CHENG SAI WANG v. HONG KONG PEARL LOGISTICS COMPANY LTD

DCEC 271/2020 & DCPI 1516/2022

(Heard Together)

[2024] HKDC 50

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 271 OF 2020

————————

IN THE MATTER OF AN APPLICATION BETWEEN

————————

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1516 OF 2022

————————

BETWEEN

————————

————————

JUDGMENT

————————

A. INTRODUCTION

1.  These proceedings arose out of an accident that happened on 21 March 2019. The applicant/plaintiff Mr. Cheng Sai Wang (鄭世宏) (“Mr. Cheng”) sustained injury in the course of employment with Hong Kong Pearl Logistics Company Limited (香港明珠物流有限公司) (the “Employer”).

2.  On 13 March 2020 and 18 November 2020 respectively, Mr. Cheng commenced two sets of proceedings against the Employer relating to the Accident, namely (1) DCEC 271/2020, an application for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap.282) (the “ECO”) (the “DCEC Action”); and (2) HCPI 481/2020, a personal injury action (the “HCPI Action”).

3.  The Employer did not take part in both sets of proceedings. On 4 December 2020 and 14 January 2021, interlocutory judgment for damages to be assessed was entered in favour of Mr. Cheng against the Employer in the DCEC Action and the HCPI Action respectively.

4.  Pursuant to the Order of Master Roy Yu dated 21 June 2021 in the HCPI Action, the Employees Compensation Assistance Fund Board (the “Fund Board”) was ordered to be joined as the 2^nd defendant in the HCPI Action pursuant to section 25A(a) of the Employees Compensation Assistance Ordinance (Cap. 365) (the “ECAO”) and O. 15 r. 16 of Rules of High Court.

5.  Pursuant to the Order of Master Kot dated 5 May 2022, the HCPI Action was ordered to be transferred to the District Court pursuant to s. 43 of the District Court Ordinance. Subsequently, a new action number, i.e. DCPI 1516/2022 (the “DCPI Action”) was assigned to the action (the DCEC Action and the DCPI Action are collectively referred to as the “2 Actions”).

6.  Pursuant to §2 of the Order of HH Judge Levy dated 19 May 2023 (the “19/05/2023 Order”), the DCEC Action was to be heard together with the DCPI Action.

7.  The assessment was fixed to be heard before this Court on 30 August 2023 with two days reserved. Shortly before the hearing on 30 August 2023:-

(1) By letter dated 24 August 2023, Wing United CPA Limited informed the Court that they had been appointed Joint and Several Provisional Liquidators of the Employer in HCCW 23/2023 on 14 June 2023 and sought approval from the Court that their attendance at the hearing on 30 August 2023 be excused, which this Court granted.

(2) By Order made in HCCW 23/2023 dated 24 August 2023, Master J. Wong granted leave to Mr. Cheng to proceed with the claims in the 2 Actions notwithstanding that a winding up order had been made against the Employer and Provisional Liquidators appointed for the propose of the winding up of the Employer under HCCW 23/2023.

8.  Thus, at the hearing on 30 August 2023, this Court proceeded to assess compensation in the DCEC Action and damages for personal injury in the DCPI Action in the absence of the Employer.

9.  At the hearing, Mr. Gordon Chan appeared for Mr. Cheng in the 2 Actions. Mr. Gary KH Chung appeared for the Fund Board in the DCPI Action only.

B. ASSESSMENT OF COMPENSATION IN THE DCEC ACTION

B1. Mr. Cheng’s Injuries & Impairment

10.  The injuries and impairment suffered by Mr. Cheng are largely undisputed and will be summarized below.

11.  However, before I proceed to deal with the injuries and impairment suffered by Mr. Cheng, I need to say a few words in relation to the evidence admissible on these issues. This is because §4 of the 19/05/2023 Order stipulated that “no medical expert evidence shall be adduced at the assessment of compensation” in the DCEC Action.

12.  In the present case, when HH Judge Levy made the 19/05/2023 Order in the DCEC Action, Master Jo Siu had already made an order in the DCPI Action on 11 January 2023 that the Joint Assessment Report of the Specialists in Orthopaedics and Traumatology Dr. Tony S L Hung (“Dr. Hung”) and Dr. Peter P S Ko (“Dr. Ko”; Dr. Hung and Dr. Ko are collectively referred to as the “Experts”) dated 31 December 2021 (the “Joint Report”) be adduced as evidence in the DCPI Action without calling the makers thereof. Therefore, in stipulating that “no medical expert evidence shall be adduced at the assessment of compensation” in the DCEC Action, §4 of the 19/05/2023 Order must cover the Joint Report which will not be adduced as evidence at the assessment of compensation in the DCEC Action but will be adduced as evidence in the assessment of damages in the DCPI Action.

13.  As there is no appeal against the 19/05/2023 Order, I am duty bound to follow the directions made by HH Judge Levy in the 19/05/2023 Order, and therefore in proceeding to deal with the injuries and impairment suffered by Mr. Cheng relevant to the assessment of compensation in the DCEC Action, I shall not consider the evidence contained in the Joint Report but shall instead consider the factual evidence. I do not understand Mr. Chan to be contending otherwise.

14.  The factual evidence relating to the injuries and impairment suffered by Mr. Cheng is contained in his witness statement dated 3 June 2021 and the medical certificates issued by the government treating doctors and physiotherapists. At the hearing, Mr. Cheng adopted his witness statement as his evidence-in-chief. He also answered supplementary questions. On the whole, I accept Mr. Cheng’s evidence relating to his injuries and impairment.

15.  On the date of the accident on 21 March 2019 at about 11:30 a.m., Mr. Cheng was instructed by the Employer to drive a 5.5 ton truck (the “Truck”) to deliver two metal cage trolleys fully loaded with goods to the Employer’s customers at Wah Wai Industrial Building, No. 53-63 Pak Tin Par Street, Tsuen Wan, New Territories (the “Industrial Building”). The Employer was the owner of the Truck.

16.  The metal cage trolleys were placed inside the container of the Truck by an employee of the Employer. They were not fastened by nylon straps or other means to a fixed position.

17.  Mr. Cheng worked alone. He parked the Truck at the car park of the Industrial Building and went inside the container to fetch the goods. He found that the metal cage trolleys slanted towards the side of the container during the journey. He walked near a metal cage trolley and tried to stabilize it by pushing it upward but the wheels of the trolley moved backward. Due to the heavy weight and lack of assistance, the metal cage trolley skid and fell on to the ground. Mr. Cheng escaped but the metal cage trolley struck his right knee (the “Accident”). As a result of the Accident, Mr. Cheng suffered right knee injury.

18.  At the time of the Accident, Mr. Cheng was 36 years old. He was employed as a driver cum delivery worker by the Employer.

19.  After the Accident, Mr. Cheng was sent to the Accident and Emergency Department (“AED”) of Yan Chai Hospital (“YCH”) by ambulance.

20.  Physical examination revealed tenderness, swelling, bruise over right knee and reduced range of movement of right knee. X-rays showed fracture of right patella. The diagnosis of close fracture of right patella was made. He was given analgesic and was admitted to orthopaedic ward of the Department of Orthopaedics and Traumatology (“DOT”) of YCH for further treatment.

21.  Open reduction and internal fixation was performed on 26 March 2019. Post-operatively, the surgical wound healed well. Range of motion of right knee improved to 0-120^o. He was discharged on 27 March 2019. He was arranged to attend follow-up at the DOT of YCH.

22.  Upon discharge, Mr. Cheng was first seen at the DOT of YCH on 10 April 2019. X-Rays showed the patella fracture healed. However, there was hardware impingement onto skin. He was referred to attend physiotherapy at Caritas Medical Centre (“CMC”) for training and rehabilitation.

23.  Mr. Cheng attended a total of 16 sessions of out-patient physiotherapy at CMC from 3 May 2019 to 5 November 2019. Physiotherapy treatment including ice therapy, magnetic therapy, knee mobilization and lower limbs strengthening exercises were given. He was discharged on 5 November 2019 as his condition was static. Upon discharge, the overall subjective movement of his right knee was 0-130^o in flexion. He still complained of knee pain at upper border of his right patella. He would walk unaided independently but he could not squat due to severe pain at end range of knee flexion.

24.  Mr. Cheng was followed-up at the DOT of YCH for total 12 times from 10 April 2019 to 17 January 2022.

25.  As to the implant removal operation:-

(1) On 4 May 2020, Mr. Cheng was admitted to the YCH for an implant removal operation scheduled on 5 May 2020. He did not undergo the operation. In the Discharge Summary of YCH dated 4 May 2020[1], Dr. Cheong, Peng Meng stated inter alia that:-

“Discharge Note:

…

Live with family

Walk unaided

Driver

…

walk unaided

claimed cannot work

not going for work assessment

He would like removal of implant before MAB[2]

GA[3] booked 5.5.2020

…

Patient preferred OT[4] at a later date

…”

(2) On 21 September 2020, Mr. Cheng was admitted to the YCH for an implant removal operation scheduled on 24 September 2020. He again did not undergo the operation. In the Consultation Summary of the Orthopaedic Clinic of YCH dated 16 November 2020[5], Dr. Chan Chi Kit stated inter alia that:-

“…

on SL[6] all along

arranged removal of implant 24/9/2020, admit 21/9/2020

Patient wanted to delay surgery due to COVID

…

Patient prefer to delay removal to next year due to fear of COVID

Risk of implant loosening impingement on skin

Advice to seek medical help if symptomatic/↑ impingement

Plan of Management

FU[7] 4k10/52

SL till FU

FU xray

Future Appointment(s)

03-Feb-2021 11:00 AM Fracture Clinic

Sick Leave

Leave from 16-Nov-2020 to 3-Feb-2021 inclusive (80) day(s)”

26.  On 27 September 2021, Mr. Cheng was again admitted to the YCH for an implant removal operation. He again did not undergo the operation. In the Discharge Summary of YCH dated 30 September 2021[8], Dr. Yam, Joyce OChing stated inter alia that:-

“Discharge Notes:

…

Patient is keen to proceed

<progress>

found BP on high side before OT

BP 175/110 P85

condition explained to patient

control of BP before proceed to OT

plan d/c after seen by med and rebook OT on FU

Patient understand and agree

Plan of Management:

Home

refer GOPD x HT and dL FT

FU ORT AS SCHEDULED

SL till FU”

27.  On 6 July 2022, Mr. Cheng was admitted to YCH for an implant removal operation scheduled on 7 July 2022. This time he underwent the operation. In the Discharge Summary of YCH dated 10 July 2022[9], Dr. Chan Wing In, the medical officer in charge, stated inter alia that:-

“Discharge Note:

…

<progress>

OT done on 7/7/2022

Removal of implanted devices of fracture patella

Uneventful

R knee AROM 5-30

Distal Nv Intact

Walk with frame

Vitals stable

patient requested home

fit for d/c

Plan of Management:

Home

OP PT x pain control and walking exercise

FU d/s clinic 5/52 with XR R knee

Analgesics prn till FU

SL till FU

OS D14”

28.  Mr. Cheng was hospitalized for 5 days and was discharged on 10 July 2022.

29.  Subsequent to the implant removal operation, Mr. Cheng attended 5 sessions of physiotherapy at the Department of Physiotherapy of YCH on 1 August 2022, 10 August 2022, 19 August 2022, 2 September 2022 and 16 September 2022 respectively.

30.  On 5 January 2023, Mr. Cheng attended the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) for assessment. On 19 January 2023, the Board issued a certificate of assessment (Form 7) under s. 16F of the ECO[10] (the “Certificate”) in which the Board assessed Mr. Cheng to have suffered 5% loss of earning capacity permanently caused by his right knee injury resulting in right knee pain, scar, stiffness and weakness and that the periods of absence from duty as a result of the injury were as follows:-

From	To	No. of days/months
21/03/2019	04/05/2020	411
18/05/2020	20/03/2022	672
	Total	1083 (rounded up to 36 months)

31.  As noted above, in the Certificate, the Board certified periods of absence up to 20 March 2022 only as a result of the Accident. However, Mr. Cheng was granted sick leave intermittently from 21 March 2019 to 14 August 2022. This is because in addition to the periods of absence certified by the Board, Mr. Cheng was granted additional periods of sick leave from 21 March 2022 to 14 August 2022 (147 days or rounded up to 5 months). Therefore, total sick leave granted was 41 months.

32.  Mr. Cheng claims compensation under:-

(1) s. 9 (for permanent partial incapacity);

(2) s. 10 (for temporary incapacity); and

(3) s. 10A (for payment of medical expenses).

33.  In order to assess the quantum of compensation under each of the above sections, I need to determine the following issues:-

(1) Mr. Cheng’s monthly’s earnings at the time of the Accident;

(2) The percentage of loss of earning capacity; and

(3) The total period of Mr. Cheng’s temporary incapacity.

B2. Mr. Cheng’s earnings

34.  It is Mr. Cheng’s case that before the Accident, his daily wages were $1,000 and that on average he worked 26 days a month. On average, Mr. Cheng also worked overtime for 50 hours per month at an overtime payment of $80 an hour. His total monthly wages were approximately $29,000. Mr. Cheng was paid in cash on the 1^st and 15^th day of each month. Although there was no employment contract or salary slip and Mr. Cheng was paid in cash, I note that Mr. Cheng’s case is supported by a salary statement dated 1 March 2019 issued by the Employer in which the Employer stated that Mr. Cheng’s average monthly salary from April 2017 to February 2019 was $29,000[11].

35.  For completeness, I would add that although Mr. Cheng’s monthly salary was stated in the Form 2 (undated)[12] as $25,000, there is no challenge to Mr. Cheng’s evidence that his average monthly salary was $29,000. Although this is not strictly relevant, I note that Mr. Chung had indicated to the Court that the Fund Board would not dispute Mr. Cheng’s case that his pre-accident monthly earnings were $29,000 for the purpose of the DCPI Action.

36.  I therefore accept Mr. Cheng’s evidence and find as a fact that Mr. Cheng’s monthly earnings at the time of the Accident were $29,000.

B3. Section 9 compensation

37.  As mentioned above, Mr. Cheng was aged 36 at the time of the Accident. According to s. 7(1)(a) of the ECO, compensation would be assessed at 96 months’ earnings.

38.  As noted above, in the Form 5, the Board assessed Mr. Cheng to have suffered 5% of loss of earning capacity. There was no appeal against the Board’s assessment. It is well established that in the absence of an appeal by the applicant or the respondent against a certificate of assessment issued by the Board, the content of the Certificate issued under s. 16H of the Ordinance is conclusive evidence of the matters stated therein: Ng Ming Cheong v Mass Transit Railway Corporation[13]; Lam Chi Biu v Mak Kee Ltd & Anor[14].

39.  Therefore, s. 9 compensation is assessed as follows:-

$29,000 x 96 x 5% = $139,200

B4. Section 10 Compensation

40.  Under s. 10(1), the applicant is entitled to compensation calculated “at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident.”

41.  In §§11-13 of his closing submissions, Mr. Chan sought compensation for Mr. Cheng under s. 10 for the total period as certified by the Board (i.e. 1083 days or rounded up to 36 months) and the additional periods of sick leave from 21 March 2022 to 14 August 2022 (i.e. 147 days or rounded up to 5 months), i.e., a total of 41 months. However, since “s. 10(5) [15] amounts, in effect, to a guillotine, which cuts off the period for which the employee may receive periodical payments to 36 months from the date of commencement of the temporary incapacity”: Chan Siu Ling v Tonyear Investment Ltd (T/A Kwan Shing Restaurant)[16], the maximum period of temporary incapacity that an employee may claim under s. 10(5) of the ECO was 36 months.

42.  In Wong Kai Fun v Sun On Logistic Ltd & Anor[17], HH Judge Levy referred (at §64) to s. 10(5) of the ECO and observed that since the sick leave certificates granted in that case have certified the applicant’s sick leave for a period of 27.7 months, which exceeded 24 months, he needed the Court to extend the sick leave period for 3.7 months before he could get compensation under s.10 of the ECO.

43.  Regrettably, these authorities were not drawn to the Court’s attention by Mr. Chan in his closing submissions, who instead sought compensation for Mr. Cheng in the total of 41 months, which as noted above is not permitted under s. 10(5) of the ECO.

44.  When these authorities were drawn by this Court to the attention of Mr. Chan, in his supplemental closing submissions filed on 27 December 2023, Mr. Chan apologized for the error in his closing submissions and accepted that since Mr. Cheng’s claim under s. 10 of the ECO exceeded 24 months, s. 10(5) is applicable. He further submitted that the Court should exercise its discretion under s. 10(5) to extend the period to the full 36 months as stipulated therein.

45.  In the present case, notwithstanding the lateness in which the submission was made, I am prepared to consider whether my discretion under s. 10(5) of the ECO should be exercised in favour of Mr. Cheng. Having considered all the circumstances of the case, I take the view that I ought to exercise my discretion under s. 10(5) of the ECO to extend Mr. Cheng’s sick leave for a period of 12 months, so that total period of sick leave amounted to 36 months:

(1) The mischief sought to be cured by the introduction of the provisions of s. 10 was to alleviate the problem which would be caused when an employee suffered a period of temporary incapacity followed by a period of permanent partial incapacity which would result in his not receiving adequate compensation for the period when he was temporary incapacitated. The Court’s discretionary of power to extend a sick leave period not exceeding 12 months is an unfettered one. The paramount consideration is one of fairness to the employee: Choy Wai Chung v Chun Wo Construction and Engineering Co. Ltd[18]; Wong Kai Fun v Sun On Logistics Limited & Anor[19] at §§ 64-65 per HH Judge Levy;

(2) In Choy Wai Chung, in holding that the applicant should receive compensation for temporary incapacity for the full three-year period, the Court of Appeal placed particular emphasis on the sick leave certificates granted by the applicant’s treating doctors. Choy Wai Chung was applied in Tang Yam Kau v Key Asia Engineering Ltd[20] in which DDJ Simon Ho exercised his discretion to extend the sick leave period by 12 months to a total of 36 months, observing (at §67) that the relevant sick leave periods in that case as well as in Choy Wai Chung were both duly certified by the Board and the attending government doctors as being necessary as a result of the accident; and

(3) In the present case, since Mr. Cheng’s sick leave periods of 1083 days (or rounded up to 36 months) was certified by the Board and the attending government doctors as being necessary as result of the accident, it is in my view fair in the circumstances of this case to extend the 24 months period of sick leave by 12 months to 36 months (i.e. from 21/03/2019 to 20/03/2022, with the exception of 05/05/2020 to 17/05/2020).

46.  S. 10(2) provides, in pertinent part, that for the purposes of s. 10, a period of absence duly certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.

47.  S. 10(2) set out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim. The burden is on the employer to rebut the presumption: Tse Tsz Chong v Law Sze Man[21]. In the present case, the presumption has not been rebutted.

48.  However, it is not in dispute that during the certified period, Mr. Cheng earned a total of $29,200 from November 2021 to March 2022, particulars which are set out in §17 of Mr. Chan’s supplemental closing submissions.

49.  S. 10(1) contemplates that even for total temporary incapacity, the compensation would be reduced if there were earnings that the employee was earning, or was capable of earning, in some suitable employment during the period of the temporary incapacity: Yu Tat Kam (余達金) v Chu Tung Shing (朱東成) & Anor[22].

50.  Therefore, applying the above principles to this case, the compensation under s. 10 is assessed as follows:

(A) Monthly Earning $29,000

      x 36 months

     x 4/5

      = $835,200

(B) Earnings during sick leave period

      $29,000

Difference between (A) and (B)

$835,200 - $29,200 = $806,000

51.  From this the periodical or lump sum payment of $56,600 paid by the Employer to Mr. Cheng[23] must be deducted, giving a net amount of $749,400 as compensation under s.10.

B5. Compensation under s. 10A

52.  The complete breakdown of medical expenses has been set out in §19 of Mr. Chan’s closing submissions and the total worked out at $5,463. I am satisfied that they have been proved and so I award Mr. Cheng $5,463 as compensation s.10A.

B6. Total amount of compensation

53.  Therefore, the amounts of compensation under sections 9, 10 and 10A of the ECO are assessed as follows:-

Section 9	$139,200
Section 10	$749,400
Section 10A	$5,463
Total	$894,063

54.  For completeness, I would add that in §§25 and 31 of his opening submissions, Mr. Chan sought adjustment of Mr. Cheng’s monthly earnings in accordance with the rate of increase in Consumer Price Index at the end of a 12-month period after the date of the Accident pursuant to ss. 11(1A) and 11(1B) of the ECO. However, in oral opening, Mr. Chan abandoned his reliance on s. 11(1A) and 11(1B) of the ECO. Mr. Chan’s abandonment was confirmed in §3(iii) of his closing submissions. However, I note that in §§9-14 of his supplemental closing submissions, Mr. Chan sought to rely on ss. 11(1A) and 11(1B) again. To be fair to Mr. Chan, in oral closing, he again confirmed his abandonment of his reliance on s. 11(1A) and 11(1B) of the ECO. Therefore, this judgment proceeded on the basis that no reliance on ss. 11(1A) and 11(1B) was made by Mr. Chan.

55.  Mr. Cheng is also entitled to interest at half judgment rate from the date of the Accident to the date of this judgment and thereafter at judgment rate until payment.

56.  I also make a costs order nisi that the Employer do pay Mr. Cheng the costs of the proceedings, with certificate of counsel, to be taxed if not agreed. The costs order nisi will be made absolute 14 days from the day of the handing down of this judgment if no application is made to vary it. Mr. Cheng’s own costs are to be taxed in accordance with the Legal Aid Regulations.

C. DAMAGES FOR PERSONAL INJURY IN THE DCPI ACTION

57.  With respect to the assessment of damages for personal injury in the DCPI Action, the admissible evidence consists of, inter alia, the evidence set out in section B1 above, the evidence contained in the Joint Report and the evidence disclosed in the surveillance tape.

C1. The Joint Report

58.  As to the Joint Report, the following points should be noted:-

(1) The joint orthopaedic examination was conducted on 2 November 2021 (the “Joint Examination”). At the time of the Joint Examination, the implant removal operation had not taken place yet, and the Experts noted that Mr. Cheng still complained of on and off right anterior knee pain, stiffness and weakness. Mr. Cheng reported to the Experts that he does not have any difficulties in his activities of daily living, and that he is able to drive private cars but Mr. Cheng had not driven a truck.

(2) The Experts agreed on the following:-

(a) Mr. Cheng suffered from close fracture of right patella. Dr. Ko added that said injury was solely and directly caused by the Accident[24];

(b) X-Ray done at the Joint Examination showed that Mr. Cheng’s right patellar fracture had healed well with anatomic alignment and no significant objective radiographic abnormality[25]; and

(c) Removal of the implant should be done[26];

(3) Both experts were of the opinion that Mr. Cheng could return to his pre-accident employment. Dr. Hung opined that Mr. Cheng should be able to resume his pre-accident occupation as a truck driver with mild to moderate reduced capacity, efficiency and endurance, that Mr. Cheng may have problem with climbing up and down the truck and that if Mr. Cheng is going to kneel and squat in a narrow working environment, his right knee pain and stiffness may cause him problem or work slowly[27]. Dr. Ko opined that Mr. Cheng should be able to resume his pre-accident job 6-8 months after the occurrence of the Accident with no significant impairment of his work efficiency and effectiveness as a truck driver cum delivery worker[28];

(4) The major disagreement between the Experts is the appropriate sick leave period. On the one hand, Dr. Hung opined that sick leave of up to 1.5 years (18 months) is acceptable for similar injuries and that Mr. Cheng would require 2 additional months of sick leave after the implant removal operation[29]. On the other hand, Dr. Ko opined that 8-10 months of sick leave after the Accident is adequate and acceptable as Mr. Cheng had already reached more or less stable and static condition and maximal medical improvement by November 2019 when he was discharged from physiotherapy[30].

(5) Dr. Hung estimated that Mr. Cheng suffered from 5% impairment of the whole person, whilst Dr. Ko estimated Mr. Cheng suffered from 6% lower extremity impairment which is equivalent to 2% whole person impairment[31].

59.  Having carefully considered the respective opinions of Dr. Hung and Dr. Ko, and for the following reasons, I take the view that insofar as there is any disagreement between the Experts as to the assessment of the degree of impairment and the appropriate sick leave period, I prefer the opinion of Dr. Hung to that of Dr. Ko:-

(1) Firstly, in §79 of the Joint Report[32], Dr. Ko stated that “apparently all [implant removal operations] have been cancelled because ‘patient preferred to delay operation’”. This statement is not correct as a matter of fact because the third operation (scheduled on 27 September 2021) was cancelled because Mr. Cheng was suffering from high blood pressure. In fact, on that occasion, Mr. Cheng indicated to the treating doctors that he was keen to proceed (see §26 above). And even for the first and second operations scheduled on 5 May 2020 and 24 September 2020 respectively, the Consultation Summary of Dr. Lo Chi Kin dated as early as 18 May 2020[33] also clearly showed that Mr. Cheng was “keen for removal of implant before MAB and resume work”. In this connection, I do not accept Mr. Chung’s submissions that Mr. Cheng only evinced an intention to proceed with the implant removal operation from September 2021 onwards and that Mr. Cheng had adopted a completely different attitude when he was supposed to undergo the implant removal operation on 4 May 2020 and 21 September 2020 respectively[34]. To be fair to Mr. Chung, in his oral closing submissions, he rightly accepted that the Consultation Summary of Dr. Lo Chi Kin dated 18 May 2020[35] showed that Mr. Cheng had evinced an intention to proceed with the removal of the implant as early as on 18 May 2020. The aforesaid factual inaccuracy of Dr. Ko’s opinion may affect his opinion as to the appropriate sick leave period.

(2) Secondly, in §81 of the Joint Report[36], Dr. Ko opined that the implant removal operation was a “relatively minor operation…, hospital stay for 1-2 days and no need for any post-operative rehabilitation”. This opinion is inconsistent with the objective facts of the case that for the implant removal operation done on 6 July 2022 Mr. Cheng was hospitalized for 5 days and that he needed to attend 5 further sessions of physiotherapy at the Department of Physiotherapy of YCH from 1 August 2022 to 16 September 2022 thereafter. On the other hand, Dr. Hung’s opinion, which I prefer, is that Mr. Cheng needed another two months to recover from the implant removal operation (see §76 of the Joint Report [37]), which more or less coincided with the sick leave periods from 6 July 2022 to 14 August 2022 granted by Mr. Cheng’s treating doctors for the operation.

(3) Thirdly, in §70 of the Joint Report[38], Dr. Ko opined that “objective findings of the calf and thigh girth measurement showed no feature of any disuse in the right lower limb musculature… in the past two and half years … [Mr. Cheng] had not been demonstrated to have any disuse feature in the right lower limb objective girth measurement” and that “whilst doing the active range of motion demonstration in the right knee at this joint assessment up to about 90∘, he complains of right knee pain. But on the surveillance recording, it appeared that he could manage right knee flexion more than 90% while getting in and out of the forklift repeatedly without difficulty or feature of any distress or difficulty”. Dr. Ko’s opinion appears to be inconsistent with the objective evidence:-

(a) Dr. Ko has not explained how he came to the conclusion that Mr. Cheng had “no feature of any disuse in the right lower limb musculature”. Dr. Ko’s opinion was made despite the fact that the physical findings of both Dr. Hung and Dr. Ko in respect of limb girth was that for the right girth the measurement was only 48.5 cm whilst for the left girth the measurement was 49 cm and that both Dr. Hung and Dr. Ko agreed that thigh girth of 48.5 cm was “abnormal”[39].

(b) Dr. Ko himself stated in §70 of the Joint Report that “physical examination showed some decrease [sic] in right knee range motion specially in flexion and he demonstrated weakness in flexion/extension of the right knee with only grade 4/5 (moderate decrease) ”

C2. The evidence disclosed in the surveillance tape

60.  During trial, a surveillance tape was admitted in evidence and played in Court. Mr. Cheng was cross-examined on the surveillance tape briefly. The surveillance tape captured Mr. Cheng’s movements for short periods of time on 2, 3 and 4 November 2021 respectively:-

(1) The surveillance tape taken on 2, 3 and 4 November 2021 showed that for most of the time when he was working, Mr. Cheng was driving and operating the forklift truck for lifting and moving wooden pallets or paper boxes and that he did not need to move heavy goods;

(2) The surveillance tape taken on 2 November 2021 showed that Mr. Cheng walked with a limping gait. This was recognized by both Dr. Hung and Dr. Ko in the Joint Report when they commended on the surveillance tape[40];

(3) The surveillance tape taken on 4 November 2021 showed that Mr. Cheng parked a forklift truck and moved some paper boxes onto a wooden pallet. The surveillance tape showed that:-

(a) Mr. Cheng moved the paper boxes onto the wooden pallet. He never squatted, knelt, nor bent his knee when he moved the paper boxes;

(b) Mr. Cheng raised the wooden pallet to about waist-height with the forklift truck; and

(c) Mr. Cheng had difficulty in reaching the paper boxes stocked up at a higher level and some of the paper boxes fell onto him.

(4) The surveillance tape taken on 3 November 2021 showed that Mr. Cheng was driving a trailer truck without any trailer attached. As Mr. Cheng explained in evidence, which I accept, the trailer truck was a medium goods vehicle for which he was licensed to drive. However, once a trailer is attached to the trailer truck, it became an articulated vehicle (掛接式車輛) for which he was not licensed to drive.

(5) The surveillance tape taken on 4 November 2021 showed that Mr. Cheng was taking a break and chatting with a man at 10:45:02 and 10:49:23 respectively. Mr. Cheng explained in evidence (which I accept) that after sitting for 30-45 minutes he needed to stretch his legs or else he would feel sore and weak in his right leg. Mr. Cheng also explained in evidence (which I also accept) that as the cabin of the forklift truck was not enclosed he would stretch his legs whilst sitting thereat.

61.  In my view:-

(1) The movements of Mr. Cheng as captured by the surveillance tape are consistent with the physical findings of Dr. Hung and Dr. Ko that Mr. Cheng walked with “slightly limping gait”, that Mr. Cheng was “mildly unsteady on right foot” and that Mr. Cheng was “heel standing/walking with mild unsteadiness”[41];

(2) Given that Mr. Cheng’s pre-accident employment as a driver cum delivery worker required him to move heavy goods, Mr. Cheng’s movements as captured by the surveillance tape are consistent with Dr. Hung’s opinion that Mr. Cheng was able to resume his pre-accident occupation as a truck driver cum delivery worker but with “mild to moderate reduced capacity, efficiency and endurance” and that if Mr. Cheng was going to “kneel and squat in a narrow working environment, his right knee pain and stiffness may cause him problem or work slowly”.

62.  In §§2-20 of his closing submission, under PSLA, Mr. Chung submitted that “it is more than clear” that Mr. Cheng has been exaggerating his complaint when attending the Joint Examination. Mr. Chung’s submissions are based primarily on the movements of Mr. Cheng as captured by the surveillance tape taken on 3 and 4 November 2021 and §70 of the Joint Report. For the following reasons, I do not accept Mr. Cheng’s submissions:-

(1) For Mr. Cheng’s movements as captured by the surveillance tape, I repeat my observation set out in section C1 above; and

(2) For §70 of Dr. Ko’s opinion, I repeat my observations in §59(3) above.

C3. PSLA

63.  In the Revised Statement of Damages (the “RSOD”), Mr. Cheng claims $350,000 for PSLA.

64.  I have considered the comparable cases cited by Mr. Chan for Mr. Cheng:-

(1) In Kwok Wing Ming v Wong Lin Lung & Anor[42], the plaintiff, a delivery worker 34 years old at the time of the accident and 37 years old at the time of the assessment, suffered from inter alia fracture of right patella in a road traffic accident. The fracture was reduced and fixed with wires and has since united. The post-operation course was uneventful. There was residual stiffness of the knee, pain and muscle wasting of the thigh. The plaintiff’s medical expert assessed that the plaintiff to have suffered a 19% impairment of the lower extremity which was equivalent to 8% impairment of the whole person. $360,000 was awarded for PSLA.

(2) In Yeung Wai Ming v Tsui Ma Sing[43], the plaintiff, a driver cum delivery worker 28 years old at the time of the accident and 33 years old at the time of the assessment, suffered from comminuted fracture of his right patella in a slip and fall accident. Open reduction and internal fixation was performed, and the plaintiff was discharged from the hospital 8 days later. The plaintiff received out-patient physiotherapy upon discharged. On subsequent follow-up, the plaintiff complained of persistent right knee pain on flexion of his right knee. The plaintiff was admitted to the hospital for in-patient physiotherapy treatment and he was discharged about 2 months later. The plaintiff was subsequently admitted to the hospital again for removal of implant. After the operation, intensive physiotherapy started again. His right knee pain was reduced and the range of knee notion increased and he was discharged about 2 weeks later. $300,000 was awarded for PSLA.

(3) In Poon Chi Sang Louis v J.V. Fitness Ltd T/A California Fitness[44], the plaintiff, a sergeant of the Hong Kong Police Force aged 39 at the time of the accident, suffered from a scratch and wound of the right shin when a pedal of a fitness bicycle he was riding at a centre operated by the defendant broke and hit him. On arrival at the hospital, the plaintiff found the wound very painful and unable to move his right lower leg. Physical examination showed a 6 cm linear laceration over his right shin. He received suturing (7 stitches) under local anesthesia and wound dressing in the out-patient department. First dose of tetanus vaccine was administered to him. He was discharged home with oral medication. He attended follow-up and the wound was healed. But he still felt painful and stiffness. But he still felt painful and stiff at his wound. $180,000 was awarded for PSLA.

65.  I accept that the above are relevant authorities for the purpose of PSLA.

66.  In §29 of this opening submissions, Mr. Chung accepted that PSLA award should fall within the range between $300,000 and $350,000. However, in §2 of his closing submissions, Mr. Chung submitted that as Mr. Cheng’s actual physical condition should have been better than what he demonstrated (as shown in the surveillance tape), PSLA should be allowed at the lower end of the range.

67.  Having considered Mr. Cheng’s injuries and the comparable cases, I am of the view that the appropriate award for PSLA should be $350,000:-

(1) I take the view that the injuries suffered by Mr. Cheng (i.e. fracture of the right patella) are comparable to those suffered by the plaintiff in Kwok Wing Ming and Yeung Wai Ming, in which the awards for PSLA were respectively $360,000 and $300,000.

(2) Mr. Cheng has undergone long periods of physiotherapy both before and after the implant removal operation on 7 July 2022;

(3) Mr. Cheng’s sick leave period as certified by the Board was 1083 days (rounded up to 36 months). This is much longer than the sick leaves granted to the plaintiffs in Kwok Wing Ming and Leung Wai Ming;

(4) Dr. Hung estimated Mr. Cheng suffered from 5% impairment of the whole person, whilst Mr. Ko estimated Mr. Cheng suffered from 6% extremity impairment which is equivalent to 2% whole person impairment. By reason of the matters stated in section C1 above, I prefer Dr. Hung’s opinion and assess permanent impairment at 5% as recommended by Dr. Hung (as opposed to 2% assessed by Dr. Ko). The Court is entitled to take into account permanent impairment of the whole person in assessing awards for PSLA: see Chan Yuet Keung v Harmony (International) Knitting Factory Ltd[45]. Although the permanent impairment of the whole person in the present case is not as high as that suffered by the plaintiff Kwok Wing Ming, it is high enough to justify a substantial award for PSLA; and

(5) I do not agree with Mr. Chung’s submissions that the surveillance tape showed that Mr. Cheng’s actual physical condition should have been better: see the analysis in section C2 above.

68.  In making the award for PSLA, I bear in mind that damages for PSLA is to be awarded on a broad-brush approach and that it is not the practice of the Court to assess PSLA with meticulous adjustment on account of inflation: Yuen Wai Chuen v Chan Wing Pui & Anor[46].

C4. Pre-trial loss of earning

69.  Regrettably, Mr. Chan made no submissions whether in his written opening or closing submissions on Mr. Cheng’s case on his pre-trial loss of earnings at all.

70.  In oral closing, when asked as to what Mr. Cheng’s case on pre-trial loss of earnings was, Mr. Chan confirmed to the Court that Mr. Cheng’s case was that he could return to his pre-accident employment as a truck driver cum delivery worker upon the expiration of sick leave recommended by Dr. Hung, Mr. Cheng’s own medical expert. The above is in fact what Mr. Cheng pleaded in §6 of the RSOD, which is reproduced in full below for easy reference:-

“6. Pre-trial loss of earnings

Dr. Hung opined that sick leave recommendation up to 18 months is appropriate. He would recommend sick leave for another 2 months to recover from implant removal surgery including wound treatment, rehabilitation of scar and soft tissue (i.e. 20 months up to December 2020).

Assuming that the Plaintiff could find a job as truck driver in March 2021 earning 20% less of his monthly earning due to the reduction in efficiency and that he might need longer/more frequent breaks, and might not be able to work for as many days as he did before the accident ($29,000 x 80% = 23,200).

Assuming a Notional Trial Date of 1 December 2022, his claim for pre-trial loss of earnings from 21/3/2019 to 30/11/2022 is:

(a) From 21/3/2019 to 28/2/2021:

HK$29,000 x 23.35 months = HK$677,150.00

(b) From 1/3/2021 to 30/11/2022:

(HK$29,000 – HK$23,200) x 21 months HK$121,800.00

Total: HK$789,950.00”

71.  The Court is at a loss to understand why §6 of the RSOC was not mentioned in Mr. Chan’s opening or closing submissions at all, but was only mentioned in Mr. Chan’s supplemental closing submissions when he was directed to address the Court Mr. Cheng’s case on pre-trial loss of earnings.

C4.1. What is the appropriate sick leave period?

72.  However, before I deal with Mr. Cheng’s claim for pre-trial loss of earnings, given the substantial differences of opinions between Dr. Hung and Dr. Ko as to the appropriate sick leave period, I ought to first deal with the appropriate sick leave period Mr. Cheng was entitled to.

73.  It is well established that in an action for common law damages, “sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the Court”: Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[47]. As the Court of Appeal also observed in Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd[48]:-

“…It was for the judge to decide whether on the evidence the plaintiff had been unable to work and, if he had been able to work, the extent to which he was able to work. Obviously in doing so the judge must have regard to the medical evidence. Nevertheless, the judge cannot be bound by the mere issue of sick leave certificates. As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

74.  Therefore, to decide on the appropriate sick leave period which Mr. Cheng was entitled to, this Court has to consider all the available evidence before the Court including medical evidence: see the evidence summarized in §57 above.

75.  In his closing, Mr. Chung submitted that Mr. Cheng could have undergone implant removal operation as early as on 5 May 2020 and therefore his sick leave period could be reduced significantly. However, Mr. Chung rightly accepted that the issue of the appropriate sick leave period is related to and governed by the principles on mitigation of damages.

76.  The crux of matter is whether Mr. Cheng has failed to take reasonable steps to mitigate his damage. In Lam Kit Yee v Lam Shuk and Anor[49], the Court has (at §99) summarized the principles of mitigation of damages as follows:-

“(1) The law requires a victim to take all reasonable steps to mitigate the loss consequent on the defendant’s wrong: McGregor on Damages (2014) 19^th Ed, §9-014;

(2) Whether a loss is avoidable by reasonable action on the part of the claimant is a question of fact not law: McGregor, §9-016;

(3) Although often called ‘a duty to mitigate’, the expression is somewhat loose because there is no actionable ‘duty’ which is actionable or which is owed to anyone by the claimant: McGregor, §9-017;

(4) The onus of proof on the issue of mitigation is on the defendant. If he has failed to show that the claimant ought reasonably to have taken mitigating steps, then the normal measure will apply: McGregor §9-019;

(5) In assessing reasonableness, the victim must act with the wrongdoer’s as well as his own interest in mind: McGregor, §9-076”

77.  Specifically in relation to the issue of whether a plaintiff was reasonable in refusing to undergo an operation, in Jiang Zhong v Up Cheer Ltd & Ors[50], DDJ Elaine Liu (as she then was), having conducted a comprehensive review of the relevant authorities (see §§107-116) including in particular the Hong Kong authority of Sze Sing v Hip Hing Construction Co. Ltd[51] in which Nguyen J held that the question is whether having regard to all the circumstances the plaintiff was unreasonable in refusing to undergo the operation, observed (at §§117 & 119) that:-

“117. In the present case, we only have evidence of the joint medical report in which both doctors stated their views that [the plaintiff] should take the surgery to remove the implants. This is not sufficient. There is no evidence on whether the doctors have given this advice to [the plaintiff] in person and whether they have explained to [the Plaintiff] the importance of the surgery as well as the advantages and disadvantages (if any) of taking the surgery.

118. …

119. In light of the evidence before the court, I do not consider that [the plaintiff] has acted unreasonably in not undergoing the surgery.”

78.  In the present case, similar to the Jiang Zhong case, we also only have evidence of the Joint Report in which both Dr. Hung and Dr. Ko stated their views that Mr. Cheng should undergo the operation to remove the implants. Also similar to the Jiang’s case, there is no evidence on whether the doctors have given this advice to Mr. Cheng in person and whether they have explained to Mr. Cheng the importance of the operation as well as the advantages and disadvantages (if any) of undertaking the operation. Applying Jiang Zhong, I am of the view that the evidence in the Joint Report is not enough to show that Mr. Cheng had acted unreasonably in not undergoing the operation.

79.  In any event, the Joint Report is dated 31 December 2021, and Mr. Cheng did undergo the implant removal operation about 6 months later on or about 7 July 2022. By the date of the Joint Report, the sick leave of one and a half years (18 months) as recommended by Dr. Hung (which I accept) has long expired. This again shows that the medical advice in the Joint Report as to the advisability of Mr. Cheng undergoing the implant removal operation is irrelevant to the question of whether he has acted unreasonably in refusing to undergo the implant removal operation and is therefore irrelevant to the question of mitigation of damages.

80.  Having reached the above conclusion, it is strictly speaking not necessary for me to deal with the 3 scenarios posited by Mr. Chung in his closing submissions. But for completeness, I shall deal with them.

81.  The 3 scenarios regarding Mr. Cheng’s reasonable sick leave period and pre-trial loss of earnings posited by Mr. Chung in his closing submissions are as follows:-

(1) Under scenario 1, Mr. Chung submitted that reasonable sick leave should expire by November 2019 (as per Dr. Ko’s opinion);

(2) Under scenario 2, Mr. Chung submitted that sick leave should be allowed no more than up to about May 2020; and

(3) Under scenario 3, Mr. Chung submitted that sick leave should not be allowed beyond 20 September 2020.

I shall deal with each scenario in turn.

82.  First, for scenario 1, Mr. Chung primarily relied on the expert’s evidence of Dr. Ko who opined that :-

“…sick leave for treatment, investigation and rehabilitation up to 8-10 months after the alleged accident should have been adequate and acceptable. The fact was that he had reached more or less stable and static condition and maximal medical improvement status by Nov 2019 as assessed by Physiotherapy of CMC and he had been discharged from physiology service by November 2019 as well.”[52]

83.  For the following reasons, I do not accept Mr. Chung’s submission that sick leave of 8-10 months after the Accident was adequate:-

(1) I have already explained above why I prefer the opinion of Dr. Hung to that of Dr. Ko regarding the appropriate sick leave period;

(2) The fact that Mr. Cheng’s last consultation with the Physiotherapy Department of YCH was on November 2019 and that his condition was described as having “static progress” does not mean that after the last consultation, Mr. Cheng no longer required sick leave;

(3) In the Physiotherapy Discharge Summary of CMC dated 5 November 2019[53], it was stated that Mr. Cheng still complained of “pain at implant site (slightly protruding out superficially upon palpation”, that he walked “upstairs (with) mild pain” and “downstairs with weakness” and “downstairs with right knee pain”, that Mr. Cheng’s had “pain and tenderness over upper border of patella” and that Mr. Cheng was “unable to squat and hop”;

(4) In the Physiotherapy Report of CMC dated 3 August 2020[54], Mr. Yu Chi Ho Andy and Mr. Kwok Man Leung Kelvin stated that upon discharge, Mr. Cheng’s “overall subjective improvement was 60%”, that Mr. Cheng “still complained of knee pain at upper border of his right patella” and that Mr. Cheng “still could not squat due to severe knee pain at end range of knee flexion”; and

(5) In these circumstances, it would not be unreasonable for Mr. Cheng to be granted sick leave (and the government treating doctors continued to grant sick leave to Mr. Cheng) from November 2009 onwards.

84.  For scenario 2, Mr. Chung heavily relied on the Patient Assessment Form of YCH dated 4 May 2020[55] which (he submitted) indicated that Mr. Cheng had already returned to work as early as 4 May 2020, because Mr. Cheng’s “employment status” was stated therein as that of an “employee”. For the following reasons, I do not accept Mr. Chung’s submissions:-

(1) The Patient Assessment Form of YCH is dated 4 May 2020, and therefore it should not be considered in insolation but should be considered together with the Admission Note of YCH[56] and Discharge Summary of YCH[57] both dated 4 May 2020. It is important to note that in both the Admission Note and Discharge Summary, Mr. Cheng was recorded to have “claimed [that he] cannot work”, thereby contradicting any suggestion that he had informed the doctors on 4 May 2020 that his employment status was that of an employee;

(2) Furthermore, both the Admission Note and Discharge Summary contained an entry that Mr. Cheng was a “driver”. However, it was not Mr. Chung’s submission, and there was no evidence, that Mr. Cheng was working as a driver on 4 May 2020. In these circumstances, I found that it is more probable than not that the word “driver” in the Admission Note and the Discharge Summary of YCH was a reference to the type of work Mr. Cheng was doing at the time of the Accident rather than a reference to his employment status on 4 May 2020; and

(3) By parity of reasoning, I am of the view that it is more probable than not, and I so find, that the entry of Mr. Cheng’s employment status in the Patient Assessment Form as that of an “employee” was a reference to his employment status at the time of the Accident rather than a reference to his employment status at the time of the Patient Assessment Form.

85.  For Scenario 3, Mr. Cheng heavily relied on the Patient Assessment Form of YCH dated 21 September 2020[58] which he submitted showed that Mr. Cheng had returned to employment, because under Mr. Cheng’s “employment status” he was again stated as an “employee”. For the following reasons, I do not accept Mr. Chung’s submissions:-

(1) The Patient Assessment Form of YCH, which is dated 21 September 2020, should not be considered in insolation but should be considered together with the Consultation Summary dated 16 November 2020[59]. In the Consultation Summary, Dr. Lai Chun Kit, the medical officer in charge, stated inter alia that Mr. Cheng was “on SL[60] all along” and in the Plan of Management that Mr. Cheng should be granted “SL” till FU[61]”;

(2) It appears to me that it is highly improbable that Dr. Lai Chun Kit, who noted that Mr. Cheng had been on sick leave all along and was granted further sick leave till follow-up, would have been told by Mr. Cheng that he was being employed on 16 November 2020. I found that Mr. Cheng was not employed on either 21 September 2020 or 16 November 2020 and did not tell the doctors that he was so employed on either 21 September 2020 or 16 November 2020.

86.  I wish to add that, for the following reasons, I do not accept Mr. Chung’s submission that Mr. Cheng was trying by all means to extend his sick leave and MBA assessment in respect of the same as much as possible[62] and that Mr. Cheng could have undergone the implant removal operation as early as 4 May 2020:-

(1) It is undisputed that the third implant removal operation scheduled on 27 September 2021 was postponed because Mr. Cheng was suffering from high blood pressure. As rightly accepted by Mr. Chung, the postponement of the third implant removal operation fell within the scope of the “thin skill rule”[63]. There is therefore no question of Mr. Cheng having acted unreasonably in not undergoing the third operation. This is particularly so because Mr. Cheng was keen to proceed;

(2) In respect of the second operation, it is also indisputable that Mr. Cheng did not undergo the same because of his fear of contracting COVID. I do not think that it can be said that Mr. Cheng acted unreasonably when the reason for his refusal was his genuine fear of contracting COVID. This is particularly so when the Consultation Summary dated 18 May 2020 clearly showed that Mr. Cheng was “keen for removal of implant before MAB and resume work”; and

(3) I do not agree that because by the time Mr. Cheng decided to postpone the first and second operations he had already been admitted to the hospital it was therefore unreasonable for him to postpone the same. The risk of inflection of COVID may be higher with an operation, and Mr. Cheng may have to stay in the hospital for a longer period of time after the operation. This is well illustrated by the objective fact that Mr. Cheng was hospitalized for 5 days for the operation done on 7 July 2022. It is reasonable to infer that the longer one stays in the hospital the higher the chance one is infected with COVID.

87.  In all these circumstances, I accept Dr. Hung’s opinion that in the present case, sick leave recommendation for right patella fracture in truck driver and moderate manual worker of up to one and a half year (18 months) is acceptable and that Mr. Cheng would need a period of approximately 2 months sick leave after the implant removal operation. In my view, the latter part of Dr. Hung’s opinion is consistent with the contemporaneous medical certificates by which the government treating doctors granted Mr. Cheng sick leave from 6 July 2022 to 16 September 2022. As noted above, I do not accept Dr. Ko’s opinion that Mr. Cheng was only required to be hospitalized for 1-2 days and that there was no need for any post-operative rehabilitation, which opinion is inconsistent with the contemporaneous medical certificates.

88.  Therefore, Mr. Cheng’s pre-trial loss of earnings during the sick leave period is assessed at:-

20(18+2) x $29,000 = $580,000

C4.2. Mr. Cheng’s pre-trial loss of earning after the expiration of his sick leave

89.  As noted above, in his supplemental closing submissions, Mr. Chan accepted that Mr. Cheng’s claim for pre-trial loss of earnings is based on Dr. Hung’s opinion set out in §87 of the Joint Report[64].

90.  However, in opining inter alia that Mr. Cheng would differ from “reduced capacity, efficiency and endurance”, Dr. Hung has not given any percentage of such reduced capacity, efficiency and endurance. When he was asked in oral closing as to why §6 of the RSOC proceeded on the assumption that Mr. Cheng could find a job as a truck driver earning 20% less of his monthly earnings due to the reduction in efficiency but not, say, 10% or 15% less, Mr. Chan surprisingly answered that the figure of 20% was “plucked out of thin air”. In other words, it has no evidential support. Mr. Chan has also cited no case in support of the plea in §6 of the RSOD.

91.  In these circumstances, it would not be appropriate for this Court to pluck a figure out of thin air to benefit Mr. Cheng on speculation that his “reduced capacity, efficiency and endurance” might affect his pre-trial loss of earnings. An award for pre-trial loss of earnings can only made when there is evidence showing such loss as pleaded by Mr. Cheng. That has not been shown. Therefore, this aspect of Mr. Cheng’s claim for pre-trial loss of earnings fails.

92.  Furthermore, Mr. Chung has drawn my attention to Chan Sze Yuen v Tin Wo Engineering Company Ltd & Ors[65] in which Master Leong observed (at §§15-25) that:

“15. It is, of course, appropriate for a medical expert to give an opinion on the physical condition and prognosis of the plaintiff. However, in general, the court is in a far better position to assess the plaintiff’s actual work capacity because it has a chance to hear evidence from the plaintiff (and any other witnesses) on the details of the nature of the pre-injury job, the work system, any “coping mechanism” and “work practice adaptation” after the injury, the supply and demand in the labour market etc, and to hear cross-examinations of such evidence.

16. I often find the term ‘reduced work capacity and efficiency’ rather vague and meaningless term with regard to actual earning loss.

17. …

18. Similarly, ‘general workers’ like us are often affected by various minor ailments, coughs and colds, back pains, headaches, tiredness, jet-lags, hangovers etc which may reduce our work capacity and efficiency.

19. We all learn to cope and work around such ailments, and still be able to perform at a reasonable level at our work. Our employers do not, in general, deduct our income because we feel jet-lagged returning to work after a holiday and have to drink a few more cups of coffee, or if we have a headache and have to take some painkillers. Thus, any reduction in work capacity and efficiency does not always translate to a loss in income.

20. On other occasions, even if we have some long term illness or disabilities, a reasonable attitude to work and a sympathetic work environment might mean that we could still cope with our work: change of work practice, working ‘around’ an injury etc.

21. …

22. Only in relatively rare occasions when one suffered a “career-ending” illness or injury that one can no longer cope with his pre-injury job. This is when the court needs to consider a loss of income claim.

23. However, whether an injury is ‘career-ending’ or not may also depend on the nature of the job. …. In a relatively less demanding and competitive job, eg a manual worker, one may still get away with taking pain-killers and more rests with the same injury.

24. Ironically, it may well be that the professional golfer has more determination and incentive to ‘push through’ serious injuries, but the manual worker, understandably, has much less incentive so decided to ‘throw in the towel’ with relatively less serious injuries. Nevertheless, these are factors that the court should not consider. The court should only assess whether a reasonable worker under those circumstances could or could not cope with his pre-injury work at a reasonable level as demanded by the nature of that job.

25. The court, with the evidence from the experts as to the medical condition of the plaintiff, and the evidence from the plaintiff (and any other witnesses) regarding all the relevant factors surrounding the nature of the pre-injury work, can determine whether the plaintiff’s medical condition may actually reduce his income, or may only be a disadvantage in the labour market, or both, as the case maybe.”

93.  On appeal, the Court of Appeal (comprising of Lam VP (as he then was), Kwan JA (as she then was) and Mimmie Chan J) dismissed the appeal. Whilst the Court of Appeal did not specifically comment on the observations of Master Leong in §§15-25 of Chan Sze Yuen, the observations of Master Leong in §§15-25 of Chan Sze Yuen have been repeatedly cited with approval by the Courts in Hong Kong. See:-

(1) In Nam Yiu Keung v Wong Wai Chuen[66], DDJ Norman Nip cited with approval (at §174) the logic and aim of §§20-24 of Chan Sze Yuen and observed that even if a plaintiff’s performance of his pre-accident employment has been affected by his injuries, that did not mean that he could not return to his pre-accident employment;

(2) In Pak Siu Hin Simon v J. V. Fitness Ltd[67], Au-Yeung J cited with approval Chan Sze Yuen and observed (at §77) that “the fact that the plaintiff suffered pain did not mean that he would be entitled to sick leave. People may suffered pain for all sorts of reason and that would not prevent them from discharging their duties in full. Employees do not go to work only when they are 100% fit and efficient”; and

(3) In Yam Lai Chau v Yam Hing Kuen[68] , DDJ Kate Li similarly cited with approval Chan Sze Yuen and observed (at §66) that: “…The ‘reduced capacity’ view was already specifically qualified and there is no scope to argue that the ‘reduction’ will mean not being able to return to work. Anyway … people did not go to work when they were 100% fit and efficient, and reduction of capacity should not be translated into loss of income”.

94.  In his oral closing submissions, Mr. Chan properly accepted these principles. In these circumstances, by reason of Mr. Cheng’s failure to prove that the “reduced capacity, efficiency and endurance” would have any effect on his ability to return to his pre-accident employment and his pre-trial earnings, this aspect of his claim for pre-trial loss of earnings fails.

95.  In making the above finding, I have not overlooked the fact that it is Mr. Cheng’s evidence that he had not returned to his pre-accident employment but had instead been employed by one Sincerity Express International Logistics Limited as a forklift operator since 1 November 2021 without the need of doing any heavy manual labour work[69]. However, Dr. Hung’s medical opinion, which Mr. Cheng relied on, was that Mr. Cheng could return to his pre-accident employment. Mr. Cheng also expressly pleaded his case of pre-trial loss of earnings by relying on Dr. Hung’s expert opinion. In my view, Mr. Cheng must be bound by the expert opinion he himself adduced and relied upon and by his own pleaded case. In §11 of his supplemental closing submission and in his oral closing submission, Mr. Chan rightly accepted that Mr. Cheng was bound by his pleadings.

96.  For completeness, I would add that in Zhong Ruying v Fuk On Home of Aged Ltd[70], the Court of Appeal, in a situation where there was variance between pleadings and the evidence in a personal injury case, observed that:-

“20.1 first it is not a matter of whether the plaintiff was bound by her pleadings. Of course pleadings are important, but more importantly the court should consider what evidence had been adduced at trial;

20.2 further the revised statement of damages contained assumptions of what the plaintiff could earn as a cleaner, not admissions of what she actually did earn.”

However, in the present case, not only is Mr. Cheng bound by §6 of his RSOD, the same §6 was based on the expert evidence adduced by Mr. Cheng himself.

C5. Post-trial loss of earnings

97.  My analysis in section C3 above on Mr. Cheng’s claim for pre-trial loss of earnings applies, mutatis mutandis, to Mr. Cheng’s claim for post-trial loss of earnings. I therefore make no award under this head.

C6. Loss of earning capacity

98.  The claim for loss of earning capacity 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: Chan Wai Tong v Li Ping Sum[71].

99.  In the present case, Dr. Hung’s opinion, which I accept, was that Mr. Cheng has “mild to moderate reduced capacity, efficiency and endurance”. Given that Mr. Cheng has suffered from fracture of his right patella and he is only 40 years old, it is in my view that it is likely that he would experience disadvantage in the labour market due to his disability and impairment. I am of the view that a sum of HK$150,000 would be reasonable. This would only be the equivalent of about 5 months of Mr. Cheng’s pre-accident salary. In §126 of the his closing submissions, Mr. Chung accepted that if the Court is of the view that Mr. Cheng is at risk, a lump sum of no more than $50,000 could be awarded.

C7. Medical expenses, disbursements

100.  Mr. Cheng claimed the following special damages:-

(1) Medical expenses: $3,973;

(2) Travelling expenses of Mr. Cheng and his girlfriend: $1,150;

(3) Tonic food: $3,000

Total: $8,123

101.  I am of the view these claims are either supported by contemporaneous receipts or are reasonable and will award them in full.

C8. Summary of Damages

102.  Therefore, the total amount of damages assessed for the DCPI Action is follows:-

Item	HK$
PSLA	350,000
Pre-trial loss of earnings	580,000
Post-trial of earning	Nil
Loss of earning capacity	150,000
Special damages	8,123
Total Damages	1,088,123
Less: Employees’ Compensation assessed	(894,063)
Net Damages	194,060

C9. Interests

103.  I award interest on general damages for PSLA at 2% per annum from the date of service of the writ up to the date of judgment and interest on pre-trial loss of earnings and other special damages at half the judgment rate from the date of accident to the date of payment of employees' compensation, and thereafter on the remaining balance, after the deduction of employees' compensation, up to the date of judgment.

C10. Costs

104.  The award of damages and interest is as against the Employer, not the Fund Board: see Tu Zhiqiang v Hop Sang Co (a firm) & Anor[72] in which Cheung CJHC (as the CJ then was) observed (at §51) that under s. 25A(a) of the ECAO where the Fund Board has taken over the defence as if it were the employer in the proceedings, no judgment may be entered against the Fund Board as such. Any judgment would be entered against the employer.

105.  Relying on Wo Chun Wah v Employees Compensation Assistance Fund Board[73] and Lee Wai Kin v San Xing (China) Trading Ltd and Anor[74], Mr. Chung submitted that the costs order this Court should make in the DCPI Action are as follows:-

(1) The Employer do pay Mr. Cheng’s costs of the assessment of damages for the DCPI Action, with certificate of counsel, to be taxed if not agreed;

(2) The Employer do pay the Fund Board’s costs of the assessment of damages for the DCPI Action, with certificate of counsel, to be taxed if not agreed; and

(3) There be no order as to costs between Mr. Cheng and the Fund Board (including all costs reserved).

106.  For the following reasons, I accept Mr. Chung’s submissions and made the costs orders as set out in §105 above:-

(1) I am of the view that Ribeiro PJ’s observation in Wo Chun Wah (at §46) that where the Fund Board has been joined as a party and properly carries out its “filtering” or monitoring functions, the appropriate starting point should generally be no order as to costs, irrespective of whether the Fund Board sought to test the case as to liability, quantum or both, applies to the facts of this case;

(2) In the present case, the Fund Board properly carried out its “filtering” or monitoring functions. It should be noted that in the RSOD, the total damages claimed by Mr. Cheng was around $2,500,000, whereas the amount I awarded was only $1,088,123. In particular, Mr. Cheng’s claim for pre-trial loss of earnings and post-trial of earnings in the respective amounts of $789,950 and $1,270,000 were disallowed, primarily on the ground that this Court accepted Mr. Chung’s submissions that no pre-trial loss of earnings and no post-trial loss of earnings should be awarded. Thus the general starting point of no order as to costs as between Mr. Cheng and the Fund Board applies;

(3) I do not find the conduct of the Fund Board to be unreasonable or misconceived or unjustifiably antagonistic, unnecessarily prolonging its intervention, or otherwise untoward. On the contrary, I found that Mr. Chung conducted the case on behalf of the Fund Board in a reasonable and responsible manner. I see nothing to displace the application of the general starting point;

(4) As to the costs between Mr. Cheng and the Employer and between the Fund Board and the Employer, they should follow the event and the Employer should pay the costs of Mr. Cheng and of the Fund Board in the DCPI Action; and

(5) In making the costs order above, I bore in mind the guidance given by Ribeiro PJ in §47 of Wo Chun Wah that the discretion as to order costs is broad and to be flexibly exercised in the light of the specific circumstances.

C11. Orders

107.  There shall be judgment in the sum of HK$194,060 in favour of Mr. Cheng against the Employer with interest at 2% p.a. on the award for PSLA from the date of the service of the writ until the date of judgment and interest on pre-trial loss of earnings and other special damages at half the judgment rate from the date of the accident to the date of payment of employees' compensation, and thereafter on the remaining balance, after the deduction of employees' compensation, up to the date of judgment.

108.  Costs orders are set out §105 above. The cost order shall be nisi in the first instance with liberty to apply within 14 days from the date hereof. The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations. 

109.  I thank Counsel for their assistance.