LEE CHI MING v. E ENTERTAINMENT WEEKLY LTD

DCPI 206/2017

[2019] HKDC 771

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 206 OF 2017

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JUDGMENT

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Introduction

1.  The plaintiff was a paparazzi entertainment news reporter working for the defendant.  He has since 2000 been a photography reporter, and had 15 years of experience.[1]  It was at his age of 41 when the incident took place on 17December 2015.  The plaintiff was executing his job assignment of covering the story of a celebrity joining a girlfriend in a restaurant in Kowloon City.  He intended to capture the celebrity entering the back door of the restaurant situated inside a rear lane.  Hence, he stationed at one end of the rear lane from about 9 pm.  As the restaurant meeting was of apparent newsworthiness, there were a good number of reporters from other agencies.  The target emerged from the other end of the lane.  All reporters resolutely made a dash for the celebrity, who more resolutely moved faster. The reporters failed to intercept him.  The plaintiff tripped as he made the dash.  The fall led to fracture of the right elbow bone.  ECC compensation was made at HK$106,760.20.  The plaintiff claimed common law damages of HK$403,159.80.

2.  In my analysis, underlying the claim, as pleaded, are two main factual issues – (1) whether the back lane was dangerous, or inherently dangerous, and (2) whether the operation to capture the celebrity at the back door and surveillancing at the end of the back lane was pursuant to the defendant’s instructions. 

3.  In my view, the claim requires determination of two legal issues – (3) whether the fall was caused by the inherent danger of the back lane, or otherwise attributable to other causes, and (4) whether it is necessary that the defendant prescribed safe system or safer system of work at the back lane. In relation to this issue (4), the plaintiff alleged, as pleaded in the statement of claim, that the defendant could do better by providing a reflective mirror for the plaintiff to see the surroundings, and/or for a competent co-worker to supervise him, and watch out for him the surroundings when he took photos.

4.  I find against the plaintiff and dismiss the claim.

Pleadings

5.  In the Statement of Claim, the plaintiff averred that the incident happened in the following way:-

“4. On 23 November 2015, the Plaintiff entered into employment with the Defendant, and the Plaintiff was instructed to work at the back alley of 17 Lung Kong Road, Kowloon City on 17 December 2019, when the Plaintiff was required to provide editorial support to the Plaintiff for various matters. In the course of his work, the Defendant did not provide adequate precaution to the Plaintiff, so that he could properly execute his duties. As a result, the Plaintiff was seriously injured.” (own emphasis)

6.  The particulars of the alleged failure of the defendant are pleaded as follows:-

“5. The said accident was caused by the sole negligence and/or breach of duty on the part of the Defendant, its employee(s), servant or agent(s), as appropriate.

Particulars of Negligence of the Defendant

The Defendant was negligent in that :

(a) Failing to take all reasonable and proper precautions for the safety of the Plaintiff while he was engaged in carrying out his work.

(b) Failing to take all reasonable and proper measures to warn the Plaintiff that the back alley is unsafe to work.

(c) Failing to provide a safe place of work to the Plaintiff because the space where the Plaintiff was required to discharge his duty was relatively too confined and insufficient.

(d) Failing to provide a competent co-worker to work with the Plaintiff, and as a result, the Plaintiff will require to discharge his duty in a dangerous position, leading to his injury.

(e) Failing to provide proper equipment to the Plaintiff, for example, a reflective mirror so that the Plaintiff could see his surrounding, when moving forward and backward, that will improve his safety in work at back alley.

(f) Failing to provide any and/or sufficient warning to the Plaintiff so that he could have knowledge that it would be dangerous to execute his duty in a back alley, in the absence of a competent co-worker.

(g) Failing to provide competent supervision to the Plaintiff as he should be asked to work in partnership with a co-worker when taking photographs (as he cannot see his surrounding while he was taking photographs).

(h) Failing to expressly warn the Plaintiff that the back alley could be dangerous.

(i) Failing to provide a safe system of work to the Plaintiff to ensure that proper arrangements and set of working systems were in place to prevent the accident.

(j) Failing to provide adequate training, instruction and supervision to the Plaintiff so as to prevent and/or minimize and/or reduce risks to the safety of the Plaintiff when executing his duties, especially working in a dangerous place like a back alley.

(k) Failing to assess the risks of the Plaintiff when instructing him to work in a back alley.

(l) Failing to take reasonable care and adequate precautions for the Plaintiff, but instead exposing him to an unnecessary risk of injury.” (own emphasis)

7.  All the above allegations concern aspects of system of work, a broad concept as explained in Charlesworth & Percy on Negligence, 13^th ed, at para. 11-67:-

“Meaning of “system of work”. This term is used to describe: (i) the organisation of the work; (ii) the way in which it is intended the work shall be carried out; (iii) the giving of adequate instructions (especially to inexperienced workers); (iv) the sequence of events; (v) the taking of precautions for the safety of the workers and at what stages; (vi) the number of such persons required to do the job; (vii) the part to be taken by each of the various persons employed; and (viii) the moment at which they shall perform their respective tasks. Further:

“it includes … or may include according to circumstances, such matters as the physical layout of the job – the setting of the stage – so to speak – the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices, and the issue of special instructions. A system may be adequate for the whole course of the job or it may have to be modified or improved to meet circumstances which arise. Such modifications or improvements appear to me equally to fall under the head of system.””

Liability issue 1 – Inherent danger of the back lane?

8.  I am not satisfied that there was any danger or inherent danger in the subject back lane for the following reasons:-

(i)  The plaintiff’s own evidence at trial was that the lane was not so dark and he could see the target emerging from the other end.  There was some light emitting into the lane.  Furthermore, the dirt and wet condition was at a normal degree.

(ii)  The plead as to how the lane was “dangerous” and “unsafe” is that it was “relatively too confined and insufficient” in space (paragraph 5(c) of the Statement of Claim).  There is no averment that the lane was unsafe by the presence of rubbish, being wet or by its being dark. 

(iii)  On space confinement, there was no plan with dimension adduced and there was no attempt to further make out the assertion that the space was confined.  In my judgment, the allegation of space confinement was not proved.   Saliently, the Plaintiff told the court when giving evidence, that there were really too many reporters, when explaining why on reflection he would like himself to have a better lookout for himself.   

(iv)  In any event, the lane was packed with reporters.  The space problem, if any, related to the presence of reporters, not inherently because of the conditions of the lane. 

(v)  I accept that the plaintiff tripped over rubbish.  However, mere existence of rubbish cannot render a place inherently unsafe.  In my view, as analysed below in Issue 3, it was an all out dash combined with existence of rubbish without sufficient mindfulness on the plaintiff’s part that caused the fall.  The rubbish or other conditions (eg darkness) were anyway not relied on to support the alleged inherent danger.  I am mindful that there was oral evidence from the plaintiff and his witness Mr Wong that the rubbish that tripped the plaintiff was a black rubbish bag.  The potential argument is apparently that darkness rendered the bag unnoticeable, and the incident was not of a consequence of the plaintiff’s carelessness.  However, darkness was not pleaded as the basis for the alleged danger of the lane, and hence, the evidence on the color of the rubbish did not assist.

9.  I am mindful that the Court of Final Appeal in Kwok Chin Wing v 21 Holdings Ltd, reminded that evidence on unpleaded issues cannot be relied on:-

“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues: Wing Hang Bank Ltd v Crystal Jet International Ltd [2005] 2 HKLRD 795, 799 [6(1)]. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Ltd v Crystal Jet International Ltd at 799 [6(2)]:

(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.

22. … one does not sift through the evidence adduced in a trial in the hope that something was said that can conceivably found a cause of action. Issues, I would reiterate, must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings.” (Emphasis added)

10.  In my judgment, the plaintiff fails to establish danger and unsafe feature in the back lane.

Liability issue 2: whether the Defendant instructed the Plaintiff to operate in the back lane?

11.  The plaintiff averred that it was the defendant instructing him to station and surveillance in the back lane.

12.  However, at trial the plaintiff told the Court in clear terms that when he joined his colleague, the driver, Mr NY Tse at the front of the restaurant, they discussed on strategizing, and they jointly decided for Mr Tse to continue to station at the front and for the plaintiff to station at the back lane so the target would be intercepted whether he proceeded through front or back door.  After the decision was made, Mr Tse ought to have reported the strategy to the supervisor, Mr Dicky Lo, by a phone call.  With no uncertainty, the plaintiff did not claim in evidence that it was the defendant instructing him to station in the lane.  The plaintiff stated at trial that Mr Lo did not know the site orientation or situation there.  The relevant paragraph of his witness statement (paragraph 38) narrated how the surveillance strategy came about, and it also has not mentioned that the defendant instructed the plaintiff to work at the back lane.

13.  In any event, in my view, it must be a typical job nature of paparazzi reporter to conduct surveillance and that back lane cannot be a place that required instructions to go to.

14.  In terms of evidence, the plaintiff was forthcoming in telling the Court that his job as paparazzi photography reporter demanded a lot on his own judgment call on the spot, and experience:-

(a)  When conducting surveillance on targets, he followed the target through over changing locations.  On changing of locations, he did not need to ask for instructions. 

(b)  His job actually required searching for the target, when the leads were only that a target might turn up in a district.  He relied on himself to decide where to look for the target by assessing where and what type of occasion, eg high tea or shopping mall, that target would likely turn up. The task was not easy and for him was only half of the times successful.

(c)  He asked for instructions only when there was a choice of abandoning or continuing an operation, or a choice of which subjects to follow when subjects left one another.

15.  I find that the decision to station at the back lane, or anywhere in the lane did not involve the defendant in any way.  The defendant did not specifically ask the plaintiff to work there. 

Liability issue 3: what was the operative cause of the fall?

16.  Assuming otherwise that the lane was dangerous and the defendant sent the plaintiff there, then Issue 3 will become relevant. 

17.  There is basically no allegations or evidence as to how the tripping was caused by the insufficient space of the lane.  The plead and the evidence of the plaintiff did not even point to any causal link between the inadequacy of space and the fall.  I accept that the plaintiff was tripped by rubbish as he made a dash.  He averred in the statement of claim to the effect that he could have seen better if he had a reflective mirror or a co-worker to watch him out.  The first complaint was expressly withdrawn at trial, and the second complaint was not pursued at trial. 

18.  Saliently, at trial, the plaintiff was forthcoming in telling the Court that he could have watched out for himself better, and he explained that there were just too many reporters there.

19.  Having heard the evidence, I come to the conclusion that the incident happened in the context of a normal way of executing the surveillance operation, and given the nature of the plaintiff’s job, there was nothing unusual about the conditions where he stationed, and about the decision to make the dash.  The operation as such was one that was common for him.  The presence of a good number of other reporters actioning in the same way is notable.  The operative cause of the tripping and fall was that not enough attention was paid at the surrounding at that moment of time.  This could be helped if surveying the lane (ie just by going into it to take a look) during the wait (of well over one hour) had been executed but the plaintiff told the Court that this was not done.

20.  In analysing the cause as above, I understand and accept that the plaintiff was all out to intercept the target and wished only to get back newsworthy photos to office.  Yet, in my view, the plaintiff’s dedication to his work could not be a basis to fault his employer nor for liability to arise.  In my judgment, his dedication of all focal attention to the target led to a measure of carelessness in him as a result of which the tripping and fall met him. 

Liability issue 4: whether safer system of work at the back lane were necessary?

21.  The plaintiff mentioned when giving evidence that the defendant could have sent one more reporter to station at the other end of the lane.  It was not an alleged fault pleaded.  At trial, this was the only formulation of what the plaintiff claimed the defendant could have done better.  In any event, the plaintiff did not suggest he had asked for one more colleague.

22.  The lane was not the defendant’s premises.  In my view, the work of a paparazzi reporter necessarily encompasses going to a wide variety of locations, to wait and to move quickly to the target when he or she emerged as well as conducting surveillance.  The choice of stationing locations was also highly dependant on the circumstances that ought to be the judgment call of the reporter.  The defendant could not have developed safety scheme specific to each of the plaintiff’s varying stations.  In the same vain, the quick actions and movements entailed in the job cannot demand from the employer any more safety prescriptions.  Otherwise, one will be suggesting that the defendant ought to prescribe how to make quick movements.

23.  I am mindful of the very recent High Court decision, Tsang Chung Ming vs Caritas Hong Kong [2019] HKCFI 1035[2], dated 18 April 2019, where Deputy High Court Judge MK Liu found that the employer was not liable for the chef’s injury suffered when he pulled out a tray full of  rice from the top level of the steamer.  The decision applied the principle that there are tasks where the employers could leave to the care of the employee on the spot to do reasonably safely.  The Deputy High Court Judge applied the Court of Appeal’s decision in Fong Yuet Ha v Success Employment Services Ltd CACV 100 of 2012, dated 28 December 2012, and Charlesworth & Percy on Negligence, 12^thed, para 11-67.  Charlesworth & Percy which reads –

“It is a question of fact whether or not there is need for a system of work to be prescribed in any given circumstances. In deciding it, regard ought to be had to the nature of the work, that is whether properly it requires careful organisation and supervision, in the interests of safety of all those persons carrying it out; or it can be left by a prudent employer confidently to the care of the particular man on the spot to do it reasonably safely. There was no failure to provide a safe system where an employee was faced with a ‘one-‌off’ task requiring the exercise of common sense and it was difficult to see what relevant instruction could have been given to him. But an employer is under a duty to prescribe a system of work, even where the operation is a single one, if it is necessary in the interests of safety.” (own emphasis)

24.  Applying the principle as above, I find that the operation was a normal one which the plaintiff was doing by the nature of his job day to day.  The task to execute was surveillance and intercepting target.  The quick movement and picking of suitable locations must be something left with the employee on the spot to safely execute.  Applying the principles above, I find that it is a task that the court cannot demand the defendant to make more prescriptions.

25.  In the same vain, I accept the submissions of Ms Kwok at paragraphs 12 to 14 of her closing submission in that - the nature of the plaintiff’s job was accompanied with unpredictability of a celebrity’s movements.  As such, a degree of flexibility is expected for reporters when they are pursuing their targets.  Due to the nature of breaking news, the defendant can only give basic information and instructions to the plaintiff.  By definition, breaking news means newly received information about an event or story that is developing in an ongoing manner.  It is unpredictable by nature.  It is not possible and indeed impracticable for the defendant to micro-manage every aspect of the execution of the job when pursuing a target.  It is unfeasible for the defendant to guard against every danger and hazard that the plaintiff may face when he was pursuing or sometimes even searching for a target.  It is impossible for the defendant to carry out risk assessment on the locations that the reporters are dispatched to in short notice.

26.  For avoidance of doubt, my conclusion was job nature based.  I do not find that the plaintiff’s job was simple, straightforward and non-complicated. I agree with the plaintiff’s own evidence that he regarded the job as professional, and that a lot of own assessments were involved.

27.  I have no hesitation to dismiss the claim, given the conclusions of the above four issues.

Other matters taken into account

28.  In coming to this decision, I am mindful of and have taken into account all the relevant matters including the following. I have approached them in the ways as follows:-

(1)  There is a notable lacking of evidence from the defendant on Liability Issue 2 (i.e., whether it was pursuant to the defendant’s instructions that the plaintiff was made to station at the rear lane).   Mr David Grant, in his capacity of the head and responsible officer of human resource of the defendant at the material times, gave evidence for the defendant.  He was responsible for human resources matter only (apart from two more areas which are irrelevant to this matter).  He was not involved in routine operations below the line of editors.  He did not know how instructions on assignments were given to the reporters by the editors. 

     The only involvement he personally had on the incident was as follows - he handled the employment compensation claim made by the defendant in December 2015, and signed the form 2 dated 28 December 2015.  He did not make further enquiry from then due to the inherent conflict of interest between an employer and an employee during the pendency of the employment compensation claim, until after the commencement of these proceedings in January 2017.  From January 2017, he had made some enquiry about the incident, from Mr NY Tse, the driver operating with the plaintiff that night, and also Ms Windy Yuen, the supervisor/editor. In paragraph 11 of his witness statement, he stated, among other things, that the plaintiff was not instructed by the defendant to enter the rear lane.    Mr Grant clarified that it was an inference that he made from the way the plaintiff presented the case in his Statement of Claim that he stated in his statement that the defendant has not instructed the plaintiff to go to the lane.    

     Notwithstanding the unavailability of the defendant’s evidence on operations of reporters or of the plaintiff, the plaintiff already told the Court that it was the joint decision of him and Mr Tse on the spot that the plaintiff was to station at the rear lane.  In my view, it is unfortunate that the defendant has not called the supervisor or the editor, ie, Mr Dicky Lo or Ms Windy Yuen, to give direct evidence on the issue of whether stationing at rear lane was as per the defendant’s instructions.  Yet, the inadequacy is noted and taken into account in my consideration.

(2)  No party has called Mr NY Tse, the driver working with the plaintiff for that assignment, to give evidence.  He is potentially the person whose evidence was most relevant, after the plaintiff, on Issue 2 ie whether there was instructions to go to the back lane.  I understand that he had since left the employment of the defendant.

     The plaintiff’s own evidence was already that it was his joint decision with Mr Tse to station at the rear lane.  I am left in no doubt that the decision did not involve the defendant. Mr Tse’s evidence will not add to that. 

(3)  I am mindful that the incident took place in the night.  The plaintiff’s evidence was that the rubbish bag which tripped him was black, and the light emitting into the lane was limited.  However, as the plaintiff’s own evidence was that he could see the target emerging from the other end of the lane, the fact that it was at night per se does not render the place dangerous nor affect my conclusion on Issues 1 and 3.

(4)  The plaintiff’s two witnesses, fellow reporters from other agencies, Mr Y C Tam and Mr T H Wong, had given evidence on the conditions of the lane at the material time.  Such evidence was relevant as all three of them were waiting, actioning and running side by side at the material time.  They both consistently testified that the conditions inside the lane was wet and dirty. However, they both had not been able to confirm how they came to such view and what they saw from the lane opening, to allow them to conclude that the lane was wet and dirty.  They both revealed that they had not entered the lane in the course of the wait to survey.  When asked about the actual degree of wetness and dirtiness, both did not give meaningful answers.  Mr Tam said he would say it was wet and dirty if he was asked to say, and Mr Wong said it depended on which district.  The fact that none of them get into the lane to survey during the wait speaks for the lack of abnormality.  The plaintiff arrived at the lane at about 9 pm, having waited for over an hour.  Mr Tam waited there for about 30 minutes and Mr Wong for about 15 minutes.  Mr Tam’s evidence was that the degree of dirtiness of the lane was normal, and nothing struck him as special.

     I came to the view that the two witnesses’ evidence did not constitute evidence of risk and safety issue of the lane, even in their own terms.  (Having said that, I add that I appreciate the sensibility of them as in refraining from giving evidence on the lane conditions in exaggerated terms.)

(5)  When cross examining Mr Grant, Mr Tsui for the plaintiff asked many questions on how the defendant had fared in occupational safety and prevention of occupational hazards in wholesale terms.  Mr Tsui put forward arguments at closing that the plaintiff’s job was of high degree of risk to health and safety, as he had to go to obscure places in competitive situation and to hold a bulky camera.  In my view, such line of argument is not of value for the following reasons:-

(i)  The evidence from the plaintiff was not pointing to his job being of high risk.  Mr Tsui only relied on roads and press conference venues as obscure high risk places.  In my view, the job nature requires skills especially because of the surveillance and searching elements, but it is not necessarily high risk in nature.

(ii)  In these proceedings, it was not the defendant’s occupational safety compliance status that stands trial.  As analysed above, casual attribution of any alleged failure to the injury is lacking.  Instead, the proximate and operative cause of the injury must be the plaintiff’s mindlessness in watching out at spur of moment when making a dash for the target. 

(iii)  In addition, the original complaints as stated in the statement of claim was that the defendant could have provided a reflective mirror, and that one more colleague could have accompanied the plaintiff to watch out the surroundings when the plaintiff was taking picture.  The first complaint was abandoned at trial by the plaintiff, and the second was not pursued.  The plaintiff only suggested what could have done better by the defendant was to have one more colleague to watch the other end of the lane.  This line was of complaint was not pleaded. 

Irrelevant matters

29.  I consider some matters arising at trial as irrelevant:-

(1)  The defendant took issue of the fact that the plaintiff has not complied with the requirement in the employee handbook as in filing in the incident report form.  The plaintiff told the court that no one from the defendant asked him to do so.  Mr Grant reminded me that there was the potential issue inhibiting discussion between employer and employee during the pendency of ECC claim.  Ms Kwok told me that lacking of the report went to her search for the contemporaneous details of how the incident happened and that the form did require a high level of details be reported.  For avoidance of any doubt, in coming to this decision, I place no significance in the lack of incident report.  I took notice, in particular, that Ms Kwok has argued on the basis that the Form 2 dated 28 December 2015 was the plaintiff’s contemporaneous account, and has cross examined the plaintiff on potentiality of difference of details between the Form 2 account and the plead in these proceedings already.  

(2)  The size of the camera was relied on by Mr Tsui for the plaintiff to support his arguments that the job nature was high risk.  He has argued that the camera the plaintiff held was bulky and not a small one.  However, there was no actual measurements properly adduced.  Most importantly, I do not find the size of the camera relevant to the issues that I need to decide.

(3)  A question has arisen as to an inconsistency in references of what materials tripped him.  In the evidence, some references were made to rubbish bag and some to debris.  I do not find that the distinction has implications, and Ms Kwok anyway did not place significance on the difference in her arguments. 

Observations on Quantum

30.  As I have heard evidence on quantum as well, I set out my observations below for the sake of completeness.

31.  The plaintiff suffered undisplaced fracture in the olecranon of the right elbow.  It is the ultimate end of the elbow bone.  He is right hand dominated.  There was no open wound, and no hospitalisation.  He was treated conservatively with splinting.  Sick leave of 104 days ended and he returned to work with the defendant on 26 March 2016.  The last medical visit was 31 May 2016 when X-ray showed that the fracture was healed.  

32.  The parties’ positions are summarized as follows:-

		P’s Claim HK$	D’s Answer HK$
a)	PSLA	250,000	180,000
b)	Pre-trial Loss of Earnings	12,920	12,920
c)	Loss of Earning Capacity	247,000	Nil or 57,000
	Sub-total	509,920	192,920 or 249,920
	Less Employees’ Compensation	-(106,760.20)	-(106,760.20)
	Total	403,159.80	86,159.80 or 143,159.80

33.  On PSLA, there is nothing to doubt that the pain suffered at the time of the incident was intense.  At the last medical visit on 31 May 2016, the plaintiff reported that he had not much pain.  At the joint examination in September 2017, it was noted by Dr Johnson Lam, the plaintiff’s orthopaedic expert, that there was residual pain and mild stiffness.  He opined that there was an extension reduction of 5 degree, and that there was reduction of endurance.  I am minded to accept that PSLA be HK$180,000, based on Li Moon Chai v Leung Shu Man & Anor, HCPI 48 of 2007, dated 5 September 2008 wherein there was elbow dislocation, which must be much more serious than fracture at the very end of the elbow bone.  HK$150,000 was awarded.  Taking account of inflation, I believe that the defendant’s suggestion of HK$180,000 is well considered.

34.  Parties’ suggestions on pre-trial loss of earnings are the same, at HK$12,920.

35.  The primary difference between the parties lie in the loss of earning capacity.  The issue is whether as a matter of factual finding, there was real risk that he will lose his employment before the end of the estimated length of his working life because of the disadvantage in finding comparable employment. I am mindful that I should not rely on the experts’ opinion on loss of earning capacity (Chan Yuet Keung v Harmony (International) Knitting Factory Limited, HCPI 144 of 2009, dated 2 November 2010, at paragraphs 52-62).  The plaintiff told the court that the injury has affected his work because the stiffness has affected his photography work which required precision and stillness in holding the camera especially at night.   The plaintiff said that as he could not take photos as good as before, when he returned to work in March 2016. He claimed that the defendant assigned him to drive instead of working as a photographer, and now he could only work as a driver.  He said that the income of driver is lower.  As the only witness of the defendant, Mr Grant, had no personal knowledge on how routine was at the operational level.  He could not say whether there was a change of task assigned to the plaintiff.  Notably, the editor or supervisor has not given evidence for the defendant.  Mr Grant could only say that there was “no deterioration of his performance”.  In my view, there was nothing to put the evidence of being assigned to drive to doubt. There was no contemporaneous document to show one way or the other.  In the circumstances, I am inclined to indicate that 3 months of salary (ie, HK$57,000 = HK$19,000 salary per month x 3) be appropriate under loss of earning capacity.

36.  In light of aforesaid, the quantum is in line with the higher of the two figures suggested by Ms Kwok ie at HK$143,159.80.

37.  I have heard submissions on interest formulation as well.  The interest rates should be as follows:-

(a)  interest rate on general damages, including PSLA and loss of earning capacity, be 2% per annum from the date of service of the Writ of Summons (ie, 27 January 2017) to date of judgment and thereafter at judgment rate until payment; and

(b)  interest on pre-trial loss of earnings be at half judgment rate from date of accident (ie, 17 December 2015) until payment of ECC compensation (ie, 25 January 2017, the earlier of the two ECC sums remitted).

Conclusion

38.  I am not unsympathetic with a situation of injury suffered by a dedicated reporter in the split second when the surveillance object emerges. However, in determining issues of legal liability and rights, sympathy has no relevance.  I am actually impressed with the plaintiff’s overall honesty in his giving of evidence at trial, some of which are out of line with the statement of claim.  I hope that he continues to move on from this incident.  I have carefully considered the defendant’s application for costs be taxed on indemnity basis, and have decided to award costs on party and party basis.

39.  I dismiss the plaintiff’s claim.  There be costs order nisi of these proceedings (including all costs reserved, if any) be to the defendant, to be taxed on party and party basis, if not agreed, with certificate for counsel.

40.  It remains for me to thank Ms Kwok’s assistance offered with care to ensure that significant cases were brought to my attention, and I also thank Mr Tsui’s assistance as well.