shape of a hook in the left front of the Private Vehicle. Mr Li suggested it must be the case that the Private Vehicle hit the Motorcycle, rather than the other way round; otherwise, the scratch mark would not look like the hook as shown in the photograph. The Defendant disagreed. In line with the contents of his witness statement, the Defendant insisted the photographs showed that the scratch moves towards the direction of the Private Vehicle’s front, and as such it must be the case that the Motorbike crashed into the Private Vehicle. In my view, this forensic debate is not conducive to the resolution of the dispute. First of all, the photographs relied on by the parties are not even visually clear. Second, more importantly, without the assistance of an expert with knowledge on the mechanics of collisions, I am simply not in a position to form an informed view.

(5)  Mr Li pointed out that the left rear mirror of the Defendant’s Private Vehicle was unscratched and undamaged, whereas the point of impact on the Motorcycle was the right rear corner of the delivery box at the back. I have carefully considered the positions of the Private Vehicle and the Motorcycle as well as the angle of the turn and the plausible trajectories of the collision. Despite Mr Li’s submissions, I am not convinced that the aforesaid matters necessarily show it was more likely that the Defendant’s Private Vehicle bumped into the rear of the Plaintiff’s Motorcycle (rather than the other way round).

22.  For all the above reasons, I accept the Defendant’s case, and reject the Plaintiff’s case. I find that:-

(1)  At the time before the Traffic Incident took place, the Defendant’s Private Vehicle was the first vehicle on Possession Street. The Defendant drove the Private Vehicle at a speed that was about 30km/hour, and he started to decelerate about 3 seconds before he reached the junction between Possession Street and Hollywood Road. At the time, the Private Vehicle was slow and under control.

(2)  The Defendant eventually caused the Private Vehicle to stop before the double white lines at the end of Possession Street.

(3)  At all material times, the Plaintiff’s Motorcycle was behind the Defendant’s Motorcycle. The Plaintiff attempted to cause his Motorcycle to bypass the Private Vehicle from its left-hand side, and in the course of doing so, the delivery box at the rear of the Motorcycle hit and scratched the left front of the Private Vehicle.

(4)  In the premises, the Defendant did not cause the Traffic Incident, and should not be held liable for the Plaintiff’s injury. The Defendant was not negligent, and he did not breach any duties of care required of him.

23.  Accordingly, I dismiss the Plaintiff’s claims against the Defendant in the present action.

D.  Quantum

24.  In light of the findings above, the Plaintiff is not entitled to damages. However, if I rule in favour of the Plaintiff on liability, my award in his favour will be as follows.

D1.  Causation

25.  In Wong Pou Yin Kennie v Maxim’s Caterers Ltd (HCPI 753/2009, 11 May 2012) at para 38, To J stated:-

“… Causation is essentially a matter for the judge and not doctors. The judge will be assisted by medical evidence but is not bound by it. The law and medicine apply different standards as regards causation. Doctors practise the science of aetiology. They look for clinical cause or irrefragable chain of causation which is to be proved beyond reasonable doubt. But, in law there is causation if it is shown on a balance of probabilities that the accident was a substantial contributing cause of the injury. It does not need to be the sole cause. In considering causation, the judge is bound to use common sense.”

26.  There is no evidence showing that the Plaintiff suffered pain on his left knee before the Traffic Incident. It is true that the Plaintiff had a previous accident on 4 August 2013 (which was the subject matter of the proceedings in DCEC 1651/2014). However, the injury that he suffered as a result of such accident was not the same as the injury that he suffered as a result of the present Traffic Incident.

27.  Mr So (for the Defendant) submits that the Plaintiff exacerbated his injury as he continued to take delivery orders after the Traffic Incident and failed to take proper measures to take care of himself. However, it is not uncommon that the pain of a person who suffers physical injury might only exacerbate after some time. In any event, Mr So’s contention is not supported by any medical evidence.

28.  Insofar as the medical evidence is concerned, Mr So relies on the report of Dr Law, who opined that the Plaintiff would have developed the present condition anyhow sooner or later in about 1 to 5 years’ time, and hence only 10% of his current condition should be attributed to the Traffic Incident. This suggestion seems extreme to me, and I am not persuaded by the analysis. The Plaintiff was only 40 years’ old when the Traffic Accident took place. I prefer the opinion expressed by Dr Chan, whose view was that only 10% of the Plaintiff’s condition was ascribed to his pre-existing knee generation.

29.  All in all, I am satisfied that the Traffic Incident was, on the balance of probabilities, a substantial contributing cause of the Plaintiff’s injury, and he would not have suffered the conditions but for the Traffic Incident.

D2.  Pain, Suffering and Loss of Amenities (PSLA)

30.  Whilst the Plaintiff claims HK$140,000 under this head, the Defendant suggests HK$50,000.

31.  Mr Li refers me to Ko Kam Wai v Sze Hak Fung & Anor (HCPI 292/2005, 11 July 2006); Yip Leung Hoi v Tin Wo Engineering Co Ltd (HCPI 1026/2004, 29 March 2007); Law Sze Chung v Li Mie Chun [2018] HKDC 1172.

32.  Mr So refers me to, inter alios, Lai Ka Yin v Chan Yiu Kei (DCPI 453/2008, 7 July 2009); Wong Yin Wan Stonnie v Lee Tak Wong (DCPI 2429/2008, 10 November 2011); and Alam Zafar v Cheuk Fung Engineering Co Ltd [2022] 5 HKLRD 978.

33.  Whilst each case will have to be decided on its own facts, I have considered the cases cited by counsel as reference. In my view, the injury suffered by the Plaintiff was not serious at all. There was no effusion, and no operation was performed. In the circumstances, it does not appear to me that the cases cited by Mr Li are appropriate comparables, and I agree with Mr So’s submissions that an award of HK$50,000 would be generous.

D3.  Pre-Trial Loss of Earnings

34.  The Plaintiff worked for Rocket Food Ltd as a food delivery driver at the time when the Traffic Incident took place. As evidenced by his bank statements, the Plaintiff’s average monthly salary during the 9 months’ period from May 2016 to January 2017[4] was HK$25,934.90, However, as indicated in Mr Li’s opening submissions, the Plaintiff was contented that the figure of HK$25,468.15 (as pleaded in paragraph 31 of the Revised Statement of Damages) be adopted[5].

35.  In Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited [2008] 5 HKLRD 210 at para 18, Le Pichon JA held that the Court is not bound by the mere issue of sick leave certificates, and the same are no more than a piece of evidence that has to be evaluated in light of all the available evidence. Hence, the Court has to form its own opinion on the sick leave granted based on the totality of the evidence: see Rai Surya Prakash v Pacific Crown Security Services Ltd & Anor [2020] HKCFI 917, para 42 (per DHCJ Anson Wong SC).

36.  I have carefully considered the medical evidence before me as well as materials that were used for the purposes of employees’ compensation. I agree with Dr Law’s opinion that sick leave of 131 days (from 13 March 2017 to 21 July 2017) was reasonable and adequate. I am unable to agree with Mr Li’s suggestion that sick leave should be granted until 7 December 2017 (ie the time when the Plaintiff begun working as a delivery driver for another company) or 24 August 2017 (ie the last physiotherapy session).

37.  In the premises, the award for pre-trial loss of earnings is HK$116,771.46 (ie HK$25,468.15 × 131/30 months × 1.05).

D4.  Post-Trial Loss of Earnings

38.  Mr Li fairly accepts that the Plaintiff has resumed employment as a food delivery driver. Hence, there is no post-trial loss of earnings.

D5.  Loss of Earning Capacity

39.  As pointed out by Lord Fraser in Chan Wai Tong v Li Ping Sum [1985] HKLR 176 at 183B-D, damage for loss of earning capacity is awarded to cover the risk that a plaintiff will suffer financial loss at some future date because of his disadvantage in the labour market (see also Thapa Surendra v EW Cox HK Ltd (HCPI 451/2009, 11 July 2011) at para 46 (per DHCJ Seagroatt).

40.  Although the Plaintiff managed to resume job as a food delivery driver, in my view he would suffer some disadvantage due to the conditions on his left knee. For instance, there will be occasions where the Plaintiff makes delivery to buildings with no elevators, and he will have to walk up and down the stairs of the buildings.

41.  However, as mentioned, the injury suffered by the Plaintiff was not serious.

42.  In the premises, I am only prepared to award a sum of HK$50,000.00 under this head. This roughly represents 2 months’ salary of the Plaintiff at the time when the Traffic Incident occurred.

D6.  Special Damages

43.  The parties agree that the quantum of special damages be HK$3,205.00.

D7.  Employee’s Compensation

44.  It is not in dispute that the Plaintiff received employee’s compensation in the amount of HK$144,168.88. He should give credit in respect thereof.

D8.  Sum Up

45.  In the premises, had the Plaintiff succeeded on liability, I would have awarded him a sum of HK$75,807.58 as damages:-

PSLA	HK$50,000.00
Pre-Trial Loss of Earnings	HK$116,771.46
Post-Trial Loss of Earnings	HK$0.00
Loss of Earning Capacity	HK$50,000.00
Special Damages	HK$3,205.00
	Sub-total: HK$219,976.46
Less Employee’s Compensation	(HK$144,168.88)
	Total: HK$75,807.58 ===========

E.  Conclusion

46.  For the reasons set out in Section C above, I dismiss the Plaintiff’s claims in this action.

47.  I make a costs order nisi that:-

(1)  the costs of this action, including all costs previously reserved, be paid by the Plaintiff to the Defendant to be taxed if not agreed (with certificate for one counsel); and

(2)  the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulation.

48.  Unless any of the parties take out an application by summons seeking to vary the said costs order nisi within 14 days, the same shall be made absolute.

49.  I express my gratitude to Mr Ricky Li, Mr Simon So and Mr Herman Ho as well as the parties’ solicitors for their helpful assistance. In particular, I thank the Plaintiff’s solicitors for preparing the trial bundles in the most helpful manner.