HO KWAI SANG v. YEUNG LING TSZ AND ANOTHER

HCPI 1300/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1300 OF 2000

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J U D G M E N T

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1. The plaintiff's claim against the defendants is for damages for personal injuries sustained by him in the course of his employment with the defendants. At all material times the plaintiff was working as a steel bender in construction sites.

LIABILITY

2. The defendants dispute that the plaintiff was their employee at the material time. The defendants also dispute that the plaintiff sustained injuries in an accident as alleged by him in the afternoon of 29 October 1997. They further deny that they were negligent and also assert that the plaintiff was guilty of contributory negligence.

3. The issues on the question of liability are :

（i） whether the plaintiff was an employee of the defendants on 29 October 1997;

（ii） whether the plaintiff sustained the injuries he complains of in the afternoon of 29 October 1997 at the construction site as alleged by him;

（iii） if he did, whether this was caused by the breach of duty by the defendants as employer of the plaintiff; and

（iv） whether there was contributory negligence on the part of the plaintiff.

Was the plaintiff an employee of the defendants?

4. It is clear on the evidence that at the material time the principal contractor at the construction site known as the Upper Wong Tai Sin Estate Redevelopment Phase I Project, Wong Tai Sin, Kowloon, Hong Kong ("the site") was China State Construction Engineering Corporation ("China State"). Sunrise Construction Limited ("Sunrise") were the sub-contractors of China State and the defendants were sub-sub-contractors at the site doing the steel bending works. This was confirmed in evidence by Mr. Cheung Kwai Bor ("Cheung") one of the partners of the defendants at the material time.

5. The plaintiff said that he started working as a steel bar fixer in construction sites in Hong Kong since 1977 when he came from the Mainland. Since about August 1997 he started to work for the defendants as a steel bar fixer at the site. His basic salary was a daily rate of $1,200. His standard daily working hours was from 8 am to 5.30 pm and sometimes he also worked overtime. Apart from working for the defendants at the site he also worked for them at a site in Kwun Tong and other sites at Tsuen Wan and the Reclamation area in Tsim Sha Tsui. I accept the plaintiff's evidence.

6. By their amended defence the defendants denied that the plaintiff was employed by them as a steel bar fixer at the site although this was admitted in the original defence dated 21 November 2000. However, no positive case has been asserted by the defendants in their pleadings that the plaintiff was employed by Sunrise or someone else.

7. It is accepted that the wages records in the trial bundle were wages records of the defendants in relation to the site and the Kwun Tong site. Cheung gave evidence that he and his partner were also paid wages and that Sunrise was his employer. He also said that Sunrise paid the wages of the workers. However, later on in his evidence he confirmed that China State were the principal contractors of the site and that Sunrise were the sub-contractors whilst the defendants were the sub-sub contractors at the site doing the steel bending works. The defendants did not, however, have a written agreement with Sunrise. He also said that he reported the wages of the workers to Sunrise as he was helping in the management of the workers. Although there was no positive case asserted that the plaintiff was an employee of Sunrise, Cheung tried to give the impression that the plaintiff was in fact employed by Sunrise and not by the defendants.

8. Cheung was cross-examined about the wages records for June 1997 for the Kwun Tong site. He accepted that the wages records also showed the amount of payments that the defendants received from Sunrise. After deducting the wages paid to the workers there set out (including the partners of the defendants who were actually working) there was a surplus which went to the defendants. In re-examination, however, he suggested that the surplus was kept aside for the future payment of casual workers as they were not paid like permanent casual workers e.g. on the 15th day of the month. However, I do not believe Cheung on these matters. It is unlikely that the surplus was set aside for the future payment of casual workers. The wages records do also show that payments were made to unnamed casual workers. Even after deducting the wages paid to them there was a surplus which went to the defendants.

9. It is accepted that the wages records were the wages records of the defendants. Cheung also confirmed that the named workers on the wages records were permanent casual staff which included the plaintiff.

10. I am satisfied that China State was the principal contractor at the site. Sunrise was the sub-contractor of China State and the defendants were in turn sub-sub contractors of Sunrise doing steel bending works at the site. That was the relationship between them.

11. In my judgment there is no merit in the defendants' case that the plaintiff was not an employee of the defendants but of Sunrise. This is so notwithstanding that China State in the Form 2 notice given under the Employees' Compensation Ordinance stated that Sunrise was the employer of the plaintiff. As there was no written contract between Sunrise and the defendants it is possible that China State at that time thought that Sunrise were the employers of the plaintiff but I have had no evidence about this. However, by the consent order made by Judge Carlson in the District Court on 16 November 2000 in the Employees' Compensation case the defendants, as the 1st respondents, agreed together with the other respondents China State and Sunrise to pay the plaintiff employees' compensation in the sum of $554,299.25.

12. There is also cogent and compelling evidence that the plaintiff was the employee of the defendants. This is the clear and unequivocal admission of Cheung's partner Yeung Ling Tsz contained in the certificate dated 5 January 1998. The plaintiff said, and I accept, that in January 1998 he asked the defendant for sick leave pay and he was given sick leave pay. He was asked to go up to Sunrise's offices and the staff there told him to provide Sunrise with a certificate confirming that he was an employee of the defendants and that he had been injured. He approached the defendants for the certificate which Yeung Ling Tsz himself wrote and signed.

13. The certificate stated in clear and unequivocal terms that :

“ Mr. Ho Kwai Sang is the employee of this company (permanent staff). His daily wage is HK$1,200. Mr. Ho has sustained injuries in the course of work in a Wong Tai Sin construction site."

This was on the defendants' letterhead and was signed by Cheung's partner. Although Cheung is in a position to contact him by telephone, Yeung Ling Tsz was never called as a witness. The clear and unequivocal admission by the said partner of the defendants has never been withdrawn. I am satisfied that the certificate correctly reflected the true state of affairs.

14. I am satisfied that the plaintiff was the employee of the defendants at the time of the accident on 29 October 1997. Issue (i) is resolved in favour of the plaintiff.

Did the plaintiff sustain his injuries in the afternoon of 29 October 1997 as alleged by him?

The plaintiff's case

15. The plaintiff said that on 29 October 1997 while he was on duty in the afternoon at the site he was working with three other co-workers to cut steel rods. The rods were stacked up in bundles and there were 14-15 steel rods in a bundle. The rods in each bundle were tied together by five 2 mm metallic wires in different positions. Each rod was 12 m long weighing over 100 kgs. The three other co-workers were Wu Chung Yau ("Wu"), Ah Lung and Chan Kin Wah ("Chan").

16. According to the plaintiff no one from the defendants had told him and the other co-workers how to cut the steel rods or how to untie the metallic wires from the bundle. On that day the plaintiff and Wu were the master steel benders to supervise the cutting machine whereas Ah Lung and Chan were the apprentices. Chan was responsible for cutting the metallic wires used to tie up the bundles of steel rods before the steel rods could be lifted up to the cutting machine for cutting into pieces for use at the site. It appears from the evidence that although both Wu and the plaintiff were master steel benders, Wu was the leader of the team that was working with the plaintiff and the other co-workers that afternoon. Chan also said that Wu had told him to cut the steel wires which he did.

17. According to the plaintiff, while Chan was cutting the steel wires he and Wu were at the cutting machine taking measurements in preparation for the cutting of the rod. To enable them to lift the rod the plaintiff and his co-workers stood in different positions. Before lifting the rod they asked Chan whether it was ok and when he said that it was ok the lifting process began. The plaintiff and the other co-workers were standing in different positions. Wu was at the front and he was to lift his part of the rod first followed by the plaintiff behind him. Ah Lung was behind the plaintiff and Chan was at the end. It was important for each worker to watch the ones in front as the system of work was that the first one would lift his part of the rod first followed by the second one lifting his part, then the third one lifting his part and the last one following in the same manner. At that time the plaintiff saw Wu at the front lift his part of the rod and he followed him by trying to lift his part of the rod but he dropped it when he noticed that the rod was caught by a piece of uncut metallic wire. He did not immediately feel pain in his lower back. He told Wu that he wanted to see a doctor and he eventually went to Kwong Wah Hospital for treatment.

18. The plaintiff also said that before lifting the rod he did not check to see if the rods had been cut loose from the bundle. He trusted Chan when he said that it was ok.

The defendants' case

19. The defendants' case is that the accident as described by the plaintiff never occurred. Wu and Chan both gave evidence to the effect that the accident as alleged by the plaintiff never occurred. The other witnesses Yeung Shuk Tsz and Cheung were not present at the material time.

20. Wu said that in the afternoon of 29 October 1997 when lifting up the steel rods at the site he was standing at the first position in front with Chan behind him in second position followed by the plaintiff in third position and Ah Lung at the end. This is contrary to the plaintiff's version. This is also contrary to what he himself said in his own witness statement namely, that the plaintiff was immediately behind him in the second position. This is a matter of some significance as on the plaintiff's evidence the uncut metallic wire in the bundle of rods was in a position behind him and between him and Ah Lung. That being so, he would not have seen the uncut wire in the lifting process as it was behind him and he was facing the front paying attention to the leader Wu. Contradicting what he himself said in his witness statement Wu said in evidence that Chan was behind him with the plaintiff in the third position. That would put the uncut wire in front of the plaintiff and he would have been in a position to see it before lifting the rod. Wu was evasive when asked about the discrepancy and in my view he did not satisfactorily explain it.

21. It was also Wu's evidence that the plaintiff was not injured that afternoon and that the plaintiff did not tell him that afternoon that he had injured his back. He also said that the plaintiff made no complaint to him. According to him, the plaintiff had told him that he was not feeling well but he didn't say that he was injured. He again contradicted his own witness statement where he clearly said that the plaintiff had told him that his back was injured and that he had to receive medical treatment. When giving evidence, however, he insisted that the plaintiff had not told him that his back was injured. I do not believe Wu.

22. Wu also said that before lifting the steel rods he would also go around to check and see if the metallic wires had been cut and pulled apart so as to enable the steel rods to be lifted. He said that he did this in the afternoon of 29 October 1997. I do not believe him. It is in my view highly unlikely that before the steel rods were lifted Wu would himself go around to check if the metallic wires had been properly cut and pulled apart. The evidence showed that the time taken to lift and cut each steel rod was only about 11/2 mins. and that the workers were operating on a tight schedule.

23. Chan gave evidence that Wu was his master and was the one who gave him instructions to cut the metallic wires used to tie up the steel rods. He said that in the afternoon of 29 October 1997 he did cut the metallic wires and pulled them apart so that the steel rods could be lifted. He said that during the lifting process Wu was in the first position at the front and he was in the second position behind Wu with the plaintiff in the third position and Ah Lung at the end. However, he also contradicted what he had said in his witness statement. There he clearly stated that the plaintiff stood in front of him. According to his witness statement Wu and Ah Lung were at two ends. The plaintiff stood in front of him and he was in the third position. That would put the plaintiff in the second position. Chan was evasive when questioned about this and tried to be clever by suggesting that when giving his witness statement he was counting from the reverse end so that the plaintiff would be in front of him counting from the end that Ah Lung was. That was a feeble and desperate attempt to try and explain the discrepancy which I do not accept. I do not believe him. The witness statement makes it plain that he was saying that the plaintiff stood in front of him which would put the plaintiff standing in the second position behind Wu.

24. Chan also gave evidence that before the work commenced in the afternoon of 29 October 1997 there were to be only three persons to do the cutting work, namely Wu, Ah Lung and himself. He said that the plaintiff went up to Wu and said that he had earlier on had a bet with another person and because of that his back was injured and he wanted to join their team. Subsequently when they were all working together the plaintiff claimed that his back was injured and then he went to see a doctor. He also said that the plaintiff had also told him to lift up his shirt to check if there was any dislocation of his bone. So, on his evidence Wu knew that the plaintiff had injured his back before he even commenced work in the afternoon and allowed him to join the team of three persons to do the cutting work and to enable him to claim that he was injured at work. None of these matters appeared in Chan's witness statement. I do not believe Chan. Chan also contradicted his own witness statement where he stated that not less than four workers were required for lifting up a steel rod for cutting. Wu's evidence was that he did not know that the plaintiff was injured on 29 October 1997. According to him the plaintiff had only told him that he was not feeling well and had to see a doctor. He was adamant that the plaintiff had never told him that his back was injured. So, on Wu's evidence, the plaintiff could not have asked him if he could join the team of three persons after telling him that he had injured his back because of a bet with another person. If it were true that Wu had been told by the plaintiff that he wanted to join their team after he had already injured his back before working in the afternoon and if Wu had allowed him to do so, that would in effect mean that Wu assisted the plaintiff to make a false claim for compensation for his injuries. I do not believe Chan.

25. It is also significant that nowhere in his witness statement does Chan mention that the plaintiff had injured his back because of the incident in the morning where the plaintiff had a bet and tried to lift a 4 m. steel rod on his own but dropped it before lifting it up. The plaintiff denied this incident and I believe him and accept his evidence. I reject the evidence of Chan.

26. I would also observe that there was also an accident investigation report of the safety officer of the principal contractor China State on the site. No doubt he conducted an investigation into the matter and the findings of the safety officer are as set out in the accident investigation report which supports the plaintiff's version of the events on 29 October 1997.

27. Furthermore, in the Form 2 notice dated 12 January 1998 given under the Employees' Compensation Ordinance which was completed by China State as the principal contractor the description of the accident that was given was :

“ When lifting up a 12 m long Y40 iron bar the iron bar got entangled and resulted in sprain injury to the waist accidentally."

The same description of the accident appears in the amended Form 2 dated 3 September 1999. It was accepted by China State when it gave the Form 2 notice that the accident as described by the plaintiff did actually happen. Also, by the consent order made by Judge Carlson in the District Court on 16 November 2000 the respondents (including the defendants) agreed to pay the plaintiff $554,299.25 inclusive of interest in full and final settlement of the employees' compensation claim. That sum was duly paid. The defendants by the consent order must have also accepted that the plaintiff did sustain an injury in the course of his employment. This must have been on the basis of what the plaintiff had alleged namely, the accident in the afternoon of 29 October 1997 and not anything that might have happened earlier that day of which there was no mention either in the accident investigation report or in the Form 2.

28. The clear and unequivocal admission of Cheung's partner contained in the certificate dated 5 January 1998 which I have mentioned above provides cogent and compelling evidence not only that the plaintiff was an employee of the defendants but that he did in fact sustain injuries in the course of work at the site.

29. I have no hesitation in accepting the plaintiff's version of events and in rejecting the defendants' version given by their two witnesses Wu and Chan in evidence. I accept the plaintiff's evidence and reject the evidence of Wu and Chan on these matters. I found the plaintiff to be an honest and reliable witness on these matters whereas Wu and Chan were untruthful and unreliable. Where the evidence of Wu and Chan is at variance with the evidence of the plaintiff I have no hesitation in preferring the evidence of the plaintiff.

30. I am satisfied that the plaintiff did sustain his injuries in the course of his employment with the defendants in the afternoon of 29 October 1997 as described by him. I find that one of the metallic wires was not completely cut by Chan and that Chan had said that it was ok thereby indicating that the lifting process could commence. I also find that neither Wu nor the plaintiff checked to see if all the metallic wires had been cut and pulled apart before the lifting process commenced. I also find that in the lifting process Wu was at the front and in the first position. The plaintiff was in the second position followed by Ah Lung in the third position and Chan at the end. The plaintiff was watching Wu and when Wu lifted his part of the rod the plaintiff commenced to lift his part but dropped the rod when he noticed that it was caught by a piece of uncut metallic wire which was behind him and between his position and Ah Lung's. The plaintiff did not immediately feel his back pain but only when the second rod was lifted did he feel pain in his lower back. He then stopped working and sought medical treatment.

31. Although the plaintiff said that Wu also hurt his toe when he dropped the steel rod Wu denied this. There was no injury to Wu and Wu never claimed to have suffered any injury in the course of employment that day. There is also nothing in the accident investigation report to suggest that Wu had sustained any injuries. I think that the plaintiff was mistaken about this and that he merely assumed that Wu was also injured when in fact he was not. In my view that does not detract from the rest of the plaintiff's evidence on these matters which I find reliable. I am satisfied that he gave his evidence honestly. Issue (ii) is resolved in favour of the plaintiff.

Did the defendants breach their duty?

32. It is trite law that the duty of an employer to his employees is to take reasonable care for their safety. The duty is owed by the defendants to each of its employees including the plaintiff. It is important to bear in mind that the duty is personal to the employer and is non-delegable. The duty here was, inter alia, to provide a safe system of work. In planning a system of work, the defendants must take into account the fact that workers may become careless about the risks involved in their daily work (para. 5.80 pg. 139 Munkman on Employer's Liability, 13th Edn.). Lord Oaksey helpfully said in General Clearing Contractors Ltd. v. Christmas [1953] A.C. 180 at 189 that :

“ It is ... well known to employers ... that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is ... for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board-room with the advice of experts. They have to make their decisions on narrow sills and other places of danger and in circumstances where the dangers are obscured by repetition."

33. I accept the plaintiff's evidence that he was not told by his employers about how to perform the job of cutting steel rods. The system that was in place was as described by the plaintiff namely, that other co-workers would trust and rely on the fact that the person cutting the metallic wires (in this case Chan) indicated that it was alright to commence the lifting process. The lifting process would then commence. In this case Wu was the leader in the front who was the first to lift his part of the rod followed by the plaintiff behind him. It was important for the plaintiff to keep an eye on Wu's lead and after Wu lifted his part of the rod it was then the plaintiff's turn to lift and then the others behind him would follow in sequence. The evidence showed that on average one rod was lifted and cut in about 11/2 mins. so obviously they were operating on a tight schedule.

34. Although there was evidence that there were engineers and supervisors of China State and Sunrise on the site there was no evidence that any of them was where the plaintiff and the other co-workers were working at the time. There was also no evidence to show that they in fact supervised the steel bending works at the time.

35. There was also evidence that a safety officer of China State was at the site and that there were safety courses given by him. But the plaintiff said and I accept that he did not attend any of these courses as he was not directed to do so by his employers. Chan gave evidence that he attended safety courses at the site where the safety officer would tell them about matters like how to lift heavy objects, wear safety helmets, shoes and protective clothing. In this case the plaintiff was injured not because he adopted a wrong posture in bending and lifting the steel rod but because when he was lifting the rod it was caught by an uncut metallic wire.

36. In any event the fact that there were safety courses provided by China State and that there were supervisors of Sunrise and China State at the site does not assist the defendants. This does not provide them with a defence. The defendants' duty was a personal one and non-delegable.

37. I am satisfied that there was a breach of duty on the part of the defendants as employer. There was no proper or safe system of work to ensure that all the metallic wires were properly cut and pulled apart before the lifting process commenced. I reject Wu's evidence that he did check to see if the metallic wires had been cut and pulled apart after Chan had cut the metallic wires and before the lifting process began. I find that there was no proper supervision to check and ensure that all the metallic wires had been cut before commencing the lifting process. I am satisfied that the injuries sustained by the plaintiff was caused by the defendants' breach of duty.

38. The plaintiff also relies on the fact that the injury to the plaintiff was caused by the negligence of Chan who himself was an employee of the defendants. I am also satisfied that the injuries to the plaintiff was caused by the negligence of Chan as employee of the defendants in failing to properly cut the metallic wires and pull them apart and negligently indicating to the other co-workers that it was alright to commencing the lifting process when one of the metallic wires was not fully cut. I am also satisfied that the defendants are vicariously liable for the tort of their employee Chan.

39. Issue (iii) is also resolved in favour of the plaintiff.

Was the plaintiff guilty of contributing negligence?

40. I go to consider whether there was any contributory negligence on the part of the plaintiff. It was the defendants' contention that the plaintiff ought to have seen that one of the metallic wires was not completely cut and that he failed to take care for his own safety by lifting the rod without ensuring that it was safe to do so.

41. I am satisfied that there is no contributory negligence on the part of the plaintiff. It is unrealistic to suggest that the plaintiff should have himself checked to see if the metallic wires had been cut before lifting. It is, of course, easy to be wise after the event with the benefit of hindsight. I accept the plaintiff's evidence as to the system of work that was in place, namely, that an apprentice, like Chan, would do the cutting of the wires. While he was doing that Wu and the plaintiff would take measurements at the cutting machine. When the apprentice said that it was ok thereby indicating that it was alright to lift the rod, the lifting process commenced. That was the employer's system of work and the plaintiff was merely following his employer's system of work.

42. It is useful to bear in mind the oft-quoted dicta of Denning LJ (as he then was) in the Court of Appeal in General Cleaning Contractors Ltd. v. Christmas [1953] AC 180 as set out in the speech of Earl Jowitt in the House of Lords at 187 :

“ You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which the employers expected him to do it and, if they had taken proper safeguards, the accident would not have happened."

43. I am satisfied that the plaintiff was doing his job in the way his employers expected of him and that if they had taken proper safeguards to ensure that all the metallic wires had been properly cut before the lifting process began the accident would not have happened.

44. In the circumstances I am satisfied that there has been no contributory negligence on the part of the plaintiff. I find that the defendants are 100% liable for the plaintiff's injuries.

QUANTUM

45. The parties have helpfully agreed most of the items on the quantum of damages. The only issue between them is the number of days the plaintiff worked at the time of the accident and the number of days that he would have worked but for the accident.

46. The plaintiff was born in June 1957. He was 40 years old at the time of the accident on 29 October 1997. At trial he was 45 years old.

47. The medical evidence is not disputed. It is not necessary to set these out in any detail. According to Dr. Danny Tsoi, the plaintiff's orthopaedic expert, it is likely that the plaintiff suffered from severe soft tissue sprained injury over his lower back. It was the residual inflammation that accounted for the persistent back pain. Both Dr. Tsoi and Dr. Lam Kwong-Chin, the defendants' orthopaedic expert, came to the view that the plaintiff had a 5% impairment of the whole person. It is clear from their reports that they were both of the view that the plaintiff could not carry on with his pre-accident work as a steel bender as this was heavy manual work which required frequent bending or lifting of loads. It was accepted by both of them that the plaintiff could perform moderate manual work. It was accepted on behalf of the plaintiff that he could have worked as a casual worker at construction sites from the expiry of his sick leave on 4 October 1999.

48. As I have said the only issue is the number of days the plaintiff worked at the time of the accident and the number of days that he was expected to work but for the accident. The daily rate of the plaintiff's wages and the wages of steel benders and casual workers have also been agreed.

49. The plaintiff estimated that he could work on average as a steel bar fixer for at least 26 days a month and his claim is on the basis that he worked for 26 days a month. The plaintiff's claim for pre-trial loss of earnings is for three periods :

（1） 29 October 1997 to 4 October 1999 being the expiry of the sick leave;

（2） 5 October 1999 to 17 August 2000; and

（3） 8 March 2001 to 25 September 2002 being the date of trial.

There is no claim for loss of earnings for the period from 18 August 2000 to 7 March 2001.

50. Cheung gave evidence that at present he was working as an employee for someone else and that he had not got any projects himself, presumably as sub or sub-sub contractor. This was presumably because of the economic downturn in Hong Kong. He said that the average number of working days for a steel bender from the end of 1997 to October 1999 was slightly more than 10 days on average. He said that in 2000 that was about 15 to 16 days and that from 2000 until the present time the salary was $600 - $900 a day. The daily rate is not borne out by the government's statistics on the average daily wages of workers engaged in government building projects. The project at the site was one such project. The statistics show that the daily wages for steel benders was slightly over $1,200 and more or less substantially the same for the years from 1998 to 2001. I accept that the economic downturn in recent years has had an adverse effect on construction and that steel benders are not as busily engaged as before. However, I am unable to accept all the estimates given by Cheung of the number of days a steel bender could work from the end of 1997 to date.

52. I am also unable to accept that the plaintiff worked for 26 days at the time of the accident. The contemporaneous wages records of the defendants do not bear this out and I think that these are more reliable than the plaintiff's estimate. I appreciate that the wages records of sites other than the Kwun Tong site and the site have not been produced in evidence but these matters were not fully explored in evidence. I have been informed by counsel for the defendants that they are prepared to accept that the plaintiff worked for 20 days on average at the time of the accident. This is slightly more than the number of days as shown in the wages records for October 1997 which have been produced. In my view that is a reasonable number of days to adopt for assessing the loss at the time of the accident. It seems to me that for the period from 29 October 1997 to 4 October 1999, the expiry of sick leave, the number of days that he would have worked in a month but for the accident should be taken as 20. For the next period claimed, i.e. from 5 October 1999 to 17 August 2000 the defendants are prepared to accept that the plaintiff could have worked for 15 days a month. I think it would be reasonable to assess the loss of earnings for that period on the basis that he would have earned wages for 15 days in a month on average. This is because of the adverse economic conditions in Hong Kong which must have affected the construction industry as well including work for steel benders. I think that it is also reasonable to assess loss from then on up to trial and for future loss on the same basis namely, on the basis that but for the accident he could have worked for 15 days in a month. I do not think it is reasonable to reduce this to 10 days or to anything less than 15 days as suggested by counsel for the defendants.

53. The damages are assessed as follows :

Pain and suffering and loss of amenities (PSLA)

54. The award for PSLA has been agreed at $220,000 and this sum is awarded under this head.

Pre-trial loss of earnings

55. This has been split up into three periods as agreed :

(a) from 29 October 1997 to 4 October 1999.

The daily rate of $1,239 and the period of 23.2 months is agreed.

Full Loss of earnings for this period is assessed at $574,896 ($1,239 x 20 x 23.2)

(b) from 5 October 1999 to 17 August 2000

The daily rate for a steel bender for this period is agreed at $1,276 and the daily rate for construction casual worker is agreed at $605.50. The period of 10.43 months is also agreed. Partial loss of earnings for this period is assessed at $104,900 ($1276-$605.50 x 15 x 10.43).

(c) from 8 March 2001 to 25 September 2002.

The daily rate for steel bender for this period is agreed at $1,268 and the daily rate for construction casual worker is agreed at $609. The period of 18.47 months is also agreed. Partial loss of earnings for this period is assessed at $182,576 ($1,268 - $609 x 15 x 18.47).

56. The total pre-trial loss of earnings is therefore $862,372 ($574,896 + $104,900 + $182,576).

Tax deduction

57. Tax should be deducted from any pre-trial loss of earnings.

For the year of assessment 1997/98

58. Salaries tax was payable on the first $30,000 at 2%. For the period of loss of earning for the period from 29 October 1997 to 31 March 1998 within the year of assessment 1997/98 the plaintiff would have earned $297,360 ($1,239 x 20 x 12). Tax allowance for the plaintiff who was married with two children was $254,000. The balance of $43,360 ($297,360 - $254,000) was taxable income. Tax on the first $30,000 was 2% namely, $600. The next $30,000 and hence the balance of $13,360 was taxable at 8% namely, $1,069. Total Tax payable for this year of assessment would have been $1,669 but for the period from 29 October 1997 to 31 March 1998 this would have amounted to $709 ($1,669 ÷ 12 x 5.1 months).

For the year of assessment 1998/1999

59. The total income for this year of assessment would have been $1,239 x 20 x 12 ($297,360). The taxable allowance for the plaintiff would have been $276,000. The taxable income would therefore have been $21,360 ($297,360 - $276,000). On the first $35,000 tax was payable at 2%. Therefore, tax on $21,360 would have been $427. This would have been the total tax payable for that year.

60. For both years of assessment the total tax payable would have been $1,136 ($709 + $427). It is agreed that no tax would be payable for later years of assessment and for the future loss of earnings.

61. Thus the net pre-trial loss of earning awarded after deducting tax is $861,236 ($862,372 - $1,136).

Loss of mandatory provident fund contributions

62. The plaintiff is also entitled to loss of mandatory provident fund ("MPF") contributions in respect of part of the pre-trial loss of earnings. This is for the period from 8 March 2001 to 25 September 2002 and the formula for calculating this loss is agreed. The award for this head is $9,193 ( $1,268-$609 x 15 days x 5 % x 18.6 months ).

Special damages

63. Special damages have also been agreed in the sum of $18,350 as follows :

（1） medical expenses $7,750

（2） traveling expenses $4,600

（3） tonic food $6,000

Future loss of earnings

64. As regards future loss of earnings, the multiplier is agreed at 6. I assess loss of future loss of earnings in the sum of $711,720 ($1268-$609 x 15 days a month x 12 months x 6 years ). It is agreed that no tax is payable on the future loss of earnings.

Loss of MPF contributions

65. The plaintiff is also awarded loss of MPF contributions in respect of future loss of earnings in the sum of $21,114 ($1,000 - $609 x 15 x 5% x 12 months x 6 years).

66. The total award is therefore :

PSLA	$220,000
Net pre-trial loss of earnings	$861,236
Loss of MPF contributions on pre-trial loss of earnings	$9,193
Special damages	$18,350
Future loss of earnings	$711,720
Future loss of MPF contributions	$21,114
Total	$1,841,613

67. From the above amount must be deducted the amount received by the plaintiff for employees' compensation in the sum of $554,299.25 leaving a net award to the plaintiff in the sum of $1,287,313.75.

68. I give judgment to the plaintiff for the said sum of $1,287,313.75. Interest has also been agreed. Interest will be awarded on PSLA at 2% per annum from date of writ to judgment and on special damages and pre-trial loss of earnings at half judgment rate from date of accident 29 October 1997 to judgment.

69. I also make an order nisi that the defendants do pay the plaintiff his costs of the action. The plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.