TSANG TSUN KEUNG v. KO WANG INTERNATIONAL TRADING LTD t/a KO WANG DESIGN ENGINEERING CO AND ANOTHER

HCPI 373/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 373 OF 2009

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BETWEEN

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J U D G M E N T

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Introduction

1.  The Plaintiff in this action was a plumber by occupation at the time of the accident hereinafter mentioned which occurred on 9 May 2007.  He brought this action on 18 April 2009 against the 1^st Defendant, his employer at the time of the accident, for damages for personal injuries which he suffered in the accident.  The 2^nd Defendant was the insurer under an employees’ compensation policy issued in favour of the 1^st Defendant.  By an order of Master J Wong dated 19 May 2009, the 2^nd Defendant was joined as a party to this action upon its own application made on 7 May 2009.

2.  On 12 February 2010, interlocutory judgment on liability with damages to be assessed was entered against the 1^st Defendant.

3.  At the commencement of the trial, Mr Sham for the 2^nd Defendant informed the Court that his client would consent to judgment on liability being entered against it.  Accordingly, the remaining issues for determination by the Court all relate to the assessment of damages claimed by the Plaintiff.

The accident

4.  On the date of the accident on 9 May 2007, the Plaintiff was working in certain factory premises at 37-53 Wang Lok Street, Yuen Long Industrial Estate, Yuen Long.  At the material time, he was working on a ladder and was engaged in the dismantling of pipes at the ceiling of the factory premises, in the course of which he fell from a height of about 3 metres to the floor, landing on his left foot, thereby sustaining injuries to his lower back and left ankle.  In view of the fact that liability is no longer in dispute, it is not necessary for me to refer to the circumstances of the accident in detail in this judgment.

The treatment

5.  According to the Plaintiff, immediately after the accident, he was sent to the Accident and Emergency Department of Tuen Mun Hospital for treatment.  He complained of low back pain and left ankle pain. Physical examination revealed tenderness over the lower back and at the left ankle region with swelling.  X-ray over the lumbar spine region revealed collapsed second lumbar vertebral body.  He was diagnosed to have fracture of the L2 vertebra and left ankle soft tissue injury.

6.  On the same date, the Plaintiff was transferred to the Department of Orthopaedics and Traumatology of Tuen Mun Hospital for further management.  The Plaintiff was treated conservatively, with analgesics, physiotherapy and later occupational therapy.  He was also treated with thoracolumbar orthosis for about 3 to 4 months.

7.  The Plaintiff was discharged from Tuen Mun Hospital on 16 May 2007, and attended follow up treatment at the Department of Orthopaedics and Traumatology Department of Tuen Mun Hospital up to 27 September 2007, and thereafter at the Department of Orthopaedics and Traumatology Department of Princess Margaret Hospital as from 15 October 2007.  The last sick leave certified by the Department of Orthopaedics and Traumatology of Princess Margaret Hospital was up to 31 March 2008.  I shall return to this matter later.

8.  The Plaintiff received physiotherapy treatment at Pok Oi Hospital during the period from 15 August 2007 to 10 October 2007 for a total of 8 sessions, and at Princess Margaret Hospital from 23 October 2007 to 1 February 2008 for a total of 25 sessions.  The Plaintiff was also referred to the Occupational Therapy Department of Princess Margaret Hospital for work assessment and training in August 2007, with training sessions (36 sessions in total) carried out from 31 August 2007 to 21 December 2007.

9.  The Plaintiff received further physiotherapy treatment at Princess Margaret Hospital from 13 August 2008 to 2 March 2009 (25 sessions) and again from 14 July 2010 to the present.

10.  Currently, the Plaintiff attends follow up treatment at the Department of Orthopaedics and Traumatology of Princess Margaret Hospital approximately once every 6 months, and physiotherapy approximately once every 2 weeks.  In addition, the Plaintiff attends the Accident and Emergency Department regularly, a matter which I will now turn to.

The Plaintiff’s abuse of the services provided by the Accident and Emergency Department of Princess Margaret Hospital

11.  As mentioned above, the last sick leave certified by the Department of Orthopaedics and Traumatology Department of Princess Margaret Hospital on 17 March 2008 was up to 31 March 2008.  According to the Plaintiff, he was told by the treating doctor on that occasion that he would not be given any further sick leave but was not told why no further sick leave would be given.  In the “ORTH Team A2 General Consultation Summary” prepared by Dr Ho Wing Hang Angela of Princess Margaret Hospital on 17 March 2008, it was noted that the Plaintiff could walk unaided, could walk for 1 hour, had occasional low back pain, did not need analgesic and had no weakness.  Physical examination showed no tenderness on the Plaintiff’s back, straight leg raising was up to 80 degrees on both side, there was full power in his legs, and there was no tenderness in his left ankle.  It was also written that “physio: suggest discharge”, which I understand means the physiotherapist considered that the Plaintiff did not require further physiotherapy treatment.  I infer that no further sick leave was to be given because the treating doctor considered that the Plaintiff had sufficiently recovered from his injuries and thus no further sick leave could be justified.

12.  What happened thereafter was that the Plaintiff attended the Accident and Emergency Department of Princess Margaret Hospital on a regular basis, roughly once every week, and obtained sick leaves continuously from 31 March 2008 up to the present.  According to the Plaintiff, he did so because he felt pain in his back, and in order to get medications.  When it was put to him by counsel for the 2^nd Defendant that he could, and should, have gone to an outpatient clinic for treatment and medications if there was indeed a need to do so, the Plaintiff said that there was a limited daily quota on the number of patients who could receive treatment at the outpatient clinic, and he would have to queue up for a long time before he could get to see a doctor.  The Plaintiff also denied the suggestion put to him by counsel for the 2^nd Defendant that he attended the Accident and Emergency Department in order to get sick leave certifications.  The hospital notes of the Accident and Emergency Department of Princess Margaret Hospital indicate that on a number of occasions, the Plaintiff did expressly ask for sick leave certifications from the treating doctors.

13.  The Plaintiff has produced a large bundle of sick leave certificates issued by Accident and Emergency Department of Princess Margaret Hospital during the period from 31 March 2008 to 14 October 2010. There are over 130 such sick leave certificates produced as evidence, meaning that the Plaintiff attended the Accident and Emergency Department of Princess Margaret Hospital on more than 130 occasions during a period of about two and a half years.  It is apparent that the Plaintiff has abused the services provided by the Accident and Emergency Department and treated it as a convenient place for obtaining medications and/or sick leave certificates.  I do not rule out the possibility that on a few occasions the Plaintiff might have felt genuine pain and would require treatment, but the pattern of his attendances at the Accident and Emergency Department strongly suggests that the Plaintiff sought treatment from the Accident and Emergency Department indiscriminately, even though the Accident and Emergency Department is intended for accident and emergency cases only.

The surveillance evidence

14.  Unknown to the Plaintiff, he was filmed by investigators engaged by the 2^nd Defendant on two occasions on 9 and 23 June 2009.  The DVD recording the surveillance was admitted as evidence and played in court without any objection by the Plaintiff.  On the first occasion the recording took place from 10:57 am to 11:22 am with certain gaps in between, and on the second occasion the recording took place from 11:56 am to 12:09 am also with certain gaps.

15.  In the recording, the Plaintiff can be seen walking, sitting, getting up from a sitting position (which was almost the same as a full squatting position), and descending staircases without any difficulty or aid.  If one watches the recording without any preconception, it seems to me fair to say that the Plaintiff behaved just like any ordinary person that one would come across in the streets without any obvious signs that the person was experiencing any discomfort or pain, or had any difficulty in walking, sitting, squatting, getting up from a full squatting position, or descending staircases.

16.  It is right to point out that the Plaintiff was seen to be walking quite slowly in the recording.  However, the Plaintiff was not doing anything in particular (he was smoking and reading newspapers in public areas) and had no reason to be in a hurry.  I do not think one can infer anything from his slow pace.

17.  Miss Lam for the Plaintiff has understandably criticised the weight that one can place on the surveillance evidence in view of the gaps in the recording.  However, there was no challenge on the admissibility of the DVD, and there is no evidence that the recording has been tailored in such way in order to present a distorted picture.  In assessing the weight that should be given to the surveillance evidence, I bear in mind the existence of the gaps in the recording, but I consider that the proper approach is to concentrate on what one can see and not speculate on what may be missing.  I consider that the surveillance evidence shows that the injuries that the Plaintiff suffered no longer caused him any or any material limitation of bodily movement.

18.  In his evidence, the Plaintiff alleged that had the recording been taken or produced continuously without the gaps, it would have revealed that on occasions he was messaging his back to soothe his back pain.  However, I do not accept that the Plaintiff could have any distinct recollection as to what he might have been doing during the times when the recording was broken.

19.  The Plaintiff also said, in an attempt to explain why he appeared to be more swift in his motions on 23 June 2009 compared to 9 June 2009, that he had taken pain killers on 23 June 2009 but not on 9 June 2009.  However, as mentioned above the Plaintiff did not know that he was being filmed at the time, and it appears that the DVD was first disclosed to the Plaintiff’s solicitors in November of that year. Although the Plaintiff claimed that he had watched the recording many times since, I am unable to accept that he could remember whether or not he had taken pain killers on any particular day in mid 2009.  In this regard, the Plaintiff confirmed that he did not keep any records of the days on which he took pain killers.

The Plaintiff’s exaggeration of his complaints

20.  It is, in my view, clear that the Plaintiff exaggerated his complaints and/or symptoms both at the time of the joint examination conducted by Dr Wong (Plaintiff’s expert) and Dr Lau (2^nd Defendant’s expert) on 9 February 2009, and in his evidence.

21.  In the joint examination, he told or demonstrated to the doctors, inter alia, that:-

(1) he had continuous pain at the thoracolumbar junction of his back, and tenderness over the L1 and S2 levels of the spine and adjacent muscles on both sides, more severe on the left side (described in the joint medical report as diffuse tenderness over the whole region of the lumbar spine and upper half of the sacral spine);

(2) he felt twitching of the left thigh whenever the back pain worsened;

(3) he had to hold onto the rail when climbing stairs;

(4) he had to walk with the help of a stick when going out;

(5) he needed support when changing from sitting to standing positions;

(6) he could not stand on tiptoes or on heels;

(7) he could not stand on either one leg alone;

(8) he could only squat to half full;

(9) his fingers could only reached the knee cap on flexion of the lumbar spine;

(10) he felt severe pain when subjected to shoulder compression and pelvic rotation (Waddell’s inorganic signs);

(11) he had 30% decrease in touch sensation circumferentially for the entire left lower limb from hip downwards.

22.  As regards his complaints relating to restrictions of his movements, they are inconsistent with the “ORTH Team A2 General Consultation Summary” prepared by Dr Ho Wing Hang Angela of Princess Margaret Hospital on 17 March 2008 mentioned above, the “OT Rehabilitation Outcome Reports” prepared by occupational therapists at Princess Margaret Hospital in respect of assessments carried out on 23 November 2007 and 21 December 2007, and what one can observe from the surveillance recording mentioned above.

23.  In respect of the complaint of diffuse tenderness over the whole region of the lumbar spine and upper half of the sacral spine, Dr Lau’s evidence (whose view is more or less shared by Dr Wong) is that if the Plaintiff had any pain or residual pain, it should centre around the L2 region and should not cover a wide area of the lumbosacral spine, and this points to exaggeration of complaints by the Plaintiff.

24.  As regards the complaints of twitching of the left thigh and the 30% decrease in touch sensation circumferentially for the entire left lower limb, Dr Lau’s opinion, which I accept, is that they are inconsistent with the finding from neurological examination that no motor deficit was detected.

25.  As regards the observation of multiple positive Waddell’s inorganic signs, both doctors agree that Waddell’s tests are commonly carried out by specialists in orthopaedics to determine whether there is any medical explanation for the complaints of pain by a patient.  Dr Lau considers that the observation of multiple positive Waddell’s inorganic signs in the Plaintiff’s case indicates the possibility or likelihood of exaggeration of the complaints.  Dr Wong suggests that there could be other psychological or social factors which may lead to the positive Waddell’s inorganic signs, but no such factor has been suggested by the Plaintiff or his counsel.  I would treat the positive Waddell’s inorganic signs as one of the factors leading to my conclusion that the Plaintiff has exaggerated his complaints.

26.  In the joint examination report, Dr Wong agreed that “Mr Tsang may have exaggerated his symptoms during the examination” but said that “it is understandable for distressed patients to overstate their symptoms in order to draw attention”.  In cross examination, Dr Wong clarified that the latter statement was only a general statement; he was not saying that the Plaintiff in this case exaggerated his complaints because of any distress or in order to draw attention.  Anyhow, it is not the Plaintiff’s evidence that this was the case; he denies that he exaggerated his complaints.

27.  In his witness statement which the Plaintiff adopted as his evidence, the Plaintiff said that both his back and left ankle were weaker than previously and he would suffer discomfort and pain for several days after moderate walking, the active range of movement of his left ankle and his trunk flexibility were decreased, his standing and walking tolerance were decreased, he had left leg spasm from time to time since February 2008, and there was also decrease in his bilateral arms pushing, pulling and lifting ability. In his oral evidence, the Plaintiff said that he still had pain in his low back, left buttock and left ankle region.  When he was asked to indicate the severity of the pain using a scale of 1 to 10, he said that his pain in the low back and left buttock would be around level 8, whereas the pain in his left ankle would be around level 5.  The Plaintiff also said that after he had taken pain killers, the pain in the low back and left buttock would be decreased to about level 4, and in his left ankle to about levels 1 to 2.  I consider that such quantification of the levels of pain is necessary imprecise and subjective, but they do give an indication of the severity of the current complaints that is alleged by the Plaintiff.

28.  In so far as the alleged pain in the left buttock is concerned, this complaint did not appear in the numerous contemporaneous medical records kept by the public hospitals (certainly none has been referred to by the Plaintiff’s counsel), was not mentioned to Dr Wong and Dr Lau at the time of the joint examination (although it is right to point out that the Plaintiff said that he only started to have pain in the left buttock about a year to a year and a half ago, and thus the onset of the pain would post-date the joint medical examination), and was not mentioned in the Plaintiff’s witness statement dated 14 July 2009.  Dr Wong confirms that there is no pathological basis for this complaint of pain in the left buttock.  I do not accept this complaint to be genuine.

29.  In so far as the alleged pain in the left ankle is concerned, both Dr Wong and Dr Lau consider that apparently the Plaintiff has recovered from the soft tissue injury to his left ankle and thus the two doctors decide to concentrate on the injury to the Plaintiff’s back.  The “ORTH Team A2 General Consultation Summary” prepared by Dr Ho Wing Hang Angela of Princess Margaret Hospital on 17 March 2008 also recorded that the Plaintiff’s left ankle was “non-tender”.  Again, I am unable to accept that the Plaintiff is still suffering from recurrent pain in the left ankle.

30.  Finally, in relation to the complaint of back pain, I accept that the Plaintiff would have some residual back pain, but not to the extent as alleged by him.  Dr Lau’s opinion is that the Plaintiff should have recovered quite well from the injury to the L2 vertebra.  He considers that the wedge deformity of the L2 vertebra (with 33% collapse on the front side) is permanent, but the absence of muscle spasm in his low back and the preservation of the lordotic curvature of the lumbar spine as shown up on the x-ray films taken at the time of the joint examination suggest that the condition of the Plaintiff’s low back should be satisfactory now, and the residual pain in his low back cannot be as severe as that complained of by the Plaintiff at the joint examination.

31.  Dr Wong, on the other hand, opines that the Plaintiff’s present back condition is compatible with the post-fracture status of the L2.  He believes that the Plaintiff’s present complaints are genuine although, as mentioned above, Dr Wong accepts that the Plaintiff might have exaggerated his symptoms during the joint examination.

32.  I have no hesitation in preferring the opinion of Dr Lau to that of Dr Wong.  In this regard, it seems to me that Dr Lau’s opinion is based on objective clinical observations and findings, whereas Dr Wong is saying no more than that the Plaintiff’s complaints are compatible, or consistent, with the L2 injury suffered by him in the accident and Dr Wong is merely making a statement of belief.

Whether the Plaintiff can return to his pre-accident occupation

33.  It is apparent from the above discussion that I do not find the Plaintiff to be a truthful or reliable witness.  Nevertheless, I must still decide, on the basis of the evidence before me which I consider to be credible and reliable, whether the Plaintiff can presume his pre-accident occupation.

34.  The occupational therapists at Princess Margaret Hospital, having carried out a number of assessments or evaluations, came to the view that the Plaintiff could not return to his pre-accident occupation. Mr Sham for the 2^nd Defendant submits that the reliability of the conclusion reached by the occupational therapists would depend on whether the Plaintiff used his best endeavours in the assessment exercises, and that the court is not bound by the occupational therapists’ conclusion.  Mr Sham also points out that in the relevant reports, it was stated that the Plaintiff had no significant heart rate change in the assessments, thus suggesting that the Plaintiff did not apply maximum effort in performing various tasks in the assessments.  I accept that the court is not bound by the conclusion in the reports, and the reliability of the conclusion would depend on whether the Plaintiff made any genuine effort in performing the tasks that he was asked to do.  Nevertheless, I would expect the occupational therapists to note any obvious failure on the part of the Plaintiff to make a genuine attempt to perform the various tasks, but the conclusion reached was not qualified.  I note that the occupational therapists’ reports in the evidence were prepared between 22 August 2007 and 21 December 2007, i.e. prior to the expiry of the proper sick leave period (a matter which I will come to later).  Thus, I do not think they can fully reflect the Plaintiff’s capabilities after his maximum recovery from the injuries.

35.  Dr Wong’s opinion is to the same effect, although his opinion must have been formed on the basis that the Plaintiff’s complaints are genuine.  As stated above, I am unable to proceed on this basis.

36.  What I regard as being most significant is the evidence of Dr Lau.  Although Dr Lau opines that the Plaintiff should be able to return to his previous job, he says that the Plaintiff will suffer a moderate degree of decreased efficiency at work.  He further says that if the Plaintiff has to return to work as a plumber (which obviously would involve heavy manual labour at least on occasions), the Plaintiff may have to seek help from his fellow workers (if available) in lifting and carrying or transporting heavy objects of over 20 pounds.  The Plaintiff will also have to take more frequent rests during work than someone who has not suffered injury to his back. In carrying out manual lifting, he will also have to use appropriate tools (if available).  Dr Lau agrees that, given his back injury, the Plaintiff will have a higher risk of re-injury to his back at work than his fellow workers, and the risk of degeneration of his back will also be higher.

37.  Mr Sham points out that the need to adopt safe working procedure and posture, to use appropriate tools, and to seek help from co‑workers where necessary is relevant and applicable to any worker, irrespective of whether he has any history of injuries.  Mr Sham also submits, correctly in my view, that from a doctor’s point of view (and indeed from anybody’s point of view), the weight to be carried or lifted by any worker must be the lighter the better.  Equally, it must be better to have more hands to help: two persons better than one and three better than two.

38.  In my view, the question to ask is whether the Plaintiff can reasonably perform, and be expected to perform, the duties ordinarily required of a plumber in factory premises, construction sites and shipyards, being the sort of workplaces that the Plaintiff used to perform his calling prior to the accident.  The Plaintiff described in his evidence the duties that he would have to carry out as a plumber.  It seems to me that, as a plumber, he would inevitably be required, from time to time, to lift heavy objects, climb up and down ladders, work in confined spaces, and adopt awkward postures or positions.  On the totality of the evidence, I have considerable reservations and doubts on whether the Plaintiff truly cannot return to his pre-accident job, but having given this matter some anxious consideration I am just prepared to find, on a balance of probabilities, that the Plaintiff is not fit to return to his pre-accident job.

Pain suffering and loss of amenities

39.  On PSLA, Mr Sham has referred me to a number of previous awards where the damages for injuries to the lumbar spine ranged from HK$150,000 to HK$250,000: see Lau Chok Ting v Chun Wo Construction Engineering Co Ltd, HCPI 1169/2004; Chair Sai Sui v International Country Club, HCPI 522/1998; Limbu Muni Parsad v Hyundai Engineering & Construction Ltd, HCPI 1167/2003; Rai Bina v Pacific Crown Engineering Ltd, HCPI 338/2001; and Choi Siau Bon v Chevalier Construction (Hong Kong) Ltd and Shiu Wing Construction Co Ltd, HCPI 913/2000.  Miss Lam, on the other hand, places strong reliance on the award in Wong Sun Ming v Chung Kam Tim trading as Viking Contractors Company, HCMP 117/99, 6 July 2000 (Master de Souza), where damages in the amount of HK$330,000 was given in a case involving wedge fracture of the L2 vertebra. However, it is clear from the judgment in that case that the plaintiff also suffered injury to his right wrist and the complaints included discomfort over the left shoulder, the right elbow and wrist and defective sexual activity on account of the back pain.

40.  In the present case, in addition to the fracture of the L2 vertebra, the Plaintiff also suffered left ankle soft tissue injury.  However, I have found that the Plaintiff has fully recovered from that injury.  I have also rejected his complaint of pain in the left buttock.  As regards in his low back, I have found that he still suffers some residual pain, but I do not accept that it is anything as severe as alleged by him. I also take into account the possibility that the Plaintiff may have suffered disc injury at L1/2 and L2/3.  However, both Dr Lau and Dr Wong agree that there is no clinical evidence or obvious signs that the Plaintiff has indeed suffered disc injury, although the possibility cannot be ruled out.  It is also agreed by the doctors that the effect of disc injury could lead to early degeneration of the lumbar spine. Overall, I consider that an award of HK$180,000 would be reasonable and appropriate in the current circumstances.

Pre-trial loss of earnings

41.  Although I have found that the Plaintiff is not fit to return to his former occupation, it is clear to me that he is able to take up jobs of sedentary nature and jobs which may require a moderate degree of manual labour, but not heavy manual work.  The question is when it was that the Plaintiff should have been in a position to resume work.

42.  Dr Lau’s opinion is that the appropriate period of sick leave for the Plaintiff should be 9 months, whereas Dr Wong considers the appropriate period to be 12 to 15 months.  I disregard the sick leave certificates issued by the Accident and Emergency Department of Princess Margaret Hospital because I do not accept that on the vast majority of the occasions the Plaintiff was in genuine need of treatment.  Nor can I place much weight on the Certificate of Review of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board dated 23 September 2008, in which the Plaintiff was given sick leave for a period of 16 months, because I do not know the evidential basis on which this certificate was given.  In any event, the Employees’ Compensation (Ordinary Assessment) Board would not have the benefit of considering the expert evidence of Dr Lau and Dr Wong.

43.  The sick leave period of 9 months opined by Dr Lau is not much different from the sick leave granted by the Department of Orthopaedics and Traumatology Department of Princess Margaret Hospital, which was up to 31 March 2008.  The basis for that can be found in the “ORTH Team A2 General Consultation Summary” prepared by Dr Ho Wing Hang Angela of Princess Margaret Hospital on 17 March 2008 mentioned above.  Generally speaking, I find Dr Lau’s evidence to be objective and his reasoning to be sound.  I accept Dr Lau’s opinion and find that the appropriate period of sick leave should be 9 months.

44.  As a matter of fact, the Plaintiff has not worked at all since the date of the accident.  On the evidence, it seems clear to me that he has made no genuine attempt whatsoever to find work after the date of the accident.  He said that he wished to work as a security guard, was given to understand that he needed to take a course and obtain a security permit in order to work as a security guard, but was told by a nursing care staff in about April 2009, when he attended an introductory briefing organised by the Patient Retraining and Vocational Resettlement Service of Princess Margaret Hospital, that he should complete his physiotherapy treatment first before taking the course.  However it transpired in his cross examination that his physiotherapy treatment would take no more than 1 hour a week, and he should have plenty of time to attend the training course if he had really wanted to do so.  Indeed, on the evidence, it does not appear that the Plaintiff was receiving any physiotherapy treatment in or about April 2009.  I do not accept the Plaintiff’s explanation for failing to take the training course for security guard.

45.  In his witness statement, the Plaintiff said that he could take up jobs such as general cleaning worker, warehouse attendant, courier, petrol station attendant and security guard.  However, the Plaintiff could give no satisfactory explanation for failing to seek other jobs (i.e. other than as security guard) which he said he was capable of doing.

46.  The Plaintiff said in his statement that as far as he knew the average monthly salaries for the above mentioned types of jobs would range from HK$6,000 to HK$7,500.  He also produced some statistics showing that in June 2007 the average monthly salaries of guards were in the region of HK$6,000 to HK$7,500 and for office assistants in the region of HK$6,500 to HK$8,500.  Mr Sham on the other hand referred me to certain Government statistics showing that in March 2009 the average monthly salaries of general workers, watchman/guard and delivery man would be in the region of about HK$8,400 to HK$9,000.  In relation to the calculation of loss of earnings (pre-trial and post trial), Miss Lam has not suggested that  there should be any adjustment in the Plaintiff’s notional salaries as a plumber during the period from May 2007 to the date of the trial.  I take it to be accepted, therefore, that the wages of a worker in Hong Kong have not changed much during the past 3 years or so.  For the purpose of assessing pre-trial loss of earnings, I consider that the Plaintiff should be regarded as being able to earn approximately $8,000 a month as from the 10^th month after the accident.

47.  The parties are agreed that the Plaintiff’s salary prior to the accident was HK$20,800 per month.

48.  In his final submissions, Mr Sham referred me to a decision of the Court of Appeal in Choy Wai Chung v Chun Wo Construction & Engineering Company Limited, CACV 172/2004.  In that case, the plaintiff was perfectly capable of working but failed to make any attempt to work.  It was held that the plaintiff was not entitled to recover any damages whatsoever for loss of earnings (as from the date on which it was found that he was capable of working).  It is important to note, however, that in that case the approach adopted by the plaintiff was an all or nothing one.  It was said on behalf of the plaintiff that although he was fit to resume work in an office he could no longer work on a construction site (where he used to as a civil engineer), and it was argued that the Plaintiff should be awarded total loss of earnings because the burden was on the defendant to prove that he had failed to mitigate his loss.  It is hardly surprising that the plaintiff in that case failed in his appeal.

49.  Significantly for the present purpose, it should be noted that there was no evidence adduced, so far as I can gather from the judgment of the Court of Appeal, on the difference (if any) between what a civil engineer capable of working on a construction site could earn and what a similar civil engineer who could only work in an office could earn.  The position is different from the present case where, subject to the argument on the appropriate period of sick leave, the Plaintiff accepts that he is able to take up sedentary or light duty jobs, and seeks to recover damages by reference to the difference between what he can earn as a plumber and what he can earn in those other jobs.

50.  In all, for pre-trial loss of earnings, I consider that the Plaintiff is entitled to the following: [HK$20,800 x 9 months (sick leave) + (HK$20,800 – HK$8,000) x (42.5 – 9) months] = HK$616,000.

51.  Pre-trial loss of MPF amounts to (HK$616,000 x 5%) = HK$30,800.

Post trial loss of earnings

52.  The Plaintiff was 48 years of age at the date of accident and 51 now.  In Chan Kam Hoi v Dragages et Travaux Publics [1998] 4 HKC 523 at 530, the Court of Appeal said that for a man aged between 53 and 54 (as at the date of trial) engaged in doing heavy work on construction sites, account should be taken of the inherent risks of the job and a multiplier of 5 would be appropriate.

53.  Miss Yam argues that the Plaintiff has given evidence that he would work until 65, or at least 63 when his youngest son would reach F.5/F.6, and a multiplier of 10 should be adopted.  While I accept that the Plaintiff may be obliged, by reason of economic circumstances, to work until 63 or 65, it does not follow that he would be physically able to work as a plumber up to that age.  I consider that I should adopt the approach of the Court of Appeal in Chan Kam Hoi, and apply the multiplier of 6 in the present case.

54.  The multiplicand is (HK$20,800 – HK$8,000) = HK$12,800.

55.  The post-trial loss of earnings is HK$12,800 x 6 years x 12 months = HK$921,600.

56.  Post-trial loss of MPF amounts to (HK$921,600 x 5%) = HK$46,080.

Loss of earning capacity

57.  In my view, the Plaintiff is perfectly fit and capable of doing sedentary and other jobs requiring a moderate degree of manual labour.  There is no evidence that he would be disadvantaged in those sectors of the labour market, and I do not consider that any award for loss of earning capacity is justified.

Special damages

58.  The following items are agreed: medical expenses of HK$13,800, Chinese medical expenses of HK$750, and heat/cold pad and medicine of HK$913.

59.  In respect of travelling expenses, the Plaintiff claims $9,000 and the 2^nd Defendant offers $5,000.  In view of my finding that a large number of the Plaintiff’s attendances at the Accident and Emergency Department of Princess Margaret Hospital are not necessary, I would award HK$5,000.

60.  In respect of tonic food, the Plaintiff claims $5,000 and the 2^nd Defendant offers $3,000.  There is no evidence that consumption of such tonic food was necessary or reasonable.  I would award HK$3,000 under this head.

61.  The Plaintiff has made some further claims for medical expenses and travelling expenses allegedly incurred since the date of the Revised Statement of Damages.  However, I consider that many of the attendances at the Accident and Emergency Department of Princess Margaret Hospital are not necessary, and the Plaintiff has probably already been over-compensated under the corresponding items above.  I am not prepared to make any further award for medical expenses and travelling expenses.

62.  The total amount of special damages would be HK$23,463.

Summary

63.  The award is:

PSLA	HK$ 180,000
Pre-trial loss of earnings	HK$ 616,000
Pre-trial of MPF	HK$ 30,800
Special damages	HK$ 23,463
Post trial loss of earnings	HK$ 921,600
Post trial loss of MPF	HK$ 46,080
	HK$ 1,817,943

64.  Interest on PSLA shall be at 2% p.a. from the date of service of the writ to the date of judgment.  Interest on pre-trial loss of earnings, pre-trial loss of MPF and special damages should be at half of the current judgment rate from the date of the accident to the date of judgment.  Credit shall be given for the employees’ compensation award received by the Plaintiff in the amount of HK$541,470.

65.  I have considered whether there should be a further credit given for interest on the amount of the employees’ compensation award received by the Plaintiff in May 2009.  It seems to me that if the purpose of the award of interest on pre-trial loss of earnings, pre-trial loss of MPF and special damages is to compensate the plaintiff for being kept out of the use of money, logically the amount of the interest ought to be reduced in a case where the plaintiff has in fact received a substantial employees’ compensation award prior to the trial.  In Lee Tsz Kin Ken v Climax Paper Converters Limited, HCPI 504/2003 (24 June 2004), Tang J (as he then was) noted at paragraph 30 of his judgment that conventionally no account is taken of interest on the employees’ compensation award.  I am not prepared to depart from the conventional wisdom without hearing full submissions on this issue in the present case, but this is an issue which may merit further consideration in an appropriate future case.

66.  I shall leave the calculation of interest to the Plaintiff’s solicitors to work out.

67.  Costs, on a nisi basis, shall be to the Plaintiff to be taxed if not agreed.  The Plaintiff’s own costs are to be taxed in accordance with legal aid regulations.

68.  Finally, I wish to express my thanks to counsel for their helpful assistance in this matter.