SHUM KWOK MING v. LAI NGOK TIM trading as HANG HING ENGINEERING CO

DCPI261/2023

[2025] HKDC 1575

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 261 OF 2023

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ASSESSMENT OF DAMAGES

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1.  This is an assessment of damages in a personal injury case in which the plaintiff, a renovation worker, fell from a ladder whilst at work on 14 March 2020 (“the Accident”).

Procedural History

2.  The defendant, the plaintiff’s employer, did not give notice of intention to defend and interlocutory judgment on liability was entered against the defendant on 9 August 2023 leaving damages to be assessed.

3.  The Notice of Appointment for Assessment of Damages was served by post on the defendant at his last known addresses on 18 December 2024. Affirmation of service regarding the Assessment of Damages hearing was filed on 25 April 2025.

4.  The defendant, having been absent all along in these proceedings, attended the assessment hearing. Clearly, the notice of the assessment hearing had been duly given to the defendant.

5.  At the assessment hearing, the defendant agreed to have this Assessment of Damages to be in English with an interpreter to be arranged for translation at the time of handing down.

The plaintiff’s case

6.  The plaintiff was the only witness who testified at the assessment of damages. He adopted his witness statement filed herein as part of his evidence in chief.

7.  The plaintiff was born on 7 March 1975, and was 45 years old at the time of the Accident.  He is now 50 years old. He is married and received education up to Form 3 level.

8.  On 14 March 2020, whilst standing on a ladder cutting a metal canopy with a hand grinder, a piece of iron fell off and hit the ladder. The plaintiff lost balance, fell from the ladder and landed on both heels.

The defendant’s case

9.  As mentioned, the defendant had been absent in all previous hearings in these proceedings. By an order dated 15 February 2024 (“the February 2024 Order”), as the defendant had failed to file and serve his list of documents, his witness statement(s)  as to quantum, and an Answer to the Revised Statement of Damages by the stipulated deadlines, it has been deemed that he does not intend to adduce any documentary evidence and has elected not to file an Answer. He has also been debarred from calling any witnesses of facts (including himself)  at the Assessment of Damages.

Injuries and Treatment

10.  Immediately after the Accident, the plaintiff felt pain in his feet. He could not stand up on his own.  He was then sent to the Accident and Emergency Department of Queen Mary Hospital (“QMH”)  by ambulance for treatment. X-ray of both feet revealed bilateral closed calcaneal fractures. He was admitted to the Orthopaedics and Traumatology Department (“OTD”)  of QMH for further management.

11.  On 16 March 2020, the plaintiff underwent open reduction and internal fixation to both calcaneum. He was discharged on 20 March 2020 with follow up at outpatient clinic.

12.  On 18 June 2020, the plaintiff was referred to physiotherapy by the OTD of QMH for bilateral os calcis fracture. The initial physiotherapy assessment took place on 27 July 2020. The plaintiff was a sitter indoor and wheelchair bound outdoor. Physiotherapy including exercise therapy was given to the plaintiff.

13.  The plaintiff continued to attend physiotherapy until 16 November 2020. He was able to walk unaided with mild limping gait.

14.  On 10 September 2020, x-ray of the plaintiff’ feet showed good alignment. The plaintiff was referred to occupational therapy for work rehabilitation and attended a total of 11 sessions of work hardening from 10 December 2020 to 26 January 2021. He still had inadequate tolerance and stability in standing/ walking and walking up/ downstairs. He was reinforced with home programme (ankle stretching and strengthening).

15.  The plaintiff was granted sick leave from 14 March 2020 to 22 April 2021 and from 20 May 2021 to 21 May 2021 for a total of 407 days.

EC board assessment

16.  On 21 May 2021, the plaintiff was assessed to have suffered from 8% loss of earning capacity for “bilateral calcaneal fracture resulting in residual bilateral foot pain and ankle stiffness” by the Employees’ Compensation (Ordinary Assessment)  Board (“the Board”)  (Form 7). The Board maintained the same assessment at the review held on 20 August 2021 (Form 9).

17.  The Board certified absence from duty from 14 March 2020 to 22 April 2021 and from 20 May 2021 to 21 May 2021 to be necessary as a result of the injury.

Joint Expert Report

18.  A Joint Medical Examination (“the JME”)  was held on 26 April 2022 by the plaintiff’s expert Dr Fu Wai Kee (“Dr Fu”)  and the defendant’s expert Dr Tsoi Chi Wah Danny (“Dr Tsoi”). The Joint Medical Report dated 15 June 2022 (“the JMR”)  was obtained for the related employees’ compensation proceedings. By an order dated 14 July 2023, leave was granted to adduce the JMR in these proceedings. By the February 2024 Order, the JMR be adduced as evidence without calling the makers thereof. It is fair to say that the medical experts do not differ materially in their assessment.

19.  At the JME, the plaintiff complained of: -

(i)  Bilateral heels pain and stiffness – the pain was aggravated by weather change and prolonged standing (1+hours). There was pain during walking especially when lifting weight. He had to take analgesics 10 times a month to relieve pain; and

(ii)  Both lower limbs’ weakness – he could only walk slowly. He had some difficulty in walking downstairs.

20.  Both experts agreed that the injury sustained by the plaintiff was compatible with the diagnosis of fracture of both calcaneum. Both experts agreed that the injury should be caused by the Accident and there is no evidence of pre-existing pathology in the plaintiff’s heels.

21.  As to treatment, both experts agreed that the treatment received by the plaintiff is standard and appropriate.

22.  Both experts agreed that the plaintiff would benefit from further surgery for the removal of implants as the plate and screws on the left heel are slightly pulled out.

23.  Dr Fu opined that the costs of surgery in public sector would be nominal whereas the costs of such in private sector would be around $80,000. The plaintiff will need 4 to 6 weeks of rest and sick leave after the surgery. After that, no further treatment would be required. If the plaintiff does not want the surgery, he should have reached maximal medical improvement and no further treatment except symptomatic one would be required.

24.  Dr Tsoi agreed with the costs of the surgery and rehabilitation period suggested by Dr Fu. Dr Tsoi further opined the joint stiffness and pain on prolonged weight bearing are likely permanent and further rehabilitation would not have additional beneficial effect. The plaintiff has reached a stage of maximal medical improvement.

25.  As to prognosis, Dr Fu opined that the plaintiff would have difficulty in climbing or walking on uneven ground. The plaintiff’s condition should be static if he does not undergo further surgery. The plaintiff’s lower limbs impairment would persist and he would need medical treatment on a need-basis. The plaintiff would have some difficulty in climbing, squatting, walking on uneven ground or weight lifting.

26.  Dr Tsoi opined that the plaintiff should not have any problem in climbing staircase and ladder. However, the involvement of subtalar joint would be the source of heel soreness or ache discomfort on prolonged standing or walking. The plaintiff would also have inconvenience when working/ walking on uneven surfaces. Gross weakness is not expected and the overall prognosis of the bilateral calcaneal fractures is fair.

27.  As to activities of daily living, both experts agreed that the plaintiff should be independent in activities of daily living.

28.  As to working capacity, both experts agreed that due to the plaintiff’s residual symptoms, he would have difficulties in resuming his pre-accident job. He should be able to take up lighter jobs or jobs with moderate manual demand such as cashier, security guard, store assistant, petrol station attendant etc.

29.  The impairment for whole person and loss of earning capacity of the plaintiff was assessed at 10% by Dr Fu and 8% by Dr Tsoi.

30.  As to sick leave, Dr Fu considered all the sick leave granted by the plaintiff’s treating doctors to be appropriate whereas Dr Tsoi considered sick leave up to end of March 2021 to be adequate.

Assessment of the Plaintiff’s evidence and his credibility

31.  In assessing the credibility of the plaintiff, I bear in mind the general principles set out by Deputy High Court Judge Eugene Fung SC in his Judgment in Hui Cheung Fai & Another v Daiwa Development Limited & Others, HCA 1734/2009 (unreported, 8 April 2014):

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431 (Lord Pearce)  […]

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011)  §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002)  5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses' character (Esquire (Electronics)  Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd's Rep 1 at 57:

‘Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court's determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud)  have been made by the Son against the defendants.

83. In approaching the evidence in this case, I have also borne in mind that the allegations made by the Son are very serious, and that the more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be: see Re H (Minors) [1996] AC 563at 586D-587F (Lord Nicholls)  and ADS v Brothers (2000)  3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).”

32.  The plaintiff’s testimony is not challenged by the defendant at the Assessment of Damages hearing.

33.  The plaintiff testified that he worked for the defendant and other employers on average 26 days a month with a daily rate of $1,300 at the time of the Accident. He earned no less than $33,800 a month. As a renovation worker, he had to carry out dismantling job at various locations.

34.  By reason of the injury, he had difficulty in climbing up and down ladders, standing and walking for long and squatting. He could not return to his pre-accident job.

35.  As a result, since September 2023, the plaintiff started to work as a self-employed delivery cum driver, earning about $500 to $600 a day.

36.  In order to earn a steady income, the plaintiff switched to work as an employed delivery cum driver from 24 February 2025, receiving basic salary, various commissions and allowances per month.

37.  Regarding his present health condition, the condition regarding his feet, in particular his right foot, has improved. He no longer has to take painkillers. He no longer has problem falling asleep too. He no longer receives follow-up treatment at the OTD of QMH.

38.  Overall, while the plaintiff seems to be consistent in his evidence, there is no reasonable explanation given for the serious lack of documentary evidence in support of his claim. I now turn to each head of claim.

PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

39.  In the Revised Statement of Damages (“RSOD”), the plaintiff claimed a sum of $450,000 for damages for PSLA. In the plaintiff’s written opening submissions, Ms Lam, Counsel for the plaintiff, submitted that around $400,000 is reasonable under this head. The following authorities were cited as support:-

(a)  Chan Cheuk Ki & Anor v Poon Yu Cheung & Anor, HCA 9146/1991, 26 October 1995 (PSLA for the 1^st plaintiff at $220,000);

(b)  Wong Woon Hei v Dickson Construction Co Ltd & Ors, HCPI 521/2000, 3 July 2001 (PSLA at $400,000);

(c)  Chan Wai Keung v Li Yau Hing, HCPI 715/2012, 20 February 2017 (PSLA at $350,000); and

(d)  Chan Fai Cheung v Ho Chi Wing [2019] HKCFI 235 (PSLA at $500,000).

40.  In addition to the above authorities cited to me, I have also considered Lau Kin Wah v Lam Shu Kan, HCPI 1208/1998, 28 February 2000 (PSLA at $375,000); Chan Chi Shing v Chan Shu Kuen & others [2009] 2 HKLRD 259 (PSLA at $350,000); Tse Hing Wan v Choy Yuen Keung & others, HCPI 889/1998, 24 January 2000 (PSLA at $350,000); and Lee Kim Man v Guard Leader Ltd & others [2022] HKDC 450 (PSLA at $300,000).  I am of the view that the injuries suffered by the plaintiff in the present case were less serious than that of the plaintiff in Wong Woon Hei but more comparable to that of the plaintiff in Chan Cheuk Ki,  Chan Wai Keung, Chan Chi Shing and Tse Hing Wan.

41.  I find that a fair and reasonable award for PSLA should be at $380,000 after taking into account the plaintiff’s injuries and treatment as well as inflation. I award such sum as damages for PSLA accordingly.

PRE-TRIAL LOSS OF EARNINGS & MPF

42.  The plaintiff claimed $1,107,616.46 under this head according to the RSOD on the basis of a monthly salary of HK$28,600 ($1,300 x 22 days)  at the time of the Accident. He claimed full loss of earnings from 14 March 2020 to 21 May 2021 (ie 407 days)  when he was on sick leave and another 6 months after the expiration of sick leave for job hunting until 20 November 2021. Thereafter, he claimed partial loss of earnings on the basis that he could secure a lighter duty job as a guard earning $14,246 a month up to 30 August 2023; and as a self-employed driver earning $16,000 a month from 1 September 2023 onwards.

Pre-accident Monthly Income

43.  As mentioned above, the plaintiff claimed that he worked as a renovation worker for the defendant and other employers at a daily rate of $1,300 with 26 days of work on average a month. Although he is now only claiming 22 days of work per month as the basis for calculating his pre-accident income, the plaintiff frankly admitted in court that his claimed number of working days per month is only an estimate. There is no documentary evidence at all in support. The amounts shown on the cheques issued by the defendant to the plaintiff were for payment of the plaintiff’s wages as well as reimbursement of expenses incurred. The plaintiff is not able to explain or recall how much he received from the defendant was for his income, and how much was for the reimbursement of expenses.

44.  There is also no MPF statement or tax returns to corroborate the claimed pre-accident level of earnings.

45.  The claimed daily rate of $1,300 was not challenged by the defendant. It does not seem unreasonable having considered the “Average daily wages of workers engaged in Public Sector Construction Projects as reported by main contractors” published by the Census and Statistics Department (“CSD”)  for March 2020 and the “Hong Kong Construction Workers Payroll (Daily Salary)” published by the Hong Kong Construction Industry Employees General Union on 9 October 2024 for 2019 to 2024.  Accordingly, I accept that the plaintiff earned a daily rate of $1,300 at the time of the Accident.

46.  However, as for the plaintiff’s claimed average number of working days per month, absent documentary proof and that he merely worked as a renovation worker on a casual basis (散工), I am only prepared to accept that he worked on average 18 days per month.

47.  This would give the figure of $23,400 ($1,300 x 18 days)  as the plaintiff’s pre-accident monthly income.

The appropriate sick leave period

48.  The appropriate duration of sick leave from both experts did not differ significantly. Dr Fu considered the entire sick leave granted from 14 March 2020 to 22 April 2021 and 20 May 2021 to 21 May 2021 (ie 407 days)  to be appropriate whereas Dr Tsoi considered sick leave up to end March 2021 (ie 383 days)  to be adequate.

49.  The Board certified absence from duty from 14 March 2020 to 22 April 2021 and from 20 May 2021 to 21 May 2021 to be necessary as a result of the injury.

50.  In determining the reasonable length of sick leave period, the court is not bound by the sick leave certificates.  Ultimately, the question should be determined after taking into account all the evidence: see Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210.  Further, in Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd, CACV 172/2004, 15 July 2005, Rogers VP observed that “the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff”.

51.  In view of the injuries sustained by the plaintiff in the Accident, that he had to undergo surgery for calcaneum, and the need for rehabilitation, I accept sick leave granted from 14 March 2020 to 22 April 2021 and 20 May 2021 to 21 May 2021 (ie 407 days)  to be reasonable.

The plaintiff’s ability to return to his pre-accident occupation

52.  It is the plaintiff’s case that he could no longer return to his pre-accident occupation and he could only take up lighter jobs such as a security guard or a driver earning $14,246 a month, based on the average monthly salary of a guard for 8 hours of work as published by CSD in March 2023.

53.  Both experts agreed and I accept that due to the plaintiff’s residual symptoms, he would have difficulties in resuming his pre-accident job. However, he should be able to take up lighter jobs or jobs with moderate manual demand after the expiration of sick leave.

54.  The plaintiff claimed another 6 months after expiration of sick leave to seek alternative employment. Considering the plaintiff’s residual symptoms, I am only prepared to allow another 3 months after the expiration of sick leave for the plaintiff to seek alternative employment.

55.  The total pre-trial full loss of earnings and MPF is therefore $402,948: -

-  14 March 2020 to 22 April 2021 and 20 May 2021 to 21 May 2021: $23,400 x 13.4 months x 1.05 = $329,238

-  22 May 2021 to 21 August 2021: $23,400 x 3 months x 1.05 = $73,710.

56.  Thereafter, I consider it reasonable for the plaintiff to take up jobs with lighter duties such as a security guard or a driver as claimed from 22 August 2021 onwards.

57.  The plaintiff testified that he only started working as a self-employed driver in September 2023, earning about $15,000 to $16,000 per month. The plaintiff frankly admitted that there is no proof as he was paid in cash. There is no MPF statement or tax returns to corroborate his claimed monthly earnings either.

58.  According to Table 220-19013 published by CSD, the average monthly salaries of a security guard and a driver are as follows: -

	Guard	Driver
September 2021	$14,396	$18,795
December 2021	$14,479	$18,508
March 2022	$14,468	$18,284
June 2022	$14,667	$18,506
September 2022	$14,759	$18,796
December 2022	$14,971	$18,471
March 2023	$14,954	$18,436
June 2023	$15,085	$19,026
September 2023	$15,530	$18,552
December 2023	$15,382	$18,551
March 2024	$15,311	$18,112
June 2024	$15,490	$18,606
September 2024	$15,681	$18,965
December 2024	$15,827	$19,065
Average:	$15,071.43	$18,619.50

59.  In the circumstances, absent corroborative documentary evidence from the plaintiff, I will take $16,845.47 [$15,071.43 + $18,619.50]/2], being the average monthly salary of a security guard and a driver as published by CSD, to be the plaintiff’s monthly earnings from 22 August 2021 to 23 February 2025 before he switched to work for JDL. 

60.  The pre-trial partial loss of earnings from 22 August 2021 to 23 February 2025 and MPF is therefore $289,743 (($23,400 - $16,845.47)  x 42.1 months x 1.05).

61.  As mentioned, the plaintiff commenced employment with JDL as a delivery cum driver on 24 February 2025. He testified that for the first 2 months of employment, as a new employee, he would receive additional salary protection (差額保護).  According to the payslips available, the plaintiff earned $22,746.48 for the wage period from 21 February 2025 to 20 March 2025; and $28,558.69 for the wage period from 21 March 2025 to 20 April 2025. There is no loss of earnings and MPF suffered by the plaintiff from 24 February 2025 to 20 April 2025.

62.  The total pre-trial loss of earnings and MPF is therefore $692,691 ($402,948 + $289,743).

FUTURE LOSS OF EARNINGS & MPF

63.  The plaintiff testified that from May 2025 (ie his third month of employment)  onwards, he would no longer be entitled to 差額保護 and would only receive (i)  basic monthly salary of $10,000; (ii)  delivery commission (派件提成 and 額外補貼)  of around $100 per day; (iii)  meal and mid-shift allowance; and (iv)  attendance bonus of $500 per month.

64.  I accept Ms Lam’s submissions that based on the plaintiff’s evidence; the plaintiff’s employment contract with JDL; and the 2 payslips issued by JDL, it is reasonable to assume that the plaintiff’s post-trial monthly earnings would be $16,600 with the following components: -

(i)  Basic salary  $10,000

(ii)  Delivery commission ($100 x 26 days)  $2,600

(iii)  Meal & mid-shift allowance  $3,500

(iv)  Attendance bonus  $500

65.  The plaintiff testified that he has to use his own vehicle to carry out delivery tasks for JDL. He has to pay for the petrol himself but from April 2025 onwards, he would receive a petrol card from JDL with a stored credit of $3,000 every month. Nonetheless, he averred that in April 2025, he had to pay about $1,000 extra for petrol. Hence, it is Ms Lam’s submissions that there is a $1,000 loss per month arising from the Accident, and this loss ought to be deducted from the plaintiff’s post-trial monthly earnings when calculating the plaintiff’s post-trial loss of earnings.

66.  With respect, I do not accept Ms Lam’s submissions in this regard. The plaintiff has confirmed that he has provided all petrol receipts for March 2025 and most of the petrol receipts for April 2025. As for April 2025, there might be 1 to 2 receipts missing. From the available petrol receipts, the total petrol expenses for March 2025 amount to $1,706 only and the total petrol expenses for April 2025 amount to $643 only. It is noted from all the available petrol receipts that the costs of petrol each time is $300 odd (average costs of $336.50 each time). Assuming the plaintiff has lost 2 petrol receipts for April 2025 each with the amount of $336.50 means that the total petrol expenses for April 2025 would be about $1,316. There is simply no documentary evidence to show that the petrol expenses amount to $4,000 ($3,000 stored credit plus $1,000 extra)  per month or that the plaintiff had paid $1,000 extra for petrol in April 2025.

67.  Accordingly, I shall take $16,600 as the plaintiff’s post-trial monthly earnings.

68.  The plaintiff was 50 years old at the time of the assessment hearing. On the basis that the plaintiff would have worked until 65 years old but for the Accident, it is submitted that a multiplier of 12.21 should be applied.

69.  I accept that the plaintiff would have worked until 65 but for the Accident.  Having considered “Table 9” in Personal Injury Tables Hong Kong 2019 and what Bharwaney J said in Chan Pak Ting v Chan Chi Kuen and others [2013] 2 HKLRD 1 that the discount rate for “plaintiffs with needs in excess of 10 years” will be at 2.5%, I agree that the multiplier of 12.21 should be adopted.

70.  The future loss of earnings and MPF with a multiplier of 12.21  would therefore be: -

  ($23,400 - $16,600)  x 12 x 12.21 x 1.05 = $1,046,152.80.

LOSS OF EARNING CAPACITY

71.  In the RSOD, the plaintiff claimed a lump sum of $250,000 under this head on the basis that there is a real risk that he would suffer some handicap in the labour market.

72.  In her written closing submissions, Ms Lam submitted that (i)  the plaintiff may suffer further disadvantages in the labour market after his intended implant removal surgery; and (ii)  the plaintiff’s contract with JDL is only for 3 years. Therefore, the plaintiff may need to seek alternative employment after 3 years or every 3 years. Assuming that the plaintiff would require 3 months every 3 years to seek alternative employment, a lump sum of $250,000 is not unreasonable due to the relatively long period until the plaintiff’s notional retirement.

73.  The guiding principle for making an award for loss of earning capacity was stated in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at 141:

“Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market? I think the question is whether there is a “substantial” risk or is it a “speculative” or “fanciful” risk … If the court comes to the conclusion that there is no “substantial” or “real” risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.”

74.  There is no evidence to suggest that the plaintiff may suffer further disadvantages in the labour market after his intended implant removal surgery. Instead, it should be the opposite as the experts opined that the plaintiff would benefit from further surgery for the removal of implants.

75.  There is also no evidence on why it took the plaintiff 3 months to secure his employment with JDL.

76.  Nonetheless, having considered the injuries and residual symptoms of the plaintiff as well as the experts’ assessments on the impairment to the whole person and loss of earning capacity of the plaintiff, I accept that the plaintiff will suffer a disadvantage in the labour market. Taking into account the nature of the plaintiff’s current employment, his age and physical condition, I consider a sum of $50,000 (about 3 months of his post-trial monthly earnings)  to be reasonable under this head.

FUTURE MEDICAL EXPENSES

77.  The plaintiff claimed $100,000 for future surgery costs and rehabilitation in the RSOD. In the written opening and closing submissions, the plaintiff claimed only $80,000 under this head.

78.  As mentioned above, the experts agreed that the plaintiff would benefit from further surgery for the removal of implants and the costs of such in the private sector would be around $80,000.

79.  The plaintiff confirmed in court that he wishes to undergo the surgery as soon as possible in the private sector.

80.  I accept the experts’ opinion and recommendation and would award a sum of $80,000 for future medical expenses.

SPECIAL DAMAGES

81.  The plaintiff claimed $11,080 for special damages in the RSOD as particularized below: -

(a)  Medical expenses  $1,080

(b)  Travelling expenses  $5,000

(c)  Tonic food and nourishing soup  $5,000

82.  In respect of medical expenses of $1,080 under this head, the amount claimed is supported by receipts and I would allow it in full.

83.  In respect of travelling expenses, no receipts were provided. The plaintiff testified that he had to take accessible taxi from his home in Shatin to QMH for medical treatments. Having considered the number of visits to hospitals for treatment, that the Plaintiff was wheelchair bound initially and the availability of public transports, I consider $4,000 to be reasonable and would award $4,000 for travelling expenses under this head.

84.  The plaintiff claimed $5,000 for tonic food and nourishing soup. He testified that his wife made him nourishing soup with deer sinew (鹿筋). No receipts were provided nor was there evidence on the advisability or suitably of tonic food. It is submitted in the plaintiff’s closing submissions that the plaintiff is willing to limit his claim for tonic food to a nominal amount of $1,000. The principles are well-established (see Yu Ki v Chin Kit Lam [1981] HKLR 419 whereby the court had awarded nominal sum for tonic food where there was no evidence as to the advisability and suitability of tonic food).  I consider the amount of $1,000 claimed by the plaintiff under this head to be reasonable and I would allow it in full.

Employees’ compensation

85.  There is no dispute that the plaintiff has received employees’ compensation in the sum of $500,000. I shall give credit to this sum.

Conclusion

86.  In conclusion, based on the aforesaid, I have assessed the damages in this case as follows: -

(A)  PSLA	$380,000
(B)  Pre-trial loss of earnings & MPF	$692,691
(C)  Future loss of earnings & MPF	$1,046,152.80
(D)  Loss of earning capacity	$50,000
(E)  Future medical expenses	$80,000
(F)  Special damages	$6,080
Sub-total	$2,254,923.80
Less employees’ compensation received	($500,000)
	$1,754,923.80

87.  On top of the above amount, the usual interest will be awarded at 2% per annum for general damages from date of the writ to the date of assessment and half judgment rate for special damages from date of the Accident to date of assessment, thereafter at judgment rate.

88.  I would also make an order nisi for costs that the defendant shall pay the plaintiff’s costs of this assessment, such costs to be taxed if not agreed with certificate for counsel. As the plaintiff is legally aided, the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.  The above order nisi shall become absolute in the absence of any application to vary the same within 14 days from the date of this assessment.

89.  Lastly, I thank Ms Lam for her assistance provided to the court.