LEUNG YIU MING v. WONG CHI WA

HCPI 289/2016

[2019] HKCFI 2935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.289 OF 2016

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BETWEEN

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JUDGMENT

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Introduction

1.  On 20 March 2013, the plaintiff (Mr Leung), a technician then employed by Hutchison Telecommunications (Hong Kong) (“Hutchison”), was standing at a safety island at the road junction of Kwai Chung Road and Tai Lin Pai Road when he was knocked down by the light goods vehicle driven by the defendant (“Accident”).  As a result, he lost consciousness at the scene, and suffered multiple and serious injuries, including head injuries.

2.  By this action, he claims against the defendant damages for personal injuries arising out of the Accident. Interlocutory judgment on liability was entered by consent on 23 October 2018. This is the trial of the assessment of the plaintiff’s damages.

3.  At the beginning of the trial and with consent of the defendant, the plaintiff amended the title heading of the action by removing his next friend (ie his wife), since it is the joint opinion of the parties’ respective psychiatric experts that the plaintiff is not a “mentally incapacitated” person (as opposed to “mentally disordered” person) within the definition of the Mental Health Ordinance, Cap 136. [1]

4.  The corresponding employees’ compensation claim of the plaintiff (DCEC 1336/2014) is still pending as at this trial. In fact, it has been stagnant since Form 9 was issued in 2016. For reason(s) unknown to me, neither the plaintiff nor Hutchison has made any attempt to restore the claim for past 3 years.

5.  There is only one factual witness in this trial, being the plaintiff himself. The plaintiff’s wife is not called and it is agreed that her witness statement needs not be considered by this court. The defendant does not call any witness.

The issues

6.  With the helpful assistance rendered by Mr Wong Chi Kwong, counsel for the plaintiff, and Mr Patrick Lim, counsel for the defendant, most items of damages are agreed, leaving only 2 unresolved for determination in this trial:

(1) Future loss of earnings and MPF;

(2) Future loss of diligent reward and its consequential MPF.

7.  Indisputably, the plaintiff returned to work for Hutchison in January 2014, ie about 9.5 months after the Accident.  In October 2017, Hutchison sold its fixed line telecommunication business to Asia Cube Global Communications Ltd, resulting in his employment being changed from Hutchison to Hutchison Global Communications Ltd (“HGC”), a subsidiary of Asia Cube Global Communications Ltd.  As at this trial, he has resumed his pre-accident job as a technician for about 5.5 years.

8.  Broadly stated, it is his case that although he has resumed his pre-accident job as a technician, he was re-deployed by his employer in 2017 from working as an outdoor technician to an indoor clerk/relieving technician, and thus deprived of the opportunity to earn incentive payment of $2,500-$3,000 per month. Further, due to the neurological, psychiatric and neuropsychological deficits/disabilities caused to him by the Accident, there is a real possibility that he would be dismissed by his employer upon conclusion of the litigation. Alternatively, he should be entitled to resign from his present employment in order not to put up with the hostile working condition now faced by him, which he suggests are the tactics employed by his supervisors to force him to leave the employment on his own accord. It is suggested that if his employment is terminated, he can only work as a briefing out technician earning around $11,000 per month, a sharp reduction if compared with his current income. Hence, he should be awarded future loss of earnings and MPF, together with future loss of diligent award/incentive payment and the relevant MPF, in the aggregate sum of $2,956,012.92.

9.  The defendant, however, avers that the plaintiff is not able to prove that he would be dismissed from his present employment upon conclusion of litigation, because as at this trial, he does not suffer from any loss of his basic salary and that he is still working for HGC.  His claim for loss of earning capacity is already agreed at $250,000 to compensate the disadvantage that he may suffer in the labour market. To allow his claim for future loss of earnings would give him a windfall that he has not proved.  As to future loss of diligent award/incentive payment, the defendant concedes in its final submission that some compensation should be made, but argues that the plaintiff is not able to substantiate the quantum of $2,500-$3,000 per month. The best that the defendant can offer is to look at the overtime, special compensation, incentive payment and attendance allowances received by the plaintiff from 2014 to 2017 to arrive at an average, which according to Mr Lim’s written closing submission, is $83,725.26. 

10.  The issue in this trial is thus limited to whether the plaintiff can prove that he suffers future loss of earnings, diligent award and relevant MPF as a result of the Accident.

Legal principles on loss of chance

11.  Mr Wong submits that the plaintiff relies on the legal principles on the claim for loss of promotion by an injured person, which counsel has set out at length at§10-11 of his written closing submission. I do not intend to replicate his written submission in full here. It is sufficient for me to refer to 2 cases.

12.  In Liu Chun Kow Joe v Lee Sau Wing [2008] 3 HKC 433, Cheung JA succinctly summarised the principles in assessing loss of chance as follows:

“41. In Davies v Taylor [1974] A.C. 207 at 213, Lord Reid stated that

‘... You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.’

42. Consistent with this approach, the English Court of Appeal in Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602 at 1610 per Stuart-Smith LJ held that

‘Questions of quantification of the plaintiff’s loss, however, may depend upon future uncertain events. For example, whether and to what extent he will suffer osteoarthritis, whether he will continue to earn at the same rate until retirement, whether, but for the accident, he might have been promoted. It is trite law that these questions are not decided on a balance of probability, but rather on the court’s assessment, often expressed in percentage terms, of the risk eventuating or the prospect of promotion, which it should be noted depends in part at least on the hypothetical acts of a third party, namely the plaintiff’s employer.’

43. This was expanded later in the judgment under the third category of situations which may arise where the plaintiff’s loss depends upon the action of an independent third party.

44. The three situations are best summarised by Otton LJ in Doyle v Wallace [1998] PIQR Q146 at Q149 as follows:

‘(1) In his first category fell cases in which the defendant’s negligence consisted of some positive act or misfeasance and the question of causation was one of historical fact, in which event proof on the balance of probability prevailed.

(2) In the second category fell cases in which the defendant’s negligence consisted of an omission where caution depended not upon a question of historical fact but upon the answer to the hypothetical question “what would the plaintiff have done if there had been no negligence?”; here the answer is provided by the application of proof on the balance of probabilities.

(3) In the third category fell cases in which the plaintiff’s loss depended upon the hypothetical action of a third party, whether in addition to action by the plaintiff or independently of it; here the plaintiff need only show that he had a substantial chance of the third party acting in such a way as to benefit him.  The Court of Appeal held that the plaintiffs needed to show only that there was a significant chance, which could be less than likely, that the third party would have been prepared to offer them this protection and held that the loss of such a chance had been made out and it was assessed at 50 per cent.’

For ease of reading I have numbered the three situations.” (the underlined is my emphasis)

13.  In Attorney General v Chun Yat Nam [1995] 1 HKC 218, Penlington JA said at page 240 that the question to be determined was whether there was a real prospect of promotion.

14.  In Lai Jianxing v Sakoma (HK) Ltd [2012] HKLRD 589, Kwan JA at§18 commented that,

“…Past loss has to be established as a matter of probability, but calculation of future loss can take possibilities into account (Charlesworth & Percy on Negligence (12^th ed., 2010), para. 5-113…” (the underlined is my emphasis)

15.  More recent authorities include Yip Chung Man v Secretary for Justice on behalf of the Commissioner of Police, HCPI 485 of 2001, date of judgment 13/4/2010; Ho Suk Man v Sit Tim Mau & Others, HCPI  122 of 2011, date of judgment 22/11/2013.

16.  Mr Lim accepts that the above legal principles are applicable to the plaintiff’s claim for future loss of earnings.

17.  To summarise, what the plaintiff here needs to prove in his claim for future loss is “a significant chance” or “a real prospect” of his employment at HGC being terminated after the litigation. Importantly, a substantial chance can be “less than likely” chance, and the calculation of future loss can take “possibilities” into account.

Injuries and treatment

18.  Immediately after the Accident, the plaintiff lost his consciousness and was taken to Princess Margaret Hospital (PMH) where he was admitted in the intensive care unit. Although he regained his consciousness later at the hospital, he could not recall the details of the Accident. According to the medical report dated 26 November 2014 and prepared by the department of the intensive care unit of PMH, his major injuries were:

(1) bilateral epidural hematomas, small sub arachnoid hematoma and pneumocephalus;

(2) multiple skull vault, skull base and orbitolfacial fracture;

(3) suspected mild right upper lobe lung contusion; and

(4) right distal radius fracture.

19.  Emergency left craniotomy for epidural hematoma removal and right craniotomy were performed on 20 and 21 March 2013. He was nursed in the intensive care unit for 4 days, and was removed to ward on 26 March 2013.

20.  On 28 March 2013, he had a surgery with open reduction and internal fixture to his right wrist.  He was finally discharged from hospital on 15 April 2013.

21.  He was admitted into the PMH again in July 2014 for aftercare management of traumatic closed fracture of right wrist and removal of implanted device from radius.

22.  Due to the injuries suffered by him out of the Accident, he attended regular follow up consultation or treatment with various departments of the PMH, such as neurosurgery, orthopaedic and traumatology, psychiatry and occupational therapy. He was diagnosed by the treating doctor of Yung Fung Shee Psychiatric Centre in March 2015 to have suffered from “organic brain syndrome with personality change”.

23.  He was granted intermittent sick leave for about 326.5 days from 20 March 2013 to 29 December 2017.

Neuropsychological assessment

24.  In 2015, the plaintiff was referred to have a neuropsychological assessment at the United Christian Hospital by clinical psychologist, Ms Chui Yuk Lan, who prepared a neuropsychological functioning profile summary and a psychological report dated 25 January 2016 (“CP Report”).

25.  Ms Chui stated in the CP Report that,

“5. Results of the neuropsychological assessment indicated that his span of immediate attention on auditory and visual information was within normal range but his ability to focus and sustain attention was severely impaired. His verbal comprehension and expression was severely impaired. He also showed difficulty in copying a complex figure accurately and his performance on that task was far-below-average, showing that he had failed to perceive the core requirement of the task. This was consistent with his poor performance in a verbal comprehension test.

6. Regarding his memory functioning, his short term memory of verbal materials after 3 repeated learning trials was intact. However, his memory of such verbal materials decayed [sic] after a 30 minutes delay which just fell into the borderline range. Referring to his memory of visual materials was intact. However, his performance on recalling features or a complex figure after a short-delay (3 minutes) and a longer-delay (30 minutes) were both impaired while his performance on recognising features of the complex figures was in the borderline range. It seemed that his poor performance on free recall trials might be accounted for by his failing to notice some features of the complex figure as observed in his copying of the figure. His executive functions, including shifting of response set, concept formation and reasoning of verbal and visual materials were intact.

7. In summary, [the plaintiff] showed significant deficits on focusing and sustaining his attention and verbal comprehension and expression. His episodic memory, in terms of recalling recently learned verbal materials and recognizing features of recently processed visual materials, was within borderline range. The current assessment findings seemed to be consistent with the records of the brain insult as shown in the Computed Tomography (CT) in which left frontal and left temporal lobe contusions were noted.” (the underlined is my emphasis)

26.  Pausing here, it is pertinent for me to point out at this stage these:

(1) the neuropsychological assessment done by Ms Chui was a very comprehensive one, both in terms of the various functions of the plaintiff that were assessed and the duration of the assessment. It started off with an interview of the plaintiff and his wife on 17 July 2015, followed by 4 assessment sessions over the period from 22 September to 17 November 2015. By comparison, the Mini-Mental State Examination (“MMSE”) done by the parties’ respective psychiatric or neurological experts was less comprehensive;

(2) the result of the neuropsychological assessment and the CP Report were made available to all the medical experts of the parties, and that none of the medical experts have taken any issue with the assessment or the CP Report and/or the performance of the plaintiff during the assessment and/or the accuracy of the assessment;

(3) the assessment by Ms Chui was made 2 years or so after the Accident, ie at the time when the plaintiff had already reached maximal medical improvement, which means that further significant improvement of the plaintiff’s condition is not expected.

27.  In light of the above observation and upon due consideration, I cannot see why full weight should not be given to this assessment and the CP Report, and I will so do, in particularly when I consider the medical expert evidence of this case.

Medical expert evidence

28.  In this case, the plaintiff was jointly examined by 3 disciplines of medical experts on divers dates in 2017 chronologically by psychiatric experts, orthopaedic experts and neurosurgical experts. Pursuant to the previous orders made by PI master, the respective experts are not called to give oral evidence in this trial.

Joint orthopaedic experts

29.  The joint examination of the plaintiff by the orthopaedic experts, namely Dr Fu Wai Kee nominated by the plaintiff and Dr Danny Tsoi nominated by defendant, took place on 27 April 2017, which is about 4 years after the Accident. 

30.  I shall not delve into the opinion given by both orthopaedic experts because it is conceded by Mr Wong for the plaintiff that his orthopaedic injuries will not create obstacles for his returning to his former employment as a telecommunication technician.

Joint psychiatric experts

31.  On 28 March 2017, the plaintiff was jointly examined by the psychiatric experts, namely Dr B Lai nominated by the plaintiff and Dr WT Law nominated by the defendant.  A joint psychiatric report dated 26 June 2017 was prepared.

32.  The joint report recorded that that the plaintiff complained to the psychiatric experts of headache and difficulty in concentrating his mind or in thinking. He had poor sense of direction and poor management of time. His cognitive function was tested during the joint examination. He scored 28/30 (normal score is over 22 or 23) in the MMSE. 

33.  Both experts agreed that the plaintiff did not have any major illness in the past and that his mental problem was caused by the Accident. His condition has reached maximal medical improvement.

34.  As to the diagnosis, Dr Law, the defendant’s expert, adopted ICD-10 and gave the diagnosis of “postconcussional syndrome with mild severity”. He thus opined that the plaintiff has not suffered from significant cognitive function impairment. While Dr Lai, the plaintiff’s expert, did not seem to object to Dr Law’s conclusion that the plaintiff has suffered from “postconcussional syndrome” according to ICD-10, he points out that if another classification system, DSM-5, was adopted, the diagnosis of a “mild neurocognitive disorder” was more able to represent the plaintiff’s current psychiatric condition and impairment, such as difficulty in concentrating, poor sense of direction, poor management of time, requiring more time to think, being slow in response, difficulty in comprehending, being forgetful, talking a lot and challenging others verbally.

35.  On the issue of whether the plaintiff could resume pre-accident work, Dr Law said that the plaintiff would suffer from mild impairment in concentration, social functioning and adaptation, but should be able to return to his previous job with reduced efficiency from the psychiatric perspective. The permanent impairment of the whole person and loss of earning capacity was both assessed to be 5%. On the other hand, Dr Lai opined that from a psychiatric perspective, the plaintiff’s ability to return to his pre-accident work “depends on accommodation of his employer”. His work efficiency and tolerance was likely to be adversely affected by his psychiatric symptoms to a mild degree. The percentage of permanent impairment and loss of earning capacity was assessed to be 10-15 %.

36.  Upon considering the joint report of the psychiatric experts, I have the following observation/view.

37.  Firstly, although it seems that both psychiatric experts gave a different diagnosis of the plaintiff, they agreed at the end of the joint report that such difference in diagnosis was mainly “a difference in nomenclature” only.[2]

38.  But for avoidance of any doubt and if a finding on the opinion of the diagnosis of the plaintiff is required, I would prefer the opinion of Dr Lai than that of Dr Law. In arriving at his diagnosis of “postconcussional syndrome”, Dr Law relied on (i) the cognitive function assessment done to the plaintiff on 2 and 8 April 2013 by Cantonese Montreal Cognitive Assessment, with results of 22/30 and 26/30 respectively; (ii) the medical impression expressed by clinical psychologist on 10 April 2013 that there was ‘no evidence of clinically significant psychological disturbance’; and (iii) the MMES result of 28/ 30.  Notably, Dr Law mentioned about the neurocognitive assessment made by Ms Chui and has not raised any issue with her assessmention; yet, he has chosen, without explanation, not to rely on her assessment as one of the basis in arriving at his opinion on the diagnosis of the plaintiff.  In my view, Ms Chui’s assessment (made in 2015) is plainly more recent/updated than the cognitive function assessment and medical impression in 2013 stated aforesaid.

39.  By comparison, Dr Lai has taken into account all the medical history and assessment of the treating doctors.

40.  Secondly, Dr Lai pointed out that MMSE was a clinical tool in screening of dementia, but in the plaintiff’s case, he has cognitive impairment due to local brain injury rather than global degenerative changes as in dementia. Dr Lai said that milder form of cognitive impairment might not be shown in the MMSE.  It is pertinent for me to point out that that Dr Law has not shown his objection to Dr Lai’s aforesaid comment on the limitation of MMSE to reflect the milder form of cognitive impairment caused by local brain injury.  

41.  Hence, I am of the view that MMSE done in the joint examination by the psychiatric experts is not conclusive enough to show if, and if so, the seriousness of the plaintiff’s cognitive impairment.

42.  Thirdly, it is submitted by Mr Lim for the defendant that Dr Lai’s comment on the accommodation of the plaintiff’s employer to his difficulty at work is hearsay and thus should not be accepted. I agree that the question is an issue of fact which should be decided by the court upon evaluation of all the evidence.

Joint neurological experts

43.  Dr Yu Yuk Ling is the neurological expert nominated by the plaintiff, while Dr Edmond Woo is the defendant’s nominated neurological expert. The joint examination was conducted on 10 November 2017. The joint report was dated 6 December 2017.

44.  In the joint report, both experts agreed that the plaintiff suffered severe head injuries in the Accident and had prolonged impairment of consciousness. They held similar view that most patients with severe head injuries achieved maximum recovery within 2 years, but Dr Woo added that most recovery of neurological functions after severe head injury would occur within the first 12 months of the accident, but some further and minor improvement could continue up to 2 years.  Since the joint examination took place more than 4 years after the Accident, it was said that the plaintiff has reached maximal medical improvement.

45.  On the question of residual disabilities, Dr Yu took the view that the plaintiff had considerable neurocognitive and neurobehavioural deficits as a result of the severe head injury caused by the Accident.[3] He gave an assessment of 20% of whole person permanent impairment as to the neurocognitive impairment and another 10% for neurobehavioural impairment.  Dr Woo, however, opined that the neurological examination of the plaintiff was normal (his MMSE score was 28.5/30) with no cognitive, vestibular or physical deficit, and that his personality change (irritability, stubbornness and verbosity) would account for a 10% impairment of the whole person.

46.  In relation to work capacity, Dr Woo suggested that from the neurological prospective, the plaintiff should be able to resume his pre-injury occupation as a telecommunication technician, with a loss of earning capacity of about 10%.  However, Dr Yu assessed the loss of earning capacity at 25% and went on to opine that “because of his unsatisfactory work performance, there is a real possibility that he will be fired after the completion of the current litigation process and that he will have difficulty in finding a job of similar nature and rank.”

47.  Mr Wong submits on behalf of the plaintiff that Dr Yu has given very detailed analysis of all medical findings and thus his opinion on the work potential and loss of earning capacity should be accepted.  Mr Lim, on the other hand, is adamant that the opinion given by Dr Yu in the preceding paragraph is either hearsay or plainly not a medical opinion. Having considered counsel’s submission and the evidence, I arrive at the following view/conclusion in respect of the neurological expert opinion.

48.  Firstly, I agree with Mr Lim that whether there is a real possibility that the plaintiff will be fired after the completion of the current litigation process is a question of fact to be determined by the court, but not by the medical expert(s), upon due consideration of all evidence including the medical expert opinion. I am thus not going to put any weight on the Dr Yu’s opinion on the possibility that the plaintiff will be fired after completion of litigation.

49.  Secondly, subject to my comment in immediate preceding paragraph, I accept that Dr Yu’s assessment on the impairment and working capacity of the plaintiff is based on more comprehensive and all-rounded analysis. Unlike Dr Woo, Dr Yu has taken into account the assessment by Ms Chui and the CP Report in arriving at his assessment. Not only that, he has provided explanation at §24 of the joint report as follows:

“ [The plaintiff] sustained a severe head injury, but has made a relatively pleasing recovery. Often patients like him appear to have normal neurocognitive and neurobehaviour functions, and little or no deficit is elicited on neurological examination at the bedside; yet their functional capacity and personality show obvious deterioration. In such patients, bedside examination will not be able to demonstrate subtle yet significant deficits, but assessment by the clinical psychologist with standard psychometric tests will provide qualitative and quantitative information of the specific neurocognitive and neurobehaviour deficits.”

50.  Importantly, Dr Woo has not raised any objection to the above opinion of Dr Yu.

51.  It is understood that Dr Woo relied rather heavily on the normal score of the plaintiff in the MMSE. However, the limitation of MMSE in assessing a patient with traumatic brain injury (rather than dementia) put forward by Dr Lai (at [40] above) and Dr Yu (at [49] above) is accepted by me.

52.  I shall, in addition, reiterate my view on the assessment by Ms Chui and the CP Report already set out at [26] of this judgment, but shall refrain from repeating myself here.

53.  Thirdly, both experts also comment on the risk of the plaintiff developing post-traumatic epileptic seizures in the future (Dr Yu assessing such risk at a higher percentage than Dr Woo’s assessment). However, it remains a common ground that the plaintiff has not had any seizures so far and that the risk decreases with the passage of time. I notice that Mr Wong has sensibly not perused further on this point in his written closing submission. On my part, I am more inclined to say that the overall evidence shows that the risk of developing such epileptic seizures is so low that will not affect the assessment of damages in this judgment.

The plaintiff & his evidence

54.  The plaintiff, born in 1982, was 30 years old at the time of the Accident. He is now 37 years old. He received education up to Form 5. After graduation, he worked briefly as a waiter. Since about 2003, he started working in the telecommunication industry as a technician to install and maintain telecommunication circuits of broadband and fixed line at customers’ offices or residences. He joined Hutchison in or about 2009 as a temporary technician, and within 1 year or so, he was promoted to technician III, a rank more senior than technicians I and II.

55.  His job duties before the accident were mostly carried out outside his office. He was to carry out installation and maintenance of telecommunication circuits, which included broadband lines and fixed lines at customers’ premises including office and residential buildings. Telecommunication circuits include telecommunication equipment and cable pairs installed inside the telecommunication equipment room (“TE room”) and termination blocks (“TB”), which are located at different areas/parts of a building.  He describes in his witness statement that,

“41. To perform the installation and maintenance jobs of telecommunication circuits at customer’s premises, it was necessary for me to identify and trace the equipment position and cable pairs numbering inside TE room and TB for the purposes of testing and fault rectification. The quantity of telecommunications equipment and cable pairs installed inside a building or an estate can range from a hundred to several thousand depending on the size and nature of a building or an estate.”

56.  When he resumed working for Hutchison in January 2014, his job title was changed to “technician”. He noted that other colleagues who were of lower rank than him before the Accident were promoted to “senior technician”.

57.  At the beginning stage after resumed working for Hutchison, he performed similar pre-accident outdoor jobs, but soon found that he experienced great hardship in completing his work leading to decline in work performance and criticism from his supervisors on his work performance, which is described more particularly at §43-44 of his witness statement, such as:

(1) difficulty in identifying and tracing the equipment position and cable pairs at the customer’s premises and TE room;

(2) difficulty in sustaining focus and concentration and thus often miscounted rows of termination blocks and cable pair numbers, or missed out a row or some rows or some cable pairs;

(3) as his memory has turned poor after the Accident, he easily forgot the equipment position and cable pair numbers that he had identified a short while ago;

(4) since he has turned more egocentric, stubborn and irritable after the Accident, he had poor control of temper and could be agitated easily. As a result, he frequently had clashes with customers, colleagues and supervisors, resulting in complaints against him.

58.  In his oral evidence, the plaintiff adds that recently he has difficulty in recalling which floor and which the car park space where his colleague had parked the car when they went out for work. His colleague(s) had to ask him to wait at the car park exit instead. Also, when he performs outside jobs, he boards wrong buses/mini-buses, or alights at the wrong stops. He enters MTR gates even he does not need to.

59.  In about January 2017, he was informed that he could not cope with his job and he was deployed to a new job arrangement without changing his job title as a technician.

60.  Under this new job arrangement, he is required to spend more time in the office to do testing work alone, because the time frame would be loose and there would not be customers chasing for prompt repair service. For other times, he is assigned to either test wi-fi for the jockey club or to act as a back-up whenever other technician is on sick leave. He is thus deprived of the incentive payment introduced by his employer recently to encourage the staff to work more in order to earn more.

61.  Besides, since the new deployment, he has found himself “being specially taken care of” by his supervisors. He is required to attend office every day to wait for distribution of jobs, but yet he is not allowed to stay/sit at the floor where his department is situated (ie 9/F). He has to sit in a testing room on the 6/F where a lot of wires are stored. There, however, the temperature is constantly kept as low as 13-14 degrees Celsius.  When he tries to contact the air-conditioning maintenance people to fix the temperature problem, he is stopped by the management from doing so. As a result, he has to wear thick winter clothes even in summer time in the testing room. He has to do his paper work on the top of the wires; yet he is told by his supervisors that he should not place papers on top of the wires. He believes that his supervisors(s) is/are doing all these in order to make him leave on his own accord.

Chance of being fired

62.  Mr Wong submits that in assessing if there is a substantial chance that the plaintiff’s employment may be terminated upon conclusion of litigation, the court should take into account the following 5 pieces of evidence:

(1) the plaintiff’s medical evidence, in particularly the neuropsychological assessment made by Ms Chui and the comment of the treating doctor of Yung Fung Shee psychiatric clinic that the plaintiff is regarded as a mentally disordered person;

(2) the experts’ opinion of Dr Lai and Dr Yu;

(3) the plaintiff’s evidence on his job nature and his work performance;

(4) the situation in his employer, in particularly the fact that the corresponding employees’ compensation claim has not been settled and that his employment with Hutchison was changed to HGC in 2017;

(5) the assessment given in Form 7 and Form 9.

63.  Essentially, Mr Lim seeks to argue that the plaintiff’s evidence of his difficulties at work after the Accident and the likelihood of being dismissed by his employer is not credible or inherently plausible. The more material arguments appear in the following:

(1) The plaintiff alleged in his witness statement that despite his prolonged poor performance, his employer did not fire him “to prevent huge sum of compensation” and that had his employer fired him before the completion of his litigation, it would mean that they “would not accommodate [the plaintiff] and the damages for [his] future loss of earnings would be very great”. [4] Mr Lim submits that under cross examination, the plaintiff was not able to substantiate his belief. Counsel further points out that the employer is not a negligent party in this action and thus would not be responsible for his damages. It is thus illogical to say that the employer did not fire him in order to avoid paying huge sum of compensation to him;

(2) The plaintiff’s evidence on difficulty in travelling or getting on wrong routes of the buses is in fact due to his own oversight in not looking at the route number carefully before he boards the buses;

(3) As to the plaintiff’s claimed difficulty in recognising places or car park spaces, Mr Lim submits that if he had in truth these problems with short term memory, it would defy belief that he did not use his smartphone to take photographs to help his memory;

(4) despite the plaintiff’s claim that since he resumed working after the Accident, he was slower and had to work beyond normal working hours to finish the jobs assigned to him for the day, he was earning overtime payment as early as February 2014, ie the 2^nd month after he resumed working, and had overtime payment for 4 consecutive months from April to July 2014, which means that not only could he finish the jobs that were assigned to work for the day, he was also able to take on more jobs in order to earn overtime payment. The fact that he was already carrying out overtime work soon after his sick leave expired, Mr Lim says adamantly, is good evidence that he did not have any real problems carrying out his work. In any event, the plaintiff basic salary was increased from $13,730 per month to $16,380 per month (as at September 2017) representing an almost 20% increase.

64.  I have already given my analysis/comment on the assessment of Ms Chui and her CP Report, and on the opinion of the psychiatric experts and neurological experts in the earlier parts of this judgment. I would therefore refrain from repeating myself here. My conclusion is that I find the plaintiff is still suffering from the neuropsychological and cognitive impairment stated in the CP Report, and I accept the opinion of Dr Lai and Dr Yu as to the plaintiff’s impairment. Since all the experts, including the defendant’s, have opined that the plaintiff has reached maximum medical improvement, I agree that there is little chance that his condition will further improve significantly. 

65.  The plaintiff was assessed by the employees’ compensation board for the injuries suffered in the Accident. According to the Form 7 dated 3 July 2014, he was assessed to have suffered from 11.5% loss of earning capacity. Upon review, his loss of earning capacity was re-assessed and substantially increased to be 41.5% in the Form 9 dated 4 August 2016 for multiple injuries resulting in (i) significant deficiencies in attention, verbal comprehension and expression; (ii) right wrist pain and weakness.  Importantly, Mr Lim, very fairly, does not seek to argue that I should not take regard of Form 7 or Form 9, save that he reminds me that the plaintiff is still in employment almost 3 years after the issuance of Form 9.  Upon due consideration, I cannot find any reason why I should not take the assessment made in Form 9 into account and give it due weight, though I am not bound by such assessment.

66.  I now come to the assessment of the plaintiff’s evidence.

67.  I have the benefit of observing his demeanour while in the witness box. Upon considering all the evidence, I hold the overall impression that he is an honest and truthful witness, and that he has tried his best to answer the questions put to him in the trial. In my view, he was able to give more forthcoming replies to Mr Lim in the afternoon of the trial because the cross examination in that afternoon focused on his job, which he has been doing since 2003. He readily conceded without exaggeration that he sometimes took the wrong buses because of his oversight. He also readily accepted during cross examination that he could not tell, just like he could not tell the result of Mark Six, if and when his employer would fire him. But he believed that if his employer was going to terminate any employee, he would likely be the first one to be fired, because from a commercial point of view, he was not as productive as other colleagues. I think it is very fair of him to say that. I add that the law does not require him to prove beyond doubt that he will be fired by his employer; he is only required to prove “a significant chance” or “a real prospect” that he would be fired.

68.  One the other hand, I have seen the photographs exhibited to his witness statement showing the TE rooms and TB at various districts.  The TBs look like a complex maze connected with numerous and entangled wiring. The neuropsychological assessment made by Ms Chui shows that his ability to focus and sustain attention is severely impaired and that he has difficulty in copying complex figure accurately. I am thus persuaded that the plaintiff has met great difficulty in identifying the correct TBs and/or locating the TE room while at work.

69.  I see no objection to Mr Lim’s observation that the plaintiff had earned overtime payment after he returned to work for his employer and that his post-accident basic salary has increased and become higher than that before the Accident. Nevertheless, there are other pieces of evidence which are very telling and on which I place great weight, and they are these.

70.  First, there is the unchallenged evidence of the plaintiff that at one stage, his close friend tried to introduce him to work in another telecommunication company (HKT) which offered higher salary, but it turned out to be unsuccessful and he was told that his “attitude” and “mind” was not suitable for HKT. The defence accepts that the plaintiff is pedantic and particular about his work, and that he does not take short cuts. That being the evidence, I cannot discern any likely reason(s) why HKT would not take the plaintiff, save and except that his injuries and impairment caused by the Accident has prevented him from being chosen by HKT.   

71.  Second, if the plaintiff, as suggested by Mr Lim, does not have any real problems carrying out his work, then it is unexplained and illogical that his employer would suddenly deploy the plaintiff, who is a very experienced technician, back to office and not let him continue with his original outdoor repair/maintenance job duties.

72.  Third, I duly take note of Mr Lim’s comment that the harsh attitude displayed by his supervisors only came out from the oral evidence of the plaintiff but not stated in his witness statement. Yet, the fact remains that the plaintiff has been cross-examined on these evidence, and his evidence (which I accept) is not shaken in any way by Mr Lim.  

73.  I add that in the totality of all the evidence before me, the only irresistible inference to be drawn from the harsh attitude of the supervisors of the plaintiff is that they want to make life difficult for the plaintiff so that he would leave the employment on his own accord.   

74.  There are other comparatively minor points taken by Mr Lim in his closing submission, but I do not intend to go into details in this judgment. Suffice it is for me to say that I have considered them all but I am not persuaded by these arguments.

75.  For all the matters set out aforesaid, I expressly reject the notion that by awarding the plaintiff his claim for future of earnings, it would give him a windfall. I come to the conclusion that there is a significant chance or a real prospect that the plaintiff’s employer would dismiss him in the near future before his normal retirement. I would assess that there is 1/3 of such chance, having also taken into account that it is the plaintiff’s own evidence that he would not quit this job himself (to be further elaborated later in this judgment) and that the business of fixed line and broadband is generally shrinking in the market.

The “resignation” argument

76.  It is the submission of Mr Wong that the plaintiff is entitled to resign from his current employment, as he should not be made to put up with the harsh treatment of his supervisors/seniors. I would, with respect, reject his submission outright for the two reasons. 

77.  The Revised Statement of Damages states that his claim for future loss of earnings is premised on only one allegation, ie he is “not fit” to perform the job:

“65. Though the Plaintiff had resumed his pre-accident post at the Hutchison, in view of the educational background and his disabilities as stated in the above paragraph, he is not fit to perform his pre-accident post as Technician III in telecommunication companies. If the Plaintiff is fired after the completion of this litigation, he may work as a typist, data entry clerk, cleaner. The salary for these post is about $10,000 per month.”

78.  I thus have to accept Mr Lim’s submission that the current state of the pleadings does not accommodate the submission that the plaintiff may resign from current job and then claim for future loss of earnings.

79.  Further, although I accept that his employer has displayed a hostile attitude towards the plaintiff, the “resignation” argument plainly does not sit well with his own oral evidence that he would not take his own initiative to resign from the employment and that he likes his current job, being a mixture of both indoor clerical work and outdoor jobs.

Loss of future earnings and MPF

80.  At present, the plaintiff earns basic salary of $17,180 and fixed shift allowance of $1,900 per month, totalling $19,080 per month. In addition, there is a regular pattern that he receives bonus in December each year. The amount of bonus varies each year but is generally on a rising trend. The bonus that he received in December 2018 is $31,840, average out to be $2,653 per month.

81.  Hence, I accept that his current average income, including basic, annual bonus and fixed shift allowance, is about $21,733 per month ($19,080 + $2,653).

82.  It is the plaintiff’s evidence that if he is dismissed by his employer, he would work as a briefing out technician. He says (and I accept) that with the injuries suffered by him, it is unlikely that any telecommunication company would employ him on a full time basis. As said above, he was declined by HKT before. He further said that the average income of a briefing out technician was about $10,000 - $20,000 per month, and that he might have 60-70% chance to earn this level of income if he was not that stubborn in performing his duties. But he was not sure if he could achieve this (ie being less stubborn). He thus said in re-examination that if other briefing out technicians could earn $10,000 - $20,000, he would be able to earn $11,000 - $13,000. 

83.  I see no reason why I should disbelieve the plaintiff on these evidence.  Mr Lim has not challenged this part of the plaintiff’s evidence in his closing submission, either. I thus conclude that the likely income that the plaintiff would earn as a briefing out technician is $12,000 per month, which is a mean figure of $11,000 to $13,000.

84.  As to multiplier, Mr Wong gives a revised figure of 17.4,[5] while Mr Lim adopts the figure of 18.92.[6]  Since it is the plaintiff’s case to use a lower figure, I shall adopt Mr Wong’s multiplier of 17.4.

85.  The future loss of earnings and MPF is this:

[($21,733 - $12,000) x 12 x 1.05 x 17.4] x 1/3 = $711,287.64

(say $711,300)

Loss of diligent award/incentive payment

86.  In the Revised Statement of Damages, the plaintiff claims future loss of diligent award of $681,120, calculated at $3,000 per month at a multiplier of 18.92. In his closing submission, Mr Wong tunes down the figure to $2,750 per month and adopts the multiplier of 17.4. 

87.  Mr Lim has, very fairly, conceded in his closing submission that some award for loss of diligent award should be made in the circumstances of the case, but dispute the quantum. He suggests a sum of $83,725.26, being average figure of how much the plaintiff earned by way of overtime, special compensation, incentive payment and attendance allowances over the years between 2014 and 2017 (See [9] above).  

88.  In my view, the overall evidence does not support that the plaintiff’s claim that the loss of diligent award should be computed as alleged in the Revised Statement of Damages.  There is no documentary proof to show that the diligent award is either at $2,500 per month[7] or $3,000 per month.[8] Mr Lim has rightly observed that the plaintiff fails to seek discovery from HGC of the amount of diligent award of comparable workers.

89.  On the other hand, upon clarification as to why there is such discrepancy in the amount of the diligent award pleaded in the Revised Statement of Damages, the plaintiff said in his oral evidence that he merely heard from his colleague(s) that the diligent award was several thousand dollars. No further detail was proffered from him, eg how many colleagues told him about the amount of diligent payment, and how the same was computed. The court simply does not have sufficient evidence to find that the loss of diligent payment would be $2,500 or $3,000 per month.

90.  That said, however, I am of the view that the computation method suggested by Mr Lim has ignored the unchallenged evidence of the plaintiff in his witness statement that the system of “incentive payment” (多勞多得) was only introduced “in the recent months” to encourage the staff to do more repair work, and since then, there was no more overtime payment. On balance of probabilities, I am of the view that the incentive payment system is a new system quite separate and different from other types of allowances made by the plaintiff’s employers.

91.  This also strongly suggests that the description of “OT/Incentive Payment” stated in the 2014 salary table of the plaintiff is more likely than not a term used loosely and cannot be viewed as equating to the incentive payment system put in place only “in the recent months” of the plaintiff’s witness statement.

92.  In such circumstances, I regret that I am unable to accept Mr Lim’s computation method. It is not fair nor appropriate in my view to take into account the overtime, special compensation, attendance allowance or other allowances received by the plaintiff prior to 2016 in the computing of loss of diligent award/incentive payment. The more correct figure to adopt is the incentive payment received by him in the year of 2016, namely $8,968, which is the monthly loss of diligent award/incentive payment that he will suffer irrespective of whether he will be fired by his employer.[9]

93.  The future loss of diligent award and related MPF is thus this:

$8,968 x 1.05 x 17.4 = $163,845.36 (say $164,000)

Conclusion

94.  For all the matters set out above, I shall award the plaintiff the following:

Items	Agreed/adjudicated amount
PSLA	(agreed) $640,000
Pre-trial loss of earnings & MPF	(agreed) $174,849
Pre-trial loss of salary increase & relevant MPF	(agreed) $80,000
Future loss of earnings & MPF	$711,300
Future loss of salary increase & corresponding MPF	(agreed) $238,392
Future loss of diligent award & corresponding MPF	$164,000
Loss of earning capacity	(agreed) $250,000
Future medical expenses	(agreed) $25,550
Special damages	(agreed) $18,071
TOTAL:	$2,302,162
LESS
Advanced payment made by Hutchison	$298,928.10
NET TOTAL:	$2,003,233.90 (say $2,003,300)

95.  I therefore grant judgment in favour of the plaintiff against defendant in the sum of $2,003,300. Interest is payable on the award for PSLA at 2% per annum from the date of the Writ of Summons to the date of judgment herein, and on special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment.

96.  I shall make a costs order nisi that the costs of and incidental to the plaintiff’s claim on quantum in this action, including any costs reserved order, if any, shall be paid by the defendant, to be assessed on High Court scale and be taxed if not agreed. I certify the attendance of 1 counsel. This nisi costs order shall be made absolute within 14 days from the date of this judgment, unless there is any application to vary the same.

97.  Last but not least, I am grateful for the assistance rendered by both counsel in this matter.