MOHAMMAD AMJAD v. JOHN M PICKAVANT & CO

HCPI 100/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 100 OF 2009

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J U D G M E N T

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Introduction

1.  In this action, the plaintiff (“P”) claims against his former employer (“D”) for loss and damage arising out of personal injuries sustained by him as a result of an accident at work in D’s office.  P was at the time employed as a litigation manager by D, a firm of solicitors, the sole proprietor of which is Mr Pickavant (“Pickavant”).

2.  The accident took place in the morning of 1 March 2006 when P was walking from his own room towards the storeroom inside D’s office, and when passing through the reception area, P tripped over an A4 size paper box (“Box”) left unattended on the floor, and lost balance and his body fell onto the reception table (“Table”) which then collapsed and caused P injuries (“Accident”).

3.  P lodged an employee compensation claim in the District Court against D under DCEC 1989/2006 which resulted in a trial before Judge Chow in February 2009 (“EC Trial”).  Judge Chow subsequently handed down a judgment on 11 May 2009 (“EC Judgment”)[1].  A number of factual findings were made by Judge Chow in the EC Judgment. D lodged an appeal against the EC Judgment but subsequently, on his own request, he asked his appeal to be dismissed with costs to P.  Under the EC Judgment, P was awarded HK$1,825,841.50, with interest, which was duly paid by D.  Just shortly before the commencement of the present trial, D had tried to apply for an adjournment of the trial, after making an application for leave to appeal out of time against the EC Judgment on the ground that new evidence had been discovered, but his application for adjournment was not allowed.

4.  P commenced the present action in February 2009. In June 2011, P issued a summons to strike out and/or expunge/exclude from the trial parts of certain statements, evidence and/or documents served or discovered by D, on the ground that they were inadmissible as being scandalous, irrelevant and/or otherwise oppressive.

5.  As a result of this summons, Master Ng, as she then was, gave a detailed and comprehensive judgment on 7 May 2012 (“Ng’s Judgment”).  She concluded that the doctrine of issue estoppel should apply to personal injury litigation and that D could not re-litigate matters which were subject of findings/determination in the EC Judgment, and further there were documents which included irrelevant evidence.  As a result, certain parts of D’s Answer to P’s Revised Statement of Damages, certain parts of Pickavant’s witness statements, and certain documents relating to P’s criminal trial and P’s previous claim records of accidents were struck out. 

6.  This trial was thus considerably shortened as a result of the EC Judgment and Ng’s Judgment.

Background

7.  P was first employed by D as an “interpretation clerk” on 16 June 2003 with a salary of HK$3,000 per month plus a discretionary bonus payable before Chinese New Year[2].  In his first employment letter, no scope of duties was set out. On 24 November 2003, he signed an another letter of employment in which his title was stated to be “interpretation/legal clerk” and his salary was adjusted to HK$10,000 per month, again with a discretionary bonus[3] (“2003 Employment Letter”). His scope of duties as an interpretation/legal clerk was set out therein.

8.  On 1 April 2005, P signed a further letter of employment in which his title was then stated to be “litigation manager” and his salary was adjusted to HK$20,000 per month, again with a discretionary bonus[4] (“2005 Employment Letter”).  In this letter, his scope of duties were similarly worded as the 2003 Employment Letter, save that his title/capacity was changed to “litigation manager”.

9.  In the morning of the day of the Accident, P was having a meeting with a client Ishtiaq Husssain (“Ishtiaq”), whose brother Iftikhar Hussain was waiting at the reception area.  At about 10:15 am, P needed some staples and was calling out for D’s accounts clerk Eva Chan (“Eva”), and when no response came, P walked outside his room towards the store room behind the reception area in order to get the staples, when the Accident occurred.

10.  After the Accident, P fell on the floor and sustained injuries. He was helped by the Hussain brothers, a litigation clerk of D’s Patrick Young (“Patrick”) and P’s wife Begum Waheda (“Waheda”) who was also working for D at the time.  P was then driven to Pamela Youde Eastern Hospital (“Hospital”) by Waheda , accompanied by Ishtiaq.

11.  P was discharged from the Hospital 2 days later on 3 March 2006.  It was D’s case that P did return to the office on a few days the week after discharge, but P said he returned to the office only at the request of Pickavant.

12.  Anyway, on about 5 March 2006, P went into D’s office, and Pickavant arranged for him to consult an orthopaedic specialist Dr Johnson Lam on 6 March 2006.

13.  P went into D’s office on 6 March 2006 before going to Dr Lam’s clinic that afternoon, accompanied by Waheda and Pickavant.  P was later arranged by Dr Lam to undergo a MRI scan at the Hong Kong Sanatorium Hospital on 8 March 2006.  On 9 March 2006, D duly reported the Accident to its insurance company (“Insurance Report Letter”).

14.  Then on 11 March 2006, according to P, he went back to D’s office to submit sick leave certificates to D.  He was accompanied by Waheda and her mother.  When he was at the office, there was an unpleasant incident between him and Pickavant, as a result of which the police was called and P was asked to leave D’s office.  This was the end of P’s employment with D, and thereafter P did not return to work for D.   Waheda had in fact indicated earlier on 9 March 2006 to Patrick that she wanted to resign, but anyway, after the incident on 11 March 2006, Waheda’s employment with D also ceased.

15.  On 15 March 2006, D reported the Accident to the employees compensation department of the Labour Department[5].

16.  It was D’s case that even without the Accident P would have been dismissed in 1 April 2006 for dishonesty and misconduct, which included paying client’s money into various bank accounts including the joint account of P and Waheda, and Waheda’s mother’s account, and falsely representing to the client that D required him to pay additional handling monies when no such demands had been made by D[6].

17.  Pickavant made a criminal report to the police on about 13 April 2006 after a former client of D’s, Jagraz Singh (“Singh”), had given a statement to the police about paying money to P[7]. Pickavant had also given a statement to the police in relation to alleged payments by D’s clients to Waheda’s mother’s account which took place between October 2005 to about late March 2006[8].  Pickavant’s report led to P and Waheda being arrested and later formally charged.

18.  Then on 6 June 2006, P was admitted into the orthopaedic ward of the Hospital for further examination and was discharged on 14 June 2006. 

19.  P filed his employees compensation claim on 29 December 2006.  About a month later, on 25 January 2007, he underwent an operation on his right wrist at the Hospital.

20.  P was granted sick leave from 1 March 2006 until 27 July 2007, and then from 14 September 2007 until 15 November 2007, a total of 19 months.  P said after his sick leave ended, he was employed from November 2007 until July 2008 by a company called Firm Limited as general manager handling employees’ dispute matters, earning HK$5,000 per month.

21.  P and Waheda were tried in October 2008, but was subsequently acquitted of all charges.

22.  P commenced working for KB Chau & Co on 4 November 2008 as an interpreter earning HK$3,000 per month, and this was where he claimed to be working part time at the time of the trial.

23.  As mentioned earlier, the EC Trial took place in February 2009 which resulted in the EC Judgment.  The factual findings in the EC Judgment were in particular, the following:

(i) The Accident had occurred in the manner as claimed by P;

(ii) P suffered from injuries to his neck, low back and right shoulder, a laceration over his right thigh and 5 mm wound on the volar side of his right wrist;

(iii) P’s injuries, in particular his wrist and thigh injuries, were caused by the Accident and were not self-inflicted as had been alleged by D;

(iv) P was paid a basic monthly salary of HK$20,000 by D, plus HK$150,000 being 30% commission, as part of his pre-Accident income.  His average monthly income was HK$32,500 as the time of the Accident;

(v) The nature and scope of P’s pre-Accident work included marketing, sourcing new clients, taking instructions from clients, preparing claim papers and assisting in preparing cases.  He had to open files, take photographs, visit scenes of accidents, write down instructions and carry equipment.  He had to use his preferred right hand to discharge all such duties[9].

(vi) P would clearly have great problems using his right hand to discharge his pre-Accident duties.  He would not be able to cope with the demands of his pre-Accident work and hence could not return to his pre-Accident employment, and could only work solely as an interpreter[10].

Evidence

24.  P made two witness statements and attended trial to give oral evidence.  Waheda had also made a witness statement and she attended trial to give oral evidence.

25.  There were two witness statements from Pickavant who attended trial to give evidence on behalf of D.  D also relied on the two statements made to the police in relation to P’s dishonesty, one given by Pickavant, and one given by Singh. 

26.  D had instructed a firm of investigators to conduct surveillance on P.  The witness statements given by the investigator and a clerk working for D, who arranged the surveillance conducted on P were admitted as evidence without calling of the makers.  As a result of the surveillance, there were 4 CD Rom/DVD Rom recordings of the surveillance of P on 4 occasions, namely 21 December 2009, 28 December 2009, 30 December 2009, and 20 January 2010 (“Surveillance Recordings”).  These were produced by D, together with certified translations of the transcripts of the surveillance conversations (“Surveillance Transcripts”).  P disputed certain parts of the translations during the trial, but he had not called any witness in support of his disputed parts.

27.  No other witnesses were called by D, except Pickavant, and witness statements previously made by 3 other witnesses on behalf of D had not been admitted as they were not called.

28.  The relevant medical reports were admitted without calling the makers thereof.  On the expert medical evidence, P’s expert was Dr Arthur Chiang and D’s expert was Dr Lau Hoi Kuen.  By consent, the following reports were adduced at the trial without calling the experts to give oral evidence:

(i) Dr Chiang’s report dated 8 October 2007 (“C’s 2007 Report” ) and report dated 4 May 2008 (“C’s 2008 Report”);

(ii) Dr Lau’s report dated 7 December 2007 (“L’s 2007 Report”);

(iii) Joint Report of Dr Chiang and Dr Lau dated 27 September 2009 (“2009 Joint Report”);

(iv) Joint Report of Dr Chiang and Dr Lau dated 14 June 2011 (“2011 Joint Report”)

Demeanor of witnesses

29.  I had the opportunity to observe P during the trial.  He was excitable on a couple of occasions during cross examination and had to be told to calm down.  Throughout the trial, the thumb and fingers of P’s right hand were kept by him in an almost full extended posture, and this was certainly much more so than seen on that part of the Surveillance Recordings played in court during the trial.  This trial was the third time P had given evidence in court since the Accident including the criminal trial.  P is experienced in litigation matters, particularly personal injuries cases and he is a clever man.  Having observed him when he was giving evidence, I was of the P was feigning the condition of his right hand during the trial.  I also find him exaggerating other parts of his evidence.  I do not find P an entirely credible or reliable witness.  

30.  As for Waheda, she was guarded when giving evidence, and being P’s wife, she was clearly supporting whatever was said by P.  However, her evidence in relation to the layout of the reception area of D’s then office was not really challenged.

31.  Regarding Pickavant, he is an experienced litigation solicitor and his evidence had to be viewed in that light.       

Issues on Liability

32.  By the time of the commencement of this trial, there was no longer any dispute that issue estoppel would apply to those factual findings/determinations in the EC Judgment and there was therefore no need for this court to consider those authorities on issue estoppel.

33.  P had raised 4 causes of action against D or its agents or servants for which D was vicariously liable, namely:

(i) Negligence;

(ii) Breach of contract of employment;

(iii) Breach of statutory duty under section 6 of the Occupational Safety and Health Ordinance cap 509 (“OSHO”); and/or

(iv) Breach of common duty of care under section 3 of the Occupiers’ Liability Ordinance Cap 314 (“OLO”).

34.  D denied the above. It was held in the Ng’s Judgment that:

“For the avoidance of doubt, issue estoppel will not preclude the defendant from disputing whether the Accident was caused by negligence, breach of contract, breach of common duty of care and/or breach of statutory duty on the part of the defendant and/or from claiming the plaintiff is liable for contributory negligence[11].”

35.  The particulars of the negligence and/or breach of contract of employment were set out in P’s statement of claim.  To summarise, the main issues on liability were:

(i) Whether the Accident occurred as a result of any breach of  D’s duties including:-

(a) Failing to provide a safe place of work or means of access thereto;

(b) Failing to provide a safe system of work;

(c) Failing to take all reasonable precautions for the safety of P;

(d) Exposing P to an unnecessary risk of damage or injury of which D knew or ought to have known while P was in the course of his employment;

and

(ii) Whether P was liable for contributory negligence.

Safe Place of work or means of access thereto and Safe System of Work

36.  As set out by Cheung J, as he then was, in the case of Lai Wah Wai v Castco Testing Centre Ltd [1996] 2 HKC 44

“The standard of an employer’s duty towards his employee is to see that reasonable care is taken; the scope of that duty extends to the provision of safe fellow employees, safe equipment, safe place of work and access to it and a safe system of work (Wilsons and Clyde Coal Co Ltd v English [1938] AC 37)[12]”

37.  As further set out in the case of Lai Wah Wai, a system of work is the term used to describe:

“(1) the organization of the work;

(2) the way in which it is intended the work shall be carried out;

(3) the giving of adequate instructions (especially to the inexperienced workers);

(4) the sequence of events;

(5) the taking of precautions for the safety of the workers and at what stages;

(6) the number of such persons required to do the job;

(7) the part to be taken by each of the various persons employed;

(8) the moment at which they shall perform their respective tasks. (para 10–59 Charlesworth & Percey on Negligence (8^th ED))[13]

38.  The employer’s duty is a non-delegable duty and obligation includes the provision of a safe place of work and a safe working system, as seen in the case of Wilsons & Clyde Coal Col Ltd. v English [1938] AC 47[14].

39.  Pickavant himself did not give any oral evidence during the EC Trial.  Instead D’s accounts clerk Eva was called.  Eva’s evidence during the EC trial was that at the time just prior to the Accident, she was squatting down and talking to Waheda.  Eva said she was facing the wall and did not see the Box at where P was tripped.  P and Waheda had also said that before the Accident, they did not see or notice the Box being there.

40.  From the photographs which were taken the day after the Accident[15], the reception area of D’s office at that time was a small area. The broken Table had been removed already, but a line in the photographs showed the edge of the Table where it had been. The evidence of P and Waheda showed that the layout of the reception area was unorganized.  I find this part of their evidence credible.  The passage between the Table  and the table where the facsimile machine was placed was narrow, only about 18 inches, and there was also a long cabinet next to the storeroom which kept coffee, tea, water, and other refreshments.  Staff would go into that area from time to time for refreshments and to the storeroom situated behind the reception for stationery. 

41.  There was a sketch plan[16] produced in the EC Trial and where it was marked “x” was where the Box was, which was between the second and the third chair of the sofa.  During this trial, P had indicated on the sketch plan where Ishtiaq’s brother Iftikhar Hussain was sitting, namely the left most chair of the sofa and that the two chairs next to him were empty.  The Box was to the right of Iftikhar Hussain.

42.  During the EC Trial, Eva admitted that A4 paper boxes would be placed at the reception area next to the photocopying machine and further there was a paper box placed in the reception area between the sofa and the fax machine at the material time.  It was the finding of Judge Chow that there was a paper box close to the location indicated by P[17]. Judge Chow had also found that the Accident had happened in the manner described by P. 

43.  I accept the above findings of Judge Chow and D was bound by such findings.

44.  However, D’s Counsel Mr Wong’s submission was that as P and Waheda had said during the trial that they did not see the Box before P tripped over the Box, the question as to what remedial measures should have been taken became hypothetical.  Mr Wong referred the court to the case of Cheung Wai Mei and the Excelsior Hotel (Hong Kong) Limited trading as The Excelsior CACV 38 of 2000, 22 November 2000[18].  In the case of Cheung Wai Mei, at the time of the accident, the plaintiff therein had been hurrying up the steps leading to the hotel side entrances, and immediately prior to entering the hotel she had slipped on some liquid on the ground, which had not seen, and knocked her face against the glass door and had fallen backwards down the steps.  The trial judge accepted the evidence that the plaintiff’s dress was damp and what was inferred from that was when the plaintiff fell to the ground she came into contact with some liquid, which was probably on a coconut matting.

45.  It was held by the Court of Appeal that in the above case if any members of the staff had minutely examined the coconut matting they might have seen some discoloration and that the necessary steps to obviate the risk would mean that it would be necessary for staff to be posted at every entrance to the hotel and for them to be equipped with cleaning utensils to remove any liquid at short notice.  The Court of Appeal was of the view that to state the proposition in this way would mean that the hotel had an absolute duty to ensure the safety of the plaintiff, or put it in another way, all the plaintiff would have to establish was that she slipped and fell and suffered injury for her to recover damages, and that was held by the Court of Appeal to be not the law.

46.  The facts of the present case were different from the Cheung Wai Mei case.  The existence of the liquid on the coconut mat outside the hotel side entrance was only inferred in that case, and there was no evidence that the hotel knew of the liquid being there.  In the present case, Eva had admitted that D’s staff always needed to work with A4 paper at the office and boxes containing A4 paper would be placed at the reception area next to the photocopying machine and there was also a paper box between the fax machine and the sofa at the material time.

47.  I accept what was submitted by P’s Counsel Mr Shum, it should be clear to D that the staff would frequently be going to the reception area and the passageway to use the fax machine and to the long cabinet for refreshments and also to the storeroom for stationery.

48.  The Box which Judge Chow found to be located at about where it was marked “x” was clearly an obstacle.

49.  I find that it was incumbent upon D to proactively ensure one way or another that boxes and files, in particular the Box, would not cause obstacles to staff accessing the reception area and passageway.  This would not necessarily involve, as Mr Wong seemed to have suggested, a staff being posted at the reception area and to remove boxes at short notice, as in the Cheung Wai Mei case, but in my view, there could have been instructions to staff to place boxes of A4 paper in the storeroom, and /or not to leave boxes unattended to at where they could be obstacles.

50.  Anyway, there was no evidence from D as to its system of ensuring that risks of tripping over obstacles were reasonably minimized.  There was no evidence from D as to what precautions were taken or what instructions were given for the safety of its employees.

51.  I find that the Box was an inherent risk to people working in D’s then office and I find that D had failed to provide and/or maintain a safe place of work or means of access from P’s own room to the reception area.  D was vicariously liable for the negligence of its staff who had negligently placed the Box there.

52.  P’s and Waheda’s evidence showed that the Table had collapsed twice in 2005 and that it was very unstable at the time of the Accident.  This was accepted by Judge Chow who found in the EC Judgment that the Table was broken twice but had not been properly repaired.  Further, the contemporaneous note made by Patrick of the Accident who gave evidence during the EC Trial indicated that he heard a large (sic) noise and he saw P had fallen down and the Table was broken/ fallen down[19].  Judge Chow found further that the loud noise reflected a great force was exerted and that when P pushed away the Table with great/fast speed, items on the Table would fall on P’s body.[20]

53.  D had a duty to ensure the Table was safe and would not collapse.  I find that D failed to ensure that the unstable Table was safe and/or properly repaired and/or replaced.

54.  P also relied on the doctrine of res ipsa loquitur to prove negligence on the part of D and referred to the case of Li Kai Cheong v Lam Ying Wai & Ors, unreported HCPI 920 of 2000, 4 December 2001.

55.  So far as the collapse of the Table is concerned, as submitted by Mr Shum and I accept, tables should be stationary and in a stable position and would not normally collapse upon being bumped into or having a person falling upon it, unless there was something inherently unstable.  I accept that the unstable Table amounted to an unsafe equipment and the Table was under the management and control of D.

56.  In view of the above, I find that D failed to provide a safe place of work or means of access thereto, failed to provide a safe system of work, failed to take all reasonable precautions for the safety of P and P was exposed to an unnecessary risk of damage or injury of which D knew or ought to have known while P was in the course of his employment.

57.  As Mr Shum submitted, it was also an implied term of the employment contract between P and D that D owed a duty to P to provide a safe place of work, a safe and proper system or method of working, suitable equipment and appliances, sufficient instructions, training and supervision and sufficient assistance, and that P should not be exposed to any risk of any damage which D knew or ought to have known.  As D was found to be liable in negligence, I find that D would be equally liable for breach of the implied terms of the employment contract.

58.  Similarly, D would equally be liable under section 6 of the OSHO and section 3 of the OLO.

Contributory Negligence

59.  In the Defence, D pleaded that P:

(a) Failing to heed the presence of the Box;

(b) Walking too quickly across the reception area; and

(c) Failing to take care when walking across the reception area.

60.  P’s evidence was that the Box was about 7 ½ to 8 inches high, and it was Mr Wong’s submission that the Box was “visible, easily detectable and easily noticeable”.  Mr Wong submitted that P should be guilty of contributory negligence to the extent of 70%.

61.  As quoted by Earl Jowitt in the House of Lords in the case of General Cleaning Contractors Ltd v Christmas [1953] AC 180, what Denning LJ had said in the Court of Appeal-

“You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which the employers expected him to do it and, if they had taken proper safeguards, the accident would not have happened[21].”

62.  P had said prior to the Accident, he had tried to call Eva, and when he failed, he went out of his room to go to the reception area to look for a stapler.  P’s evidence was that he did not walk quickly, nor was he in a rush.  He walked at a normal place.  He said he saw Iftikhar Hussain sitting on the sofa but did not see the Box.  At that time, every one in the office was busy performing their own work, and Eva was talking to Waheda.

63.  D had claimed that the Box was easily detectable and P was familiar with the location where he fell.  Pickavant was not present, nor was any one called to contradict what P had said.  There was no evidence that P saw the Box or ignored it, and there was no evidence that P was not walking at his normal pace. I accept this part of P’s evidence.  The reception area was a small cluttered area, and Iftikhar Hussain was sitting to the left of the Box.

64.  I do not find that there was sufficient evidence that P was not conducting himself in the usual way in the course of work at the time of the Accident.  I find that P was merely performing his work in the limited and cluttered space of the reception area of D’s then office.  There was no evidence that D did anything to advise or warn its staff of any danger or potential danger of leaving boxes in the reception area which could cause passers-by to trip.

65.  I am unable to find that there was sufficient evidence that there had been any contributory negligence on the part of P.

Quantum

P’s Personal History

66.  P was born on 25 January 1975.  He was aged 31 at the time of the Accident and 38 at the time of the trial.

67.  According to what P had told his own expert Dr Chiang, he had attained a Master Degree in English literature in Punjab University.  He could speak and write fluently in English, and also Punjabi and Urdu.  It seems that he could also speak well and write fluently in Arabic, Indonesian and Malaysian[22].  Before he came to Hong Kong in September 1999, he was a field engineer in the Pakistan Air Force for 6 years.  P is clever, and he is also experienced in litigation matters, in particular Personal Injuries and Employees Compensation cases. As conceded by Pickavant, P did well after joining D, and in particular he was doing very well in terms of client relationship.  P’s salary was doubled in 2005 as Pickavant had said “he was worth it”.

P’s Injuries and Treatment

68.  As mentioned earlier, after the Accident, P was taken to the Accident and Emergency Department of the Hospital and later transferred to the Orthopaedic Ward the same day.

69.  According to the medical report by a Dr Ko of the Orthopaedic Ward of the Hospital[23], examination findings of P included:

· 5 mm superficial wound over the volar side of right wrist

· 5 cm laceration wound over the inner aspect of right thigh

· Decreased sensation over right palm and radial three digits

· Motor function right hand not tested because of pain

· Grade 4 weakness of the right big toes

· Straight leg raising test 30 degrees for the right side and 60 degrees for the left side

· Diffuse tenderness and stiffness of neck

· Back was non tender

70.  Emergency operation was performed on the same day and cut palmar branch of right median nerve in right wrist wound was found.   The main trunk of the nerve was intact.  The palmar branch of the median nerve was repaired and all wounds sutured (“1^st Operation”). A short right arm slab was given for protection of the repaired nerve.  MRI of P’s lumbar spine was performed which did not show any nerve root compression and no lumbar disc prolapse was noted except that there was Tarlov’s cyst at the S2 and S3 levels[24].

71.  P was discharged 2 days later on 3 March 2006.

72.  As mentioned earlier, P was referred by Dr Johnson Lam to undergo a MRI of right shoulder and right wrist at the Hong Kong Sanatorium Hospital on 8 March 2006.  The MRI scans showed no evidence of rotator cuff tear in the right shoulder and no evidence of tendon injury to right wrist[25].

73.  P attended follow-ups at the Orthopaedic Clinic of the Hospital on about 3 occasions from March to May 2006 and according to Dr Ko, P complained of persistent pain and numbness over right hand[26].  Nerve conduction test was attempted on 6 June 2006 but failed as P could not tolerate pain.  Then a bone scan was performed on 12 June 2006, which showed signs of reflex sympathetic dystrophy syndrome or now termed compression regional pain syndrome (“CRPS I”).  P was discharged on 14 June 2006[27].

74.  About 6 months later on 25 January 2007, P was admitted into the Orthopaedic Ward of the Hospital and underwent an operation of release of the carpal tunnel and relaxation of the scar and web contracture of the skin (“2^nd Operation”)[28].  He was in hospital from 24 to 31 January 2007, and thereafter attended regular follow up at the Orthopaedic Clinic, about once every 6 weeks. P was given more than 20 sessions of physiotherapy which stopped in March 2007.  He also received 5 sessions of occupational therapy, some at initial stage, and some after the 2^nd Operation.  

75.  On 28 June 2007 and on 15 November 2007, P was assessed by the Medical Assessment Board to have suffered 20% loss of earning capacity permanently caused by his injuries[29].  Sick leave was eventually granted up to 22 November 2007[30].

76.  P was first examined by his own expert Dr Chiang on 20 July 2007, after which C’s 2007 Report was prepared[31].  After reviewing all P’s medical reports, C’s 2008 Report was prepared by Dr Chiang on 4 May 2008[32].

77.  In C’s 2007 Report, it was noted by Dr Chiang that during the examination, P’s thumb and the fingers of the right hand were kept in an almost full extended posture, and were not able to perform more than minimal flexion, and there was total numbness in the whole of the palmar aspect and total numbness in the distal part of the right hand.  It had appeared to Dr Chiang at the time that the median nerve and ulnar nerve were significantly involved, and the CRPS I might have poor recovery. 

78.  However, Dr Chiang went on to say that on further examination, he observed the following discrepancies[33]:

(i) Though residual signs of CRPS I were still present, they were likely to be at an improved stage, and would not be the main cause in accounting for the very marked stiffness with loss of flexion in the fingers and the thumb;

(ii) With respect to the position of the scars, it was most unlikely for the ulnar nerve to be injured from the injury or from the surgical treatment, and this could not explain for the numbness over the distribution of the ulnar nerve;

(iii) The loss of adduction shown in the fingers could not be explained clinically in the absence of ulnar nerve injury

79.  Thus, only the palmar branch of the median nerve of P’s right wrist was cut which would have affected the sensory supply to the thumb, and the index to ring fingers of P’s right hand.  The muscular should not be affected, and the ulnar nerve was not noted to be injured[34].  I accept Dr Chiang’s opinion. To summarise, Dr Chiang was of the view that:

(i) The severe signs shown by P were not supported by the type of injuries sustained, and the progress noted, and the more objective part of finding (emphasis added).

(ii) As to the right shoulder, there was no obvious abnormality noted.

(iii) The back had likely acquired satisfactory recovery and there was no obvious significant injury related pathologies.

(iv) The Hospital records and follow-up records were required for further assessment of the disability and future earning capacity.

80.  After being provided with all the relevant records from the Hospital and the outpatient follow-up records, Dr Chiang’s comments in C’s 2008 Report were, among other things[35]:

(i) It was likely that the actual underlying range of movement of the fingers of the right hand should be of a better range than the vey marked stiffness shown.  Symptom magnification was likely to be present, but there should still be a moderate degree of actual stiffness in the index to ring fingers.

(ii) After the 2^nd Operation, a reasonably satisfactory flexion range of the right wrist had been acquired.  There was a much reduced range of extension of the right wrist.

(iii) P should be able to say working in the pre-injury job.  There would be inconvenience or reduction in efficiency as related to the need to rely on the left havd for use of the computer, and handling of documents, and writing with the right hand would be slow.

81.  P was examined by D’s expert Dr Lau on 7 August 2007, who prepared L’s 2007 Report on 7 December 2007[36].

82.  At the examination, P was observed by Dr Lau to have significant muscle wasting of his right arm and forearm, and also severe wasting of the muscles of the thenar eminence of his right hand, and these were good objective evidence of the dysfunction of his right upper limb and the persistent compression the median nerve.  So far as the neck injury, the prognosis was good.

83.  In L’s 2007 Report, Dr Lau assessed P to have:

(i) 50% impairment of his right upper limb or 30% permanent impairment of the whole person.

(ii) 1% of whole person impairment for the neck injury with possible mild residual pain.

(iii) With the severe impairment in the function of his dominant hand, the plaintiff did have great problem in working in the office, including writing, operating the keyboard or handling files, but he should be able to work as an interpreter.

(iv) The appropriate period of sick leave should cover up to April 2007.

84.  After the EC Judgment, the two experts examined P again on 18 August 2009 and prepared their first joint report, namely the 2009 Joint Report[37].  Subsequently they saw P again on 2 June 2011 and produced their 2011 Joint Report[38].

85.  Briefly, in the 2009 Joint Report, the two experts agreed that:

(i) P was considered as having adequately rehabilitated for the injury to his right wrist[39];

(ii) Physical findings observed at the joint examination would suggest significant improvement in the condition of P’s right hand in past two years[40];

(iii) P suffered a combined total of 13% of permanent impairment of the whole person (“IWP”) from the Accident.

(iv) With the improvement in the function of the dominant hand,  P should only have mild to moderate problems in returning to his pre Accident employment, including duties such as writing, operating the keyboard or handling files, and would have no problem working as an interpreter.

86.  In their 2011 Joint Report, the two experts noted there were still obvious signs of symptom magnification and exaggeration as in the previous examinations.  Both agreed that P’s actual condition had improved since the last examination and P should be better than what he had described, and that the function of P’s dominant upper limb had definitely improved further in the past 9 months and the impairment level should only be of a mild degree[41].  Dr Chiang suggested a total IWP of 8%, and Dr Lau 6%.

Surveillance Recordings

87.  D’s Surveillance Recordings and the Surveillance Transcripts showed persons posing as clients met with P.

88.  Two segments of the Surveillance Recordings were shown to the court, the first was recorded on 30 December 2009, about 4½ months after the first joint examination of the experts, when the P was seen holding a McDonalds tray containing a burger, French fries and a drink.  P’s evidence was that he was in fact holding the tray with his left hand whilst the tray merely rested on his right hand.  I accept the footage did not show clearly that P was gripping the tray with his right hand, but he clearly had no problem carrying that tray. 

89.  The second segment was taken on 20 January 2010, where P was observed holding a pen between his index and middle finger.  From what I could see, P was not actually gripping the pen tight. However, P’s hand was not as stiff as it appeared to be during the trial before this court and he was able to hold the pen to write.  It was seen that he later asked his assistant to copy down what was written by him.   The assistant was Ishtiaq.  P said during the trial that Ishtiaq could not read P’s handwriting which was illegible.  P claimed that a copy of what P had written was given to the fake client, but none was produced during the trial, and this court was thus not able to see P’s handwriting.   

Agreed Loss

90.  Travelling expenses of HK$500 and tonic food expenses of HK$5,000 were agreed.

Pain, Suffering and Loss of Amenities (“PSLA”)

91.  P claimed an award for PSLA in the sum of HK$450,000, whereas D averred that the award should be no more than HK$150,000.

92.  As submitted by Mr Wong, both Dr Chiang and Dr Lau in their joint reports commented that P had magnified his symptoms, and as the main trunk of P’s median nerve was intact and the muscular supply should have been spared, there was no reason that P’s fingers and thumb of the right hand could not perform more than minimal flexion and could not perform a grip.

93.  However, in 2007 when D’s expert Dr Lau first examined P, there was serious muscle wasting and was likely caused by the CRPS I, and during the EC Trial in February 2009, Judge Chow had observed that P would clearly have problem(s) to use his right hand to discharge his pre-accident duties[42].  The EC Trial was before the two experts’ joint examination of P. It was only in August 2009 that the two experts  agreed that they found no muscle wasting of P’s right arm and forearm, which showed that between 2007 to 2009, P did not disuse his right hand resulting in muscle wasting.  It was also opined by the two experts that  after August 2009 that P had almost complete absence of positive signs of CRPS I, and that P had increased mobility of his right them, index and middle fingers.  Thus by August 2009, there had been significant improvement.

94.  Mr Shum cited to this court a number of cases on PSLA, including the case of Lin Cho Chau v YCY Design & Engineering Limited, unreported, HCPI 245/2007 (DHCJ L Chan, as he then was, 2^nd June 2008). Mr Wong also cited several cases to this court, including also the Lin Cho Chau case.

95.  For the top of the range, Mr Shum referred to Wong Shek Mui v Mammoth Holding Limited, unreported, HCPI 1291/2003 (Master Hui, 16 February 2007).  The plaintiff in that case was working as defendant’s baker and her right hand was severely crushed by the mixer arm and serious injuries were caused to and sustained by the plaintiff.  In the joint medical report, it was opined that with the residual stiffness and pain in the plaintiff’s dominant right hand, she may have difficulty handling large heavy objects.  She was awarded HK$500,000 for PSLA.

96.  In the Lin Cho Chau case, the plaintiff was diagnosed to have incomplete crack fracture of the left radius, 100% cut of 5 muscles including one that extended from the lower end of the humerus to the lower end of the radius which is a flexor of the elbow joint, 100% cut of a radial nerve and 95% cut of the median nerve.  An operation of exploration, tendon repair and nerve repair was carried out on the plaintiff same day of the accident and he was discharged 2 days later.  About 4 months later, he had to undergo a second operation to release the tendons and radial and median nerves owing to the stiffness of the finger joint and persistent numbness over the index and middle fingers.

97.  He then attended 7½ months of physiotherapy treatment and a 4 month course of occupational therapy.  He had a 10.5 cm transverse scar at volar surface over distal ⅓ of forearm and a 4 cm longitudinal scar joining the radial edge of the transverse scar.  He could make a tight fist, but grip and pinch strengths were limited.  The assessment report almost two years later showed severe muscle wasting over the left upper limb, and the plaintiff’s impairment of the left upper extremity assessed to be 62% which was equivalent to 37% of the whole person.  He was awarded HK$430,000 as PSLA.

98.  In Cheung Yuk Chun v Winson Cleaning Service Co Ltd & Ors, unreported DCPI 629/2006 ( DJ Leung, 6 July 2007), the plaintiff, a cleaner, injured her right wrist when she fell while carrying a basket of garbage descending a staircase during the course of her employment.  X ray showed fracture of the right distal radius.  The fracture was treated with close reduction and plaster immobilization.  Her condition was found to have complicated by the CRPS I, which resulted in pain and stiffness of fingers and wrist.  She was estimated to have 5% IWP and still suffered residual limitation in movement.  She further developed mild adjustment disorder with depressed mood.  She was able to resume working as a cleaning worker, but with residual disabilities.  She was awarded HK$300,000 as PSLA.

99.  In the Ali Shoukat v Hang Seng Bank Ltd, unreported, HCPI 3/2003 (Suffiad J, 23June 20), the plaintiff suffered a sprain back injury whilst unloading heavy cash boxes from a van in the course of his employment as a bank security guard, and suffered 5% IWP.  He still suffered some residual pain and loss of lordosis in the lumbosacral area where the pain existed and some muscle spasm.  The pain was not so debilitating as to affect his activities of daily living.  He was able to return to his pre-accident work.  He was awarded HK$250,000 for PSLA.

100.  Then in Yeung Sze v Win Art Design & Decoration Co Ltd, unreported, HCPI 6 /2000 (Master M Yuen 27 June 2001), the plaintiff, a plasterer, injured his back when he fell whilst decorating a residential flat.  He was diagnosed with buttock/low back contusion, and was granted sick leave for a total of 15 months.  Master Yuen accepted he suffered from chronic low back pain which could be related to the accident and granted him HK$200,000 for PSLA.

101.  Mr Wong referred two further cases, Lee Tsz Kin Ken and Climax Paper Converters Limited, HCPI 504/2003 (Tang J, 24 June 2004) and Singh Harpel v Najib Transport DCPI 494 of 2009, unreported ( DJ Lok, 23 November 2009).

102.  In the Lee Tsz Kin Ken case, the plaintiff sprained his right thumb in the course of operating a vacuum cleaner when instructed by the defendant to remove some water on the floor of one of the offices.  There was little pain to begin with but the plaintiff then complained of pain in his neck and right thumb the next morning and attended hospital for treatment.  He was reported to have tenderness over the right thumb base and was given successive sick leave, and an operation was performed on him about 3 months later and there was no significant positive finding, and there was just mild scarring around the radial digital nerve of right thumb.  He was assessed 2% permanent disability.  He underwent 40 sessions of rehabilitation and was given a total of 850 days of sick leave intermittently. Tang J, as he then was, found that the plaintiff had greatly exaggerated the condition of his right thumb and found that he could have returned to work as a technician after about 9 months, and awarded HK$50,000 for PSLA.

103.  In the Singh Harpel case, the plaintiff was working at the compressor machine in the workshop of the defendant, and a co-worker was stacking packets adjacent to the machine, and one of the packets fell and collapsed onto the machine, causing the lever to close trapping the plaintiff’s right hand and forearm in the machine resulting in injuries.

104.  The plaintiff’s injury was found to be relatively minor, and apart from some residual pain and numbness in his right hand, the plaintiff should not have suffered any significant permanent disabilities.  He was awarded HK$120,000.

105.  In the present case, briefly speaking, P suffered injuries in 3 areas, namely (i) injuries to neck, lower back and shoulder; (ii) laceration in the right thigh; and (iii) cut palmar branch of right median nerve in right wrist.  His injuries in (iii) were more serious than (i) and (ii). He underwent two operations over (iii), the second one due to CRPS I.

106.  I find that P suffered more serious injuries than in the Lee Tsz Ken case and the Singh Harpel case, but his injuries were not as serious as the Lin Cho Chau case.  

107.  Having considered P’s injuries and treatment, and all the cases cited, I am of the view that an appropriate sum for PSLA is HK$ 300,000.

Pre – Trial Loss of Earnings

Pre-Accident Income

108.  It was found by Judge Chow in the EC Judgment that at the time of the Accident, P’s average monthly earning was HK$32,500 per month[43].  Thus, for the purpose of calculating the amount of the award under s9 (1A) under the Employees Compensation Ordinance, and adopting the formula in Hong Kong Paper Mills Ltd v Chan Hin-Wu [1981] HKLR 556, P’s earning capacity was taken to be $32,500 per month.  This was also the amount which Judge Chow adopted in arriving at the award under s10 of the Employees Compensation Ordinance.  

Sick Leave

109.  Notwithstanding the disagreement between the two experts on the period of sick leave, in the EC Judgment, Judge Chow accepted the sick leave period was 19months for the calculation of award under s10 of the Employee Compensation Ordinance[44], as follows:

(i) From date of Accident, 1 March 2006 to 27 July 2007

(ii) From 14 September 2007 to 15 November 2007 ( although in the Schedule of Sick Leave, leave was stated to be granted to 22 November 2007[45])

110.  P’s case was that he was entitled to full loss of earnings for the 19 months of sick leave and his claim for the 19 months was a total of HK$617,500, based on his earnings of an average of HK$32,500 per month.  

111.  D only conceded that there should be full loss of earnings from 1 March 2006 up until 13 April 2006 only, and thereafter P’s earning capacity should be at $20,000 per month, and thus submitted that the amount under this heading should in fact be HK$ 397,500[46].  This was because of the following:

(i) Pickavant’s report to the police on 13 April 2006 and his evidence that P would have been dismissed as from that date and further he would not have increased D’s wages[47].

(ii) The monthly average commission should not be taken into account as loss of earnings if P would have been dismissed any way irrespective of the Accident and thus P’s earning capacity from 13 April 2006 onwards should be only $20,000 per month[48].

Whether P would have been dismissed on about 13 April 2006

112.  After the Accident, Pickavant had visited P at hospital and further arranged and paid for P to be examined by Dr Lam and to undergo the MRI scans at the Hong Kong Sanatorium Hospital.  Patrick’s records seemed to indicate that P had returned to the office between 6 and 9 March 2006, for about an hour to an hour and half on each of those days.  The Insurance Report Letter was jointly signed and agreed by P and D on 9 March 2006 and in the letter, P confirmed that he had intended to return to work for D.  P had later said his intention at that time was only to return to work for D as an interpreter clerk, as stated in the Insurance Report Letter.   Whatever, it seems clear to this court that the relationship between P and Pickavant after the Accident until 10 March 2009 was still amicable and certainly there was no evidence of any intention on either party that P’s employment should cease.  It was only after the incident on 11 March 2009 that there was a serious turn in their relationship.

113.  It was Pickavant’s evidence that the incident on 11 March 2009 stemmed from him discovering that P had taken money from clients directly, but P’s evidence was that he had received a phone call from Pickavant demanding that P to return to work in an intimidating and aggressive manner.  When cross examined as to whether Pickavant was angry that day at P because P took money from lay clients, P had responded that it could be a reason but P claimed that his taking money was well known to Pickavant and that was one of the reasons why P was acquitted in the criminal trial.  P maintained that he went into D’s office that day only to deliver sick leave certificates to Pickavant. 

114.  I find Pickavant’s evidence as to when and how he discovered P’s ‘dishonesty’ and when he would have dismissed P rather confusing.  Different dates had been mentioned at different times[49], namely ‘11 March 2006’, ‘not later than 1 April 2006’, ‘in about April 2006’ and finally ‘no later than 13 April 2006’, which was the date of his police report. According to Pickavant’s own statement and Singh’s statement to the police, such alleged ‘discovery’ seemed to be only around end of March/ early April 2009.

115.  Be that as it may, P was charged and acquitted.  There was no sufficient evidence before this court that the alleged misconduct of P did take place as alleged by Pickavant.  As pointed out by Mr Shum, Pickavant’s allegations were only raised for the first time after the Accident.  It seems to this court more like after 11 March 2006.  Having considered the evidence, I find that there was no sufficient evidence to show that P would have been dismissed irrespective of the Accident and no later than 13 April 2006.

Whether the commissions should be taken into account

116.  It appears from Ng’s Judgment that at that time Mr Wong’s submissions had raised the issue of illegality and there was a suggestion at that time that D might in future consider applying for leave to amend its pleadings to plead an illegality defence[50].  It was in those circumstances that Ng HCDJ had considered Mr Wong’s then arguments on the basis that D would raise the issue of illegality as an alternative defence.

117.  There was no application by D to amend its Defence to plead illegality after Ng’s Judgment.  D only applied to amend its Answer to P’s Revised Statement of Damages to state that commissions were prohibited under Rule 4 of the Solicitors’ Practice Rules under the Legal Practitioner’s Ordinance Cap 158.  In Mr Wong’s closing submissions, he only referred to comments made in Ng’s Judgment on this point, namely that recovery of loss of earnings that were tainted with illegality would not always be permitted.

118.  Mr Shum, on the other hand, submitted that the sharing of legal costs by a solicitor in Hong Kong with an unqualified person such as P would only be in breach of the Solicitors’ Code of Conduct or Rule 4 of the Solicitors’ Practice Rules.  He had objected to Mr Wong cross examining P as to whether P knew payment of commission was an infringement of law, upon which Mr Wong did not pursue in asking P any further questions thereon. 

119.  The issue of illegality of the commissions was not raised during the EC Trial, nor determined in the EC Judgment.  Ng DHCJ had, however, expressed the view that the contention of illegality, even if it could be raised, would not aid D[51]. Ng DHCJ referred to the case of Chung Man Yau & Anor v Sihon Co Ltd [1997] HKLRD 1221 where Mortimer VP had laid down the applicable principles, namely the court must examine all the circumstances including the nature of illegality complained of, the moral and criminal culpability and any relevant legislation, and having done that the court must decide whether in all those circumstances it would affront the public conscience or offend the ordinary right-thinking citizen if compensation for the loss concerned is awarded[52].

120.  Under the above test, as said by Ng DHCJ, it is not necessarily the case that recovery of loss of earnings that are tainted with illegality will always be permitted and Ng DHCJ had also referred to Tsang Siu Hong v Kong Joi For trading as Wing Hing Auto Engineering Service & Anor HCPI 173/2001, unreported, 10 March 2003 in which an illegal immigrant worker was only able to recover earnings based on his lawful Mainland China employment rather than his Hong Kong illegal income.

121.  The illegal immigrant worker in the Tsang Siu Hong case was clearly aware that he was employed contrary to the law.  He was in breach of his condition of stay under the Immigration Ordinance and was liable under that ordinance to be fined or sentenced to a maximum of 2 years in prison. In the present case, Mr Wong did not refer the court to any criminal offence which P could have been charged for receiving commissions from D.  Under Rule 4 of the Solicitors’ Practice Rules, the one who would be in breach of the rule would be the solicitor who shared his profit costs and not the recipient.  I am thus not satisfied that there would be criminal culpability in relation to P’s receipt of commissions, and having considered all the circumstances of this case, I am not satisfied that it would affront the public conscience or offend the ordinary right-thinking citizen if compensation for the loss concerned is awarded.

122.  Mr Wong also submitted that as no solicitor in Hong Kong should share legal costs with P, thus if P were to be dismissed any way irrespective of the Accident, such commissions should not be taken into account in calculating P’s loss of earnings.  Mr Wong submitted that as P failed to prove that other lawyers in Hong Kong would pay him commissions, his monthly income from April 2006 onwards should only be HK$20,000.

123.  I have already found that there was no sufficient evidence that P would have been dismissed by D anyway irrespective of the Accident as from 13 April 2006 onwards.

124.  During the EC Trial, record from the Inland Revenue Department indicated that P’s income reported for salary tax for the year 1 April 2005 until 11 March 2006 was HK$370,000[53]. Judge Chow had found that P’s average pre-Accident income and/or earning capacity to be HK$32,500 per month.  I accept what was found by Judge Chow and see no reason why the amount to be taken into account for calculating P’s loss of earnings should not be HK$32,500 per month.  I am satisfied that P’s average monthly income/earning capacity prior to the Accident was HK$32,500.

Loss of Earnings during Sick Leave period

125.  I find that P’s loss of earnings was due only to the Accident, and thus, for the sick leave period from 1 March 2006 to 15 November 2007, I accept Mr Shum’s calculations in that the amount of loss of earnings for these 19 months of sick leave should be HK$617,500, being HK$32,500 x 19 months.

Loss of Earnings from 23 November 2007 (after expiry of sick leave) to 11 May 2009 (date of EC Judgment)

126.  As mentioned earlier, P said from November 2007 to July 2008 he worked for a company Firm Limited and his income was HK$5,000 per month and on 4 November 2008, he started to work for his present firm KB Chau & Co, with a monthly salary of HK$3,000.  P said he was only working for KB Chau & Co on a part-time basis.  I do not find P’s evidence in this respect credible, which in any event was not supported by the employment contract he produced[54]. The contract P had with KB Chau & Co set out P’s working hours and it was full time hours.  P had claimed in the EC Trial his pre-Accident income was more than HK$32,500 per month and in the Surveillance Recordings, he was seen telling the fake client that he was earning HK$60,000 per month[55]. P admitted he was exaggerating but said his income was $50,000 per month.  Anyway, I simply do not believe that with P’s qualifications and litigation and interpretation work experience, he was only able to earn $3,000 per month after expiration of his sick leave.

127.  In the EC Judgment, Judge Chow found that P clearly had great problems using his right hand to discharge his pre-Accident duties, and could only work solely as an interpreter.  Based on a Graduate Employment Survey of 2007 produced by University of Hong Kong of the medium income of an interpreter being HK$11,000 per month, Judge Chow in the EC Judgment had adopted this figure as being P’s earning capacity at that time.

128.  Mr Wong submitted that Judge Chow’s assessment of loss of earning capacity under section 9 of the Employees Compensation Ordinance would not be binding on this court in the present action.  It was his further submission that P failed to mitigate his loss of earnings after expiration of sick leave, and that P should be able to earn more than HK$11,000 per month.  Mr Wong then suggested that the court should use an earnings multiplicand of no more than HK$9,000, being P’s pre-Accident basic salary of $20,000 less $11,000 for the period from November 2007 to August 2009 (date of P’s first joint examination by the two experts)[56].

129.  It seems, however, from Mr Wong’s above suggested calculations that he himself was adopting the figure of $11,000 for P’s then earning capacity as found by Judge Chow, and was only asking court to use P’s basic salary of HK$20,000 for calculations, rather than $32,500.

130.  I have found earlier that the figure for calculating P’s loss of earnings should be $32,500 instead of $20,000.  I accept what Judge Chow had found in the EC Judgment, namely at that time P had great problems using his right hand to discharge his pre-Accident duties, and could only work solely as an interpreter.  I thus accept Mr Shum’s calculations that from 23 November 2007 to 11 May 2009 (date of EC Judgment),  P’s loss of earnings should be HK$378,400 being :

    (HK$32,500 – HK$11,000) x 17.6 months = HK$378,400

Loss of Earnings after 12 May 2009 until 26 August 2013 (date of trial)

131.  Mr Shum submitted that from 12 May 2009 until 2 June 2011, the date of the 2011 Joint Report, the loss of earnings should continue to be HK$21,500 per month, namely HK$32,500 less HK$11,000 per month.

132.  For the 3 months after the EC Judgment and before the date of first joint examination in August 2009, Mr Wong’s submissions were same as above, namely the earnings multiplicand should be $9,000 per month. Mr Wong, however, submitted that there should be no further loss of earnings after August 2009. 

133.  The first joint examination took place on 18 August 2009, about 3 months after the EC Judgment.

134.  By this time the 2 experts found that P had improved significantly.  They, however, agreed that P should have mild to moderate problem in returning to his pre-injury job, including duties such as writing, operating the keyboard or handling files, and definitely no problem in working as an interpreter.  At that time, the experts opined that P was suffering from 12% IWP for his right upper limb, plus 1% IWP for the neck injury with possible mild residual pain, totalling 13%.

135.  There was a dispute as to the P’s work duties prior to the Accident, in particular the amount of typing and writing he was required to do.

136.  According to what was reported in C’s 2007 Report, based on what P himself had told Dr Chiang at the time, P’s duties included taking statement from clients and paper work.  He would work on the computers for about 2 hours a day, and for the remaining time, his work involved immense writing for 6 hours a day and handling of files weighing about 8 to 10 kg[57]. 

137.  Judge Chow had found that prior to the Accident P was in the position of a litigation manager, and that his main duties included marketing, sourcing new clients, taking instructions from clients, preparing claim papers and assisting in preparing cases.  He had to open files, take photographs, visit scenes of accidents, write down instructions and carry equipment.  Judge Chow further found that P had to use his preferred right hand to discharge all such duties[58].

138.  As Ng DHCJ had indicated, whilst D was estopped from denying those findings of Judge Chow of P’s pre-Accident work duties and/or the use of his right hand was required to discharge such duties, it would still be open to D to say to what extent P’s pre-Accident work required the use of his right hand[59]. In particular, Judge Chow made no findings on whether P was required to type or the amount of typing or writing P was required to do prior to the Accident. 

139.  During the EC Trial, P had given detailed evidence of his duties prior to the Accident[60], which he said included lots of writing and also typing.  However, it also appeared from his evidence that he often had to go out of the office, including going to the site of the accident to take photographs and conducting interviews.  During the present trial, he said he had to do “marketing”, and he had to accompany clients to Labour Department, Legal Aid Department, and also hospitals, and in doing so, he had to fill in various forms.

140.  P’s evidence during the present trial was that prior to the Accident, he had to do typing for 4 hours a day, such as typing witness statements, and preparing translations.  This was not consistent with what he had told Dr Chiang, namely he would work on the computers for about 2 hours a day.  Anyway, according to P, he could now only now write for 2 minutes, type for not more than 5 minutes, and that he had difficulties with bulky files, and although he could go to industrial sites to take photographs, he would not be able to make a sketch.

141.  Pickavant gave evidence that usually letters before action, lists of documents and preparation of witness statements would be handled by a solicitor in his firm, as such would be important documents in the litigation.  He accepted that generally speaking a “true” litigation manager would have to write and type a lot.  It was Pickavant’s case that in 2005, P asked for his title to be changed from “litigation/legal clerk” to “litigation manager” and that Pickavant agreed to change the title to give him P “face”.  According to Pickavant, the scope of duties in P’s 2005 Employment Letter were exactly the same as the 2003 Employment Letter, apart from the title, and that P was never working for D as a real “litigation manager”, unlike a litigation manager in a large solicitors’ firm.  I note that P’s scope of duties in the 2005 Employment Letter included promoting developing and extending D’s business.

142.  Patrick had given evidence during the EC Trial and he had said notwithstanding P’s title being ‘litigation manager’ whereas Patrick’s then title was ‘litigation clerk’, in fact he (Patrick) should be higher in rank in the firm than P.  Patrick further said he and P would each be responsible to carry out their own work and report individually to Pickavant[61].   

143.  Whether P’s title was a ‘real’ title or not, he did hold that title and the more important issue is the extent of the use of his right hand in connection with his work prior to the Accident.  

144.  There was a computer in P’s room, but according to Pickavant, P ‘inherited’ it after the previous solicitor had left and that Pickavant had seen P playing games on it.  Pickavant said P could not type, although Waheda could.  Further Pickavant said he never saw P writing more than one page, other than filling in forms.

145.  Pickavant had said the Surveillance Recordings showed exactly what P was doing prior to the Accident.  I accept Pickavant’s evidence in this respect and find that the Surveillance Recordings helpful in giving an idea as to P’s work prior to the Accident.  I find that P’s work often took him out of the office, as shown in the Surveillance Recordings.  He was meeting the fake client outside the office, and he accompanied the fake client to the Legal Aid Department and also to another solicitors’ office.  The Surveillance Recordings of 20 January 2010 showed about 13 minutes inside a meeting room of KB Chau & Co and P was seen writing for only about a minute or two.  I accept that this would not necessarily accurately reflect the amount of writing P was required to do.  Whether one calls it typing or, as the medical experts called it, “operating the keyboard”, I would accept P’s pre-Accident work would involve some typing/operating the keyboard and writing.  In my view, he would at least need to type/write down clients’ initial instructions and prepare necessary translations, and also filling in forms for clients.   All this would require the use of his preferred right hand.  I, however, find that P was exaggerating the time he was spending on the typing/writing.  I do not believe he would be doing such work continuously at any one time, as he was often outside the office.  I believe in a working day prior to the Accident, the aggregate time P spent in typing/operating the keyboard/writing should not be more than an average of about two hours a day.  P also mentioned handling bulky files.  I accept that he would probably have to handle or carry heavy lever arch files of documents, but he could use his left hand to help. 

146.  By 18 August 2009, as agreed by the two experts in the 2009 Joint Report[62], although there were signs of symptom magnification on the part of P, P’s hand grip would still be reduced and he still would have mild to moderate problems in returning to his pre Accident work, although he would have no problem working as an interpreter.  As seen in that part of the Surveillance Recordings on 20 January 2010, although P was not in fact gripping the pen properly, he was observed to be able to write and he had said during the trial that he could write for 2 minutes.  Anyway, after writing for a minute or two, he was seen to ask Ishtiaq to copy what was written by him.  I did not notice on the footage that P was in pain or discomfort when he stopped writing.  I do not believe that at that time P was only able to write for 2 minutes as he had claimed. 

147.  I would, however, accept that by January 2010, P would still have mild to moderate problems in typing or writing continuously for an hour or two.  On the other hand, I find P’s work at that time involved more than that of a mere interpreter, and he was seen more to be giving advice to the fake client on gathering of evidence and he was seen accompanying the fake client to the Legal Aid Office and to meet with another solicitor.  In light of this, I find that P’s earning capacity should have increased from $11,000 by then, and in my view, in January 2010, P should be able to earn at least 50% of his pre-Accident income.   I therefore find that as from January 2010 onwards until the second joint examination on 2 June 2011, P’s earning capacity should be HK$16,250 a month. 

148.  By the time of the second, or final, joint examination on 2 June 2011, the two experts had agreed that there were obvious signs of symptom magnification and exaggeration and that the function of P’s dominant upper limb had definitely improved further and the impairment level should only be of a mild degree, and that he only had mild problem in returning to his pre-injury job.  His then IWP was dropped to between 6-8%, or average 7%, with 1% for the neck injury.  Mr Shum had submitted 2 scenarios for the court’s consideration for P’s loss of earnings from 3 June 2011 until date of trial, for the 1^st scenario, P’s earning capacity being $11,000, and for the 2^nd scenario, P’s earning capacity being HK$16,250 per month, namely 50% of P’s pre-Accident income/earning capacity of HK$32,500.  As seen earlier, in fact I find P’s earning capacity was already HK$16,250 per month in January 2010.

149.  By 2 June 2011, over 5 years after the Accident, P’s condition had further improved.  Having considered the evidence and the 2011 Joint Report, by then P should have recovered well enough to resume almost all of his pre Accident duties, save that I accept there could still be a very slight handicap or a mild problem when typing/writing continuously for two hours.  I thus find from 3 June 2011 until the date of trial, P should be able to earn, or his earning capacity should be 90% of his pre-Accident income/earning capacity, namely HK$29,250 per month.

150.  To summarise, I find P’s loss of earnings from 12 May 2009 until 26 August 2013 (Date of Trial) to be:-

(i) From 12 May 2009 until 31 December 2009 -- HK$165,550

(HK$32,500 - $11,000) x 7.7 months

(ii) From 1 January 2010 until 2 June 2011-- HK$276,250

     (HK$32,500 -$16,250) x 17 months

(iii) From 3 June 2011 until 26 August 2013 (Date of Trial) -- HK$87,100

     (HK$32,500 – HK$29,250) x 26.8 months

151.  Thus the total pre-trial loss of earnings are HK$1,524,800:

From 01.03.06 – 15.11.07	$617,500
From 23.11.07 – 11.05.09	$378,400
From 12.05.09 – 31.12.09	$165,550
From 01.01.09 – 02.06.11	$276,250
From 03.06.11 – 26.08.13	$ 87,100
Total	$1,524,800

Pre-Trial Loss of MPF

152.  In P’s Amended Revised Statement of Damages, P claimed a 5% of the loss of pre-trial income for the pre-trial loss of MPF.  Mr Wong submitted that the maximum MPF contribution prior to 1 June 2012 was HK$1,000 per month and thereafter, it was increased to HK$1,250 per month and this was accepted by Mr Shum.  

153.  The pre- trial loss of MPF, according to my calculations, is HK$33,572.50 as follows:

From 01.03.06 to 15.11.07 (19 months)

HK$1,000 x 19 = HK$19,000

From 23.11.07 to 31.12.09 (25.3 months)

[HK$1,000 – (HK$11,000 x 0.05)] x 25.3= HK$11,385

From 01.01.10 – 02.06.11 (17 months)

[$1,000 – ($16,250 x0.05)] x17 = $3,187.50

From 03.06.11 to 31.05.12 (12 months), and

From 01.06.12 to 26.08.13 (15 months)

As from 01.06.11, in view of my finding of P’s earning capacity being HK$29,250 per month, and the maximum contribution being HK$1,200/HK$1,250 per month for relevant income over HK$25,000 per month under the MPF system, the loss of MPF will thus be nil

 Future Loss of Earnings

154.  There was no further medical evidence after the 2011 Joint Report in which the two experts agreed that P’s injuries had reached the stage of maximal medical improvement and that further treatment was not necessary.  I find P’s earning capacity at the date of the trial to be HK$29,250 per month.  I accept that P will continue to suffer a mild disadvantage due to his impairment and there will be a slight future loss of earnings.

155.  P is now 38 and I accept that he will work until age of 65.  

156.  Mr Shum referred this court to the two recent judgments of Chan Pak Ting v Chan Chi Kwan & Others [2013] 1 HKLRD 634 and [2013] 2 HKLRD 1, and in light of these judgments, the appropriate multiplier to adopt would be higher than the conventional multipliers, and that the net rate or return net of inflation for plaintiffs with future needs exceeding 10 years shall be 2.5% per annum.

157.  Based on the Table 9 of the Personal Injury Tables Hong Kong 2013, Mr Shum suggested a multiplier of 19.29 for a male to pension age of 65.  I accept his submissions.

158.  The amount for P’s loss of future earning capacity is thus HK$752,310:

           (HK$32,500 - $29,250) x 12 x 19.29

Future Loss of MPF

159.  For reasons stated under paragraph 153, there will be no future loss of MPF.

Loss of Earning Capacity

160.  Mr Shum referred this court to the case of Chan Wai Tng v Li Ping Sum [1985] 1 AC 466, in which it is said that this claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.

161.  P claims that he has suffered and will continue to suffer a disadvantage in the labour market due to his disability, and therefore he claims a sum equivalent to 6 months’ earnings, as damages for loss of earning capacity. 

162.  P is already awarded for future loss of earnings until the age of 65.  I do not find sufficient evidence to support P’s further claim under this heading.  I will not make such an award.

Summary of Quantum

163.  The total award is as follows:

Conclusion

164.  I grant judgment in favour of P against D in the sum of HK$490,312.86.  P is entitled to interest on PSLA at 2% per annum from the date of the writ to the date of judgment, and interest on special damages at half judgment rate from the date of the Accident to the date of judgment.

165.  Parties are to submit their written submissions on costs within 21 days, and written replies within 21 days thereafter.  The question of costs will be dealt with on paper, unless further directed.