XIAO LONG v. LAM TAK YUEN

DCPI 1305/2021

[2025] HKDC 795

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1305 OF 2021

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is the assessment of damages for a personal injury case in which the Plaintiff is claiming damages against the Defendant for loss and damage suffered by him as a result of an accident sustained during employment on 13 June 2019 (“the Accident”).

The Proceedings

2.  In the judgment of Deputy District Judge Joseph Vaughan dated 28 July 2022, the employees’ proceedings related to the Accident (DCEC 2400/2019; [2022] HKDC 738), the Defendant, as an employer, was ordered to pay employees’ compensation in the sum of HK$142,017.98 together with interest and costs to the Plaintiff. The Defendant appealed against the said judgment and the appeal was dismissed on 25 April 2024. As at the date of this hearing, the sum ordered has not been settled.

3.  In the present common law action, interlocutory judgment against the Defendant was entered by default on 10 January 2022 with damages to be assessed. On 19 January 2022, the Defendant applied for an order to set aside the interlocutory judgment, his application has also been dismissed on 23 November 2022.

4.  Directions (including unless orders)[1] for assessment of damages were given accordingly however upon the Defendant’s non-compliance, he was debarred from adducing documentary evidence, witness statement and filing his Answer to the Plaintiff’s Revised Statement of Damages (“RSD”).

5.  To that end, the Plaintiff was called to give evidence in the assessment hearing. Pursuant to the Order of Master Stanley Ho dated 13 November 2023, the Plaintiff adduced his solo orthopaedic expert report written by Dr Chan Wai Fu (“Dr Chan”) dated 3 August 2021 without calling the maker thereof.

6.  The Defendant appeared without giving evidence.

The Accident

7.  The Plaintiff was born on 5 November 1962 and is now aged 62. At time of the accident, he was 56 years old and was employed by the Defendant as a renovation worker.

8.  The Plaintiff has frankly disclosed he had had suffered from another unrelated injury during work in May 2018, resulting in an injury on his left fourth finger. Such injury has been recovered speedily prior to the Accident. In other words, he has no pre-existing conditions.

9.  On the day of the Accident, at about 12:30 pm, the Plaintiff was standing on a wooden ladder around 1.6m in height repairing a suspended ceiling at the workplace. In the course of doing so, he was required to maneuver electrical wires placed inside the suspended ceiling with his bare hands. At that time, his left middle finger and index finger came into contact with those electrical wires which has resulted an electric shock. After the electric shock subsided, he found those electric wires were still entangled with his left hand. The Plaintiff immediately leveraged himself on the wooden ladder and struggled to detach the electric wires from his hand. While doing so, he lost balance and fell onto the ground. The Plaintiff lost consciousness temporarily.

Injuries and Treatments

10.  After the Accident, the Plaintiff was sent to the Accident & Emergency Department of the United Christian Hospital (“the UCH”). Physical examination revealed electric burn on his left index finger and left middle finger. There were abrasions over both elbows and muscle tenderness over lumbar area. Chest X‑ray and lumbosacral X‑ray revealed no significant injury. No acute intracranial haemorrhage was detected from brain CT. He was admitted to the intensive care unit for one day and then transferred to the medical ward.

11.  Notwithstanding the above diagnosis, the Plaintiff complained of left chest pain.

12.  During his stay in medical ward, doctors diagnosed ulcers were formed on both his left index and middle fingers, the wound was clean with no purulent discharge. There was no exposed tendon or bone. The Plaintiff, on the other hand, continued complaining of chest pain. The Plaintiff was discharged on 18 June 2019 with antibiotics and daily wound dressing.

13.  On 21 June 2019, the Plaintiff went to Cheung Sha Wan Jockey Club Clinic (“CSW Clinic”) for wound dressing. He complained of left index finger wound pain.

14.  On 25 June 2019, the Plaintiff went to West Kowloon General Out-patient Clinic (“WK Clinic”) for wound dressing. He attended various follow up treatments there. Treating doctors said “wound healed and pain gradually subsided”.

15.  On 2 July 2019, the Plaintiff went to Nam Shan General Out-patient Clinic (“Nam Shan Clinic”) for treatment. He was advised to continue wound dressing.

16.  On 18 July 2019, the Plaintiff returned to the UCH for follow up treatment, the wounds on both his left index and middle fingers were healed, a decreased in light touch sensation and stiffness over his index finger was noted.

17.  On 3 August 2019, the Plaintiff attended the UCH for the a 2^nd follow up treatment, there was still residual stiffness on his left index finger. Upon continuing complaint of chest pain, the Plaintiff attended the same hospital for follow up treatment. Follow up chest X‑ray was done again on 11 September 2019 and 16 December 2020 without consolidation or focal lung mass. No further follow up treatment was required from 15 January 2020. This precisely ended the sick leave period.

18.  In short, sick leaves were granted from 13 June 2019 until 15 January 2020 intermittently, for a total of 139 days (about 4.63 months) as follows in chronological order:

	Duration of sick leave	Institution	Days granted	Actual days
1.	13 Jun 2019 – 23 Jun 2019	UCH	11 days	11 days
2.	22 Jun 2019 – 25 Jun 2019	CSW Clinic	4 days (2 days overlapping with the above)	2 days
3.	26 Jun 2019 – 30 Jun 2019	WK Clinic	5 days	5 days
4.	2 Jul 2019 – 5 Jul 2019	Nam Shan Clinic	4 days	4 days
5.	6 Jul 2019 – 18 Jul 2019	WK Clinic	13 days	13 days
6.	18 Jul 2019 – 30 Aug 2019	UCH	44 days (1 day overlapping with the above)	43 days
7.	11 Sep 2019	UCH	1 day (overlapped)	---
8.	30 Aug 2019 – 25 Oct 2019	UCH	57 days (1 day overlapped with the above)	56 days
9.	28 Oct 2019 – 31 Oct 2019	WK Clinic	4 days	4 days
10.	15 Jan 2020	UCH	1 day	1 day
		Total:	144 days	139 days

Medical Expert Evidence

19.  On 21 June 2021, 2 years after the Accident, the Plaintiff was examined by Dr Chan.

20.  The Plaintiff’s complaints:

(i)  pain, pin & needles and numbness over his left hand;

(ii)  pain intensified usually when he wakes up in the morning and also during bad weather, however, it would be lessened “after the Plaintiff moving and shaking [his] left hand”[2]; and

(iii)  shortness of breath, intermittent chest pain, crushing in nature, such pain intensified “when walking and exertion, walking for 15-30 minutes and for 2 flights of stairs”[3].

21.  For the reasons of the above complaints, the Plaintiff has to take painkillers 2-3 times per week or when necessary. However, he was able to carry a bag of 8kg rice, to perform daily activities, to take public transport independently and to do simple household chores.

22.  Dr Chan opines the Plaintiff is in a satisfactory general condition, he is able to:

(i)  walk in a normal gait without walking aids;

(ii)  sit for 30 minutes;

(iii)  perform normal tiptoe standing/walking;

(iv)  perform normal heel standing/walking;

(v)  perform normal single leg standing; and

(vi)  perform full squatting.

23.  Dr Chan further says there is tenderness over distal interphalangeal joints of the left index finger and middle finger, of which both the Plaintiff’s fingers were able to attain slightly less than full range of motion. The left hand pain ranged maximum 5/10 in Visual Analog Score (VAS). The power, according to MRC Grading, was 5. The sensation and reflexes of both upper limbs are normal. The handgrip of the left hand was significantly less than the right hand.

24.  Chest X‑ray revealed a healed fracture of the 5^th rib. Chest expansion is slightly decreased. Although a rib fracture was not noted in contemporaneous medical reports, Dr Chan expresses it is not surprising that some fractures could be undetected at the time of injury but found when healed with callus and deformity subsequently.

25.  Dr Chan opines the Plaintiff’s injury is compatible and consistent with the result of the Accident. The medical treatment received by the Plaintiff was up to standard and was appropriate. The Plaintiff’s “residual disability of chest tenderness & limited exercise and left hand tenderness, numbness and hand grip weakness are due to the localized soft tissue and bony injury to chest & left hand at the time of injury of electric shock and fell from height”[4].

26.  Dr Chan opines the Plaintiff has reached Maximal Medical Improvement (MMI). Surgery on the Plaintiff’s chest and left hand is not necessary save and except for some symptomatic treatments. The overall prognosis is satisfactory, and he is expected to have some mild residual disability arising from the chest and left hand injury. The enjoyment of life and ability to cope socially will be mildly affected.

27.  On the part of working capacity, Dr Chan opines as follows, the Plaintiff:

“…… should be able to resume his pre-injury duty as a plastering worker with reduction in his work efficiency and effectiveness. He should avoid over-exertion and weight lifting during work as this may cause chest discomfort or even pain. In climbing activities, he should also have some limitation because of the residual pain, numbness and stiffness of his left hand. He would require interval break for rest & relaxation and thus some further compromise in his work efficiency and effectiveness. As a matter of fact, he has already tried to resume work as manual worker in construction site and supermarket but not well adjusted.”

28.  Overall, the Plaintiff is assessed to have suffered from 3% loss of impairment of whole person and 3% loss of earning capacity.

29.  Sick leave granted to the Plaintiff from 13 June 2019 to 15 January 2020[5] intermittently is appropriate.

Pain, Suffering and Loss of Amenities (“PSLA”)

30.  The Plaintiff says his injuries fall below the “serious category” as defined in Lee Ting Nam v Leung Kam Ming [1980] HKLR 657 and claims HK$300,000 under his head.

31.  As a recap, “serious injury” category as defined in Lee Ting Lam as:-

“It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain”.

32.  Reading from the Dr Chan’s opinion, the Plaintiff’s injury is nowhere close to the bottom end of “serious injury category”.

33.  The PSLA post Chan Pui Ki v Leung On [1996] 2 HKLR 401 was set out in the case of Ng Tat Kuen v Tam Che Fu & Others [2019] HKCFI 1191, HCPI 896/2013 (Bharwaney J; 3 May 2019), at paragraph 95. In short, PSLA general damages under the “serious category” ranges from HK$530,000 to HK$715,000. HH Judge Andrew Li (as he then was) revised and elevated the damages of PSLA in his judgment Cheung Ka Man v Wong Yu Huen, unreported DCPI 214/2021; [2023] HKDC 370 at paragraph 118) after taking into account of inflation in 2018, 2019 and 2020, in particular, damages under “serious injury” should range from HK$560,000 - HK$775,500.

34.  Having in mind the range of recent updated PSLA damages levels, I take into account the following cases, which the plaintiffs therein suffered similar injuries:

(i)  Cheng Yuk Chun v Winson Cleaning Services Co Ltd & ors (unreported, DCPI 629/2006, 6 July 2007): the plaintiff fractured her right wrist, resulted in pain and stiffness of wrist and fingers. Mild adjustment disorder developed. PSLA damages awarded at HK$300,000.

(ii)  Ng Tim Yip Kevin (formerly known as Ng Tim Yip) v Chan Ho Kin (formerly trading as Kenny’s Engineering Company formerly known as Kenny’s Company) (unreported, HCPI 948/2005): the plaintiff crushed his right hand, transplant of his big toe was performed. Psychological and psychiatric symptoms developed. PSLA damages awarded at HK$500,000.

(iii)  Tang Yam Kau v Key Asia Engineering Limited (unreported, HCPI 653/2012, 5 June 2015): the plaintiff cut his hand, a complete cut of his thumb and middle finger, by a bench-type electric saw. Adjustment disorder and depressed mood developed. PSLA damages awarded at $480,000.

(iv)  Tsang Chin Keung v Lo Tat Kong t/a Hung Kwong Glass Works (HCPI 806/1995, 9 October 1996): the plaintiff cut his left hand by an electric saw, underwent nerve grafting, loss of sensation and numbness in left hand. He was unable to return to full time employment. PSLA damages awarded at HK$365,000.

35.  The common features of the above 4 authorities are that the victims in the respective accidents had injured their hand more severely than the Plaintiff. All of them sustained injuries of fracture or cut and had developed psychological and/or psychiatric symptoms. Literally, this is not the present case.

36.  The overall picture of the Plaintiff’s injury is relatively minor. The damages under this head should be inevitably and substantively below the lower end of “serious injury” category. The Plaintiff, a male in his 50s at time of Accident, in good health who has fallen from height as a result of an electric shock. No major fracture except a minor and hairy fracture in his rib. No surgery needed. No psychological or psychiatric symptoms developed. Only residual pain and stiffness persisted over his left index finger, and some chest pain and shortness of breath at MMI. It was also pleaded in the RSD[6], the enjoyment of life was not largely affected,

“the enjoyment of life and ability to cope socially of him will in mildly affected by the injury. He should carry out regular exercises to improve his overall physical fitness condition”.

37.  The Plaintiff’s injury is more comparable to the plaintiff in a more recent case (not submitted by Plaintiff) Sunwar Navin Kumar v Gurkhas Construction Limited & ors (HCPI 59/2020; [2024] HKCFI 749). Hon Fung J awarded the plaintiff HK$200,000 as PSLA. The plaintiff was suffering from right hand injury with distortion of the right 4^th metacarpal, pain on the right hand, pain aggravated with exertion of the right hand during cold and bad weather or in the morning after waking up, unable to hold firm grip and to lift heavy objects and needed to take pain killers. The plaintiff not need to undergo surgeries nor did he suffered any psychological or psychiatric illness after the accident. The orthopaedic experts assessed the plaintiff’s impairment of the whole person at a low level, ie 3% by the plaintiff’s expert and 0.5% by the defendants’ expert. Although the Court found the plaintiff has exaggerated his pain, the injuries and treatments are very similar to that of the Plaintiff here.

38.  Taking into account all medical evidence and authorities cited above, I award the Plaintiff HK$200,000 under this head.

Pre-Trial Loss of Earnings & MPF

Sick leave

39.  I am aware Dr Chan opines that the sick leave period from 13 June 2019 to 15 January 2020 (being 139 days intermittently) was granted reasonably and appropriately.

40.  The Court is not bound by sick leave certificates because the sick leave certificates issued by the treating doctors were premised on the basis of subjective symptoms reported to the doctors by the patient. The Court has to canvass and evaluate the appropriateness in light of all available evidence. (See: Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd ([2008] 5 HKLRD 210 and Pak Siu Hin Simon v JV Fitness Ltd (unreported, HCPI 574/2014, 15 May 2017) & Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd, (unreported, CACV 172/2004, 15 July 2005, paragraph 9)).

41.  The Plaintiff’s left finger wounds were all well healed as early as August 2019. After recovery of the Plaintiff’s injury on his finger, the main reason for granting further sick leave was because of his chest pain. In the medical report written by Dr Cheng Suet Lai of the Department of Medicine of the UCH dated 27 October 2020, Dr Cheng reported the need for follow up treatment arose from a chest X‑ray showing 3 nodular opacities in the left lower zone of the Plaintiff’s chest. It is well noted that nodular opacities are very different from rib fracture. Dr Chan, in his expert report, has helpfully explained the Plaintiff’s bony injury (the rib fracture) might not be detected in the outset and has subsequently been found by the chest X‑Ray taken at the time of examination. This is consistent with the Plaintiff’s complaint at the scene immediately after the Accident. In that I am satisfied the Plaintiff has been suffering from some kind of chest pain because of a very minor rib fracture.

42.  I therefore accept Dr Chan’s opinion that sick leave period for a total of 139 days (or until 15 January 2020) is reasonable and appropriate.

Pre-Trial Loss of Earnings

43.  The Plaintiff claims HK$892,763 under this head taking the notional trial date in September 2024 (i.e. 63 months from the date of Accident). The notional trial date has lapsed, the period from the date of Accident to (13 June 2019) to the date of assessment of damages (22 April 2025) is now 70 months.

44.  The Plaintiff says he has worked for the Defendant since 2018. After the Chinese New Year of 2019, the Plaintiff had continued to work for the Defendant at a daily wage of HK$1,100. He pleaded an average monthly earnings of $27,500 in his RSD (which means working an average of 25 days per month). On this point, the Defendant did not file evidence to the contrary. I accept the Plaintiff’s monthly earnings at the time of the Accident was HK$27,500.

45.  But for the Accident, the Plaintiff would have continued to work as a renovation worker in the employment of the Defendant earning HK$27,500 per month.

46.  Owing to the Plaintiff’s residual pain and impaired work capacity suffered as a result of the Accident, he can take up work without duties requiring him to lift heavy objects. It is the Plaintiff’s case that he was unable to resume his pre-accident job as a renovation worker. In light of his disability, after the expiration of sick leave on 15 January 2020, he has worked and has been working as follows:

	Nature of work	Date	Duration	Earnings (HK$)
1.	general labour in construction site	unknown dates	10 days	$1,000/day × 10 = $10,000
2.	supermarket worker	Jun 2020	1 month	$15,500
3.	general labour in construction site	Dec 2020 – 9 Jan 2024	38 months	$20,000/month × 38 = $760,000
4.	security guard	24 Jan 2024 – Apr 2025	15 months	$14,406/month × 15 months = $216,090
			Total:	$1,001,590

47.  On the other hand, Dr Chan opines the Plaintiff is able to return to his pre-job as a plastering labour (a kind of renovation work) with some discomfort and reduced efficacy. The Plaintiff attempted but not well adjusted. In this respect, it is more appropriate for the Plaintiff to take up jobs without heavy lifting duties. I note from the above table that the Plaintiff has opted to work as a security guard since January 2024 which he can only earn a considerably less amount of monthly income. On this point, the Plaintiff explained in his supplemental witness statement that the employment as a general labour has been terminated by his then employer because of his inability to lift heavy objects. Although Dr Chan came to the view that the Plaintiff is able to resume his job as a renovation worker, he acknowledged the Plaintiff’s difficulty in doing so with some sort of residual disability. The Plaintiff attempted to do so for 38 months (which is not a short period). I am satisfied the change of job working as a security guard is because of his disadvantaged working ability.

48.  I find The Plaintiff is able to work as a security guard after the expiration of sick leave as such a job does not require him to lift heavy objects. From his evidence, he is able to earn on average HK$14,406 per month.

49.  That said, I accept the Plaintiff’s evidence on his post-sick leave work history and earnings. I see the Plaintiff has been working for 15 months until the date of assessment, it is safe to conclude that the Plaintiff is able to continue to work as a security guard in the future or at least until his retirement age.

50.  From the date of Accident (13 June 2019) until the end of sick leave (15 January 2020) shall be 7 months. The pre-trial loss of earnings of this period shall be HK$27,500 × 7 months × 1.05 = HK$202,125.

51.  The Plaintiff has earned a total of $1,001,590 during his post-sick leave period until the date of assessment (from 15 January 2020 until 22 April 2025); the pre-trial loss of earnings within this period shall be [(HK$27,500 × 63 months) - $1,001,590] × 1.05 = HK$767,455.50.

52.  In other words, the total award for the Plaintiff’s pre-trial loss of earnings, including MPF, shall be (HK$202,125 + HK$767,455.50) = HK$969,580.50.

Loss of Earning Capacity

53.  The purpose of damages for loss of earning capacity is to compensate the Plaintiff where there is a substantial risk that during his working life, he will lose his employment and suffer financial loss because of his disadvantage in the labour market due to his disability. (See Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, 311I-312G)

54.  The Plaintiff is now 62 at the time of assessment, his remaining career life would have been 65 - 62 = 3 years only.

55.  The Plaintiff claims HK$247,500 ($27,500 × 9 months) under this head. This figure came about by reason of the Plaintiff’s residual disability after the accident, which led to disadvantage in the labour market. Taking into account the Plaintiff’s age, limited education, 3% loss of whole person impairment and permanent incapacities, the Plaintiff submits a real risk of being redundant in the future is not highly imminent.

56.  Given the Plaintiff’s risk of some financial loss because of disadvantage in the labour market that he has residual disability regarding lifting heavy objects, I accept this will limit his work performance as a renovation worker, and it is his choice to work as a security guard (or job without heavy manual duty). However, it is important to consider the age of the Plaintiff, now 62 and also the fact that he has a relatively stable job as a security guard since 24 January 2024. I am confident that the Plaintiff’s present situation is that he is able to stay in the workforce as a security guard at least until retirement.

57.  On the other hand, as suggested by Dr Chan, the Plaintiff is able to return to his pre-accident job with some limitations, I am not persuaded he will be disadvantaged in the labour market to a large extent. I therefore find damages under this head, a 1-month period (ie, HK$27,500) based on the Plaintiff’s salary at the time of Accident is appropriate.

Special Damages

58.  The Plaintiff claims HK$6,881 as special damages, which comprise of medical charges from (i) Caritas Medical Centre HK$521; (ii) United Christian Hospital HK$1,360; (iii) traveling expenses HK$2,000 and (iv) tonic food/medical consumables HK$3,000.

59.  I am not aware the Plaintiff has followed up treatment in Caritas Medical Centre, no receipt(s) of payment has been submitted. The sum of HK$521 shall be disallowed.

60.  On the other hand, the aggregate sum from receipts submitted by the Plaintiff[7] shall be HK$1,918 instead of HK$1,360.

61.  I consider transportation expenses and tonic food expenses at $5,000 be reasonable.

62.  The total damages under this head shall be HK$6,918.

Advanced payment

63.  The Plaintiff confirms no payment of employees’ compensation was paid by the Defendant as the hearing of assessment of damages.

Summary of damages assessed

64.  To conclude, I award damages to the Plaintiff as follows:

(i)  PSLA	HK$      200,000.00
(ii)  Pre-Trial Loss of Earnings	HK$      969,580.50
(iii)  Loss of Earning Capacity	HK$        27,500.00
(iv)  Special Damages	HK$         6,918.00
(v)  Total prior to EC award	HK$   1,203,998.50
(vi)  Less EC award	HK$      142,017.98
	HK$ 1,061,980.52 ==============

Interest

65.  The Plaintiff is entitled to interest on PSLA at a rate of 2% per annum from the date of issuance of the Writ of Summons to the date of judgment and thereafter at judgment rate until payment. Interest on pre-trial loss of earnings and special damages at half the judgment rate from the date of the Accident until the judgment and thereafter at judgment rate until payment.

Costs

66.  I see nothing here to depart from the usual costs order. I shall make a costs order nisi that the Defendant do pay the Plaintiff’s costs of the assessment of damages, including all costs reserved, to be taxed if not agreed. The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations. The costs order nisi shall be made absolute within 14 days from the date hereof in the absence of an application to vary by way of inter parte summons.