LEE TAK CHUNG JOE v. YEUNG LUEN trading as 足福中藥古法薰腳專門店

DCPI 3231/2021

[2025] HKDC 177

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3231 OF 2021

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ASSESSMENT OF DAMAGES

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1.  This is an assessment of the Plaintiff’s damages in a personal injury case.

2.  On 26 October 2021, the Plaintiff commenced the present proceedings against the Defendant for damages for personal injuries, losses and damages arising out of an accident on 31 October 2018 when the Plaintiff was receiving a foot steam treatment provided by the Defendant. The Plaintiff claims that the accident was caused by the negligence and/or breach of duty of care and/or breach of statutory duty and/or breach of the Occupier’s Liability Ordinance Cap 314 and/or breach of implied terms and implied obligations under the contract of service of the Defendant and/or breach of vicarious liability on the part of the Defendant, his agents or servants for which the Defendant was vicariously liable.

3.  Damages are claimed under the following heads and no answer was filed by the Defendant[1]:

(a)  Pain, suffering and loss of amenities

(“PSLA”)  $200,000

(b)  Pre-trial loss of earnings  $630,000

(c)  Loss of earning capacity  $360,000

(d)  Special damages  $15,000

(e)  Future medical expenses  $15,000

4.  No defence was filed by the Defendant.  By an Order dated 26 August 2022, interlocutory judgment on liability was entered against the Defendant leaving damages to be assessed.

5.  The Notice of Appointment for Assessment of Damages (“AOD”)  was served to the usual and last known address of the Defendant on 9 July 2024.  Affirmation of service was filed on 23 September 2024[2] and the said service had not been returned.

6.  The Defendant did not attend the assessment hearing on 8 October 2024 nor any previous hearings.

7.  At the assessment hearing, the Plaintiff was represented by Counsel Mr Leung.  The Plaintiff was the only person who testified at the assessment hearing.  He adopted as evidence in chief of his witness statement[3] filed on 24 March 2023 and supplemental witness statement[4] filed on 23 February 2024.

BACKGROUND

The accident

8.  In the afternoon on 31 October 2018, the Plaintiff visited the Defendant’s shop as a customer and received a 45 minutes foot steam treatment.  During the treatment, the Plaintiff’s feet were scalded and harmed by the hot steam. 

Injuries and treatments

9.  As a result of the accident, the Plaintiff suffered from bilateral foot blisters with pain and numbness.  On 3 November 2018, he attended the Accident and Emergency (“A&E”)  of North District Hospital (“NDH”)  for treatment.  He was admitted to NDH for hyperglycaemia and bilateral foot blister. 

10.  Referring to the medical report dated 7 November 2019 of Dr Leung Wing Him of the Department of Medicine NDH[5], the diagnosis concerning admission were:

“-  Type II diabetes mellitus (“DM”)

-  Burn of foot (injury date: 3 November 2018[6])

-  Peripheral neuropathy

Wound dressing was performed on the Plaintiff and he was given augmentin.  The Plaintiff was treated for his poor DM control with oral medication stepped up during his hospitalization from 3 to 9 November 2018.”

11.  According to the medical report dated 22 December 2019 of Dr Mak Suk Ying Jodhy of the Department of Orthopaedics & Traumatology (“O&T”)  NDH[7], the scald injury of feet numbness and blister on bilateral feet was treated by wound dressing and antibiotics.  Follow up sessions on 29 November 2018 revealed his left foot wound was almost completely healed; whilst the right foot wound was continued with conservative management.  The Plaintiff was subsequently admitted to O&T NDH on 7 December 2018 for right foot ulcer and fever.  He complained of increased numbness over right leg and foot swelling.  Physical examination revealed his ulcer was necrotic and no underlying structure exposed.  X-ray showed no osteomyelitis changes.  He was able to bear weight.  Wound swab was taken for culture and type of antibiotics was changed.  In gist, multiple debridements were done to the right foot ulcer on 12 and 19 December 2018 and 16 January 2019.  Right foot wound was well and he was discharged on 23 January 2019.  Follow up on 26 February 2019 revealed right foot wound base was clean and no sign of infection.  Follow up session on 3 September 2019 revealed no sign of infection and X-ray showed no osteomyelitis changes.  The Plaintiff complained of persistent pain over right 5^th toe plantar and callosity on prolonged weight bear.  The Plaintiff was referred to specialists upon complaints of right eye blurred vision and low mood with irritability and insomnia.

12.  The Plaintiff was also referred to the Podiatry Department NDH for diabetic foot assessment on 18 November 2018. Referring to the medical report of Podiatrist Ko Kin Shuen[8], the Plaintiff was seen on 21 November 2018 with bilateral feet scald wounds. Diabetic foot, wound and care advice was provided.  On 29 April 2020, all foot wound were healed. 

13.  The Plaintiff also sought psychiatric treatment at NDH specialist outpatient clinic.  Referring to the medical report dated 16 November 2021 of Dr Poon Wan Sun Andrew of the Department of Psychiatry NDH[9], the Plaintiff was first seen on 3 July 2020.  He was presented with dysthymic mood and insomnia.  He was diagnosed of mixed anxiety and depressive disorder and adjustment disorder.  He was mentally stable when last seen on 18 September 2020.

14.  I also refer to the medical report dated 25 January 2022 of Dr Lai Moon Sing of the Department of Medicine NDH [10]. In the report, it is stated that the Plaintiff was diagnosed to have DM as far back as 2012.  The Plaintiff defaulted follow-up and did not take any regular medication.  He was referred to the Department for complications resulting from poor DM control but again defaulted follow-up from April 2014.  The Plaintiff was admitted in July 2017 for poor DM control and biliary obstruction with surgery performed.  It is stated in the report that he defaulted follow up again and was only readmitted to the Department on 3 November 2018, namely, 3 days after the accident.  Upon admission, the Plaintiff was found to have diminished touch sensation over both feet which might be related to diabetic neuropathy due to poor DM control.  He was followed up regularly from 2019 but still defaulted follow-up occasionally.  He had nerve conduction test (“NCT”)  in July 2019 which confirmed that his sensorimotor polyneuropathy was likely related to his poor DM.  He was admitted to the Department in October 2020 for nerve palsy with clinical diagnosis of diabetic mononeuritis.  The poor DM was due to his poor drug compliance and frequent default of follow-up.  The report also revealed other medical conditions of the Plaintiff, including kidney issue, urine tract infection, fatty liver, iron deficiency anemia and colonic polyp etc.  

15.  According to the medical report dated 2 December 2021 of Dr Lau Hong Wan Ivan[11], the Plaintiff attended the Department of Ophthalmology of Alice Ho Miu Ling Nethersole Hospital as early as April 2017 for mild cataract and mild non proliferative diabetic retinopathy.  In relation to the alleged right eye blurred vision, the Plaintiff attended assessment on 27 September 2019. Vitreous haemorrhage in his right eye was due to diabetic retinopathy with treatment received.  The issue recurred in February 2021, right eye cataract operation and related treatments was received in August 2021.  His left eye also developed vitreous haemorrhage in June 2021 and treatment arranged.  Similar background of diabetic retinopathy secondary to poor diabetic control and vitreous haemorrhage has also been summed up in the medical report dated 21 December 2021 of Dr Li Lai Wah Anita of the Prince of Wales Hospital[12].

16.  Referring to the medical report dated 15 December 2021 of Dr Lee Shui Kwong John of the Department of Ear Nose and Throat (“ENT”)  of the Alice Ho Miu Ling Nethersole Hospital[13], the Plaintiff first attended the clinic in May 2018 for sudden hearing loss since January 2017.  For the alleged tinnitus in December 2020, he was seen in March 2021.  He was last seen in June 2021 with no abnormalities shown.  

17.  Furthermore, the Plaintiff also attended multiple medical appointments at the Dietetics Department NDH post-accident date for diabetic control.  Medical reports[14] show that the Plaintiff has attended the Department of Surgery NDH for other urology and renal issues.  

18.  Latest medical report by Dr Li Kar Lam Michelle dated 16 February 2022 of O&T NDH[15] summed up the Plaintiff’s medical history.  It has referred to the work capacity evaluation by occupational therapist on 19 March 2020 which reported that the Plaintiff met the critical job demand as supervisor in construction site.  Plaintiff’s case was closed after the follow up on 11 March 2021.  

Sick leave

19.  As a result of the accident, the Plaintiff was granted sick leave for the following period:

(1)  3 to 9 November 2018;

(2)  7 December 2018 to 17 February 2019;

(3)  3 to 8 September 2019.

Complaints of the Plaintiff

20.  The Plaintiff claims to be suffering from various impairments and disabilities after the accident.  In the Plaintiff’s Chinese witness statement dated 24 March 2023, it is said that after the accident, he always feels pain, numbness and weakness with his right leg.  His vision and hearing has rapidly deteriorated.  He is no longer able to enjoy his hobbies.  It is contended that due to the accident and injury, his general mobility, earning capacity and enjoyment of life have been greatly affected.  Mental state of the Plaintiff has deteriorated, with diagnosis of anxiety, depressive disorder and adjustment disorder.  He has also been unable to sleep occasionally[16].

21.  Due to the above symptoms, the Plaintiff did not resume any employment since the accident and is currently unemployed.

EXPERTS

22.  By an Order dated 27 February 2023, the Defendant was deemed to have elected not to adduce expert medical evidence.  Leave was granted for the Plaintiff to adduce expert medical evidence on quantum on solo basis[17]. Expert evidence was limited to one expert in each of the specialty of O&T and Psychiatry.  The Plaintiff agreed that the expert reports be adduced without oral evidence at the AOD.  At the assessment hearing, Mr Leung has helpfully informed the court that the Plaintiff would not dispute the findings of both experts. 

O&T Expert Report

23.  On 25 May 2023, medical examination was conducted by Dr Lie Wai Hung Chester (“Dr Lie”), an orthopaedic expert appointed by the Plaintiff.  A Single orthopaedic expert report dated 12 June 2023 was prepared by Dr Lie[18].

24.  Upon Dr Lie’s physical examination of the Plaintiff, it is stated in the following paragraphs of the report:

“30. Lower limbs examination

- No significant muscle wasting over both lower limbs

- Right foot: No obvious swelling or deformity, a 1.5 cm x 1.5 am scar over 5^th toe base, non-tender, 5^th toe movement well, pain-free

- Left foot: no obvious scar, no tenderness or swelling or deformity

Lower Limb sensation

- Right foot dorsum decreased by 50%; sole decreased by 60-70%

- Left foot dorsum decreased by 30%; sole decreased by 50%

- Otherwise unremarkable

Lower Limb power

- Proximal about grade 5-/5 both sides

- Distal about grade 4/5 both sides

- No sign of CRPS

31. Ankle examination

Ranger of movements of the right and left side are the same in relation to dorsiflexion, plantarflexion, inversion and eversion.

32. X-ray Examination

Both feet AP / lateral view: Right 5^th toe proximal phalanx base deformity seen, with bony erosion over medial side of right 5^th metatarsal head, could be related to previous osteomyelitis. No sign of active osteomyelitis…

25.  Dr Lie reached the following comments and conclusions[19]:

(1)  The diagnosis is bilateral foot scald injury complicated by infection and osteomyelitis of right 5^th toe.

(2)  Diagnosis is consistent with the mechanism of the injury as described.  The accident is the cause of the injury.

(3)  Prolonged treatments including the multiple debridement operations, wound dressing, the need to wear orthosis and de-pressure sandals can lead to disuse muscle wasting and impaired muscle strength.

(4)  The poorly controlled diabetes and the defaulted follow-ups since 2012 also led to the complications including DM neuropathy with poor sensation of both feet.  Diabetic neuropathy is nerve damage that is caused by diabetes leading to numbness, tingling, cramps and weakness. 

(5)  The poorly controlled diabetes with DM neuropathy was pre-existing and belongs to scenario 2.

(6)  The impaired sensation of both of his feet increased the possibility of scald injury by steam as it impaired his defensive protective withdrawal from the heat.

(7)  The poorly controlled diabetes increased the likelihood of infection due to impaired immune system.

(8)  Estimation that the Plaintiff may develop similar foot problem in 6-7 years from date of injury if the alleged accident did not happen.

(9)  Vision problems are not related to the alleged accident.

(10)  Other issues evident in the medical records including his hearing loss, tinnitus, acute kidney injury, urinary tract infection, vomit, colonic polyp, anaemia and fatty liver are not related to the alleged accident. 

(11)  The prognosis is satisfactory. 

(12)  The treatments received post-accident were appropriate.  MMI achieved and further treatment is not required.

(13)  The Plaintiff’s unsteady gait with leg weakness could be related to the complications arising from the injury and can also be contributed by his pre-existing poorly controlled diabetes.

(14)  The numbness of both feet was due to his pre-existing poorly controlled diabetes and not related to the alleged accident.

26.  Examination shows that the Plaintiff has some lower limb numbness and weakness without significant lower limb muscle wasting.  Dr Lie opines that the Plaintiff should be able to resume his pre-injury job with some adjustment, especially avoid too much heavy weight lifting.  Work with lower physical demand such as security guard and carpark assistant are suitable as options.

27.  It is the assessment of Dr Lie[20] that:

(1)  The accident has resulted in 1.5% of whole person impairment.  In light of his pre-existing diabetes related issues, apportionment is necessary, and would be around 2/3 of the rating, ie, 1% whole person impairment.

(2)  The loss of earning capacity is 1% upon the consideration of the pre-exiting diabetes related issues.

(3)  Sick leave around 18 months up to March 2020 is reasonable for the bilateral foot injury.

28.  The question for the court to consider is how much of the symptoms complained by the Plaintiff are caused by the accident and the question of apportionment.  Taking into account of the long poor diabetic history and condition of the Plaintiff, I agree with Dr Lie that there is a strong possibility that there are some other events, or the natural progression of the Plaintiff’s pre-existing conditions would have brought his present state.  Apportionment is to be dealt with hereinbelow.  

Psychiatry Expert Report

29.  Examination on the Plaintiff was conducted by a psychiatric expert Dr Queenie Chin (“Dr Chin”)  on 18 April 2023 and expert report dated 25 May 2023 was adduced[21].

30.  The Plaintiff has no history of psychiatric illness before the accident and no family history of mental illness.  The Plaintiff contends that his psychiatric symptoms include mood mildly anxious and on low side, negative thoughts with feeling of worthlessness, helplessness and hopelessness, poor sleeping, fluctuating appetite, concentration and memory issue, low motivation, low energy level and disinterest in things and socialising. 

31.  In the expert report, mental state findings include[22]:

(1)  overall tidy and neat and calm during the interview;

(2)  speech was coherent, showed normal understanding with appropriate response;

(3)  mood was anxious and dysthymic;

(4)  absence of any psychotic symptoms.  

32.  Dr Chin opines the Plaintiff’s diagnosis of adjustment disorder with mixed anxiety and depressed mood is consistent with her examination and finding.  In terms of causation, Dr Chin considers the Plaintiff’s current psychiatric condition is attributable to the accident and the symptoms are caused by the adverse psychological effect of the stressors resulting from the accident, including:

(1)  multiple physical problems directly or indirectly related to the accident;

(2)  financial difficulties as a result of loss of income;

(3)  worries about the on-going litigation.

33.  Dr Chin opines that the subsequent recovery of the Plaintiff depends on the development of the above stressors. It is opined that further psychiatric follow-up and treatment are required for at least 6 months after conclusion of the present litigation.  3 months sick leave is opined to be appropriate.  

QUANTUM

PSLA

34.  Mr Leung submits in his written submissions that the award should be $200,000 and apportionment should be limited.  Mr Leung referred in his written submissions the follow cases:

(1)  Tam Wing Yan v Smart Elegant Enterprises Ltd t/a 小肥牛火鍋活魚專門店, DCPI 1104/2010: PSLA awarded at $200,000;

(2)  Leung Yuk Kwan v Maple Professional Beauty Centre, HCPI 274/2002: PSLA awarded at $300,000;

(3)  Hui Po Chi v Trade Travel (Hong Kong) [2022] HKCFI 1929: PSLA would have awarded at $150,000;

(4)  Cheung Mau FA v Regent Construction Co. Ltd [2018] HKDC 332: PSLA awarded at $150,000;

(5)  Chan Wai Yee Emily v Doctor Face Plastic and Cosmetic Center Company Limited t/a Doctor Face Plastic & Cosmetic Center, DCPI 1774/2009: PSLA awarded at $150,000;

(6)  Cheang Kam Ian v Hong Kong Prime Printing Company, HCPI 143/1998: PSLA would have awarded at $200,000;

(7)  Schmidt Hailey Dai v Lam Siu Chu [2019] HKCFI 1289: PSLA awarded at claim amount of $350,000[23].

35.  I have considered the above authorities cited by Mr Leung in his opening and closing written submissions. The cases of Tam Wing Yan, Leung Yuk Kwan and Schmidt Hailey Dai are more in line for comparisons with the present case. 

36.  In Tam Wing Yan, the plaintiff was a 27 years old female nurse who had been injured by a jar of hot tea at a hot pot restaurant.  As a result of the accident, she suffered second degree burn involving 7% of skin surface with extensive scald injuries on both thighs.  In assessing PSLA quantum, the court considered that the plaintiff could walk unaided with steady gait and no definite neuro-vascular deficit was elicited.  Expert in the field of plastic surgery was engaged and found the plaintiff to have permanent cosmetic disability as a result of the scars from the injury.  Without consideration for cosmetic impairment arising from psychological and psychiatric impact, the court assessed an award of $200,000 as fair.

37.  In Leung Yuk Kwan, the plaintiff was a 22 years old female who had been injured in the course of a slimming treatment by an electric fat-reduction blanket.  She suffered scald injury to her right leg which was severely scalded, causing pain and eventually blistering and multiple ulceration.  The court described the scars as ‘indeed unsightly’.  Psychological and psychiatric assessment was conducted.  The plaintiff was found to suffer from adjustment disorder and depressive reactions to her injuries.  The court awarded PSLA at $300,000.

38.  In Schmidt Hailey Dai, the plaintiff was a 42 years old female, at the time of the accident, she was in Hong Kong as a tourist with her family.  She was injured at the Airbnb premises while she was taking shower, as the pipe connected to the hot water tank in the ceiling suddenly became detached.  She was severely scalded by the escaping hot water.  As a result of the accident, she suffered major burns over her chest, buttock and four limbs, involving 21.5% of her total body area.  She was admitted to the Burn Unit for treatment and management and was discharged 3 weeks later until she was fit for travel back to USA for further burn treatments including skin grafting operation and debridement.  She had also undergone physiotherapy and scar management therapy for the extensive scarring which the court described as ‘ugly, permanent and conspicuous’.  The court would have awarded $450,000 for PSLA but for the plaintiff’s claim amount at $350,000.

39.  I agree with Mr Leung that the injuries in Schmidt Hailey Dai are more serious.  The Plaintiff in the present case suffered scald injury leading to further orthopaedic injury and psychiatric conditions.  Taking into account the Plaintiff’s physical and psychiatric impairments, I consider the PSLA claim amount $200,000 is a reasonable sum before considering the pre-existing issue.

40.  Although medical records suggest that the Plaintiff has a long history of medical problems, I bear in mind that there is no evidence to suggest any history of foot pain or injury.  Yet, I am more inclined to agree with Dr Lie that the Plaintiff’s poorly controlled diabetes throughout the years would have led to the poor sensation of his feet and that the nerve damage was due to the uncontrolled high blood sugar.  The scald injury was further complicated by infection and 5^th right toe osteomyelitis.  Considering the expert’s view that DM neuropathy is pre-existing, there is a strong possibility that similar foot problem would have developed in 6 to 7 years.  I find 80% of the Plaintiff’s condition attributable to the accident.  I consider an apportionment of 20% to the pre-existing condition is reasonable.  Accordingly, the award for PSLA should be reduced by 20% and I therefore award PSLA in the sum of $160,000.

Pre-trial loss of Earnings 

Pre-Accident Occupation & earnings

41.  The Plaintiff claims to be a “工程判頭” prior to the accident in paragraph 14 and 19 of his witness statement.  He further elaborates in paragraph 3 to 5 of his supplemental witness statement of his alleged pre-accident occupation.  It is stated that:

“3)  我意外前的工作是工程判頭，工作性質是自僱，並沒有受僱任何公司。我的平均月入大約港幣3萬元，每年收入大約為港幣36萬元。

4)  我的主要工作內容是將不同的工程項目外判給不同的工人。同時，我也需要經常去不同的工程地點巡視工程進度，甚至要親自執行工作（例如：出棚做工程，裝修家居，幫大廈外牆維修等）。

5)  此外，我的工作不時需要為國內和本地的工程項目造標書及進行投標。我曾負責的工程項目例如為大廈進行消防安全改善工程，裝修工程，安裝記錄系統等。”

THE PLAINTIFF’S CREDIBILITY

42.  I have considered the general principles set out in the often cited passage for assessing the credibility of a witness in Hui Cheung Fai and Anor v Daiwa Development Limited & Others (2014), unreported, HCA 1734/2009 (DHCJ Eugene Fung, SC; 8 April 2014)  at:

“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 563 at 586D-587F (Lord Nicholls)  and ADS v Brothers (2000)  3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).”

43.  On the question of the Plaintiff’s credibility, the first issue is whether it is believable that the Plaintiff had been engaged in the fields of employment as alleged. 

44.  There is no dispute that there is no contemporaneous evidence from independent institutions such as those issued by the Inland Revenue Department (“IRD”)  or the Mandatory Provident Fund (“MPF”)  to verify the plaintiff’s alleged pre-accident employment status either as an employee or self-employed.  Nor there any bank statements or payroll records to verify the Plaintiff’s alleged pre-accident monthly income level.

45.  What stand out in this case is the total lack of documentary records to support his pre-accident occupation as a construction site supervisor and/or renovation worker for the past 10-20 years. 

46.  The next issue is whether it is believable that the Plaintiff’s pre-accident monthly income was $30,000 as alleged. Again, there is no contemporaneous evidence to support the alleged earnings. It is the Plaintiff’s case, for the first time in its opening oral submissions, that he has lost all document from the renovation of his home in 2017. However, the accident occurred on 31 October 2018, even if the court accepts documents were lost in 2017 renovation, the court is unconvinced that the Plaintiff would be unable to adduce any documentary evidence for at least 2018.  Furthermore, bank statements, IRD and MPF documents could have been retrieved and obtained by application with insignificant fees. 

47.  I have great doubt on the genuineness of his vague and convenient answer that all quantum related documents were lost.  It is incomprehensible why the Plaintiff would consider himself being capable to satisfy the burden of proof for claiming up to $990,000 under the relevant 2 heads of claim without any sort of records. 

48.  If the Plaintiff was working as a contractor in the construction industry, it is most unlikely that there could be no tracing record at all.  Other than contracting fees, there would certainly be evidence, whether in electronic or document form, in relation to the different work sites that the Plaintiff had been involved with or the job arrangements with different workers and the inflow or outflow of payments. Records such as the daily attendance records could have been obtained from the well-established system under the Construction Industry Council[24]. For the alleged “外判工程”, the Plaintiff would certainly be required to make payments to third parties.  In relation to “出棚工程” or “大廈外牆維修”, it is improbable that there is no documentary proof, for instance, with the building committee or Buildings Department.  There is no previous “工程標書” record being adduced, for project such as “消防安全改善工程”, there certainly should be documents with the relevant Department(s).  In relation to the alleged yearly income of $360,000, it is questionable that there is no relevant tax assessment document to and from IRD.  The fact that the Plaintiff lives in public housing, it is also doubtful that there is no record in terms of his income level, for instance, declaration to the Housing Authority.

49.  In relation to the renovation works as alleged, the Plaintiff’s evidence at the assessment hearing was that no formal company had been registered and such works were referred to him by friends and he would accordingly refer the jobs, for instance, plaster job, to his friends.  First, this is inconsistent to what the Plaintiff has told Dr Lie of his own history that no sick leave was requested as he ‘worked for self-own company’.  Second, it is the Plaintiff’s own choice of not calling relevant witness(es).  When questioned by the Court about any previous records of drawings, quotations, overheads payments and / or invoices, to which the Plaintiff failed to give any direct answer by responding that he does not use WhatsApp much and has no such records.  

50.  Furthermore, I find the alleged pre-accident earnings from being a part-time badminton and Thai kick boxing coach a bare assertion.  No communication records with any students for arrangement of classes, no transfer records of any class fees or explanation of the form of payment for such fees, no corroborative evidence for the bookings of badminton court or relevant venue has been adduced.  The court has considered that payment could be by cash or classes could have been held at any places which do not require reservations.  It is the Plaintiff’s case that he lost the relevant record when he changed his phone.  Again, I find this as a convenient excuse on the part of the Plaintiff.  The Plaintiff bears the burden of proof for his assertions which I find him having failed to discharge. 

51.  All in all, on the balance of probabilities, I am not satisfied that the Plaintiff is a credible and honest witness in the aspect of his pre-accident occupation and earnings.  

52.  Accordingly, no sum is awarded under this head.

Loss of earning capacity

53.  The Plaintiff claims $30,000 for 12 months at $360,000 under this head.  I have considered the well-established authority Moeliker v Reyrolle & Co Ltd [1977] 1 WLR 132, 142, that the purpose of this head of award is to reflect: “the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The court has to evaluate the present value of that future risk”.  

54.  I have also considered Muhammad Asghar v Kwok Kong Moon formerly trading as Makos Engineering & Others [2022] HKDC 1184 in which Moeliker was cited and distinguished, in particular to paragraph 33 and 34.  The fact that the Plaintiff was not in employment at the time of trial and that he has not resumed any employment since the accident is not the drive for my finding.  I bear in mind the purpose and objective of this head of award is “to compensate a future risk during the plaintiff’s working life”.  It is explained in Muhammad Asghar:

“33. … if the plaintiffs is capable of being employed, his working life remains, the future risk of him suffering a disadvantage in the labour market continues to exist and I am unable to see why the award should not be available to him.”

34.  This is to be contrasted with the situation where, at the time of trial, the plaintiff is permanently incapable of being employed or permanently unwilling to be employed.  Examples include … where there is clear evidence that he has no intention to ever work again.  These circumstances necessarily indicate there is no future risk of him suffering a disadvantage in the labour market – there is no longer a working life – and on that basis this head of damage should not be available as a matter of principle.”

55.  In light of my above finding for “pre-trial loss of earnings”, that on the balance of probabilities, the court does not accept the Plaintiff’s case that he has been engaging in any sort of the alleged occupations, no working life has been proved.  There is no disadvantage to be suffered in the labour market as he is not competing in the labour market at all. Accordingly, no sum is awarded under this head.  

Special damages

56.  In the Amended RSOD, the Plaintiff claims for a sum of $15,000 consisting of:

(i)  Medical expenses for treatments	$5,000
(ii)  Travel expenses	$5,000
(iii)  Tonic food	$5,000
Total:	$15,000

57.  Despite there was no receipt to support the above (i)  and (ii), I bear in mind that the Plaintiff’s injury was feet related, and having considered the number of hospital visits for wound dressing and the scale of the wound as depicted in the photographs, I would accept his claim amount and allow it in full.

58.  In relation to (iii), the Plaintiff’s witness statement states that in accordance to the diagnosis and recommendations of Chinese medical practitioner, he had spent around $5,000 on tonic food.  At the assessment hearing, his evidence is that he did not retain any receipts in relation to the consultations with the 2 Chinese medical practitioners and/ or the purchase of tonic food.  Be that as it may, I have considered the nature of his injury, length of rehabilitation and the amount claimed, I allow in full amount for the Plaintiff’s claim under this head.

Future medical expenses

59.  In the Amended RSOD, the Plaintiff claims $15,000 under this head.

60.  In relation to the Plaintiff’s psychiatric condition, Dr Chin opines that psychiatric follow-up and treatment are required.  The goals of the treatment are to help him to reduce the degree of psychiatric symptoms, to adjust to his physical health condition and the associated limitation for work, helping him to return to an optimal level of functioning.  It is stated in the following paragraphs:

“98. Mr. LEE previously attended psychiatric treatment at the psychiatric clinic of NDH ... In view of his condition, he would be benefit from having further psychiatric assessment and treatment in the psychiatric clinic. A follow-up interval of around once in four to eight weeks on average would be appropriate … it is likely that his treatment needs to be continued for six more months after conclusion of the current litigation…

102. The charges at the Hospital Authority are $80 per follow up for psychiatric clinic and HK$15 per medication item for a period of up to 16 weeks… with costs of a session within $100...

103.  …the costs of a similar psychiatric consultation in the private sector with one month medication is around $2000 to $2500…”

61.  The issue is whether the Plaintiff should seek further psychiatric treatment in the public or private sector. Although there is no evidence that the Plaintiff has previously consulted any psychiatric treatments in the private sector, in line with the guidance from Bharwaney J in Wong Man Kin v Golden Wheel (C & HK)  Transportation Co Ltd HCPI  913/2011:

“64. If a plaintiff evinces a genuine intention to seek treatment from private doctors or from a private clinic or hospital, the court should award damages based on the cost of such treatment, unless there was good reason why he or she should obtain the reasonably needed treatment from the Hospital Authority … Indeed, the long period of time it would take to obtain the needed treatment from the Hospital Authority is a good reason to award damages based on the cost of the needed treatment in the private sector. Provided that the treatment is reasonably needed, the plaintiff’s choice to seek such treatment in the private sector cannot be equated with a failure on his part to mitigate his loss by seeking the needed treatment from the Hospital Authority…”

I do not think the long waiting time for such specialised services in the public sector would be beneficial to the Plaintiff.  I would allow his claim to receive future treatments in the private sector as recommended by Dr Chin.  I would therefore allow the full claim amount of $15,000 for future medical expenses.  

CONCLUSION

62.  The amount of damages to be awarded to the Plaintiff is as follows:

(a)  PSLA	$160,000
(b)  Pre-trial loss of earnings	Nil
(c)  Loss of earning capacity	Nil
(d)  Special damages	$15,000
(e)  Future medical expenses	$15,000
Total:	$190,000

Interest & Costs

63.  The usual interest will be awarded at 2% per annum for general damages from the date of writ to the date of assessment and half judgement rate for special damages from date of the accident to date of assessment, thereafter at judgment rate.

64.  I would also make an order nisi for costs that the Defendant shall pay the Plaintiff’s costs of the AOD, including all costs previously reserved (if any), such costs to be taxed if not agreed, with Certificate for Counsel.  Plaintiff is legally aided, the Plaintiff’s own costs is to be taxed in accordance with the Legal Aid Regulations.  Unless any party applies to vary the costs order nisi within 14 days hereof, the costs order shall become an absolute order.