TSE FUK PING v. TSE FUK TONG and CHAN YIU TONG formerly trading as FAT KEE COMPANY AND ANOTHER

DCPI 1519/2022

[2025] HKDC 1519

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1519 OF 2022

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ASSESSMENT OF DAMAGES

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A. Introduction

1.  This is the assessment of damages for the personal injuries sustained by the Plaintiff (“P”)  in an accident happened in the course of his employment on 11 June 2019 (the “Accident”).

2.  Interlocutory judgment on liability was entered against the 1^st Defendant (“D1”, who has been absent throughout)  on 3 May 2023 leaving damages to be assessed.

3.  The Employees Compensation Assistance Fund Board was joined on 20 September 2023 as the 2^nd Defendant (the “Board”)  pursuant to Section 25A of the Employees Compensation Assistance Ordinance (Cap 365)  to defend on the issue of quantum as if it were in D1’s position. 

4.  In this regard, the Board’s role when participating in an existing action for damages was explained in Wo Chun Wah v Employees Compensation Assistance Fund Board (2019)  22 HKCFAR 495 at §§43-46.  In short, the Board carries out a filtering or monitoring function to test P’s case so as to ensure that public resources are properly applied and not subject to abusive or unjustified claims.

5.  In related employees’ compensation proceedings DCEC 1845/2020, P obtained an award of HK$830,513.60 plus interest (the “EC Award”)  against D1[1].

B. Agreed background facts

6.  I have been greatly assisted by both counsel who managed to prepare an Agreed Statement of Facts.  The following background matters are mostly taken from that Statement.

B1. P’s personal details and medical history

7.  P was born on 15 December 1954. He is married with a daughter and a son.

8.  Prior to the Accident, P has been (i)  a smoker of an average of one pack of cigarettes per day and (ii)  a drinker consuming on average a can of beer each day.

9.  P had a medical history of hypertension, dyslipidemia (abnormal levels of lipids in bloodstream), ischemic stroke, carotid artery stenosis, deranged liver function, emphysema (shortness of breath), lung fibrosis and thyroid nodule.  In this regard:

(1)  P was initially treated for his hypertension at the North District Hospital (“NDH”), and he underwent subsequent management for his blood pressure at the general outpatient clinic by regular drug treatment;

(2)  P’s long-term medications include aspirin, dipyridamole, famotidine, amlodipine and rosuvastatin;

(3)  The complete blood count, liver and renal function test, bone profile, cardiac enzyme level, fasting glucose and lipid profile of P in November 2022 were normal.

10.  At the time of the Accident, P was working as a general labourer / home decoration worker engaged in, inter alia, carpentry, plastering and painting works at residential premises.  To that end:

(1)  P’s daily working hours were from 9:00 am to 6:00 pm, with a lunch break and an afternoon tea break;

(2)  P’s tasks involved utilising working tools including hammers, screwdrivers, painting brushes and chisels;

(3)  P’s job also involved the lifting of heavy objects including bags of cement weighing 45 kg each and gallons of paint.

11.  Parties are agreed that, prior to the Accident, P’s monthly income was HK$31,200 (ie HK$1,200 per day x 26 working days).

B2. The Accident

12.  On 11 June 2019 (ie when P was 64 years old), P met with the Accident whilst working for D1 as a casual / general labourer at a residential unit located in Flat B, 3^rd Floor, Block 12, Wonderland Villas, 9 Wah King Hill Road, Kwai Chung.  He was assisting in the repair of an aluminium window when he fell from the third floor of the building onto the ground level, thereby sustaining personal injuries.

B3. Medical treatments received by P

B3.1 Admittance to and discharge from PMH

13.  Immediately after the Accident, P was taken to the Accident & Emergency Department of Princess Margaret Hospital (“PMH”):

(1)  Upon physical examination, P was found to have (i)  lacerations over bilateral forehead; (ii)  bilateral deformed wrists; and (iii)  a small open wound over the left wrist;

(2)  CT scans revealed (i)  non-displaced fractures of the C1 left transverse process and C2 vertebral body, with spinal alignment maintained; (ii)  bilateral periorbital skin thickening and subcutaneous stranding which likely represented contusion; and (iii)  a fractured right medial orbital wall;

(3)  Closed reduction of the P’s bilateral wrist fractures was performed.  Short arm slab for the wrists fractures and neck collar were provided.  P was then transferred to the intensive care unit.

14.  On 13 June 2019, P was transferred to the general ward until he was discharged on 28 June 2019.  During this period:

(1)  A CT scan of P’s brain and orbit showed a fractured medial wall of the right orbit, and conservation treatment was offered;

(2)  P was assessed at the PMH Eye Clinic, where it was observed that (i)he had right periorbital bruising; (ii)  slit lamp examination conducted on P was normal; and (iii)  extraocular muscle movement was normal with no double vision;

(3)  On 15 June 2019, a CT scan of P’s wrists revealed the following:

(a)  Left Wrist:

(i)  Frykman type III distal radial intra-articular fracture;

(ii)  Scaphoid tubercle non-displaced fracture; and

(iii)  Triquetral dorsal avulsion fracture;

(b)  Right Wrist: Frykman type VIII distal radial intra-articular fracture;

(4)  On 19 June 2019, an operation of open reduction and internal fixation of fractured distal radius of P’s wrists was performed;

(5)  P was given in-patient occupational therapy and physiotherapy;

(6)  According to PMH’s discharge summary: (i)  P’s right periorbital bruising had much subsided; (ii)  x-ray scan showed no fractures to P’s shoulder; and (iii)  the range of movement of the P’s shoulder was full.

B3.2  Medical follow-ups

15.  Between 15 July 2019 and 2 December 2019, P had regular orthopaedic follow-ups at PMH’s specialist outpatient clinic (“SOPC”). During this period:

(1)  On 15 July 2019, P complained of numbness across all fingers of both hands since the Accident, which had by then much improved;

(2)  On 9 October 2019, a CT scan of P’s cervical spine was conducted.  The report showed that (i)  the C1 left transverse process fracture had healed, and (ii)  the non-displaced C2 fracture with faint lucencies was still visible;

(3)  Serial x-ray of both wrists showed satisfactory bone union for distal radial fractures on both wrists with no implantation complication;

(4)  On 14 October 2019:

(a)  Dynamic x-ray of P’s spine showed no cervical instability;

(b)  P complained of (i)left index finger paraesthesia; (ii)  non-tenderness of the neck with mild stiffness, but control was good; (iii)  mild stiffness on the right shoulder; and (iv)  mild stiffness of the wrists on both hands;

(5)  On 15 October 2019, a nerve conduction test for P’s wrists revealed moderate median nerve axonal neuropathy at the left wrist;

(6)  By his last session on 2 December 2019, it was found that P suffered from mild residual neck stiffness and pain, as well as finger stiffness.  His use of neck collar was stopped.

16.  Meanwhile:

(1)  On 21 August 2019, P was admitted to NDH for increasing pain at right shoulder and neck.  He was discharged on 23 August 2019.  According to the discharge summary:

(a)  P had not suffered any further trauma or injury since the Accident;

(b)  There was diffused tenderness over paraspinal muscle with no stepping;

(c)  X-ray scan showed no fracture of P’s right shoulder;

(d)  There was moderate degree of limitation in the range of most directions of movements of the right shoulder. Hawkin test showed mild tenderness;

(e)  P’s cervical spine alignment was well;

(f)  P was given physiotherapy to the right shoulder and painkillers.

(2)  On 26 August 2019, a (privately arranged)  MRI scan of the P’s cervical spine revealed:

(a)  A vertically orientated lucent fracture with mild irregular sclerotic marginal sclerosis was found and involving the bilateral lateral masses of the C2 with no significant displacement.  The fracture also involved bilateral transverse process extending to the transverse foramen;

(b)  No definite fractures of the C1 is detected, and the anterior and posterior arch appear intact;

(c)  Degenerative changes in various combinations at different levels with osteoarthritic apophyseal joints (ie the left C3/C4 and right C6/C7)  as well as anterior and posterior marginal osteophytes (ie C4/C5, C5/C6, C6/C7, C7/T1, T1/T2 and T2/T3);

(3)  On 9 September 2019, P was referred by PMH’s Department of Orthopaedic and Traumatology to the Department of Prosthetics and Orthotics of NDH, and a rigid cervical collar was prescribed.

17.  Between 23 December 2019 to 9 June 2022, P had another round of orthopaedic follow-ups at NDH’s orthopaedic specialist clinic (“OSC”):

(1)  On 23 December 2019:

(a)  P was observed to be walking with a stick;

(b)  P complained of mild neck pain;

(c)  X-ray of P’s cervical spine showed that the fracture lines were no longer visible;

(d)  The range of movement of P’s neck was found to be satisfactory;

(e)  P complained of stiff left hand such that he cannot hold a fist, and right shoulder stiffness. Right shoulder elevation was recorded as restricted to 90 degrees (normal range is about 160 degrees);

(2)  On 20 February 2020, it was recorded that (i)P’s right shoulder abduction reached a range of 145 degrees; (ii)  flexion was at 145 degrees (normal range is about 160 degrees); (iii)  external rotational range was at 60 degrees (normal range is about 80 degrees); and (iv)  the hand behind the back or internal rotation was at L4 level (normal range is at T6 to T8 level);

(3)  By 23 April 2020, P was observed to still be walking with a stick.  He complained of right shoulder pain, but reported that he no longer had much neck pain and had no residual wrist pain.  He was transferred for assessment by the Employees’ Compensation (Ordinary Assessment)  Board (“EC Assessment Board”);

(4)  On 18 June 2020:

(a)  P was observed to still be walking with a stick;

(b)  P complained of (i)  mild neck pain; (ii)  right shoulder pain; and (iii)  bilateral wrist stiffness but no pain;

(c)  The range of movement of P’s neck and right shoulder was observed to be full;

(d)  The range of movement of P’s bilateral wrists was recorded as (i)  flexion of 2/3 of normal range; (ii)  extension of 4/7 normal range; and (iii)  normal supination and pronation;

(e)  P was assessed to not be able to return to his previous work, and was suggested to change to a job with lighter duties due to limited lifting and carrying capacity;

(f)  P indicated that he would consider changing to work as a security guard, but did not have any concrete job plans yet;

(g)  The concept of maximal medical improvement was explained to P, for which he indicated his understanding;

(5)  In the follow-ups in the latter half of 2020 and in 2021:

(a)  On 6 August 2020, P complained of (i)  mild neck stiffness with on and off pain and (ii)  bilateral wrist stiffness but without pain.  Physiotherapy for treating his neck pain was pending.  P’s sensation and gait were found to be normal;

(b)  An x-ray conducted on 23 November 2020 showed that the cervical and distal radius fracture of both wrists had healed;

(c)  On 26 November 2020 and 25 February 2021, P was walking unaided, but complained of right shoulder stiffness or pain. The range of movement of the right shoulder remained full;

(d)  By 23 December 2021, P had reported that he had no neck pain.  The option of removing the implants and flexor tenolysis in his wrists was also explained to P, but he was recorded as refusing the option because he is right-handed and planned to retire;

(6)  By his last follow-up on 9 June 2022, P reported mild bilateral shoulder pain but no neck pain, and his bilateral wrist stiffness had remained static.

18.  At P’s follow-up at the Department of Ophthalmology of Caritas Medical Centre on 18 March 2020, (i)  the visual acuity of his right eye was 0.7 and that of his left eye was 0.6, and (ii)  the slit lamp and dilated fundal examination as well as gonioscopy examination were normal.

B3.3 Physiotherapy

19.  Between 4 July 2019 to 3 February 2020, P attended 21 out-patient physiotherapy sessions at the Department of Physiotherapy of NDH, including electrotherapy, exercise therapy and gait training, during which:

(1)  On 27 August 2019, P complained of right shoulder pain upon elevation and right-side lying, with mild decrease in movement;

(2)  By 25 November 2019:

(a)  P had reported (i)  a 60-70% overall improvement of his right wrist; (ii)  neck tiredness; but (iii)  no neck or right wrist pain;

(b)  In terms of range of movement of his right wrist, P displayed (i)  flexion of 3/4 of normal range; (ii)  extension of 4/7 normal range; and (iii)  (close to)  normal supination and pronation;

(c)  As for the range of movement of his neck, P displayed flexion of 2/3 of normal range, whilst the other direction of neck movement was 4/7 of normal range;

(3)  By 3 February 2020 when P was discharged with home exercise and advice:

(a)  P had reported (i)  70% overall improvement of his right shoulder and left wrist; (ii)  tightness of his left wrist and fingers; (iii)  no left wrist and hand pain; and (iv)slight right shoulder pain with elevation but decreased stiffness;

(b)  In terms of range of movement of his right wrist, P displayed (i)  flexion of 2/3 of normal range; (ii)  extension of 9/14 normal range; and (iii)  normal supination and pronation. He could almost make a full fist with his left hand;

(c)  P’s hand grip strength was 15.9 kg and 17.0 kg for his left and right hand respectively.

20.  Between 15 January 2021 to 22 April 2021:

(1)  P attended a second round of 14 physiotherapy sessions at the Department of Physiotherapy of NDH for shoulder and neck physiotherapy upon referral by the OSC;

(2)  Hot pad and exercise therapy were given during the physiotherapy sessions;

(3)  By the time of his discharge, P had reported a decrease in pain of his right shoulder, and maintained a satisfactory range of movement (except for mild decrease in internal rotation).

B3.4  Occupational therapy

21.  Between 8 July 2019 to 9 June 2020, P attended occupational therapy sessions at NDH for splintage and work rehabilitation programs.  By the time of his discharge:

(1)  P’s hand grip strength was 19.3 kg and 18.6 kg for his left and right hand respectively;

(2)  P was able to make a full fist with his right hand;

(3)  P was able to lift up to 20.5 kg from floor to knuckle;

(4)  P’s work capacity was assessed not to match with his job demands, with the major barriers of returning to his previous job identified as “decreased-hand grip, lifting and carrying capacity”.  P was then recommended to “change job with lighter duties due to limited lifting and carrying capacity”, which was recorded to be understood by him;

(5)  P indicated that (i)  he “[w]ould consider changing to work as security guard”; (ii)  he had “[n]o concrete job plan yet”; and (iii)  he agreed with being discharged with home program for strength and enduring maintenance. 

B3.5 Other medical consultations

22.  Between 29 July 2019 and 17 October 2021, P visited the general out-patient clinic of NDH at Shek Wu Hui on a few occasions.  During this period:

(1)  On 29 July 2019, P attended the clinic on a wheelchair.  He complained of foul smelling discharge from his left wrist post-operative wound, but no pain or fever.  On physical examination, (i)  the skin of the post-operative site of the left wrist wound had healed; (ii)  there was not much local tenderness over the wound; and (iii)  there was mild erythema over the wound.  He was diagnosed to have mild infection of his left wrist post-operative wound and was treated with oral augmentin and wound dressing;

(2)  On 16 July 2021, P complained of still having pain over neck and both wrists.  On physical examination: (i)  the active range of motion of neck was full; (ii)  there was no tenderness over cervical spine; (iii)  the range of motion of bilateral wrist was mildly reduced on flexion and extension; and (iv)  there were tenderness in the trapezius muscle and mild tenderness over the volar side of both wrists;

(3)  By 17 October 2021, P complained of still having pain over neck and both wrists.  On physical examination: (i)  there was no tenderness and stepping deformity over cervical spine; (ii)  the active range of motion of both wrists was reduced for extension and mildly reduced for flexion; and (iii)  there was mild tenderness but no swelling over bilateral wrists.

23.  Between 11 August 2021 and 11 February 2022, P sought treatment from an orthopaedic specialist, Dr. Poon Tak Lun, for “Head injury, Sprain neck injury, fracture distal radius both sides, injury due to work accident”.

B4. Sick Leave

24.  Intermittent sick leave was granted to P in the period between 11 June 2019 and 11 February 2022, totalling 959 days.

25.  P did not resume work after expiration of his sick leave period.

B5. EC Board Assessment and Review

26.  P was assessed by the EC Assessment Board.  The assessment was subsequently reviewed.  According to the Certificate of Review of Assessment:

(1)  P’s injury was described as “FALL FROM HEIGHT RESULTING IN (i)  NECK PAIN AND STIFFNESS (4%); AND (ii)  BILATERAL WRIST STIFFNESS (7%)”;

(2)  The period of absence from duty necessary as a result of the injury was stated to be (i)  from 11 June 2019 to 30 June 2021 and (ii)  from 16 July 2021 to 27 September 2021;

(3)  The loss of earning capacity permanently caused by the injury was assessed at 11%.

C. Expert assessment

27.  It is convenient at this juncture to set out the expert opinion of Dr Arthur Chiang, the single joint orthopaedic expert appointed by the parties.  Dr Chiang assessed P on 9 November 2023 and prepared an expert report dated 5 March 2024[2].  There is no challenge from either party on the analysis and findings in Dr Chiang’s report.

C1. Diagnoses

28.  According to Dr Chiang, the diagnoses were, in summary:

(1)  Neck injury with a non-displaced fracture of the C1 left transverse process and a non-displaced fracture of the C2 vertebral body.  The C1 left transverse process extended through the left transverse foramen.  The C2 vertebral body extended into bilateral C2 transverse foramina and transverse processes.  No neurological deficit was noted arising from neck injury;

(2)  Fractures of the left wrist with comminuted (fracture with multiple fracture fragments)  intra-articular fracture of the distal radius, non-displaced fracture scaphoid tubercle and small dorsal avulsion triquetral fracture.  There was also a non-displaced fracture of the distal shaft of the left radius;

(3)  Fractures of the right wrist with a comminuted intra-articular fracture of the distal radius, with ulnar styloid avulsion fracture (type 1 or tip fracture)  and triquetral dorsal small avulsion fracture with mild displacement;

(4)  Both distal radial fractures were Frykman type VIII fractures, comminuted fractures with the involvement of both the radiocarpal and radioulnar joints and ulnar styloid fracture;

(5)  Bilateral forehead laceration; and

(6)  Frozen right shoulder.

29.  Dr Chiang was of the view that these diagnoses were consistent with the mode of injury.

C2. Pre-existing conditions

30.  With respect to the wrists and right shoulder, there were no direct pre-existing conditions.

31.  With respect to the cervical spine, there were multiple levels of degenerative changes with osteoarthritic apophyseal joints, anterior and posterior marginal osteophytes in various combinations at different levels, which were compatible with moderate degree of degenerative changes.

32.  Dr Chiang took the view that some degree of on and off neck symptoms had been present before the injury.  There was likely decreased endurance in performing prolonged and continuous heavy manual activities and an increased tendency of the degenerative changes to be aggravated by strain, sprain or contusion of the neck which might result in a period of exacerbation.

33.  Dr Chiang opined that P’s neck condition fell into what is commonly known as Category II: without the neck injury, there was a strong possibility that other events or progression of the cervical spine degeneration would have brought about the onset of symptoms that resulted in the present state of the neck in about 5 to 7 years from the time of the injury.

C3. Prognosis

34.  Dr Chiang opined that the neck, both wrists and the right shoulder had reached maximal medical improvement. Specifically, Dr Chiang opined that (i)P’s neck and bilateral wrist fractures resulted in satisfactory recovery; (ii)  the residues in the neck and right wrist were likely to be mild, whereas more residues were likely present in the left wrist but were likely to be still on the mild side; and (iii)  the right shoulder was noted to have satisfactorily recovered.

35.  Dr Chiang further observed that intra-articular fracture might give rise to late post-traumatic degenerative arthritis in the future. The chance of encountering this complication in the right wrist was about 5% and that for the left wrist was about 10 to 20%.

C4. Disabilities and working capacity

36.  Dr Chiang estimated that the whole person impairment was about 11%, contributed by (i)  right wrist injury (3%), left wrist injury (4%)  and neck injury (4%).  I pause to note here that parties are in disagreement how the pre-existing conditions to the neck should be factored in and I will return to this question in Section H2 below.

37.  The loss of earning capacity was also estimated to be about 11%.

38.  Dr Chiang was of the view that P was unlikely to be able to return to the pre-injury job.  The pre-existing degeneration might also have given rise to mild limitation in the pre-injury capacity.  Instead, P should be able to take up some light duty work in the pre-injury job such as cleaning and on-and-off lifting of less heavy objects.  If these jobs were not practically available, P was recommended to work as security guard, gas station attendant and in a selected cleaner’s job or waiter’s job without the need to lift very heavy objects.

C5. Sick leave

39.  Dr Chiang opined that the neck injury, bilateral wrist injury and frozen right shoulder had likely reached maximal medical improvement at some stage in the latter half of 2020, and the sick leave period could have ended before the end of 2020.

40.  Whilst Dr Chiang was of the view that the 14 sessions in the second course of physiotherapy was not mandatory for the recovery, he stated that a half day sick leave may be given for each visit.

D. Issues in dispute

41.  By the time of closing submissions, the parties are able to narrow down their issues in dispute.  The following matters are those that require my deliberation:

(1)  The appropriate award for PSLA;

(2)  The retirement age of P but for the Accident – this goes to the claim for pre-trial loss of earnings.  There is an associated question whether P has reasonably mitigated his loss;

(3)  The discount to be applied for P’s pre-existing conditions to his neck.

42.  I record that the Board no longer takes issue that P is entitled to claim for (i)  the cost of care of his wife in the sum of HK$30,000; and (ii)  special damages in the sum of HK$27,553.  The Board agrees that no deduction should be made for salaries tax since P had no assessable income after deductions and allowances.  P also confirms that credit should be given for the EC Award regardless of whether he in fact received the sum of money.

E. Factual witness and credibility

43.  P is the only witness who gave oral evidence before me.  I bear in mind the usual principles in assessing credibility.  I take into account the inherent probabilities and the contemporaneous records and documents.  In particular, I prefer to place weight on the medical records insofar as P’s oral evidence is inconsistent with them. This is also accepted by P in cross-examination. 

44.  Indeed, neither P nor the Board seeks to challenge the accuracy of the contents of the medical records and reports.

45.  The Board has elected not to call any factual witness.

F. PSLA

46.  The extent of injuries suffered by P has been set out above.  I also bear in mind the following matters:

(1)  P fell from the 3^rd floor of a building.  He was transferred to the intensive care unit very soon upon admission;

(2)  P was hospitalised for 18 days with prolonged medical treatments and rehabilitation afterwards;

(3)  Dr Chiang estimated that the whole person impairment to be about 11%.

47.  Both counsel cited various authorities as comparables to show what an appropriate amount of PSLA should be.  I have considered all of them and find the following to be helpful references.

48.  In Wong Sun Ming v Chung Kam Tim t/a Viking Contractors Co (unreported, HCPI 117/1999, 6 July 2000), the plaintiff fell off a scaffolding, injuring his spine and right wrist.  The medical evidence showed that the plaintiff suffered a fracture of his L2 vertebra and his right wrist.  His complaints included discomfort over left shoulder, right elbow, wrist and back pain.  The Court considered the injuries to fall below the “serious injury” category and awarded HK$330,000 for PSLA (§6).

49.  In Yu Pun Yuen v Ng Kwok Man t/a East Mountain Engineering Co (unreported, HCPI 293/2002, 9 May 2003), the plaintiff fell off a ladder which was about 6 or 7 feet tall.  As a result of the accident, the plaintiff suffered from fracture of the distal right radius and ulna in his right wrist.  Further clinical diagnosis revealed a rotator cuff tear of the right shoulder.  The major complaints of the plaintiff included pain, stiffness and weakness in the right shoulder and weakness of the right hand in gripping.  The Court awarded HK$450,000 as damages for PSLA (§86).

50.  In Bou Kwok Leung Timothy v Yuen Ming Sun (unreported, HCA 2706/1987, 9 June 1989), the plaintiff was met with a motor vehicle accident.  He suffered multiple abrasions of the forehead, face, left side of back, chest and right arm and fractures of the cervical spine at C2 level, left clavicle, left scapula and left pubic bone. Cervical traction and conservative treatment were given and he was hospitalised for 7 weeks.  He wore a clavicle brace for 6 months and continued to receive treatment for one year after the accident.  More than 3 years after the accident, a healed compression fracture of L1 in the lumbar spine was discovered also to be attributable to the accident.  Total impairment was assessed at 10% (§4).  The Court awarded PSLA in the sum of HK$100,000, being around 75% of the lower bracket of the “serious injury” category at the time (§9).

51.  In Ho Ho Ming v Tse Po Wah & Kwan Po Tim (unreported, HCPI 1168/2003, 25 September 2006), the plaintiff fell from a height of over 12 metres from a scaffolding.  As a result of the accident, he sustained multiple fractures of left clavicle and 2^nd to 6^th ribs, laceration over the left parietal region of his head, swelling and tenderness over his left shoulder and almost complete loss of use of his left arm.  The Court awarded HK$750,000 as damages for PSLA (§104).

52.  Self-evidently, the present case is less serious than Ho Ho Ming (where the plaintiff’s left arm is almost completely lost of use).  It is similar to Wong Sun Ming, and the extent of whole person impairment is comparable to Bou Kwok Leung Timothy (although Bou was not concerned with a wrist fracture).  I would put the present case at around 80% of the lower end of the “serious category” (within the meaning of Lee Ting-lam v Leung Kam Ming [1980] HKLR 657).

53.  In Cheung Ka Man v Wong Yu Huen [2023] 2 HKLRD 418, the PSLA brackets were revised after taking into account inflation.

54.  Considering and balancing all factors, an appropriate award for PSLA should be HK$450,000 (subject to possible discount for pre-existing conditions, see Section H below).

G. Pre-trial loss of earnings

55.  The Accident happened when P was 64 years of age.  The key question I need to decide is whether, but for the Accident, P would have worked (ie having both the physical ability and the intention to work)  until 70 as he claims (and plainly he bears the burden of proof).  P’s evidence is that he had wished to work until 70 when his son has graduated from university and is able to find a stable job.

56.  On the other hand, the Board’s primary position is that P would have retired at 65 in any event. 

57.  I should mention at this juncture that the Board advances an alternative position (described as “Primary Position B” in the Board’s closing submissions)  that P would not have worked past the expiry of the medical certificates in February 2022.  This alternative however does not reflect what P would have intended but for the Accident – in this counterfactual situation, ex hypothesi there are no sick leave certificates, and there is no particular reason why P might wish to retire in February 2022 (when he was 67 years old).

58.  Accordingly, the primary question I have to decide is whether P would have retired at 70 (ie in December 2024 as he claims)  or 65 (as the Board suggests)  if the Accident did not happen.

59.  I acknowledge that under s 2 of the Mandatory Provident Fund Schemes Ordinance (Cap 485), “retirement age” is defined to mean 65 years of age (or earlier if the regulations so prescribe). Courts have sometimes observed that general labourers usually retire between the age of 60 and 65: eg Shauket Iqbal v Wampum Engineering Co[2024] HKDC 236 at §30.  Nevertheless, I do not think it is a pure question of law as to when a person is to retire (or be treated to have retired for the purpose of assessing loss of income).  Rather, it is a question of fact and evidence, taking into account the person’s intention, his/her physical condition (including any pre-existing conditions), the nature of the job duties and all the surrounding circumstances.

60.  It will be recalled that P said that he would otherwise have retired at 70 after his son has graduated from university and is able to find a stable job.  In this regard, P confirmed that his son was born in December 1999 and he attended the Hong Kong Metropolitan University which commanded annual tuition fees of more than $100,000 per year.  He graduated in 2022 and started to work around a year later in 2023.

61.  On the specific facts of this case, I accept P’s evidence that but for the Accident, he would have retired at 70.  It is understandable for the main breadwinner of the family to wish to work until the next generation is reasonably settled in their employment.  Mr Adrian Wong for the Board has tried his best to test P’s case in this regard, but in the eventual analysis the Board has no real material to discredit P’s subjective intentions.  I will briefly deal with the Board’s arguments below.

62.  First, the Board refers to P’s pre-existing conditions, which had likely led to (i)on and off neck pain before the Accident; (ii)  decreased endurance in performing prolonged and continuous heavy manual duties; and (iii)  increased tendency of aggravation by strain, sprain or contusion.  This is coupled with P’s admission that his work involved lifting of heavy objects up to 45kg and that he was obliged to follow his employer’s commands and could not simply pick and choose to perform the less physically demanding tasks.  P also agreed that relatively few people tend to continue working in his field after the age of 65 if the work nature involved plastering.  I acknowledge that these are relevant considerations in deciding whether P would have the physical ability to continue working until 70 but for the Accident, but in my view a complete answer is given by Dr Chiang, who opined that even after the Accident the neck and wrists symptoms are likely to be “mild” or “on the mild side”, and without the Accident P would only have “on and off” pre-existing neck symptoms.  I am satisfied that without the Accident, even if these symptoms were already present or would present themselves within P’s hypothetical working life, they would not be serious enough to have prevented P from working (and intending to work)  until 70.

63.  Second, there are medical notes whereby P was recorded to have informed the treating professionals that he would consider retirement if he was unable to resume his previous job (see eg the occupational therapy notes on 27 November 2019 and 19 December 2019, and the medical notes where P said he had no concrete job plans).  I do not consider these matters to assist the Board, for the simple reason that these are post-Accident matters.  P might have harboured an intention to retire after he was told that he may not be able to return to his previous job, but this goes nowhere to show his intentions but for the Accident.  In my judgment, the medical note on 6 February 2020 recording that P “wanted to resume previous duty” reinforces P’s intention to work until 70 if he had not met with the Accident. 

64.  The same logic applies to (i)  P’s reluctance to remove his wrist implants in December 2021 apparently because he was right-handed and “planned to retire” and (ii)  the financial burden shouldered by P and his family (where they required loans from relatives and friends)  as a result of the Accident. These do not shed light on his intentions but for the Accident.

65.  Third, in §19 of Dr Chiang’s Report, it was noted that P had not resumed working after his sick leave had ended because he had passed the retirement age.  In terms of inherent probabilities, this information most likely originated from P himself (and under cross-examination P did not deny that he may have told Dr Chiang about it).  But this is at best equivocal; P may well mean that he did not work after the expiry of sick leave because he had passed a “newly intended” retirement age, with the meeting of the Accident and the news that he may not resume his previous job becoming known facts of his life.  It did not indicate one way or another when he intended to retire without the Accident.

66.  I accordingly find as a fact that P would have retired at 70 if the Accident did not happen. 

67.  That said, I accept Dr Chiang’s opinion that maximal medical improvement had likely been reached for P at some stage in the second half of 2020, such that his required sick leave should reasonably end before the end of 2020 (this is notwithstanding that the treating doctors kept providing sick leave until February 2022, and the parties agree that I am not bound by the sick leave certificates).  Thereafter P could (and should for the purpose of mitigation)  look for an alternative employment (as a security guard according to Dr Chiang). 

68.  In this connection:

(1)  P has not in his witness statement provided particulars of any of his efforts in seeking alternative employment since the Accident.  Instead, P only mentioned for the first time in cross-examination that he had inquired about finding a job as a security guard with the building attendant of his residence but was told that it would be difficult since he did not graduate from primary school.  Even if the factual account might be true, I am unable to accept this as a genuine and serious attempt on P’s part to look for alternative employment.  It seems to me plain that it was at most a casual, half-hearted and exploratory conversation;

(2)  P further confirmed in cross-examination that he did not take any further steps to seek alternative employment because his wife had dissuaded him from doing so out of her concern for his health, eg by reason of hypertension or his trachea becoming inflamed (“氣管發炎”).  This reinforces the conclusion that P had simply been dismissive about the idea of seeking alternative employment.

69.  For these reasons, I find that from 1 January 2021 onwards, P has failed to reasonably mitigate his losses and he is only entitled to partial loss of earnings (ie deducting what he could reasonably have earned as a security guard).  I reject P’s argument that 3 extra months should be given as a “buffer” for him to secure an alternative employment.  This is because P had already been advised in June 2020 (i)  that he had achieved maximal medical recovery and (ii)that he would have to change to a job with lighter duties.  He should have started to look for alternative jobs from that moment onwards and he had had 6 months to do so before the end of the 2020 (which is more than reasonable).

70.  Adopting P’s income of HK$31,200 (as agreed between the parties)  and a notional income of HK$13,985 as a male security guard in the first quarter in 2021, P’s loss of earnings is as follows:

(1)  Full loss of earnings from 11 June 2019 to 31 December 2020 in the sum of $592,800 (ie $31,200 x 570 days / 30), together with loss of MPF for 6 months from June to December 2019[3] in the sum of $9,000;

(2)  Partial loss of earnings from 1 January 2021 to 14 December 2024 (when P reached 70)  in the sum (to the nearest dollar)  of $828,615 (ie [$31,200 – $13,985 = $17,215] x 1,444 days / 30);

(3)  The grand total is therefore HK$1,430,415 (subject to possible discount for pre-existing conditions, see Section H below).

H. Discount for pre-existing conditions

71.  It will be recalled that P’s pre-existing conditions only relate to the neck as a result of the cervical spine degeneration.  There were no pre-existing conditions with respect to the wrists and right shoulder.

72.  I remind myself as to the well-known principles set out in Chan Kam Hoi v Dragages Et Travaux Publics [1998] 2 HKLRD 958 on the proper approach to pre-existing conditions.

H1. Discount on pre-trial loss of earnings

73.  According to Dr Chiang, there was a strong possibility that other events or progression of the cervical spine degeneration would have brought about the onset of symptoms that resulted in the present state of the neck in about 5 to 7 years from the time of the injury.

74.  I have decided above that P would have retired at 70 years of age (ie in December 2024), being around 5.5 years from the date of the Accident.

75.  Given the way Dr Chiang formulated his opinion, it is hard to decide with any certainty whether the onset of symptoms due to pre-existing conditions may be felt during P’s hypothetical working life but for the Accident (and I am prepared to find that before the symptoms are triggered, any neck pain is likely to be mild and merely “on and off”). 

76.  On a balance of probabilities however, it would seem that P would unlikely be troubled by the pre-existing conditions for the most part of the remainder of his hypothetical working life, because according to Dr Chiang any onset is only to surface in the last 6 months of his hypothetical working life, and this in itself only carries a 25% chance (by breaking down the 2-year period as opined by Dr Chiang, ie the “5 to 7 onset years”, into 4 periods of 6 months).

77.  I am accordingly of the view that no discount should be applied to P’s pre-trial loss of earnings.  It is essentially the application of the same logic in Chan Leung Sing v Ng Keung (unreported, HCPI 3/2012, 27 August 2015)  where the Court observed at §73 that:

“According to Dr Lam’s observation, despite the pre-existing degeneration, if the accident had not happened he would expect the plaintiff to enjoy rather painless function in his right knee for another 3 to 5 years.  In terms of special damages (loss of earnings), this “3 to 5 years” period covered the period of assessment in question.  In other words, but for the accident, the effect of the pre-existing degeneration would not be felt during the period in respect of which I had awarded damages for loss of earnings.  No deduction is therefore made…”

H2.  Discount on PSLA

78.  Part of this issue revolves around how Dr Chiang’s report should be properly understood.  The material parts are as follows:

“100. … The whole person impairment for the right wrist is estimated to be about 3% and that for the left wrist is estimated to be about 4%.

101. The whole person impairment of the non-displaced C1 and C2 fractures of the neck is estimated with reference to the cervical spine regional grid.

a. …

b. Mr. Tse’s neck injury belongs to class 1…Based on the satisfactory recovery in the range of movement and absence of neurological deficit in the limbs, the whole person impairment is suggested to be 6% (including the pre-existing degeneration and the injury).

c. By apportionment, about 80% of the whole person impairment is contributed by the injury. About 20% of the whole person impairment is contributed by the pre-existing degeneration.

d. After apportionment, the whole person impairment for the neck injury is about 4%. The whole person impairment for the pre-existing degeneration is about 2%.

102. The total impairment from the injury is about 11% (3% + 4% + 4%).”

79.  P’s case is that, in §101(c), Dr Chiang only apportioned as pre-existing conditions 20% of the injury to the neck (which in turn accounts for 6% of the entire injury as stated in §101(b)).  Hence, as per §102, the Accident takes up 3% + 4% (from the 2 wrists)  + 4% (being 6% x 80% = 4.8%).  On this formulation, the pre-existing conditions only takes up 1.2% (or about 2% as stated in §101(d)).

80.  On the other hand, the Board contends that Dr Chiang apportioned as pre-existing conditions 20% of the overall injury.  As the argument goes, the entire injury led to 13% whole person impairment (3% + 4% + 6%)  and an overall discount 20% discount is to be applied, leading to 10.4% (which explains the “about 11%” in §102).

81.  The significance is that on P’s interpretation of Dr Chiang’s report, the pre-existing conditions only account for 1.2% (or at most “about 2%”)  overall, whereas on the Board’s contention pre-existing conditions account for 20% overall.

82.  While Dr Chiang’s formulation may be said to be ambiguous, I am satisfied that P’s interpretation is to be preferred:

(1)  It seems to me clear that in §100 Dr Chiang was exclusively focussing on the extent of injuries to the 2 wrists;

(2)  In §101 and the sub-paragraphs thereunder, Dr Chiang was (also exclusively)  considering the extent of injuries to the neck (see the starting preamble).  It was in this context that the apportioning exercise was carried out;

(3)  After the apportionment has been carried out (ie pre-existing conditions account for 20% of the neck conditions), this was then combined with the wrists conditions in §102 to work out the total whole person impairment.

83.  I am also satisfied that the situation regarding pre-existing conditions in the present case bears similarities with that in Tang Chi Keung v Mung Ka Wai[2018] HKCFI 1685 and Tso Chun Cheong v Mak Chi Ming trading as Lik Wang International Sofa Company (unreported, DCPI 766/2007, 19 December 2007), but in the present case P’s pre-existing conditions are less severe.  I also bear in mind the Board’s argument that Dr. Chiang did not categorically state that absent the Accident, the effect of P’s pre-existing cervical degeneration would not be felt until 5-7 years after the Accident (although I have held that the “on and off” neck pain prior to the Accident was mild).

84.  Given that only 1.2% (or at most “about 2%”)  of the total whole person impairment is attributable to the pre-existing conditions, I am convinced that the applicable discount on PSLA should be 15%.

I. Conclusion, interest and costs

85.  In conclusion, I assess P’s damages at HK$1,870,468.00.  Giving credit to the EC Award sum, P is entitled to a judgment against D1 in the sum of HK$1,039,954.40.

	Total
PSLA (with 15% discount)	HK$382,500.00
Pre-trial loss of earning	HK$1,430,415.00
Cost of care by P’s wife	HK$30,000.00
Special damages	HK$27,553.00
Sub-total	HK$1,870,468.00
Less: EC Award	(HK$830,513.60)
Total	HK$1,039,954.40

86.  Interest on PSLA is awarded at 2% per annum from the date of writ to the date of judgment, and thereafter at judgment rate until payment in full.

87.  Interest on all pre-trial special damages is awarded at half judgment rate from the date of the Accident to the date of judgment, and thereafter at judgment rate until payment in full.

88.  As to costs, I make an order nisi as follows:

(1)  D1 shall pay P’s costs of the assessment of damages including all costs reserved, with certificate for counsel, to be taxed if not agreed;

(2)  D1 shall pay the Board’s costs of the assessment of damages including all costs reserved, with certificate for counsel, to be taxed if not agreed;

(3)  There be no order as to costs between P and the Board.

89.  The above costs order nisi will become absolute in the absence of any application to vary within 14 days.

90.  I thank both counsel for their assistance.