KHAN FAROOQ AHMED v. DELIVERY HERO FOOD HONG KONG LTD formerly known as ROCKET FOOD LTD

HCPI 65/2022

[2025] HKCFI 4030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 65 OF 2022

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This is a personal injury case involving a food delivery worker working for “Foodpanda” who was required to work under typhoon signal no.8 (“T8”).

BACKGROUND

2.  The following background facts are not in dispute.

3.  The plaintiff (‘P”) was a food delivery worker in the employ of the defendant (“D”). His duties included picking up food orders from various food vendors and delivering them to the customers’ designated location.

4.  At all relevant time, P was given access to D’s mobile application (“the App”), through which he would be notified of incoming orders, provided an option to accept the orders and coordinate the delivery process until completion of the delivery. The App was also used for P to sign in and sign out of his shift and to calculate the number of hours he had worked. Further, if P encountered any issues relating to the order or delivery of the food, he would send messages to the dispatchers of D through the App.

5.  P was a “rider” working for D which means he owned his own motorcycle and was responsible for its running costs, including fuel costs, maintenance, insurance and parking.

6.  At all relevant times, P would decide for himself whether he should accept an order that popped up in the App, and the routes of picking up the orders and routes of the delivery.

7.  D would also send messages to all delivery workers including P via the messaging platform Telegram (“Telegram”) regarding any technical issues of the App and weather announcements.

8.  On 18 August 2020, when P started to work at 1934 hours, typhoon signal no.3 (“T3”) had already been issued.

9.  At 2115 hours, D sent the following message to all riders on Telegram:

“The Hong Kong Observatory has advised that the No.8 Typhoon Signal is about to be issued. When it is hoisted, our operations will be suspended and no couriers shall deliver. If you will be delivering orders at that moment, please decide whether you can complete that order based on your safety. You will not be assigned any new order and the Rider Service Team will also end your shifts. We will be closely monitoring the situation and announce the latest operational arrangement accordingly. Thank you.”

(“the First Message”)

10.  After the First Message was sent out by D, P took up and completed 3 orders. The last order was completed at 2258 hours, some 18 minutes after T8 had been hoisted. As no more work was available by that time, P decided to go home. On his way home, he met with a traffic accident (which did not involve other vehicles) and injured himself. He allegedly was blown off by a sudden strong gust of wind, resulting in him losing his balance and falling onto the road, thereby injuring his back, right knee and right fingers (“the Accident”).

11.  P claims that he had no idea that T8 would be issued soon. Further, P admitted after finishing his last order, he was aware of the worsening weather conditions but he decided to go home by driving his motorcycle anyway.

12.  In other words, the Accident occurred when P had finished his last order and was some distance away from the delivery location. He was riding his own motorcycle and was already half way home. Further, the Accident happened some 20 minutes after he had completed his last order. He was about 6.5 km from the location where he had dropped off the food for his last order.

DISCUSSION

LIABILITY

Legal principles involved

13.  The legal principles in this area of law are well settled and are not in dispute. They have been summarized by the parties’ counsel in their opening submissions. I shall briefly state the following for the record.

14.  At common law, employers owe a duty to take reasonable care for their employees’ safety: Cathay Pacific Airways Limited v Wong Sau Lai (2006) 9 HKCFAR 371. That duty includes the provision of a safe place of work, a safe system of work and effective supervision: Wilsons and Clyde Coal Co Ltd v English [1938] AC 57. The duty cannot be delegated by the employer such that it was held in Lau Chi Pon v Toto Steel & Iron Works Ltd & Ors [1997] 2 HKC 195 that employees cannot be expected to lay down and operate a system for themselves. Of particular relevance to the present case is the duty for the employer to provide a safe system of work. Besides, the employer has to prove that the system was effective at the time of the accident: Tse Hoi Cheung v Hip Hing Construction Co Ltd & Ors [1995] 3 HKC 581.

15.  In Yeung Sze Hoi v New Trade Good Foods Centre Ltd HCPI 568/2004, Nguyen J cited passages from General Cleaning Contractors Ltd v Christmas [1952] 1 All ER 1110, in particular:-

“It was well known to employers that work people are very frequently careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonable safe system of work.”

16.  However, it has also been said that the duty on the part of the employer is not absolute and is evaluated based on the specific circumstances and the nature of the work involved: Fong Yuet Ha v Success Employment Services Ltd [2012] HKEC 1780, CACV 100/2012 per Kwan JA (as she then was) at §§17-22.

17.  See also Lo Ho Yin v Phoenix Satellite Television Co Ltd [2020] HKDC 615, DCPI 2474/2018; Lam Ka Lok Louis v Swire Properties Management Ltd [2005] HKEC 650, HCPI 914/2003; Lee Yam Kan v Ng Pui Kuen & Another [2016] 6 HKC 318, HCPI 196/2014.

P’s case

18.  In his statement of claim (“SOC”), P relies on the usual particulars of negligence, breach of statutory duty and breach of implied terms of contract of employment against D. In particular, Mr Hingorani, P’s counsel, highlighted the specific alleged failures on the part of D: (i) observing the Typhoon Code of Practice (“the Code”) issued by the Government; (ii) conduct a timely assessment; (iii) failure to warn P of the adverse weather conditions; and (iv) failure to suspend work. In addition, P’s relies on the various breaches of the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”).

19.  There is no dispute between the parties that on the day of the Accident, P’s scheduled work shift was from 2000 hours to 0000 hours. There is also no dispute that P had commenced work about half an hour before 2000 hours on that day. At 2115 hours, D sent out the First Message to all its riders. At 2240 hours, T8 was issued by the Hong Kong Observatory.

20.  At 2244 hours, D sent the following message to all its riders on the App:

“The No.8 Typhoon Signal is now issued. Our operations are suspended and no couriers shall deliver. If you are delivering orders at the moment, please decide whether you can continue to complete that order based on your safety. You shall not be assigned with any new order and the Rider Service Team will end your shifts. Please be alert to your surroundings and stay at a safe location. Thank you for your commitment.”

(“the Second Message”).

21.  According to D’s record, P had completed the last order, prior to the Accident according to the following timeline (“The Last Order”):

Action	Time	Name of Rider
Courier notified	10:24:16 PM	FAROOQ AHMED KHAN
Accepted	10:24:17 PM	FAROOQ AHMED KHAN
Near pickup	10:36:37 PM	FAROOQ AHMED KHAN
Picked up	10:39:13 PM	FAROOQ AHMED KHAN
Left pickup	10:42:36 PM	FAROOQ AHMED KHAN
Near dropoff	10:44:08 PM	FAROOQ AHMED KHAN
Completed	10:58:45 PM	FAROOQ AHMED KHAN

22.  Further, according to D’s record, the Last Order was picked up by P at a building at Cameron Road, Tsim Sha Tsui and was delivered to Regal Kowloon Hotel located on Mody Road, Tsim Sha Tsui.

23.  On the day after the Accident, P sent the following message to D:-

“On the 18^th August, it was incredibly heavy rain and typhoon No.8 was hoisted at 10:40pm. I delivered my last order around 11pm, so after that I was heading home, when I reached to choi hung road suddenly a very strong wind blew me to the right side of the lane where I hit my right hand and right knee to the railing. I couldn’t move after the hit however in that moment I also wasn’t able to call the ambulance so therefore I have been helped by two gentlemen who generously assisted me and called ambulance & police.”

24.  P’s case therefore essentially is that D operated an unsafe system of work when it allowed its riders to accept orders when they knew that T8 “was about to be issued”. In particular, whether this system of work can still be said to be safe when not only it allowed the riders to accept orders right up to the minute before T8 was issued, but also expected any order which had been accepted by the riders to be fulfilled and completed while T8 was in force.

D’s defence

25.  Mr Kam Cheung, D’s counsel, in his opening submissions states that on the facts disclosed in the pleadings and witness statement, there should be no liability on the part of D. Even if D is somehow liable, Mr Cheung submits that P is contributory liable for the Accident to the extent of no less than 85%.

26.  Essentially, D’s case is that it would be impracticable for D to give specific instructions to many of its riders/delivery workers out in the field when each of them would be under different circumstances. Further, D submits that employees like those in P’s position who decide their own mode of work and provide their own means of transport, are not supposed to be “wrapped in cotton wool”. They do not need specific instructions as to whether and how he should drive in rain and wind.

27.  In the particular circumstances of this case, D’s case is that P should not continue driving after finishing his Last Order in view of the worsening weather conditions which he was well aware of. D says the journey home was decided by P consciously when he was well aware of the “worsening weather conditions”. It was for him to decide on the safe route and to drive in a safe manner. D says that it had no means to decide how P should get back home and had no control of how P would have driven the motorcycle. This is particularly the case as P was already off duty.

28.  Further, D claims that as a qualified and prudent driver, and by common sense, P would not drive in danger or adverse weather conditions and would stop driving whenever circumstances do not permit continuous driving.

29.  In respect of P’s argument that D ought to have suspended its operation once the Hong Kong Observatory announced a pre-T8 warning, D says this is impracticable. D claims that the situation varies from one delivery worker to another. Some of the workers may well be in a perfectly safe place facing no apparent danger. Hence, D claims that it has adopted a safe system of work in that there was no more work to be taken up after T8 is in force.

Analysis of evidence on liability

30.  There were 3 witnesses who gave evidence at the trial. P (PW1) gave evidence to suppose his own case. Mr Davy Chan (DW1), the head of logistics of D and Mr Wong Kai Tim (DW2), the investigation manager of Secret Eye Investigation Company Limited, the private investigator engaged by D’s insurer, give evidence on behalf of D.

P’s evidence

31.  P has adopted the contents of his witness statement as his evidence-in-chief in this case. In his witness statement, P describes how the App operated. Basically, it provides the name and address of the vendor for pick-up and delivery details of the customer. He would then provide confirmation through the App at each stage of the order, such as acceptance, pick-up and delivery which would create a timeline for each order. The App is also connected with GPS so that both D and the customer would be able to track the exact location of the delivery worker and the order in real time.

32.  According to P, the App is also used for delivery workers / riders, including P, to sign in and sign out of his shift and to calculate the number of hours they worked. Once P opens and signs into the App, his shift for the day begins and he would receive notice of incoming orders in accordance with his location with the time. In his experience, during lunch and dinner times, public holidays, weekends and bad weather conditions, there would be a spike in orders, which will increase to double as much as other times. During such peak times, the App would work in such a way that when he accepts an order for delivery of food from a particular vendor, if there are additional orders for food from the same vendor and he confirms his arrival for pick-up of the initial order, he would be unable to continue to select pick-up options for next phase of the order unless he first agrees to accept collection of the additional orders.

33.  The App also connects the riders with the dispatcher by way of text communication. If P has any issues relating to the orders or delivery, such as food spillage, unreachable customer, accident or injuries while on shift, money collection issues, etc., he would send a message to a dispatcher through the App and wait for reply from his signed dispatcher for further action. If P is in the cause of typing a message to his despatcher and notice of a new order appears in the App, the chat box would automatically disappear and any unfinished message would be deleted. According to P, during peak hours when there was a rapid influx of new orders, it is nearly impossible to send messages to the dispatcher.

34.  The above descriptions given by P as to how the App operates is not seriously disputed by D.

35.  In the circumstances, I would accept P’s evidence regarding how the App operates.

36.  Further, I would accept P’s evidence that D differentiates its delivery workers based on their performance through a “batch” system. Workers under batch 1 and 2 are the best performers. I accept P’s evidence that he was a hard working delivery worker and had always been placed in the top two batches for most of the time when he was working for D. Like other delivery workers, his ranking in the “batch” would easily be dropped upon receipt of a customer’s complaint or even if he refuses to accept a certain amount of orders. Hence, I accept P, like his other co-workers / riders, are placed under substantial amount of pressure to accept all orders and to complete them in a high standard in order to maintain their level of income as well as their status as the top performers.

37.  I also accept P’s evidence that D operates a chat group on Telegram which is named “Operations Team”. The Telegram is used for sending out messages to all delivery workers in situations like when the App is suffering from technical issues and needs to repair or for weather notifications. According to P, the App is crucial to his work, it typically remains opened on his mobile phone while he is on shift so that he can keep an eye on any incoming order, co-ordinates his pick-up and delivery routes and completion of his orders. He states unless the App is unavailable at the time or if he was taking a break in between the delivery of orders, he typically would not have the chance to open the Telegram and check for any messages from D, especially during peak times, since he would be focused on accepting orders and maintaining high performance on the App. Further, according to P, while the App is opened, it is easy for him to miss any notification of new Telegram messages, particularly if his eyes were focused on the road or while he was in the course of pick-up or delivery.

38.  While I generally would accept P’s evidence of the above in regard to the functions of the Telegram and how it interacts with the App provided by D, I have great reservation on P’s evidence that he had not had the chance to read any of the messages on Telegram sent out by D regarding the deterioration of the weather conditions and the imminent issue of T8 during his entire shift on the day of the Accident. I shall return to this matter when discussing the possible contributory negligence of P in this case.

Did D provide P with a safe system of work?

39.  Mr Davy Chan (“Chan”), the head of logistics of D gave evidence on behalf of D as DW1 in this case. He adopted the witness statement he made on 11 March 2024 for this case as his evidence-in-chief (“Chan’s WS”). He also confirmed the contents of the witness statement of his predecessor, Mr Matheus Pappiani, who had made a witness statement on 5^th December 2022 on behalf of D.

40.  Basically, Chan stated that the system of work adopted by D was a safe one, despite the fact that the delivery workers were expected not only to work right up to the last moment before T8 was issued, they were also expected to continue with the delivery until the order was executed completely under T8 conditions.

41.  Chan specifically relied on the First Message on Telegram sent to all its riders at 2115 hours which reminded them that T8 was about to be hoisted. D’s case is that despite having received the First Message on Telegram, P still accepted 3 more orders on the App before T8 was issued at 2240 hours. Chan further relied on the Second Message on Telegram sent out by D at 2244 hours which notified all the riders that T8 had just been issued and the “operations are suspended and no couriers shall deliver”.

42.  The Second Message states that if the riders were “delivering orders at that moment, please decide whether you can continue to complete the order based on your safety.” It also advised that the riders will not be assigned to any new order and the shifts will be ended. It further reminded the riders to be alert to the surroundings and stay at a safe location.

43.  However, in my view, the above Telegram messages are in direct conflict with the terms of employment of P with D.

44.  In the “Amendment to Employment Contract” signed by plaintiff at the same time as P signed the employment contract with D on 13 June 2018 (“the Amendment”), the parties agreed to the following:

“1. When an Employee accepts a job on the dispatching software after a black rainstorm and/or typhoon no.8 signal was hoisted, the Employee implicitly agrees to deliver under black rainstorm and typhoon signal no.8 or above conditions.

2. If a black rainstorm and/or typhoon signal no.8 signal was hoisted while the Employee is executing the delivery, the Employee implicitly agrees to continue the delivery under the mentioned conditions. Employee who is unable to do so must inform dispatcher by phone or any other possible means with a valid reason.”

45.  Mr Cheung, D’s counsel, argues that P was at liberty not to accept the orders according to the terms of the Amendment as the starting sentence of the Amendment states that “When an Employee accepts a job…”. Therefore, Mr Cheung argues that it was opened for P as an employee not to accept the job, particularly after warning had been given to the riders in the two Telegram messages.

46.  With respect, this is a totally disingenuous argument. In my view, this has totally ignored the fact that both the riders’ income and performance rating depend on how many orders they would be able to pick up and fulfil. Further, the riders would be at its busiest during the typhoons or poor weather conditions as more customers would be placing their orders on the food delivery platform. Thus, to say that P was at liberty not to accept an order during peak hours would not only go against common sense but in direct conflict with the terms of the Amendment.

47.  In the circumstances, I find the system of work operated by D under T8 was unsafe.

Whether D has exposed P to an unnecessary risk of injury?

48.  P alleges that by instructing P to accept orders right up to the moment before T8 was hoisted and by not only allowing him but instructing him to continue to work (until all the orders are completed) under T8 conditions, D has exposed him to a risk of injury of which it knew or ought to have known: see particulars of negligence under §17(b) of SOC.

49.  Under cross examination, Chan accepted that T8 posed a “risk” to the riders. However, he alleged that P, by accepting the orders, took the risk on himself. When it was pointed out to him by P’s counsel that the acceptance of orders presupposes the sending of orders and the receipt of which by the riders was the primary responsibility of D, Chan sought to excuse D on the basis that D used an automated system which would take time to turn off. Further, Chan stated that their Hong Kong Office would not be able to stop the automated system locally as it has to be stopped at its associated company in Germany. It would take D a few hours to do so. During that time, customers could still place orders on their platform.

50.  In my judgment, this is not an excuse for a company of such size like D. As it is responsible for setting up the system and for running, it has the responsibility to make sure that it can be stopped in time in order not to expose its workers to an unnecessary risk of injury by working under T8 conditions.

51.  In my view, it lies ill in the mouth of D to say that they can expose these workers to an acceptable risk of injury under T8 conditions just because they could not shut the automated system down in time.

52.  In the circumstances, in my judgment, D has exposed P and his co-workers to an unnecessary risk of injury by requiring them to work even after T8 was issued.

Whether D was in breach of the Code of Practice in times of Typhoon and Rainstorms issued by the Labour Department (“the Code”)?

53.  P also relies on a number extracts from the Code published by the Labour Department. In particular, P relies on the following practices under the Code.

54.  On page 20 of the Code, it has been stated that “If employees have to work in times of adverse weather conditions, employer should develop a safe system of work and provide employees with the necessary work equipment such as communication system and …”.

55.  On page 21 of the Code, it has been stated that “Employees should suspend all outdoor work in exposed areas immediately and take shelter in a safe place if they are endangered… and typhoon”.

56.  In my judgment, D was clearly in breach of the Code. First, it had failed to provide the riders with an effective communication system. The Telegram platform was inadequate in sending out messages to riders in time because it depends on the riders to close the App and turn on the Telegram channel in order to check the messages during T8 which was one of the busiest time for the delivery workers. Further, by asking its employees including P to sign the Amendment, D has basically attempted to get round the Code which advised all employees to suspend all outdoor work in exposed areas and asked employees to take shelter in a safe place during typhoon. This in my view was in clear breach of the Code.

Conclusion on D’s liability

57.  Based on the above discussion, I am of the view that D was in breach of its duty of care owe to P in negligence, in breach of the implied terms of the contract of employment and in breach of the statutory duty under the OSHO. In particular, I am of the opinion that it has failed to provide a safe system of work, exposed P to an unnecessary risk of injury and was in breach of the Code of Practice.

58.  In the circumstances, I find D liable for causing the Accident and the resulting injuries sustained by P.

Contributory negligence of P

59.  In Mr Cheung’s closing submissions, he argues on behalf of D that it should not be liable for the Accident due to the following:

(a) It would be impractical for D to give specific instructions to many riders/delivery workers out in the field. Employees, particularly those in the position of P who decide their own mode of work and provide their own means of transport, are not supposed to be “wrapped in cotton wool”. They do not need specific instructions as to how they should drive in the rain and wind. Further, he alleges that the journey home was decided by P. It was for him to decide on the safe route, and D has no means to decide how he should get back home.

(b) P’s suggestion that D ought to have suspended its operation once the Hong Kong Observatory announced a “Pre-typhoon no.8 warning” are impracticable. The delivery workers may well be in a perfectly safe place facing no apparent danger at all.

(c) D has adopted a safe system of work in that there was no more orders to be taken up once T8 was issued.

60.  In my judgment, none of the above arguments would absorb D’s liability as an employer. It is no answer for an employer who has failed to develop, adopt and maintain a safe system of work, and to say that he was not in the position to control the mode of work or transport for his employees after they were being placed in an unsafe and dangerous position.

61.  In my view, it is clearly foreseeable that D would be placing its riders/delivery workers in a highly dangerous situation once T8 was hoisted. It was unsafe and indeed dangerous for it to allow its workers to accept orders right up to the last minute before T8 was issued. Further, it would expose the riders to an unnecessary risk of injury when D expected them to continue to work until all the orders they had accepted before T8 was hoisted were completely executed. In my judgment, this would inevitably place the workers in an unacceptable dangerous situation while they were travelling on their motorcycles on the road.

62.  Mr Cheung further argues that even if D is liable, P is primarily liable for the Accident given the fact that he was the one who decided how he should get back home. In his submission, not only did P failed to pay attention to the Telegram messages in respect of the weather warnings issued by D, he also failed to pay due regard to the weather conditions and his surroundings on his way home. Mr Cheung further submits that P should have stayed at a safe location or take shelter instead of riding his motorcycle home. Mr Cheung submits that the degree of contributory negligence on part of P should be at 85%.

63.  With respect to Mr Cheung, I do not agree.

64.  In my view, as explained above, the primary cause of the Accident was due to the negligence and/or breach of the implied terms of employment on the part of D. It was D who had placed P and his co-workers in a dangerous situation by making them to work even after T8 was hoisted as they had to fulfil all the remaining orders which had been taken up by them moments before the signal was issued.

65.  In this case, the only acts of contributory negligence that I can think of on the part of P are:

(a) his failure to read the various messages on Telegram issued by D to the riders, in particular the First Message, regarding the imminent hoisting of T8 prior to the Accident; and

(b) his failure to find a safe place or shelter before he decided to drive home in his motorcycle.

66.  On the failure to read the warning messages on the Telegram platform, I do not accept P’s evidence that he had not seen any of those messages during the entire 3.5 hours while he was working that evening prior to T8 being hoisted. While I accept that the messages on the App and on the Telegram platform could not be displayed at the same time on the screen of his mobile phone, I do not believe that P had no time at all to switch to the Telegram during his entire shift before T8 was issued. Given that he has accepted under cross-examination that when he left home to work in the afternoon, T3 had already been issued, he must know that the weather conditions were poor and could get worse. In my judgment, it must be incumbent upon him to check the weather conditions, in particular whether T8 would be issued by the Hong Kong Observatory at any time during that evening while he was working.

67.  Further, while I accept that P might be mainly focusing on taking up and fulfilling his orders on the App, I do not believe that he had no time during the entire evening to check the messages on the Telegram channel at all. Had he done so, I believe that he would have been able to take appropriate measures in either not to accept the Last Order before T8 was hoisted or try to find a safe shelter before he rode his motor cycle home.

68.  Moreover, I do not accept P’s evidence that he could not find a safe shelter after he had completed delivery of his Last Order after T8 was issued. His evidence that he tried to take shelter in a hotel lobby after the last delivery but was asked by the security personnel to leave in my view is not convincing. He could always take shelter in other buildings and/or take public transport like MTR to go home. The fact that he had chosen to ride a motorcycle in such adverse weather conditions home means that he had partly put himself in the dangerous situation.

69.  However, as I have explained above, the main liability in causing the Accident lies with D in this case. Thus, any contributory negligence on the part of P based on the above two grounds would be relatively small.

70.  I find the contributory negligence on the part of P based on the above matters should be at 20% only.

Conclusion on liability

71.  In conclusion, based on the aforesaid, I find D 80% liable for causing the Accident while P is liable in contributory negligence to the extent of 20% only.

QUANTUM

Injuries and treatments

72.  P was 48 years old at the time of the Accident. He was granted 785 days of sick leave by the doctors and therapists at the public hospitals.

A&E and O&T of QEH

73.  Following the Accident:

(a) P was taken to the Accident & Emergency Department (“A&E”) of Queen Elizabeth Hospital (“QEH”) where an X-ray revealed open fracture of patella.

(b) P was given IV Tramadol (an opiate analgesic) and Augmentin (an antibiotic).

(c) P was admitted to the Department of Orthopaedics and Traumatology (“O&T”).

(d) At O&T, X-ray revealed the right patella fracture and one at the 4^th metacarpal.

(e) Emergency surgery by open reduction and screw fixation to the right patella was conducted on the same day as was the application of a splint to the right metacarpal.

(f) P returned to O&T in September and December 2020 and January 2021 for right knee pain and swelling for which he was treated with analgesics and physiotherapy.

(g) A private MRI conducted in February 2021 showed mild bone oedema at the patella and distal femoral condyle regions, with an irregularity at the lateral facet of the patella being noted to be consistent with the injury. There was suggestion of sprain of the anterior cruciate ligament, partial tear of the lateral collateral ligament, lateral patellar retinaculum and quadriceps and partial tear of the patellar and popliteus tendons.

(h) At an attendance in a wheelchair on 28 October 2021, P complained of residual pain and stiffness over right knee and back pain, being noted to have muscle wasting over the right quadriceps.

(i) On 12 December 2021, P was re-admitted to O&T for pain over his neck, back and right knee. MRI of cervical, thoracic and lumbar spine revealed degenerative changes at multiple levels, bulging disc at L5/S1; increased spinal cord signal at T7 – T7/8 suggestive of artefact and myelopathic change. Impingement of exiting nerve root at L5 was possible. P was given analgesics and physiotherapy.

(j) Nine months later, on 7 September 2022, P re-attended O&T with residual pain and stiffness over right knee and muscle wasting at right quadriceps. He complained of neck and back pain.

(k) Similar complaints were made at an attendance on 28 December 2022. P said he was able to walk a few steps indoors.

(l) Six months later at O&T, P was still in a wheelchair. He stated he could walk with the support of a stick indoors. His complaints of pain remained similar.

Occupational Therapy Department at QEH

74.  P attended the Occupational Therapy Department (“OTD”) at QEH for treatment:

(a) P attended outpatient training at the OTD from 29 October 2020 to 18 May 2021, first bi-weekly and then once a week.

(b) At a session on 18 May 2021, P reported of pain over 4^th and 5^th metacarpals, with active motion of right ring and little fingers being reduced. Weaker grip strength was also noted on the right side.

(c) P was further referred for work capacity evaluation in late 2021 and attended on 24 November 2021, where work capacity evaluation was not conducted as P refused due to pain reported over his low back, right knee and right whole upper limb. Active motion over the bilateral shoulders and right knee were reduced.

Physiotherapy Department at Our Lady of Maryknoll Hospital

75.  P also attended the Physiotherapy Department (“PTD”) at Our Lady of Maryknoll Hospital (“OLMH”) for treatment:

(a) P attended 24 sessions from 22 September 2020 to 1 June 2021.

(b) At the first session, he was supported by a quadripod. Flexion and extension of right knee was limited. He was treated with ice pack, interferential therapy, hot pack, magnetopulse, thermal therapy and exercises.

(c) At P’s last session, he reported 10% improvement. He was discharged due to static condition.

(d) He also attended, on referral from QEH, for 4 sessions of treatment from 8 March 2022 to 4 May 2022. Treatment was along similar lines as before.

(e) P reported no improvement.

Department of Family Medicine (“DFM”) at OLMH

76.  P attended the DFM at OLMH on 21 January 2021 with complaint of persistent right knee pain for weeks affecting walking and sleeping. He was given medications.

Department of Clinical Psychology (“DCP”) at QEH

77.  P first attended the clinical psychologists at the DCP at QEH on 27 January 2021:

(a) He reported with depression and anxiety about his leg condition, despite medication and physiotherapy. He considered himself weak and lacking self-confidence.

(b) He reported poor appetite, lack of concentration, loss of interest, fleeting suicidal ideations, social withdrawal and feeling isolated.

(c) P had flashbacks and nightmares of the Accident, with fear of cars.

(d) He was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) and comorbid depression with multiple symptoms of depression resulting in significant distress and impairment in daily functioning.

(e) P was taught stabilisation, emotion regulation, grounding technique, relaxation skills, behavioural activation and pain coping skills.

(f) With worsening pain, P’s mood deteriorated.

(g) P’s family reported P was very depressed, staying in bed, lacking motivation to walk, complaining of pain, nightmares and flashbacks.

(h) It was concluded that P’s severe depression, weak physique and severe pain affected his ability to engage in any meaningful way.

(i) In a session in December 2022, P had difficulty in finding words to express himself, said he felt scared seeing shadows, had difficulty recalling skills. His family reported P getting worse, spending long periods lying in bed, but keeping medical appointments. He had poor sleep despite psychiatric medication. In-patient services were explained.

(j) P re-attended on 4 August 2023 appearing more motivated and having resumed exercise. However, depressed mood, anxiety, nightmares and flashbacks continued.

(k) During further re-attendances thereafter, P appeared in a depressed mood with reactive effect and continued experiencing anxiety as evening approached, nightmares and negative thoughts when idle.

Department of Anaesthesiology (“DOA”) at QEH

78.  P also attended DOA at QEH:

(a) P was referred to this department by O&T.

(b) On the first occasion on 20 April 2021, he walked with a stick. There was tenderness on palpation of right patella and obvious muscle wasting over his right quadriceps.

(c) P was referred to the pain clinic at Kwong Wah Hospital (“KWH”).

Physiotherapy Department at KWH

79.  P further attended the PTD at KWH where he had one session for pain at which his right knee showed limited range of motion with pain. He received exercise therapy with functional ability enhancement.

Department of Anaesthesiology at KWH

80.  P also received treatments at the DOA at KWH:

(a) First attendance was on 3 June 2021 for trial of pain intervention. He was diagnosed with right knee pain and given pain killers, pain injection, physiotherapy and counselling.

(b) P was admitted on 4 August 2021 for regional block and passive movement of right knee. A right adductor canal peripheral nerve injection was performed. He was also given pain medications and therapy. Range of movement had been improved and P was discharged on 6 August.

(c) In follow ups in November 2021 and April 2022, knee flexion was still limited.

Joint medical report of Dr Wally Law and Dr Peter Ko dated 2^nd February 2023

81.  P was jointly examined by Dr Wally Law (appointed by P) and Dr Peter Ko (appointed by D). Their joint medical report was dated 2 February 2023 (“JMR”).

P’s submissions in relation to the JMR

82.  Mr Hingorani has highlighted the following parts of the JMR in his closing submissions which are favourable to P’s case:

(a) §53 of the JMR refers to right adductor canal catheter and infusion for right knee physiotherapy admitted under pain team on 4 August 2021. The entry contains the remark “Significant fear avoidance”. P submits it is notable that P’s surveillance began in July 2021 and extended to September 2021 spanning the time when P displayed significant fear avoidance.

(b) At §55iv, as of 6 January 2021, it states inter alia “Quad wasting +++”. P submits that wasting of muscle is well documented in the authorities as an objective sign of injury leading to disuse. In other words, wasting cannot be faked.

(c) At §55v, as of 3 March 2021, there is a reference to “Quadriceps wasting” on the second line.

(d) At §55vii, as of 20 May 2021, it states, inter alia, “quadriceps wasting ++”.

(e) At §55viii and ix, as of 19 August 2021 and 28 October 2021, there are references to “Quadriceps wasting +”.

(f) At §55x, as of 3 March 2022, it states “not matching with job demands”.

(g) §76 deals with a Physiotherapy Report dated 1 June 2021 which states “ROM (Range of Movement) static progression” and “Quad. Wasting +++”.

83.  I agree that the above wasting of his right quadriceps muscle are due to long term disuse of his right leg. These are genuine objective signs that P could not fake. Therefore, I accept that P has suffered from genuine right knee pain resulting from the Accident.

Exaggeration of other complaints and symptoms by P

84.  Having read the medical reports, (including the evidence given by DW2 in court) in particular the JMR; studied the footage in the surveillance video; and having had the opportunity to observe P when he gave evidence in court, I am of the view that there are a lot of exaggeration on the part of P in relation to his complaints. I also find that there was clear underperformance when he was being examined by the doctors / therapists at the public hospitals and by the joint orthopaedic experts at the joint medical examination on 5 December 2022 (“JME”).

85.  P’s present complaints, in particular the complaints he made at the time when he was examined by Dr Law and Dr Ko, consist of pain in the neck, headache, double vision, pain in the shoulder, back pain, pain in left ankle, left anterior knee pain, and numbness in the legs.

86.  I agree with Mr Cheung that none of the above has anything to do with the injuries that he suffered in the Accident.

87.  In this regard, I find P had not been completely truthful in presenting/demonstrating the extent of his impairment to his treating doctors and/or the orthopaedic experts.

88.  I shall deal with P’s specific complaints in the following paragraphs.

Right hand/upper limb injury

89.  For P’s alleged injury in his right hand, I consider that at best there was only a suspicion of hairline fracture. In any event, even if there was a hairline fracture of the metacarpal, I agree with Mr Cheung that it must be very minor and healed shortly after the Accident based on Dr Ko’s opinion:

“… at his first follow up on 9 Sept 2020 which was about 3 weeks after the alleged accident and his follow up at O&T OPD, the X rays taken on that day found the fracture line was blurred. At the follow up X rays on 30 Sept 2020 at O&T QEH follow up, the fracture had healed (no more fracture line seen). From the X ray report on 14 Sept 2020 by EXACT Medical Laboratory, that was about 4 weeks after the alleged injury, it found no fracture and no abnormality. If there had been really a fracture at the 4th metacarpal neck, it was simply too fast for it to have healed without a trace in the subsequent follow up X rays.

In fact, from the clinical examination as early as his first follow up at O&T OPD on 9 Sept 2020, clinical sign was negative … It was just too fast for this clinical sign of a fracture to have completely subsided with an accident that happened just 3-1/2 weeks before that.” (See Dr Ko’s comments on ‘Causation’ at §133 of the JMR at [A2/437/bullet points 4&5]).

90.  Further, I agree with Mr Cheung that P’s complaints about significant disability and functional impairment of his right upper limb was inconsistent with the findings demonstrated in the clinical records and surveillance results. They also lack of any support by way of objective evidence:

(a) Dr Ko takes the view that the non-displaced hairline fracture could not have caused 0 power in all the 5 attempts in both right and left hands grip test and different from what have been documented by the physiotherapy [B1/854] and occupational therapy [A2/368] about his hand gripping. In Jamar Handgrip testing, it was also impossible that Mr Khan only demonstrated 0 power in all 5 attempts in the right hand and also similarly 0 in his left hand with the exception of 1 kg in Position 1. It was just a shouting evidence of manipulation, if not feigning and faking of signs. It was also different from what had been previously recorded and demonstrated by the physiotherapy and occupational therapy about his hand gripping.” (See Dr Ko’s comments under ‘Present findings’ at [A2/443/§139 of JMR])

(b) the medical notes and records did record he had full range of motion of his right hand and able to make full fist [A2/347/§2];

(c) the surveillance on 19 August 2021 showed P could manipulate his mobile phone with his right single hand and a flexion range of him holding a mobile phone especially in the ring and little fingers was much better than what had demonstrated at the JME. He was also seen opening a taxi door normally;

(d) he alleges he did not use his right hand at all. But there was no feature of any muscle disuse in objective measurement of the arm and forearm girth (See Dr Ko’s comments under ‘Present findings’ at [A2/444/§139/bullet point 1]).

91.  Despite of the above, P was still complaining about pain in the right hand when he gave evidence at the trial (some 4 years and 8 months after the Accident). I find P was either exaggerating or simply not telling the truth. I find any injury on his right hand / upper limb was relatively minor and had been resolved a few months after the Accident. I reject any claims that he still suffers from any hand injury / upper limb resulting from the Accident.

Right knee injury

92.  As for the injury to the right knee, the range of motion examination results as recorded by P’s expert Dr Law “fluctuated” wildly:

09 Sept 2020	30°-80°
30 Sept 2020	10°-40°
06 Oct 2020	5°-40°
11 Nov 2020	10°-80°
07 Dec 2020	0°- 70°
25 Jan 2021	10°-50°
22 Mar 2021	5°-70°
01 Jun 2021	Flexion 70°
19 Aug 2021	10°-40°
28 Oct 2021	10°-70°
07 Feb 2022	20°-45°
28 Mar 2022	Flexion 60
[A2/438/§135 of JMR]

93.  Dr Law tried to explain the inconsistency in the extension lag was “likely related to variation in motor strength and pain intensity, with painful inhibition in exertions on knee extensor power.” He further tried to explain the limitation of flexion was “likely the combined result of injury to the patella chondral cartilage”, which was subject to pressure during flexion: (A2/439/§135 vi & vii).

94.  In relation to his injured right knee, it is the opinion of Dr Ko that:

“Regarding his right knee, Mr. Khan had persistent pain. On reviewing the available documents and reports, he had demonstrated different range of motion within a short period of time. For the range of motion on different dates as tabulated by Dr. Law in paragraph 133, with such wide variation within a relatively short period of time, could only mean that there was obvious 'manipulation'. If the stiffness, i.e. decrease in flexion and also extension as well as fixed flexion contracture, it would not be possible for one to have demonstrated such wide variation within a short period of time. For example, on 9 Sep 2020, the range was 30-80°, but 2 weeks later, the range was 10-40°. And a half month later, the range became to 10-80°.

Suffice to say, the active range of motion was totally dependent one's voluntary volitional movement.

Despite what Mr. Khan had previously demonstrated in his decrease range of motion of the right knee, the surveillance recording as highlighted in Dr. Ko's review on surveillance that Mr. Khan had demonstrated the best range of motion of more than 100° flexion by himself and full extension as well. Under this kind of circumstances and conditions, this should have been in more reliable reflection of his range of motion of his right knee.

…

Concerning his right knee condition, it was just res ipsa loquitur in watching the surveillance recording that Mr. Khan had much superior performance in his right lower limb that what he depicted. Obviously, he was not really that wheelchair dependent or stick dependent. Obviously, his walking tolerance was much better than his description of only 5 minutes of walking. Obviously, there was no trembling or shaking. He definitely could manage stairs walking. He was able to get up from sitting by himself without assistance from others.”

[A2/441/§136/bullet points 4-6; A2 and §139/444/bullet point]

95.  While I accept that P has suffered serious and genuine injuries to his right knee in the Accident, I agree with Dr Ko’s above opinion that there was obvious manipulation and exaggeration on his part when he attended various treatments in the public sectors.

96.  Further, as was recorded by the experts in the JMR, P demonstrated marked instability during attempts to stand up from his wheelchair with the assistance from his son during the JME. This was also in sharp contrast with what being captured by the surveillance evidence which shows various instances of P having no difficulty and requiring no assistance when getting up from a sitting position. For example, P only sat on a wheelchair after he arrived at QEH on 19 August 2021 and was only relying on his walking stick before and after he entered QEH. This raises a serious question as to whether he was actually wheelchair dependent or it was only in an attempt to impress the treating doctors.

97.  In my view, there was clear exaggeration on the part of P in relation to the effects of the right knee injuries had on him. I do not accept that he was so much wheelchair dependent as he would like the experts or the court to believe.

98.  In addition, I accept the following submissions made by Mr Cheung regarding P’s ability to walk. P’s allegations that he had to use a walking stick for indoor and outdoor walking in the JME and 5 minutes walking tolerance are in sharp contrast with the surveillance evidence. He was not seen placing much weight or reliance on the walking stick. He was seen walking with a stick up to 25 minutes without any trembling or shaking over both upper and lower limbs (see surveillance on 4 September 2021). He was also seen walking multiple steps of stairs and also a gentle upslope without holding on a handrail or any stick for support (see surveillance on 18 May 2022). In the premises, I agree with D that the actual ambulatory status and walking tolerance of P should have been better than he alleged in the JME.

99.  Further, the objective findings in the JME showed no effusion, no instability and no implant impingement over the right knee. The preserved muscle bulk in the calves also rebuts the possibility that he would have the grade 4 weakness in the right ankle as he demonstrated at the JME. Regarding the 2cm girth difference being objective finding supportive of muscle wasting caused by genuine chronic pain, there had been a 4cm growth in the right thigh girth ([A2/430/§101 of JMR]) when comparing the girth circumference as measured at the following up on 20 April 2021 (consultation at Pain Clinic of QEH [B3/1272]). I think it is fair to say that the muscle wasting condition on his right knee has been improving due to more frequent use.

P’s other orthopaedic complaints

100.  Both Dr Law and Dr Ko agreed that it is unlikely that the low back pain was related to the Accident as the first clinical remarks of back symptoms was made on 19 August 2021, ie about a year after the Accident ([B3/1297]).

101.  Regarding his neck, vision, left ankle and left anterior knee complaints, there is in my view simply no evidence showing any of these complaints have any causal relationship with the Accident. Even if all these conditions are genuine, I agree with Mr Cheung that it is highly arguable that they are unrelated to the Accident.

Conclusion on the JME

102.  On the whole, I prefer Dr Ko’s opinion than that of Dr Law in this case as I consider his opinions are more critical and well-reasoned. He has also taken into account of the objective findings, including the surveillance evidence in this case. However, I do not agree with his opinion regarding P’s ability to return to his pre-accident job as a rider / delivery worker for a food delivery platform like D.

P’s psychiatric impairment

103.  It is the opinion of the single joint psychiatric expert, Dr Law Wun-Tong that P’s PTSD is only compatible with mild impairment. Further, it is Dr Law’s opinion that P is mentally fit to perform all activities of daily living and his work capacity will not be significantly affected by his mental problem. Dr Law considers that sick leave of 3 months after the first psychiatric consultation is reasonable.

104.  In my view, based on the above, any psychiatric injury resulting from the Accident is mild and short-lived. It will have little impact on both the general and special damages claimed by P.

Surveillance Evidence

105.  Having viewed the surveillance footage, I agree with Mr Cheung’s submissions that P realised that he might be under surveillance because he was always looking around and was very alert to his surroundings.

106.  With respect, the comments made by Dr Law under this head in the JMR, which was done without going into any detailed analysis of the contents of the surveillance video footage, are rather unhelpful. His very general comments that P “was not recorded to be having any strenuous act, any fast walking or running, any heavy lifting or any activity of gainful employment” do not assist the Court at all. I reject Dr Law’s very general and unspecific comments that “the physical conditions in the surveillance does not exceed the result of current assessment”. I also reject his conclusion that “the surveillance materials do not provide any information of any significant clinical or probative value.” ([A2/433/§128 of JMR]).

107.  In my judgment, when there are clear contradictions or differences between the physical conditions that a plaintiff presents to the treating doctors/experts and that discovered by covert surveillance, it is incumbent for an expert to explain in detail and provide specific opinion in the JMR as to why he considers the claimant’s ability to perform under surveillance could be so different from what he has reported to the treating doctors or experts. General comments like what Dr Law did in this case in the JMR in my view simply are not sufficient and unhelpful.

108.  Contrast to Dr Law’s approach, Dr Ko has given detailed analysis about P’s mobility as well as ambulation ability as corroborated by the surveillance evidence. I agree with the following comments made by him in the JMR:

(a) 19 August 2021 – it did not appear P relied much on the left hand stick for support. During his walking gait, his right knee extension was full. When sitting, he demonstrated right knee flexion at least 70° to 80°. When getting up from the sitting position, he required no assistance.

(b) 4 September 2021 – P demonstrated some stretching movement of the right shoulder with obviously better flexion and abduction range as found at the JME.

(c) 8 September 2021 – he got up from the sitting position by himself without assistance from others.

(d) 18 May 2022 – he demonstrated good circumduction movement of his right shoulder with essentially full flexion and abduction. He demonstrated full extension movement of his right knee while performing some stretching in the park. He walked a gentle upslope without holding on rails or any stick for support.

(e) 16 June 2022 – he was able to get out of taxi by himself without assistance or aids.

(f) 24 June 2022 – he demonstrated right knee flexion more than 100° [cf the range of motion of his right knee at the JME is 0° to 80°].

([A2/433-435/§129 of JMR)

QUANTIFICATION

Submissions by P in relation to damages

109.  Mr Hingorani made the following submissions on behalf of P in relation to the quantification on general and special damages:

(a) Even if Dr Ko took the view that P under-performed, P’s claim for PSLA remains appropriate as he did undergo pain, limited mobility, psychiatric sequelae such as PTSD, depression etc which places him in the “Serious Injury” category.

(b) Dr Law opines that cannot return to his pre-accident employment but is suited to be a telephone operator or cashier giving reasons.

(c) Dr Ko opines that P would have been able to resume his pre-accident employment by about May-June 2021 minimal to mild impairment to his work efficiency. No reasons are given as to why P could have resumed previous employment by May-June 2021 and nothing is said about the fact of P being diagnosed with PTSD arising from a life-threatening accident.

(d) Both experts opined that P suffered an open fracture of right patella and closed fracture of 4^th right metacarpal. Dr Law also opined that P suffered PTSD and depression. The latter two findings were best left to a psychiatric expert. Dr Ko referred to neck pain, low back pain, left knee pain and visions complaint as being “purported concomitant/condition/complaints” which is probably unfair to a lay person.

(e) Both agreed that the fractures were a result of the Accident.

(f) Dr Law also opined:

(i) That improvement was partial, with prolonged duration of marked disability, weakness and stiffness made longer by the mental involvement.

(ii) The back symptoms were likely the result of right knee instability causing asymmetry of gait but that degenerative changes played a role.

(iii) The smaller quadriceps bulk at the time of examination was compatible with the records ofmuscle wasting, an objective sign.

(iv) The conditions of the right hand were likely to be permanent resulting in limitation of the use of the right hand in every respect.

(v) P’s condition was not compatible with his previous job. He was more suited to jobs such as cashier or telephone operator.

(vi) Sick leave from 19 August 2020 to 13 July 2022 was appropriate.

(vii) It is notable that Dr Ko does not disagree with any of Dr Law’s additional opinions. He chooses rather to remain silent.

110.  However, with respect to P’s counsel, I think it is only fair to point out that Dr Ko did not entirely agree to the “closed fracture right hand 4^th metacarpal” diagnosis made by Dr Law. In fact, he put a question mark behind the diagnosis of “Non-displaced cracked right hand metacarpal head fracture (?)” made by Dr Law.

111.  Further, I consider it is also unfair to say that Dr Ko says nothing about the diagnosis of PTSD as this is outside his expertise. Dr Law, the single joint psychiatric expert, has made it clear in his report that any mental effect the Accident has was mild and short-lived.

112.  Similarly, I do not think it is right to say that Dr Ko does not disagree with any of Dr Law’s additional opinions and chooses to remain silence. With respect, I think it is clear from reading the JMR that Dr Ko’s opinions are very different from those expressed by Dr Law. Just because he did not specifically deal with each and every opinion expressed by Dr Law should not be taken as he agrees to them. The same would apply to the opinions expressed by Dr Law in the JMR.

113.  On orthopaedic grounds, Dr Law considers the period 19 August 2020 to 13 July 2022 for sick leave to be appropriate. P had his first psychiatric consultation on 13 July 2021 and Dr Law the single joint psychiatric expert considered 3 months sick leave on mental grounds as suitable. On this basis, P says that the loss of earnings is calculated on the basis of a period of 427 days.

114.  Dr Ko on the other hand considers that sick leave up to around May to June 2021 is appropriate.

Pain, suffering & loss of amenities (“PSLA”)

115.  For the claim of PSLA, Mr Hingorani made the following submissions on behalf of P:

(a) A tortfeasor must take his victim as he finds him. There is no question that P has ever exaggerated his symptoms. Certainly, none of those who attended P nor indeed the experts, have adverted to exaggeration or malingering.

(b) Dr Law came to several supportive conclusions, none of which drew criticism from Dr Ko. Further, the psychiatric expert agreed with the diagnosis of the attending doctor.

(c) The following matters need to be taken into consideration: -

(i) Muscle wasting. It is generally acknowledged muscle wasting is an objective sign of disuse. It would be extremely difficult for P to have deliberately underused his right leg for long enough to create obvious muscle wasting.

(ii) P dutifully attended numerous hospital departments with frequency. There is no record of him missing appointments.

(iii) The condition of his knee was likely to cause imbalance, gait problems and instability for which his opposite side would compensate. Additionally, the back would absorb more stress.

(d) P submits that HK$600,000 for PSLA, which is at the upper end of the “Serious Injury” category, is appropriate.

116.  However, I notice that Mr Hingorani has not cited any comparable cases with victims who suffered from similar injuries as P for the Court’s consideration.

117.  On the other hand, Mr Cheung has cited the following cases in his written submissions which he says are compactable with the injuries sustained by P in the Accident and submits that a sum of HK$300,000 is appropriate as damages for PSLA:

(a) Choi Pak Sum v Lam Lung Ki and Lam Kwok Ping all trading as Kam Fat Restaurant [2010] HKEC 1878, HCPI 529/2008.

(b) Yeung Wai Ming v Tsui Ma Sing and Others [2009] HKEC 1482, HCPI 561/2007.

(c) Lam Koon Yin v The Kowloon Motor Bus Company (1933) Ltd and Another [2020] HKCFI 2959, HCPI 521/2015.

(d) Lee Chun Fat v Chan Kin Wo and Another [2002] 2 HKLRD G20, HCPI 1306/2000.

(e) Chu Hon Chong v Wong Kwan Kit and Another [2010] HKEC 546, HCPI 541/2008.

(f) Wong Shek Mui v Mammoth Holdings Ltd [2007] HKEC 338, HCPI 1291/2003.

(g) Cheng Chi Ming v Li Chau Wan and Another [2005] HKCU 896, HCPI 1028/2002.

118.  Having considered the above cases cited by Mr Cheung, I consider that P’s injuries, even when relying on Dr Ko’s opinions in the JMR, are more serious than the injuries sustained by most of the claimants reported in those cases. I am of the view that by taking into account of the open fracture right patella; the possible non-displaced cracked right hand metacarpal head fracture (which I find must have recovered within a relatively short period of time); and the psychiatric injury as opined by the psychiatric expert, I consider that P’s injuries come just short of the bottom end of the “Serious Injury” category.

119.  I am of the view that a sum of HK$500,000 is appropriate as award for PSLA in this case.

Pre-trial loss of earnings

120.  For pre-trial loss of earnings, it has been agreed that the average monthly earnings of P at the time of the Accident was at $28,670. However, that is before the deduction of the expenses in relation to providing, running and maintaining his motorcycle. Mr Cheung estimated the monthly cost of such expenses is around $6,241. I consider that is on the high side as, firstly, I think a motorcycle will definitely last more than 4 years (as estimated by Mr Cheung), thus the depreciation will not be as high as those estimated by him. Secondly, the licence fee, parking fee (which P claims he could park free of charge in the public housing estate where he lives), maintenance cost is well less than the estimated sum of $1,000 per month.

121.  On a rough estimate, I consider that a sum of $4,000 per month as reasonable to represent the above expenses for providing the motorcycle. Thus, I estimate that his net income, excluding the MPF contribution from his employer, was at $24,670 ($28,670 - $4,000) per month at the time of the Accident.

122.  For the sick leave period, I consider 14 months is reasonable, having taken into account of the sick leave period suggested by Dr Law and Dr Ko. Thus, there will be a total loss of pre-trial loss of earnings from 18 August 2020 (date of Accident) to 17 October 2021.

123.  After the sick leave period, given P’s serious right knee condition, I do not think it is realistic to assume that he was able to return fully to his pre-accident job as a rider/delivery worker for D or for any fast food delivery company. Despite Dr Ko’s opinion on this issue, the uncontroversial and objective fact is that P still has significant quadriceps wasting. Dr Ko accepted that “there was obvious muscle wasting in the right thigh which could have been caused by disuse in the right lower limb, it would be related to his patella fracture due to disuse”. As the quadriceps are the main extensor muscle of the knee, this would have direct effect on his ability to ride a motorcycle and prolonged walking which would be two basic requirements for a rider/delivery worker.

124.  Dr Law opines that P is not suitable to return to his pre-accident job as a food delivery worker on motorcycle mainly because of: (i) his limitation in his physical tolerance in manual tasks on his right hand; and (ii) his severe limitation in his ambulation tolerance.

125.  However, as analysed above, the surveillance footages show that P has much better physical tolerance in terms of his walking, standing and ambulation abilities than he tried to present to the treating doctors and the orthopaedic experts. He could also use his right hand without much difficulty.

126.  Be that as it may, I think to be fair to P, it does not mean that he would be able to return to work as a rider/delivery worker which is a very demanding job, particularly during peak hours. I therefore do not agree with Dr Ko’s opinion that P would have been able to resume his pre-accident job after the sick leave period “with minimal to mild impairment of his work efficiency and effectiveness” as opined by Dr Ko.

127.  On the other hand, I also do not accept Dr Law’s suggestion of other alternative occupations like telephone operator or cashier, given his background and inability to communicate in English and Cantonese. I consider a job like that of a security guard or building attendant will be more suitable. I estimate that such job will pay an average of around $14,000 per month, based on the government statistics of average income for such workers.

128.  Thus, I am of the view that the loss of pre-trial earnings should be allowed at follows:

(a) Total loss of income from 18 August 2020 from 17 October 2021 (14 months) ($28,670 - $4,000) x 14 months = $345,380

(b) Partial loss of income from 18 October 2021 to 31 March 2025 (41.45 months) ($24,670 - $14,000) x 41.45 months = $442,272

129.  Thus, the total pre-trial loss of earnings which I would award in this case is at $787,652 ($345,380 + $442,272).

130.  On top of the above sum, there will be the loss of the employer’s contribution to the MPF at $39,383 ($787,652 x 5%).

Future Loss of Earnings

131.  For future loss of earnings, I have taken into account of the following matters:

(a) P was 48 years old at the time of the Accident and is 53 at the date of trial.

(b) The appropriate multiplier should be at 10.12.

(c) P can only take on sedentary occupations such as security guard or building attendant earning around $14,000 a month.

(d) Future loss is thus at:

($24,670 – $14,000) x 12 months x 10.12 = $1,295,765

(e) The employer’s MPF contribution of 5% would have equated to $1,295,765 x 5% = $64,788

(f) Thus, the total of the future loss of earnings is assessed at $1,360,553.

Special damages

132.  P claims a sum of $35,000 as special damages in this case while D allowed $10,000 for those expenses.

133.  Given the large number of medical appointments P had attended, I consider that a sum of $20,000 is regarded as reasonable to represent medical expenses, travelling expense and tonic food in this case.

Loss of earning capacity

134.  I do not think P will suffer any disadvantage in the labour market or loss of earning capacity if he is able to work as a security guard or building attendant.

135.  I therefore do not consider a separate award for loss of earning capacity is appropriate in this case.

Employees’ compensation

136.  P had received employees’ compensation (“EC”) in the sum of $817,860.70 from D of which he must give credit in this case.

Interest

137.  The usual interest of 2% from date of service of writ to date of judgment for general damages will be awarded.

138.  In respect of interest for special damages, it will be awarded at half of the judgment rate from date of the Accident to date of receipt of the EC payment from D on 29 May 2023. For interest after that date, it will be calculated based on the special damages figure minus the EC payment sum at the same rate.

Summary of Calculations

139.  In summary, after taking into account of the 20% contributory negligence on the part of P, the award of damages I will make in this case are as follows:

	HK$
(i) PSLA	$500,000
(ii) Past loss of earnings (including MPF)	$827,035
(iii) Future loss of earnings (including MPF)	$1,360,553
(iv) Loss of earning capacity	Nil
(v) Special Damages	$20,000
	$2,707,588
Less contributory negligence at 20%	($541,518)
Gross total:	$2,166,070
Less EC payment	($817,861)
Net total:	$1,348,209

140.  I will therefore enter judgment in favour of P in the sum of $1,348,209 plus interest in this case.

141.  Costs will follow the event. P is entitled to costs of the proceedings, such costs will be taxed if not agreed. P’s own costs to be taxed in accordance with the Legal Aid Regulations. The above costs order will be made on a nisi basis. Any party who wishes to vary the above costs order should apply within 14 days from the date of the judgment. The matter will be dealt with by way of paper disposal.