LEE HONG KONG HANSEN v. MTR CORPORATION LTD

HCPI 850/2016

[2023] HKCFI 636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 850 OF 2016

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BETWEEN

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JUDGMENT

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1.  The plaintiff (“Lee”) claims damages for injuries as a result of his fall at his workstation inside the workshop at one of the depots of his employer at the time, the defendant (“MTR”), on 29 October 2013. He attributes the accident to the surface texture or finish of the section of the floor surface where his workstation was at the time. Both liability and quantum are in dispute.

LEE

2.  Lee has been physically challenged as a result of poliomyelitis with bilateral lower limb weakness since the age of 4. Because of that, he had to walk with walking sticks and to ambulate in a particular manner.

3.  Lee started working as a technician at the MTR in 1985. Since 1997, his workplace has been the Central Electronic Workshop (“the Workshop”) of MTR’s Tsuen Wan Depot (“the Depot”). Lee resumed his work in such position after the accident, and continued as such until his retirement in 2018.

4.  At the time of the accident, Lee was 54 years old. He owned his private car and was a daily driver.

THE ACCIDENT

5.  On the day in question, Lee was sitting in his office chair, working at his work station. At one point, he stood up from his chair. His pleaded case is that in the course of moving his body after standing up, his right leg was tripped by the floor surface where he was standing, causing him to lose balance and fall to the ground. Hence his injuries.

6.  According to Lee, how he came to be tripped by the floor surface had to do with how he ambulated at all material times before the accident. As to that, his counsel made the point during the trial that this had to be understood pictorially by reference to video recordings[1] depicting how he ambulated after the accident. Those video recordings depict his practice of walking under supervision during rehabilitative physiotherapy after the accident. His counsel suggested that as he only suffered injury to his upper limb from the fall in question, his lower limb was not affected and therefore the video recordings should show the manner he walked just as before.

7.  I would be cautious about accepting such submission from counsel as if this were merely a matter of logic instead of some opinion from a medical expert. It is indeed Lee’s case that the injury to his upper limb from the accident compromised his upper frame of support for his lower limbs in ambulation. The orthopaedic experts did not rule that out either. In the circumstances, the most that such video recordings may serve is to facilitate the understanding of his oral evidence in respect of how he used to walk prior to the accident. The picture so got is general but not exact.

8.  According to Lee, and to the extent assisted by the video recordings mentioned above, his right leg was in a permanent tip-toe position, and his legs from the knees down have lost muscle control and power, as a result of his poliomyelitis. To ambulate, he had to anchor the weight of his body on one side as support (hence a walking stick) in order to lift and swing the leg on his other side forward. That was repeated for the other leg, and thus the manner in which he advanced step by step before the accident. The recordings assist in demonstrating generally the extent of contact between his shoes and the floor surface when he ambulated. It was not so much dragging of his feet and shoes along the ground surface. Nor is this the manner of ambulation alleged.

9.  Lee elaborated the circumstances of the accident during cross examination. According to him, he has just raised his body from sitting position in his office chair with the support of both hands on the desk in his front. He intended to move his body to grab his walking sticks placed by one side of his desk. He anchored the weight of his standing body on his left by his left fist on the desk with a view to slightly lifting and swinging his right leg. In the course of that, he felt that the fringe of the front or toe part of his right shoe was tripped. He lost balance and fell. Seeking to grab support in the split second, his left hand landed on another office chair on his left. He fell to the ground.

10.  Lee named his colleague, Mr Pang Kwok Yung (“Pang”), as the eye-witness of the accident. Pang has admittedly signed a Chinese written declaration setting out how Lee came to fall at the time. It was stated in the declaration that the accident happened because Lee’s leg was tripped by the rough and uneven surface of the granolithic floor surface of his workstation.

11.  MTR called Pang to testify. The Chinese written declaration was in fact drafted and typed out by Lee for Pang to sign about 3 years after the accident. There is dispute as to whether Lee told Pang that the declaration would be used to facilitate the former’s intended claim for insurance. The dispute, in my judgment, is immaterial. There can be no dispute that Lee requested, and Pang agreed, to do so solely for Lee’s purpose in relation to his intended complaint or action about his accident. The declaration also came about two weeks before the commencement of the present action. What matters is whether Pang in fact witnessed what caused Lee to fall at the material time.

12.  Pang explained, which was not disputed, that he was originally sitting back to back with Lee. At the time of the accident, he has turned to face the back of Lee at an angle. He confirmed that he witnessed Lee’s loss of balance and fall at the time. However, in his witness statement and evidence in court, Pang confirmed that he did not really witness why Lee came to lose balance and fell. Objectively, it is also doubtful if the attribution of the contact between floor surface and Lee’s shoe at the time as the cause of his loss of balance was something which could be readily witnessed by Pang from his position.

13.  Pang, I find, was a simple and straightforward witness. In my judgment, it is clear that Pang was no more than ready to help and accept what Lee said to have caused his fall. Hence his willingness to sign the declaration prepared by Lee after the accident. The fact, I find, was that Pang did not actually witness what according to Lee caused him to lose balance and fall at the time. As to that, what remains is Lee’s own evidence.

14.  On behalf of MTR, reference was made to various medical records concerning Lee after the accident. There was record of his complaint about losing balance and falling when he tried to push a chair with his left arm. There was also record that his right foot had been unstable for some time even before the accident. There was also record about his complaint about occasional tiredness of his left shoulder, and for which he had sought medical treatment. All those were raised gearing towards Lee’s credibility in blaming his fall on the floor surface texture. Lee’s responses to these challenges during cross examination essentially suggest that all those records were inaccurate or incomplete.

15.  Considering such evidence and other similar records also referred to in the joint orthopaedic expert report, I do not find that they readily support a positive finding that Lee lost balance and fell as a result of his own pre-existing weakness in his upper and/or lower limb and that how he ambulated at the time played no part. If he in fact lost balance and fell as a result of the contact between his right shoe and the floor surface as he alleges, then any pre-existing weakness in his limbs at the time, which was not conducive to the maintenance of his balance, would be the “thin skull” of Lee as the victim of the allegedly unsafe floor surface which MTR had to take in the event that it is found to be liable.

16.  Why is it that Lee attributes his loss of balance and fall to the finish of the floor surface where he was standing at the time? It is common ground that the section of the floor where Lee’s workstation was situated has undergone repair just a few months before the accident. The repair was occasioned by the damage of the original tiled surface of that section. The damaged section was repaired and replaced by granolithic floor surface (known as 洗水石or米仔 in Chinese). Similar repair to other sections of the floor of the Workshop has been carried out both prior to and about a similar time as the repair of the section where Lee’s workstation was.

17.  The pleaded case of Lee is that he was tripped by the granolithic floor surface as it was rough and uneven. Photographs depicting the granolithic floor surface of Lee’s workstation were produced. MTR has also come prepared with a corner of that section of granolithic floor surface cut out as real evidence. However, MTR confirmed, and Lee accepted, that the section of granolithic floor surface where his workstation was situated has not been altered or otherwise tampered with since the accident. On this basis, this court acceded to the parties’ request and conducted a site visit on the second day of the trial for a personal visual view of the section of the floor surface in question.

18.  Consistent with what the photographs already manage to tell, the section of granolithic floor in question does not, as it is not meant to, have a completely smooth surface texture. It has a granular surface texture. However, it is incorrect to say that it is uneven. There is no unevenness in terms of level within the section of the floor surface or in terms of comparison in level with its surrounding original tiled floor surface. There is also no protrusion from that section of the floor surface.

19.  All the evidence of the circumstances considered, it is in my judgment probable that Lee felt losing his balance upon part of his right shoe happened to be caught by the grip of the granolithic floor surface in his motion at the time. This founds the premise for considering what duties MTR had towards the relevant safety of Lee at the material time, and whether MTR was in breach of such duties, in the circumstances.

LIABILITY

20.  Apart from Pang mentioned above, MTR called the following witnesses on the issue of liability:

(1) Mr Lee Che Kwong (“Lee CK”), staff representative of the Joint Consultative Committee (“JCC”) of the Workshop at the material time;

(2) Mr Yeung Ki Leung (“Yeung”), Occupational Safety and Health Engineer of MTR at the material time;

(3) Mr Dai Hin Fan (“Dai”), Technical Officer of the Workshop and the immediate superior of Lee at the material time; and

(4) Mr Leung Yiu Keung (“Leung”), Design Support Engineer (Civil & Structural) of the Technical and Engineering Services Department of MTR at the material time.

21.  As pleaded and contended on behalf of Lee at the trial, MTR was under the duty as his employer and the occupier of the floor of the Workshop at the material time to ensure that he would be reasonably safe notwithstanding the change of his section of the floor to granolithic surface. Similar duties of MTR as the employer under the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”) were also pleaded. I see no real dispute as to the existence of these duties on the part of MTR at the material time. The dispute lies in what such duties entailed in practical terms at the time and whether MTR was in breach of such duties in the circumstances of the case.

22.  Essentially, it is alleged that the granolithic floor surface texture was excessively non-slippery or, as its mirror condition, excessively gripping, rendering it unsafe. MTR is said to have failed to carry out any assessment of such risk of danger before replacing the damaged tiled surface by the granolithic surface. It is also alleged that MTR has failed to assess and to take step to prevent the risk of the granolithic floor surface to the safety of Lee after he has allegedly complained about its condition to the management after the repair.

Using granolithic floor surface

23.  The floor area of the Workshop was large, with fixtures and storage installations as well as rows of workstations of staff orderly arranged in an open plan manner at the material time. The unoccupied floor space in such layout, including that around the workstations, was the public access. As to Lee’s workstation, clearly whether or not it was occupied by Lee sitting in his chair, the section of the floor behind him, like that of the others, was very much part of such public access for everyone there.

24.  At the time, the floor had a tiled surface. This remained to be the case at the time of the trial except for the parts replaced by granolithic surface. They are identified at the floor plan (exhibit P1), the photographs and, to the extent covered by the site visit, this court’s personal observation too.

25.  What happened was that damage on the floor tiles has been noticed towards the end of 2012 and early 2013. According to Leung, the tiles were found to have cracked and chipped. That included the section of the floor surface where Lee’s workstation was. That caused concern about convenience and safety of the staff. That was reported, and decision was eventually made to repair the damaged part of the floor.

26.  Lee made it his point that the repair by way of granolithic floor surface was actuated by the concern of MTR merely to save money. In other words, propriety and safety were ignored in the decision making process or that granolithic surface was inferior. In his evidence, Leung did not deny the relevance of cost in the consideration. But it was not quite the imputation that Lee seeks to cast.

27.  According to Leung, he has been consulted on the replacement floor surface finishes. Leung explained in court that cracking and chipping off of the tiled surface were caused by the natural thermal expansion, and replacing the damaged parts of the floor with the same tiles on a piecemeal basis would not prevent recurrence. Therefore, overhauling of the entire floor surface was preferable, but the budget for such option was lacking at the time. Considering the technical and safety perspective, the decision to attend to immediate repair of the damaged parts of the floor by way of granolithic floor surface was reached by the management. The damaged parts of the floor, including those along the main corridor leading to and from the main glass door entrance of the Workshop, were so repaired.

28.  Counsel for Lee makes the point that there was no risk assessment in relation to the repair. In this connection, she also argues that adverse inference should be made against MTR on the basis that the person from the management ultimately responsible for making the decision on this matter was not called to testify.

29.  In my judgment, one must view all the evidence fairly.

30.  The issue arising out of the damaged tiled floor of the Workshop faced with by MTR at the material time was the safety and convenience of the use of the floor surface including that as public access around the Workshop floor. In his evidence, Leung explained that he would recommend the granolithic surface finish in view of its widespread use and its adoption by MTR in many of its projects such as its similar electronic workshops. Specifically, such surface finish has been proved to have good anti-slippery quality and durability.

31.  In his evidence, Leung also referred to MTR’s New Works Designs Standard Manual, which was its established internal manual setting out the detailed specifications and standards for design of depots and workshops. Section 8 of the manual, which applied to the Workshop at the time, provided, amongst others, the following general principles to be observed for depot architectural finishes:

(1) Suitability for an industrial facility, ie robustness, durability and ease of maintenance;

(2) Meet the best modern standards of safety, performance and quality;

(3) Constructed as economically and expeditiously as possible;

(4) Provide a safe, clean, efficient and stimulating working environment.

32.  The manual provided that where the above principles were observed, there was scope for designers to propose alternatives. As for floor finish, granolithic surface applicable to the Workshop was specified as being a floor finish in line with these principles.

33.  There is no evidence suggesting inadequacy of the specifications in the manual either by way of comparison with other common, professional or government standards. Nor is there expert evidence to that effect.

34.  There is no allegation or evidence that the use of granolithic floor surface in the past or replacement of the damaged tiled floor surface by granolithic surface in the present case has brought about any risk of safety to the staff there. The staff, as the evidence reveals, also includes two other physically challenged members, though not in exact condition as that of Lee at the time.

35.  In the circumstances, I do not accept the criticism that MTR’s decision in respect of the repair was actuated by mere cost saving consideration. In my judgment, the decision of MTR to repair the damaged parts of the floor of the Workshop by granolithic surface also could not be criticised as the result of the lack of assessment from the perspective of the safety of the users of the Workshop floor, Lee being just one of them.

36.  The case of Lee really boils down to this: regardless of the above, MTR nevertheless was in breach of its duty to him so long as the use of granolithic floor surface would be unsafe to him as opposed to the others. In line with that, Lee complains that MTR carried out the repair to his section of the floor surface without prior consultation with or notice to him.

37.  The same submission on behalf of Lee regarding the lack of assessment of risk of safety to him as opposed to the others is made. However, perception about risk assessment arising out of the reasonable duty of the employer, if relating to a specific employee, still depends on the employer’s state of knowledge about that employee’s circumstances.

38.  Counsel refers to Lee Yam Kan v Ng Pui Kuen HCPI 196/2014 (15 March 2016). Whilst the learned Deputy Judge, with respect, did not actually set out to state any new law in this respect, what he cited from Baker v Quantum Clothing Group Ltd [2011] 1 WLR 1003 at §9 (which in turn cited what the court said about the test of an employer’s liability for common law negligence in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783) is helpful:

“From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows and ought to know; where there is a recognized and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involved. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

39.  In line with the standard of the duty on the part of the employer, the state of his knowledge, be it actual knowledge or what ought to be known, of the relevant circumstances and thus the perception of risk is crucial. What then were the relevant circumstances of Lee, as opposed to those of the other users of the floor surface, known or ought to be known by MTR by the time when it was considering the repair to the damaged floor of the Workshop?

40.  As mentioned, Lee has worked at the Workshop for years prior to the accident. His physically challenged condition must be observable since his employment. All the witnesses for MTR admitted some idea about that in their evidence in court. Dai has also had the experience of walking with Lee for meeting.

41.  There is dispute as to whether Lee would use one or two walking sticks when walking prior to the accident. Counsel for Lee cares to argue that by raising such dispute, MTR’s witnesses tried to downplay the seriousness of Lee’s disabilities. However, in view of this court’s finding in respect of how Lee ambulated prior to the accident, which his colleagues and superior have had the opportunities to observe in the past, the dispute as to the number of walking stick used by Lee is not material. Further, contact between the tip of the walking stick(s) and the granolithic floor surface also did not give rise to any issue insofar as causation with the accident is concerned.

42.  Whilst details are lacking, the evidence was that the condition of two other also physically challenged employees working at Workshop at the time was in relatively less difficult situation than that of Lee. That said, Lee drove to work. For that, MTR arranged for him a free car parking space outside the Workshop, which was also the closest of the parking spaces there to the main entrance of the Workshop. Inside the Workshop, partly for work and partly for personal convenience, Lee did not sit with the rest of his team, and his work station was situated relatively close to the entrance of the Workshop. It may be said that all those effectively addressed the concern about barrier free access for him. Dai in his evidence suggested similar understanding about the arrangement.

43.  Here the relevant risk of safety relates to the type of floor surface finish to Lee as opposed to his colleagues there. Should MTR have been alerted by the observable manner of ambulation of Lee so that assessment should have been conducted of any risk created by such floor surface finish to Lee as opposed to his colleagues?

44.  It is Lee’s own case and evidence that he managed various types of activities such as equestrian, in which he exceled, as well as travelling abroad for attending conferences. Workwise, his own case and evidence was that he was required to travel to Shenzhen with his superior for meeting with suppliers and merchandising. He was also required to carry out field work at different environment, including visiting the depot and even going underneath and climbing up the train.

45.  It was also Lee’s own evidence that every day after parking his car, he got out of the car and walked with his walking sticks towards the glass doors of the main entrance to enter the Workshop. Presumably he did the same the other way round when he left work for the day. He produced photographs that depict the vicinity of his car parking space up to the main entrance of the Workshop. They also depict the exposed ground surface on which he would have come across in his daily trail between the parking space and the main entrance of the Workshop.

46.  The environment and variety of ground surfaces which he has encountered and managed, as a matter of Lee’s own case and evidence, must exceed that which at his workstation caused him the accident in the present case. Details lacking, it cannot possibly be suggested that all of the ground surface finishes in those environments encountered by Lee happened to be materially more slippery or less gripping than the granolithic floor surface used in the Workshop. If anything, I can only tend to believe otherwise.

47.  The accident happened because of the contact between the fringe or sole of Lee’s shoe and the granolithic surface. He complains that the surface was excessively non-slippery or, put in another way, gripping. This however must be understood against the fact that Lee did not, and still does not, wear shoes of special design. He confirmed in court that he wore, and still wear, shoes with rubber sole from the brand ‘Clarkes’, which are readily available for sale for general customers in the market. In other words, there was nothing about the type of shoes which Lee wore or special shoes which he needed to wear, which would give rise to any concern about the friction and grip of the granolithic floor surface to his shoes as opposed to those worn by the others at the Workshop. In his evidence in court, Yeung explained that in his post-accident inspection, and in response to the alleged cause of the accident, he himself, for what was worth, tested the relevant section of the granolithic floor surface and found no excessive friction.

48.  During cross examination of Leung, issue was raised in respect of the workmanship of the repair and the quality of the surface finish of the granolithic floor. Reference was also made to the Design Manual: Barrier Free Access 2008, of which Appendix C sets out the design references of slip resistance for flooring materials and floor finishes. Readily apparent is the context and core concern of the appendix being the potential of the floor finish causing slip and fall, which is quite the opposite of the concern which Lee raises in his case.

49.  It is in the above context that it is necessary for the appendix to state at the same time that excessive slip resistance can also be hazardous since it may create unexpected grip on the surface. However, this does not advance Lee’s case.

50.  First, it goes without saying that excessive condition, be it slippery or slippery-resistant, could be hazardous. The design reference explains in its commentary that slip resistance is based on the frictional force required to keep a shoe heel or crutch tip from slipping on a walking surface. It is generally recognized that the static coefficient of friction varies considerably due to various factors. The right balance to be drawn must depend on the circumstances.

51.  Second, the particulars of breach alleged against MTR were never directed towards the workmanship of the repair and the quality of the surface finishing of the granolithic floor in terms of the balance between slip resistance and grip in the present case. It is not surprising that there was no expert evidence on liability in these respects.

52.  In the present case, there is no allegation or evidence that the balance between slipperiness and grip of the granolithic floor surface in question was not reasonably safe for the users generally. The allegation is that it was not safe for Lee. However, apart from his physically challenged condition and generally his manner of ambulation, Lee cannot point to any condition or feature about himself that should have alerted MTR to the concern about the safety to Lee as opposed to the others arising out of the use of granolithic floor surface in the repair.

Post-repair circumstances

53.  It cannot be disputed that the duty of MTR regarding the safety of the repaired parts of the floor of the workshop continued after the repair. Therefore, if there was cause for concern after the repair, the suitability of the granolithic floor surface could and should still be revisited. If MTR failed in that, which caused the accident, it would still be liable.

54.  Lee’s pleaded case is that after the repair, he had expressly complained to his superior about the potential danger of the granolithic floor surface in tripping him. This was specifically raised with a view to discussion at the JCC Meeting on 28 August 2013. It is common ground that the JCC Meeting was the venue where the views of the staff on virtually any aspects of the Workshop would be represented by their respective group representatives to the management of the different departments of the Workshop. The representative of the group, to which Lee belonged, was Lee CK.

55.  There is no dispute that Lee CK learned about Lee’s complaint about the granolithic floor surface. However, there is dispute as to what about the granolithic floor surface that Lee complained about. Lee’s pleaded case is that he complained to Lee CK about the risk of tripping by the granolithic surface. This is denied by MTR. In this connection, MTR disclosed the relevant minutes of the JCC Meeting where there was record of the complaint about the granolithic floor but only concerning the difficulty in cleaning dirt seeped amongst its granular surface. In his reply, Lee reiterates his case and alleges that either Lee CK failed to relay his complaint in the JCC Meeting or discussion in respect of the complaint was not recorded in the minutes of the meeting. In their evidence, Lee CK and Dai denied Lee’s allegation.

56.  It is common ground that prior to the presenting to the JCC secretary for the compilation of the agenda for the meeting, each group would get together for a pre-meeting to come up with the proposed agenda items for discussion at the JCC Meeting. Insofar as the granolithic floor was concerned, this was indeed raised as an item for discussion at the JCC Meeting on 28 August 2013. The minutes of the meeting recorded the discussion regarding the granolithic floor surface. The complaint recorded was that about the difficulty in cleaning the dirt seeped amongst the grains of such floor surface. There was no record of any complaint about the alleged risk of tripping by such floor surface and thus its being unsafe.

57.  In other words, it was not that the granolithic floor surface was left out of mention at the meeting. Further, what was raised for discussion specifically had to do with the texture of the granolithic floor surface. The chance of the alleged complaint about the safety due to that being left out of mention by mistake, in my judgment, was low. There is of course no suggestion of any reason why the issue of safety due to the texture of the granolithic floor surface would somehow be positively or deliberately withheld from the JCC Meeting.

58.  If the issue of safety due to the texture of the granolithic floor surface were ever raised and discussed at the meeting, the chance of the same being left of the record in the minutes, in my judgment, was equally low. The minutes was by any standard a meticulously prepared record. A comprehensive list of issues was discussed, and the minutes was in details down to even record of discussion in respect of the stock of sub-standard ballpoint pens. Importantly, a section of the minutes recorded a number of items relating to safety issues at work. When the mind of the parties attending the meeting was cast on multiple of issues of safety at work, it was in my judgment most unlikely that they would somehow failed to discuss or record the discussion in respect of any safety issue arising out of the granolithic floor surface when another issue arising out of that was indeed discussed.

59.  In his oral evidence, Lee added that he discovered by chance the minutes of the JCC Meeting mentioned above after his resumption of work in 2015. Seeing what he is now complaining about the inadequacy of the meeting or minutes, he somehow held back voicing out his complaint until he pleaded his case in this respect the way he did as mentioned above.

60.  It is also the pleaded case of MTR that had Lee in fact complained about the safety of the granolithic floor in his circumstances, arrangement could have been made to relocate his workstation in the Workshop. In view of the undisputed special arrangements put in place by MTR to accommodate Lee’s condition and special needs in the past, such plea of MTR on its face sounds credible. That said, no real evidence was adduce to explore this aspect of the case. I therefore say no more.

61.  All evidence considered, I prefer the evidence of MTR’s witnesses on the question of post-repair complaint by Lee about the tripping hazard of the granolithic floor in his special circumstances. I find that he did not make such complaint as alleged.

62.  Where it is found that Lee himself did not complain about the safety of the granolithic floor surface after the repair, the credibility of the whole basis of his case about the risk of safety of such floor surface that MTR is expected to have perceived, and thus the duty of the risk assessment for his purpose as opposed to the general staff there, prior to the repair will also be lacking.

63.  That leaves the general observation by MTR of the daily aftermath of the repair of the parts of the floor of the Workshop by granolithic floor surface. As mentioned, some parts of the corridor of the Workshop were also repaired the same way as that where Lee’s workstation was situated. There was no evidence of accident or complaint about risk of accident arising out of such parts of the corridor.

64.  However, in his cross examination, being questioned by this court, Lee for the first time revealed that on a daily basis, he managed to take an available route (identified by him on the floor plan marked exhibit P1 in his re-examination) between his work station and the toilet and pantry as well as the main entrance of the Workshop without coming across those other parts of corridor with granolithic floor surface. Even assuming that he did so deliberately to avoid those other areas, the route he managed to take was not an unreasonable detour but a readily available and convenient route for his purpose to avoid risk of danger. In his circumstances, what needs to be addressed boils down to the part where his work station was situated. The above discussion refers.

65.  All the evidence considered, I find that Lee fails to prove on balance that the granolithic floor surface where his workstation was objectively dangerous in that it was excessively non-slippery or gripping in his circumstances, so that there was the risk of his shoe being caught by it in the course of moving above it. I find that that the accident in the present case happened the way he alleges does not mean that MTR was not in breach of its duty as employer and occupier of the Workshop. The issue of liability has to be considered as a matter of reasonable duty on the part of the employer. In my judgment, MTR has not acted unreasonably in discharge of its duty in respect of the safety of the repair of the floor surface towards its staff. Nor has it acted unreasonably in discharge of its similar duty towards Lee in his circumstances known or ought to be known by it.

66.  It follows from the above that Lee’s claim fails on liability.

QUANTUM

67.  I proceed to consider quantum for completeness.

68.  The pleaded case of Lee last updated in April 2022 was that the quantum of damages (before giving credit to employees’ compensation received and interest) is nearly HK$11.4 million. That was reduced to less than HK$5.8 million at the time when the trial closed.

Contributory negligence

69.  Had MTR been liable as alleged, I would have found no contributory negligence on the part of Lee when he did nothing extraordinary other than ambulating in the manner which he generally did at the time. It is noted that not much was said in this respect in the submission on behalf of MTR in any event.

Injuries and treatment

70.  Counsel are ad idem in respect of the following account of the injuries and treatment of Lee.

71.  After his fall, Lee was admitted to the hospital. Physical examination revealed numbness over his forearm and hand with weakness of finger flexion/extension. X-ray showed left shoulder dislocation. The diagnosis was brachial plexus injury. There was numbness and pain in his left hand as well as paralysis.

72.  Lee was discharged and transferred to another hospital on the following day. MRI on his left branchial plexus was subsequently done. Partial tear of the coracobrachialis muscle and the subscapularis muscle (ie the arm) was suspected with some bleeding around the site of injury. A haematoma was demonstrated near the left coracoid process, which was in close contact with the cords of the left brachial plexus and mild compression might be present. The MRI also revealed apparent swelling and increased fluid signal of the divisions and cords of the left brachial plexus, which might be due to surrounding soft tissue oedema.

73.  A couple of days later, Lee was discharged and transferred to another hospital. It was recorded that he experienced left hand numbness. The diagnosis was left shoulder dislocation and brachial plexus injury. MRI of his left shoulder revealed a moderate subacromio-subdeltoid bursitis. There was a small left shoulder joint effusion with a mild degree of synovitis. There was thickening and increased fluid signal of the axillary pouch of the shoulder joint capsule suggesting a sprain with or without tearing of the shoulder joint capsule. There was oedema in the soft tissue around the left shoulder which may be related to trauma and/or leakage from the joint effusion or subacromio-subdeltoid bursitis.

74.  There was also minor flattening of the posterosuperior aspect of the left humeral head which may represent a Hill-Sachs defect or focal area of impaction injury related to contusion. There was an underlying marrow oedema suggesting associated bone bruising. There was thickening and increased fluid signal of glenoid labrum from 5 to 6 o’clock positions which may represent contusion / sprain. There were signs of a sprain with / without mucoid degeneration of the rotator interval. There was a high grade if not complete tear of all the fibres of the supraspinatus tendon and moderate tendinosis with / without a sprain of the infraspinatus and subscapularis tendon. There were signs of bursal-sided and articular-sided partial thickness tears of the infraspinatus tendon. There were signs of tearing of the superficial fibers of the subscapularis tendon running over the roof of the bicipital groove. This might account for the medial subluxation of the long head of biceps tendon over the lesser tuberosity. The long head of biceps tendon itself demonstrated signs of moderate tendinosis and longitudinal splitting. There was atrophy of the supraspinatus muscle and to lesser extent the infraspinatus and subscapularis muscles. Lee was treated with a shoulder immobilizer and given physiotherapy.

75.  10 days later, Lee was discharged and transferred back to another public hospital. His chief complaint then was left arm paralysis due to brachial plexus injury after left shoulder dislocation. The problems identified were: (i) left shoulder dislocation associated with left brachial plexus injury; (ii) total left brachial plexus injury with incomplete involvement – retained some functions in C5, C6 and C7 dermatomes and myotomes; with absent C8 and T1 innervated structures (particularly movement and sensation of the left hand and fingers); (iii) rupture of rotator cuff muscles; (iv) associated cervical spondylosis; and (v) a background of poliomyelitis involving the lower limbs.

76.  Intensive physiotherapy targeted for regaining strength in left upper limb and walking ability was provided. So was walking training with the assistance of a hoist. Bracing for his right ankle was provided to improve his right ankle stability.

77.  In January 2014, Lee received ultrasound guided injection of corticosteroid to the left brachial plexus. In late March and early June 2014, ultrasound scanning of left ulnar nerve and median nerve suggested cubital tunnel syndrome and carpal tunnel syndrome of his left hand. Ultrasound guided corticosteroid injection of the left ulnar nerve at the cubital tunnel and median nerve at the left carpal tunnel was performed at the end of July 2014.

78.  Meanwhile, case conferences with rehabilitation teams between February and August 2014 concluded that Lee was unable to be a safe functional community walker. Use of wheelchair was recommended. In August 2014, occupational therapist of the hospital took a work site visit and discussed with Lee’s supervisors on possible modifications.

79.  As assessed by the physiotherapist in mid-September 2014, Lee managed to transfer from the wheelchair to bed independently by pulling and to stand from wheelchair position independently by pushing. Assistance would be required when there was shoulder pain. Under supervision, Lee managed to walk with two sticks fairly satisfactorily with bilateral knocked knee gait. He could tolerate walking 25 metres without rest. He could self-propel normal wheelchair but with low tolerance and there was aggravated shoulder pain. He could manage powered wheelchair on even ground but would need supervision in slope.

80.  Assessment of sensation showed numbness on left ring and little fingers. There was diminished protective sensation on left palm ulnar side; diminished light touch on dorsum of left ring and little fingers, and the palmar aspect of all digits; diminished sensation on ulnar side of palm and muscle atrophy in both thenar and hypothenar regions.

81.  Lee would need assistance in dressing especially after bowel or shower. Upon discharge, helper would be required for activities of daily life and temporary accommodation with disabled toilet / shower and wheelchair accessibility would be required. Job modification and workplace modification would also be required. With such assessment, Lee was discharged from the hospital on 19 September 2014 with outpatient rehabilitation program and power wheelchair arrangement.

82.  Due to complaint about persistent weakness and diminished sensation in the left hand as well as the inner aspects of the forearm and arm, the hospital assessed that it was likely to be a combined cord injury (affecting the medial cutaneous nerve of arm and forearm, from the hyperabduction type of plexus injury (Klumpke type) as well as probably some local carpal tunnel and cubital tunnel syndrome). In late March 2015, Lee was re-admitted to the hospital for left ulnar nerve decompression.

83.  During hospitalization in 2014, Lee was seen by the department of psychiatry. It was found that notwithstanding his poliomyelitis with paraplegia, Lee had adjusted well mentally all along with maintenance of a stable career, marriage and active community services. However, after his injury, his mood was debilitated as a result of its impact on his pre-accident degree of mobility and independence. He became depressed with fleeting suicide ideation. The protracted course of rehabilitation and his increasing dependence on others in daily living as well as his wife’s petition for divorce worsened situation. He was prescribed with antidepressant and followed up by private psychiatric clinic in 2 to 4 weeks’ interval.

84.  As of August 2019, Lee’s depressive illness was found to have persisted with mild improvement. In view of residual physical problems and consequential effect on his work, daily living and mobility, his depression would probably run a prolonged course. Regular and longer term psychiatric treatment was recommended.

85.  Part of the financial arrangement upon the divorce entailed his transfer of his residential property to his former wife. Upon discharge from the hospital, Lee had to move to a serviced apartment at Ma On Shan with temporary and slight modification the accommodation.

86.  Lee has been granted sick leave since the accident until October 2015 and then intermittently since discharge from the hospital up to October 2018.

Current complaints

87.  Lee resumed his pre-accident work and position after his sick leave, and eventually left as such at the retirement age of 60. Lee still complains about residual left forearm numbness with sense of electrical shock sensation and bilateral shoulder pain. There is persistent left hand tremor. He needs assistance in his daily living activities. He is unable to walk on walking sticks for long distance and needs to use powered wheelchair. He could drive no more. He is disturbed by depression.

Orthopaedic expert evidence

88.  On 22 March 2018, Lee was examined by Dr Lee Po Chin (“Dr Lee”) and Dr Ho Ching Lun Henry (“Dr Ho”), the orthopedic experts engaged on his behalf and MTR respectively. The experts produced their joint report dated 20 June 2018. This was supplemented by their further joint reports dated 10 August 2019 and 19 February 2020 as well as their note dated 26 March 2020.

89.  The experts agreed on the diagnosis of left shoulder dislocation, left brachial plexus injury and possible traction injury to the left ulnar nerve (though there may be elements of tardy ulna nerve palsy). As to the left cubital tunnel syndrome as well as the bilateral elbow joint degeneration and shoulder impingement, the experts opined that they were unrelated to the accident.

90.  In the joint examination, the following conditions were detected. There was limited active range of left shoulder movement, generalized weakness of the left upper limb with most antigravity strength retained. There was weakness in the muscles supplied by the ulnar nerve. There was adequate range of movement of the right shoulder though Lee complained about pain. The muscle power was normal in the right upper limb. The left elbow experienced limited range of movement while the wrist movements were full. There was evidence of muscle wasting in the areas supplied by the ulnar nerve at the lower cord. The lower limb experienced bilateral weakness of the quadriceps muscle. Both ankles were frail. The condition was compatible with post-polio deformity with marginal ambulatory capacity. Degenerations of the elbows and shoulders were also detected.

91.  Dr Lee opined that with his left upper limb weakness, Lee would have difficulty in full exertion using his left shoulder especially with manoeuvres above the head. He would have less strength using his left hand to support his body weight in his pre-accident manner of walking. He would encounter difficulty with his left hand reaching his back. There may be more instances of pain during transfer between chair and bed. Lee would no longer be a community walker, and would be wheelchair bound for long distance travel. He would experience impaired ability and pain during elevation of the left shoulder and would notice difficulty in reaching behind his back.

92.  Dr Ho opined that Lee has regained partial function of his left upper limb with the main disability affecting the ulnar nerve which is important for controlling the small muscles of the hand. The power of his left shoulder, elbow and wrist were only mildly weaker, and there was, at most, mild muscle wasting in the left upper limb except in his left hand where there is significant muscle wasting due to ulnar neuropathy. Lee would have difficulty in performing fine tasks with his hand when dexterity is required. He would have difficulty in lifting objects above his shoulder. The passive range of shoulder movement was preserved. There was reduced active shoulder movement and weakness of the left shoulder. He should be able to walk short distance with two walking sticks, which would be adequate for indoor activities. The expert noted that Lee still attended social functions. For outdoor, travelling would be easier by electric wheelchair. He should be able to travel by bus or MTR by himself in the wheelchair. He has adequate ability to clean himself if showering in a sitting position.

93.  The experts were ad idem that the pre-existing condition of Lee would have naturally progressed into to his present wheelchair bound condition. They differed in respect of the timing. Dr Lee opined that but for the accident, this would have happened when Lee reached the age of 70 or 75 whereas Dr Ho opined that this would have happened by the time when Lee reached 65 years old.

94.  The experts agreed that the treatment received by Lee was appropriate and adequate. Specifically, reference was made to the report of findings that Lee has been rehabilitated to a stage where he became able to transfer between the wheelchair and bed as well as between wheelchair and chair without difficulty. The experts agreed that Lee’s condition has reached maximal medical recovery.

95.  The experts noted that Lee has returned to work in his pre-accident position. They agreed that with the difficulty in handling his pre-accident electronics works which required fine hand skills, the arrangement for him to do report compiling work was appropriate, which he should be able to continue to perform. In quantitative terms, Dr Lee and Dr Ho assessed Lee to be suffering from whole person impairment to the extent of 31% and 15% respectively.

96.  Dr Lee opined that the sick leave given was appropriate in the circumstances of Lee whereas Dr Ho opined that sick leave of 1 year should suffice for Lee’s condition to stabilize.

97.  The experts provided their further joint report in February 2020, after being provided with records of a couple of subsequent fall incidents to Lee and the follow up medical records. The experts commented further on the pre-existing degenerative changes in Lee’s left upper limb, from which both saw the chance of development of tardy ulna nerve palsy. Dr Lee opined that but for the accident, that should not have happened until after 12 to 15 years whereas Dr Ho opined that there is a 50% chance that that would have come about when Lee reached 65 years old.

98.  The experts further commented on the bearing of the accident on these subsequent falls and resultant conditions. Dr Lee opined that the impact of the combination of pre-accident conditions and the age of Lee on his ability to ambulate was aggravated by the accident in 2013, which precipitated those post-accident falls and conditions. The need to shift exertion to his right also gave rise to the development of pain on his right wrist and to a lesser extent his lower back. Dr Ho disagreed, referring to the medical record that Lee has been managing his electric wheelchair well and there was no evidence of shift of excessive weight to his right in compensation of his left side weakness. That was reinforced by finding of pain over his left thumb suggesting active use of his left hand in his daily activities after the accident. The post-accident falls, Dr Ho opined, were chiefly attributable to Lee’s pre-existing chronic polio. He further opined that Lee’s left side weakness should stabilize with the minimized physical stress on his left upper limb, now that he would move in his electric wheelchair.

99.  Eventually, the parties reached consensus on the timing when Lee would have ended up being wheelchair bound due to his pre-existing condition in any event at the age of 70. That also removed the need to call the experts to testify at the trial.

Psychiatric expert evidence

100.  On 14 February 2018, Lee was examined by psychiatric experts Dr Law Wun Tong (“Dr Law”) and Dr Hung Bing Kei Gabriel (“Dr Hung”) engaged by Lee and MTR respectively. They produced their joint report dated 23 March 2018, which is admitted without oral evidence.

101.  The experts agreed that Lee suffered from a major depressive episode (“MDE”) after the accident. For that, he has received appropriate treatment and reached maximal improvement. His mental symptoms at the time of the joint examination was mild.

102.  The experts differed on the questions of causation, prognosis and the impairment degree of Lee. On causation, Dr Law considered that the MDE was entirely occasioned by the accident whereas Dr Hung opined that it was 80% occasioned by the accident with the remaining attributing factor being his strained marital relationship even prior to the accident. The fact was that while he was hospitalized, his then wife petitioned for divorce, which was decreed by the time when he was discharged.

103.  Both experts opined that the prognosis should be good, only that Dr Law qualified the good prognosis as guarded with reference to the unfavourable factors such as residual symptoms, compromise of mobility, financial strain and social isolation following the accident. Dr Law assessed the psychiatric aspect of impairment of Lee to be about 5% of the whole person whereas Dr Hung assessed that to be nil.

Joint occupational therapist expert evidence

104.  On 26 September 2018, Lee was assessed by occupational therapists Mrs Alice Tsang (“Mrs Tsang”) and Dr Andy Cheng (“Dr Cheng”) engaged on behalf of Lee and MTR respectively. They produced their joint report dated 28 November 2018, which is admitted without oral evidence. The experts set out their observations and assessments on the impact of the injuries and disabilities suffered by Lee on his ambulation and independence in daily life activities as well as his consequential needs. They are ad idem on a number of items and differ as to some. The difference in the expert opinion will be discussed further below when turning to those items.

Pain, suffering and loss of amenities (PSLA)

105.  The major dispute between the parties lies in first the quantum of damages under this head in Lee’s circumstances, and second the discount, if any, to such quantum on account of his pre-existing condition.

106.  Counsel refer to, amongst others, the following cases as comparables:

Chui Kam Sang v Tao Kee Engineering Co Ltd, HCPI 986/2006 (21 July 2008)

So Yuk Kam v Lau Kam Yuen, HCPI 5/2011 (24 May 2013)

Lee Wai Kin v San Xing (China) Trading Ltd [2019] HKCFI 361

Ho Ho Ming v Tse Po Wah, HCPI 1168/2003 (25 September 2006)

Ho King Lam v Lee Chien Hua, HCPI 45/2006 (22 June 2009)

Ho Shuk Man v Norman Wong [2015] HKEC 1867

Leung Kwun Chuen v Li Shing Kong, HCPI 749/2011 (22 March 2013)

107.  Reference to the above decided cases involves not only a comparison of the injuries, treatments and resultant disabilities of the injured persons, both physical and psychological/psychiatric, but also the consideration of these features in the circumstances peculiar to Lee. In particular, the operation and impact of these features on Lee, in view of his pre-accident condition, personal background and level of pre-accident amenities mentioned above, are relevant. So is the consideration of inflation.

108.  Lee used to be sportive. Notwithstanding his physically challenged state, he did rock climbing, shooting and equestrian, the last of which also took him to training and competition abroad with awards in 2000s.

109.  Lee also participated in social service and travelled to international conferences as well as participated in various committees on the affairs of the disabled persons. He was commended as outstanding disabled person in 2004 and received a medal of honour from the Hong Kong Government in 2009.

110.  Whether or not this was precipitated prior to the accident, the fact was that following the accident, his wife petitioned for divorce and the divorce was decreed by the time of his discharge from the hospital. Consequential upon that, he also lost his original matrimonial home.

111.  All the circumstances considered, HK$900,000 under this head is not unreasonable under this head.

112.  The next question is whether or not and, if yes, to what extent the above sum should be discounted on account of the impact of the pre-existing condition. To recapitulate, the scenarios were explained in the often cited case of Chan Kam Hoi v Dragages et Trauvaux Publics [1998] 2 HKLRD 958:

(1) The first is where the plaintiff was almost certain to have gone through life unaffected by the condition and in such a case the defendant would be liable for all damage caused.

(2) The second is where there is a strong possibility that some other event or natural progression of the condition would have brought about the plaintiff’s present state, and in such a case it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.

(3) The third is where the present condition would certainly have occurred at some stage in any event, and in such a case clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.

113.  At the time of the accident, Lee was 54 years old. There is no real argument about the normal life expectancy applicable to Lee being 80. As mentioned, it is common ground at the trial that even without the accident, Lee would have become wheelchair bound at the age of 70.

114.  Counsel for MTR argues that Lee’s case falls into the third scenario, and suggests a 30% discount. Counsel for Lee argues that the suggested discount is unreasonably high. She argues that the majority of the population, with or without post-polio deformity, might have become wheelchair bound by the age of 70. That is a bold assertion. She also argues that the impact of the accelerated loss of the capacity of a community walker for a person like Lee, in view of his pre-accident background and circumstances, should be considered in different light from the loss of such capacity by natural progression of the pre-existing condition. Counsel for Lee effectively is advocating a qualitative approach to the consideration of the discount.

115.  It is not that a qualitative approach has not been adopted in assessing the quantum of damages for PSLA arising out of both the disabilities as well as the unexpected acceleration of disabilities and its impact. Such impact is considered in the light of both his pre-accident and post-accident circumstances, and the post-accident circumstances also consist of his stage of life.

116.  All the circumstances of this case considered, I find that for the quantum of HK$900,000, a 25% discount should be applied. Hence the award under this head in the sum of HK$900,000 x 75% = HK$675,000.

Pre-trial loss of earnings and MPF

117.  The opinion of Dr Lee and Dr Ho in respect of the reasonable sick leave for Lee mentioned above refers. The realistic view, in my judgment, is that sick leave beyond the time when Lee’s condition became stabilised (which, according to Dr Ho, happened after 1 year) did not immediately become unreasonable. The concern is rather his fitness to resume work.

118.  In respect of Lee’s employment terms, MTR called Ms Leung Mei Yee of its Human Resources Department in place of the originally intended witness who has retired. Her evidence was largely based on company records. Whilst she was somehow also cross examined in respect of her employer’s approach to work environment safety, she made clear that her responses were made on the basis of information she has gathered but not because of the actual involvement of her department. What she managed to testify was not really controversial.

119.  At the time of the accident, Lee earned a basic salary of HK$24,640. He was entitled to monthly laundry allowance, year-end 13^th month pay, lump sum payment for salary scale maximum. He was also entitled to lump sum discretionary award and lump sum performance award. In the 12 months prior to the accident, the average monthly earning of Lee was about HK$30,477.

120.  After the accident, Lee has been granted continuous sick leave from 29 October 2013 to 26 October 2015 and then intermittently up to 8 October 2018. Lee resumed his pre-accident position and worked at the Workshop after his continuous sick leave expired on 26 October 2015.

121.  The basic salary of Lee was raised in July 2014 to HK$25,140, and he was entitled to lump sum payment in the sum of HK$8,710. His basic salary remained unchanged in July 2015 though he received a special lump sum payment of HK$1,000.

122.  After resuming work, his basic salary was raised to HK$26,070. That was slightly raised to HK$26,960 in July 2017 and HK$28,320 in July 2018. Other than that, Lee has received no performance awards or other lump sum payments since his resumption of work after the sick leave. He retired in November 2018 upon reaching the age of 60, which is the normal retirement age of MTR.

123.  Lee claims loss of earnings during the pre-trial period on the basis that but for the accident:

(1) he would have been entitled to higher rates of salary increase during the period;

(2) he would have been entitled to the various allowances, lump sum payments and discretionary awards during the period;

(3) his retirement would have been deferred for up to 5 years from 16 November 2018;

(4) further or alternative to (3) above, he would have been engaged in alternative employment after retirement from MTR.

124.  It is common ground that the rate of salary increase as well as entitlement to lump sum payment and discretionary awards would depend on yearly staff appraisal. So would (at least partly) the prospect of deferment of retirement be. Lee essentially contends that but for the accident and its impact, not only would appraisals on him have been carried out but they would also have yielded results entitling him to better payment terms during his remaining tenure and to secure deferment of retirement.

125.  The fact was that due to the continuous sick leave since the accident, Lee was absent from duty for 8 months in the appraisal year 2013/2014. He was also absent from the entire appraisal year of 2014/2015. His overall and values ratings for these appraisal years were 3 (on a scale of 1 to 5) meaning he met the job requirements. He was not eligible for basic salary increase for the year commencing July 2015. Nor was he entitled to any lump sum or discretionary payments for that appraisal year (except for the special payment mentioned above). Appraisal of Lee resumed after his return to work in 2015. In the appraisal years of 2015/2016 and 2016/2017, his overall ratings remained 3. His salaries for those years were increased, but no other lump sum payments or awards were given.

126.  Lee attributes the compromise in his performance and the results of his appraisals to the accident and his residual disabilities. The fact was that job modification was suggested and made after his resumption of work. He claims to have been able to attain higher overall rating of at least 4, meaning he exceeded the job requirements as he did in 2012/2013, but for the accident. He also claims to have been entitled on this basis to annual basic salary increase of at least 5% as well as the other lump sum and discretionary payments, but for the accident.

127.  To assess the probability of the prospect projected by Lee, both his pre-accident appraisal pattern and post-accident circumstances are relevant. Whilst it is true that Lee was given overall rating of 4 in 2012/2013, his overall ratings for the preceding years since 2005 varied between 3 and 4. The record shows no pattern of constant ratings of 4 for the appraisal years immediately prior to the accident.

128.  In this respect, issue was taken in the course of the evidence as to whether Lee was assigned work under another superior on a project base instead of his own superior. However, according to the evidence of Dai, the appraisals were carried out upon consultation with the responsible superior(s) anyway.

129.  There was also evidence as to certain understanding as to the so-called quota of overall rating of 5 for a given appraisal year. However, that could only be sensibly understood to refer to the reality that the performance level across the board would affect the ratings for a given appraisal year. That seemed to be Dai’s understanding as well. At the end of the day, the system, insofar as it was relevant to the payment terms of the staff, remained operating on the basis of the ratings between 1 and 5 actual given. There is no real question of whether Lee was in fact good if his rating was 4 or in fact bad if his rating was 3.

130.  As such, notwithstanding his self-awareness of compromised working capacity after the accident, he was given overall ratings which reflected MTR’s acceptance that he managed to meet his post-accident and probably adjusted job requirements. However, it does not follow, as a matter of logic or factual likelihood in the circumstances, that he would have secured higher than 3 overall ratings for his performance in the normal course of events but for the accident. All the evidence considered, I am not satisfied that Lee manages to prove his projected appraisal overall ratings for all the years until his retirement but for the accident.

131.  Lee claims pre-trial loss of earnings and MPF in the total sum of HK$1,395,770. MTR avers that it should not exceed HK$880,817. The parties eventually agree the sum at HK$817,464. That said, the above discussion remains relevant to the following discussion in respect of Lee’s claim for loss of earning capacity.

Loss of earning capacity

132.  On 16 November 2018, Lee attained the normal retirement age of 60. However, he contends that but for the accident, his retirement would have been deferred for up to 5 years. MTR disagrees, contending that he would not have met the relevant requirements for deferred retirement even without the accident.

133.  The retirement policy of MTR set out the applicable situations and criteria for deferred retirement. A basket of factors would be taken into account but deferred retirement would be offered only if there was succession problem, recruitment difficulty or need for specialized skill for a particular job function which could not be found in the market. The case of MTR is that Lee did not fall into any of these categories to warrant deferred retirement at the material time.

134.  Contrary to his suggestion that he was heavily involved in certain project, MTR’s case is that Lee was not involved in any special project which would require his retention for irreplaceable continuity. The objective evidence in respect of his appraisals discussed above refers. He has managed to meet and at times exceeded his job requirements. Nevertheless, the fact, according to the evidence, was also that he has made but not succeeded in any of his three applications for promotion prior to his accident.

135.  Lee also contends that even assuming that his retirement would not have been deferred at all or for full 5 years, he would have been able to obtain alternative employment after retiring. He has lost such opportunity as a result of his post-accident disabilities, for which he claims loss of earning capacity in the form of a real risk of disadvantage in the market for alternative job. He claims to be entitled to a lump sum of HK$720,000, representing approximately 2 years’ earnings, in any event.

136.  Referring to what the court said in Leung Yiu Ming v Wong Chi Wa [2019] HKCFI 2935, counsel for Lee submits that what he needs to prove is a significant chance or real prospect, which could be less than likely, that he would be subject to such handicap in the labour market. I see no real dispute regarding that. Principle and semantics aside, the real dispute is whether the evidence suffices for his purpose.

137.  The relevant evidence is not so much that of attempt by Lee to seek such alternative employment as submitted by counsel for MTR (referring to the classic principle of Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132). Rather the court expects evidence of opportunities of such alternative employment and the prospect of his being able to secure those opportunities but for his post-accident disabilities.

138.  Evidence in respect of alternative employment opportunities to be found in the contractors of MTR was elicited from the witnesses at the trial. However, none of that came close to providing any actual details and none of them could be said to be concrete. The fact was that the employment of Lee by MTR has all along involved not merely his qualification and ability to meet his job requirements but also special accommodation and provision by MTR to facilitate his employment on a daily basis in his physically challenged state and hence special personal needs. The availability of such accommodation and provision afforded by MTR cannot be readily assumed to be equally the norm in the case of its contractors or other employers for the purpose of Lee’s post-retirement employment in his pre-accident circumstances. All those would have affected his opportunities in any event. To substantiate the opportunities and prospect of such alternative employment after his retirement in his pre-accident circumstances, Lee is expected to come up with more concrete evidence than that of mere possibilities.

139.  Counsel for Lee also refers to Wong Tang Keung v Lee Wai Engineering Company Limited CACV 165/2012 (13 May 2013). There the plaintiff resumed his pre-accident job after sick leave but was dismissed before his normal retirement age. The appellate court found that the plaintiff should be entitled to compensation for his loss on the basis that he could have sought alternative employment up to his normal retirement, but was at a disadvantage as a result of his post-accident disabilities. That judgment differs from the present case both in terms of the circumstances of Lee and the state of the relevant evidence.

140.  All evidence considered, including those discussed above, I am not satisfied that Lee has substantiated this head of claim.

Pre-trial care and attention

141.  Lee claims cost of his care and attention since his discharge from the hospital until now. Such care and attention is essentially justified by reference to his need for assistance in daily life activities. This is questioned with reference to the record of the progress of his recovery and abilities in daily life activities as well as the orthopaedic expert opinion.

142.  In my judgment, a realistic view of the situation is that engagement of domestic help in the circumstances of Lee was not unreasonable, notwithstanding certain extent of his mobility. That this might not have been the case prior to the accident must be viewed in the light of his pre-accident circumstances, including his relative mobility without wheelchair and his residence with his wife at home. These circumstances have all changed for the worse by the time when he was discharged from the hospital. He was divorced from his wife and lost his residence. He had to move into a serviced apartment. He has had the help of his friend, Ms Ivy Law (“Law”), since his hospitalization and also subsequent to his discharge as a matter of fact.

143.  For the period until his resumption of work on 27 October 2015 and that from his retirement on 16 November 2018 until now, he claims at the monthly rate of HK$7,000. For the period between his resumption of work until his retirement, he claims at the monthly rate of HK$3,000. It was made clear that such rates represented the value of such services provided by Law. In his evidence, he confirmed that he did not actually pay Law for her assistance except for reimbursement of expenses for him. In my judgment, that does not disentitle Lee from such claim.

144.  MTR proposes the rates of HK$2,000 and HK$3,000 for hired help during the period when Lee was at work and that when he was not at work respectively. I find these proposed rates to be unrealistic. I accept the rates claimed by Lee. As such, the amount claimed for those periods in the sum of HK$508,610 would be allowed.

Pre-trial special damages

145.  Several items of the special damages in dispute were eventually agreed by the time when the trial closed. I should however mention one of them, as it involves more than just a matter of amount.

146.  Amongst others, Lee is said to have participated in the pilot scheme for the spinal cord injury rehabilitation at the University of Hong Kong deploying the fairly recent exoskeleton equipment for over-ground walking training since May 2021. Claim for the cost of that incurred and for the future was advanced in the revised statement of damages.

147.  It is the liberty of the patient to seek medical treatment. There may also be growing attention in Hong Kong to exoskeleton training. However, when the cost of that is claimed, it remains the burden of Lee to prove it and its reasonableness. For MTR at the receiving end of that, it is not so much about disputing the fact that Lee has undergone such training or its cost incurred. It is their reasonableness, which is expected to be substantiated by medical expert evidence of the relevant discipline. Obviously those acting for Lee realized that. Hence their soliciting the medical report of the doctor involved from the Department of Orthopaedic and Traumatology of the Faculty of Medicine of the University of Hong Kong dated 15 February 2022.

148.  The difficulty is that no leave for such medical expert evidence has ever been sought. The report sought to be adduced on behalf of Lee is therefore unilateral. The training or such evidence was also not referred to by the medical experts whose opinion evidence was before the court. This is not without significance, when the orthopaedic experts came to the view that Lee has reached maximal medical improvement and no further treatment would be necessary, and the occupational therapists have not had the chance of commenting, let alone recommending such advanced training programme. Therefore, such evidence is inadmissible in these circumstances for the purpose of substantiating the reasonable necessity of such training.

149.  Eventually Lee abandoned this item of claim. The pre-trial special damages are also agreed at the total sum of HK$190,621. Inclusive of agreed pre-trial travelling expenses, the total amount of pre-trial special damages would be HK$390,621.

Post-trial care and attention

150.  The above discussion in respect of Lee’s need of care and attention refers. Relying on the joint occupational therapists’ recommendation, Lee claims cost of his post-trial care and attention at the monthly rate of about HK$14,800. This would be the cost on the basis of hiring a live-in foreign domestic helper. The amount is a double of the monthly rate of pre-trial cost of care and attention. The major reason accounting for that, as counsel for MTR notes, is the recommendation of the therapists from their perspective for the best possible arrangement for the plaintiff, such as the provision of trained relief personnel during leave. There would also be concern about growing needs as Lee ages. That said, what is proposed on behalf of MTR on the basis of 25-hour part-time domestic help would amount to about HK$12,000 per month. The different bases of the parties’ projected cost aside, I find that the amount proposed by MTR may not be the best from the experts’ perspective but certainly reasonable.

151.  As also discussed, the pre-existing condition of Lee would have caused him to become wheelchair bound and to cease to be a community walker at the age of 70 even without the accident. As held in Chan Kam Hoi (above), when calculating the damages for future loss of earnings, a reduced multiplier is usually the proper approach. The same applies to this item of claim in these circumstances.

152.  The applicable multiplier of 6.29 is eventually agreed. Applying that, the post-trial cost of care and attention would be HK$12,000 x 12 x 6.29 = HK$905,760.

153.  As to the claim for the cost of a case manager, Lee abandons that at closing. I would not have allowed this item in his circumstances in any event. This is not the kind of case where the plaintiff is incapable of noting or sounding out his needs. Nor is mental incapacity involved. With the claim for other post-trial care and attention as well as therapies allowed, the prospect of the need for intervention of a case manager is simply not made out.

Future treatment

154.  The reduced multiplier applies to the cost of future treatment. The following items are agreed:

(1) psychiatric treatment at the cost of HK$19,500;

(2) physiotherapy at the cost of HK$75,012;

(3) occupational therapy at the cost of HK$70,120;

(4) avocational or vocational activities at the cost of HK$25,160.

155.  Lee claims future orthopaedic consultation and medication at the rate of HK$1,000 each for 4 times a year. The record shows that Lee has been attending the Prince of Wales Hospital for its “Allied Health modalities/procedures – Physiotherapy” regularly. Yet in view of the lack of recommendation for future orthopaedic treatment by the orthopaedic experts and the allowance for future physiotherapy treatments, I am only prepared to allow a nominal sum on the basis of occasional othopaedic consultation and medication in case of need or alternatively annual consultation. At the unit rate of HK$1,000, the amount allowed for twice a year would be HK$1,000 x 2 x 6.29 = HK$12,580.

156.  The claim for the cost of myofascial technique treatment is equally not made out. Mrs Tsang advised that that may be provided whereas Dr Cheng advised that that would not be necessary. Lee has not only never received but also even not heard of such treatment. This item of claim is eventually abandoned.

157.  Nor is the claim for the cost of clinical psychologist treatment made out. The recommendation in this respect actually came from the occupational therapists, which was outside the relevant discipline in respect of which the expert opinion was solicited. The psychiatrists made no such recommendation. The cost of future psychiatric treatment, though not identical, is already allowed. Eventually this item of claim is also abandoned.

158.  As mentioned, the claim for exoskeleton training and its incidental traveling expenses is abandoned.

Assistive devices, consumables and non-medical equipment

159.  The first disagreed item under this head is the portable folding ramp. According to the occupational therapists’ suggestions, the annual cost of such a ramp would either be HK$875 (claimed by Lee) or HK$240 (accepted by MTR). Comparing the information respectively provided by the experts in support of the suggested cost and the principle of mitigation on the part of Lee as the plaintiff, I see nothing unreasonable in choosing the more economical one of the two ramps suggested by the experts respectively. Hence HK$240 x 6.29 = HK$1,509.60.

160.  The second disagreed item under this head is the installation of an overhead trapeze for support during transfer between wheelchair and bed. The occupational therapists suggested different brands with different cost. Apart from the exercise mentioned in the preceding paragraph, this court would also consider that whilst the one recommended by Lee’s expert would be due for replacement every 5 years whereas that by MTR’s expert would be due for replacement every 4 years, the former would cost 3 times the latter. This court would allow the one recommended on behalf of MTR. Hence HK$275 x 6.29 = HK$1,729.75.

161.  The third disagreed item under this head is the installation for sturdy structure. Mrs Tsang recommended this for support during Lee’s transfer whereas Dr Cheng opined that this is not necessary. Relevant to this is what counsel for MTR points out to be the improvement of Lee’s ability in handling transfer as recorded in the various medical records. Even putting that aside, this item, albeit disputed, was not actually explained at the trial. In the explanation concerning modification of accommodation in the joint report, there was reference to construction of sturdy furniture for support during transfer. The precise type and form of the structure, as opposed to furniture, being recommended is just unclear particularly if this is said to assist transfer which could happen at any location within home during the day. In the circumstances, it is difficult to accept that the item is proved.

162.  The last disagreed item is the claim for reverse cycle air conditioning unit for the bedroom and living room at an annual cost of HK$5,000. The concern raised by Mrs Tsang is that temperature variation is a potential pain provoking factor. However, Dr Cheng opined that a standard air conditioning unit (which is expected to come with the rented accommodation) should be well equipped for the purpose. Further, the agreed use of a heater to address the temperature difference in the bathroom also causes this court to believe that all parts of the accommodation are catered for insofar as temperature difference is concerned. I therefore find that it is not reasonable to allow this item in addition.

163.  Together with the other agreed items, also adopting the same multiplier in calculation, this head of claim would be as follows:

(1)	Powered wheelchair:	HK$64,849.90
(2)	Manual wheelchair:	HK$13,649.30
(3)	Wheelchair cushion:	HK$4,654.60
(4)	Portable ramp:	HK$1,509.60
(5)	Shower chair:	HK$2,138.60
(6)	Grab rails:	HK$2,201.50
(7)	Drop down grab rail by toilet:	HK$1,887.00
(8)	Urinal with lid:	HK$880.60
(9)	Overhead trapeze:	HK$1,729.75
(10)	Exercise for upper and lower limbs:	HK$2,893.40
(11)	TENS:	HK$4,025.60
(12)	Electric warming pad:	HK$1,195.10
(13)	Disposable warming pads:	HK$13,775.10
(14)	Hand orthosis:	HK$6,290.00
(15)	Foot orthosis:	HK$6,290.00
(16)	Heater:	HK$11,636.50
	Total:                                                          say	HK$139,607.00

Alternative accommodation

164.  As mentioned above, reference is made on behalf of MTR to the ability of Lee to handle transfer in his daily life activities since resumption of work until retirement. That includes the various medical records of the orthopaedic doctors and physiotherapist recording the improvement of his ability to handle transfer of body and walking with minimal support for reasonable distance under control environment. Whilst Lee is no longer a community walker, it is suggested that he is not wholly dependent on wheelchair at home. That, MTR suggests, has bearing on the consideration of the claim for alternative accommodation of a larger space.

165.  In my judgment, even on the basis that Lee is capable of ambulating at home, this cannot be taken as a constant situation. So long as he would have to rely on wheelchair to move around, albeit not all the time, the space would have to accommodate that. The reasonable requirement necessitated by that would have to apply to different corners where he would generally need to reach. I can therefore see the sense of Mrs Tsang’s opinion that provision for the accommodation needs of Lee to take both scenarios into account.

166.  The occupational therapists in their joint report provided their respective opinion on the necessary size of the accommodation on the basis that Lee is unable to ambulate at home but is wheelchair bound. Mrs Tsang suggested about 732 square feet whereas Dr Cheng suggested about 538 square feet. As mentioned, there was also opinion on the need for modification of the accommodation.

167.  While the experts gave their opinion on the size of the space required, the actual configuration of the alternative accommodation, which is unknown, would affect the reasonable use. I would therefore be prepared to adopt the more generous of the two recommendations insofar as the size is concerned.

168.  Lee pleaded the monthly rent of HK$32,000 and hence an extra rental amount required in the sum of HK$14,000 on top of his current rental amount of HK$18,000. However, there is no evidence, be it from his witness statement or the documents, in support of the projected rental amount. Counsel for MTR submits that as the court should not be expected to take judicial notice of the relevant rental level, the lack of evidence of that would mean Lee fails to prove the claim. I agree with the first part but not the second part of this submission on behalf of MTR.

169.  Where the fact, as found, is that Lee is entitled to seek alternative accommodation of a particular size larger than his present one, he would be bound to pay a higher rent for that. The lack of direct evidence on the rental level does not, as it should not, prevent the court from doing its best in the assessment. Lee is paying HK$18,000 per month for his current accommodation of about 432 square feet (according to the joint occupational therapists’ report) or a unit rent of HK$42 per square foot. At a similar unit rent, an alternative accommodation of about 732 square feet may call for a monthly rental of about HK$30,000. Other variables unknown, this (rough) approach, in my judgment, is not inconsistent with the circumstances of Hong Kong of which the court is entitled to take judicial notice. In any event, doing the best this court can, I adopt for the assessment an extra monthly rent in the region of HK$12,000. Adopting the agreed multiplier, the amount would be HK$12,000 x 12 x 6.29 = HK$905,760.

Future travelling expenses

170.  MTR disagrees with the amount claimed on the basis that Lee would have had to incur expenses for his own driving even without the accident, and therefore he could only be entitled to claim extra travelling expenses as a result of reliance on hired services. This must be right. Lee eventually accepts the sum of HK$452,880 offered by MTR.

Summary

171.  The quantum as assessed would be as follows:

PSLA	HK$675,000
Pre-trial loss of earnings and MPF	HK$817,464
Pre-trial special damages (inc. travelling expenses)	HK$390,621
Pre-trial care and attention	HK$508,610
Post-trial care and attention	HK$905,760
Future treatment	HK$202,372
Future aids, consumables and equipment	HK$139,607
Future travelling expenses	HK$452,880
Future alternative accommodation	HK$905,760
Total:	HK$4,998,074

172.  Interest on general damages would run at 2% per annum from the date of writ until judgment while that on special damages would run at 4% per annum from the date of accident until judgment. Credit will have to be given to the employees’ compensation received in the sum of HK$1,295,041.06. Post-judgment interest would run at the judgment rate until full payment.

ORDER

173.  Failing on liability, the claim is dismissed.

174.  Following this event, I make a nisi order that MTR should have its costs of the action, including any costs reserved, to be taxed, if not agreed. Lee’s own costs shall be taxed in accordance with legal aid regulations. In the absence of application for variation in 14 days, the nisi costs order shall become absolute without further order of the court.