WONG YUI LUN v. LEE WAI MING

HCPI 398/2018

[2020] HKCFI 3120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 398 OF 2018

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J U D G M E N T

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A. INTRODUCTION

1.  This is the trial of a personal injuries action commenced by the Plaintiff (“P”) against the 1^st and 2^nd Defendants (together “Ds”, respectively “D1” and “D2”) for damages arising from injuries suffered as a result of a road traffic accident at Victoria Road on 25 October 2015 (“Accident”).  P alleged that the Accident was caused by the negligence of D1, for which D2 was vicariously liable as D employer.

2.  P was the only factual witness at the trial and his evidence was tested extensively in cross-examination.  Ds elected not to adduce any factual evidence.

3.  Whilst liability and quantum were both disputed on paper, the parties managed to reach considerable agreement over the course of the trial.  As discussed below, the main issue that was hotly disputed concerned P’s claim for loss of earnings which amounted to some HK$13 million. 

B.  BACKGROUND

4.  The undisputed factual background is summarized in this section.

5.  P was born in Hong Kong on 27 June 1965, and was 50 years old at the time of the Accident (54 at the time of trial).  He studied at the Kwai Chung Technical Institute and went on to study in a course on textiles in the United Kingdom.  He could read and write in both Chinese and English.  Prior to the Accident, he was in good health.

6.  In 1989, P joined Bureau Veritas Hong Kong Limited (“BVHK”), part of what is now the Consumer Products Services division of Bureau Veritas Group (“BVG”), which provides testing, inspection, and certification services to well-known brands, retailers and their supply chains in over 25 countries.  By the time of the Accident, P had assumed the position of ‘technical director’ in the group’s operations for “softline & accessories” (including apparel and home textile) in the south China region, earning an average monthly income of $92,000 in the 2015/2016 year of assessment. 

7.  At all material times, D1 was employed by D2 as the driver of green public minibus bearing vehicle registration number EM9642 (“PLB”), having had about 24 years of driving experience, including 13 years as a minibus driver.

8.  On 25 October 2015 at around 9:45 am, P set out cycling alongside the pavement of Victoria Road in the north-bound direction towards Kennedy Town.  The road was a dual traffic lane, meaning that there was traffic moving in both directions on the road separated by double white lines. The location of the Accident was that part of Victoria Road abutting on a minor road (“Minor Road”) leading towards Lower Baguio Villa situated at the nearside of the lane on which P was cycling, ie to his left. 

9.  At around the time that P was approaching the entrance of the Minor Road, D1 was driving the PLB on the opposite lane in the south-bound direction.  Upon reaching the junction with the Minor Road, D1 negotiated a right turn and manoeuvred the PLB to diagonally cut across the opposite lane.  The PLB then collided into P’s bicycle at the opening of the Minor Road, causing P and his bicycle to be trapped and dragged under the PLB.  

10.  D1 was convicted of careless driving on 3 May 2016 upon his guilty plea.

11.  As a result of the Accident, P sustained multiple serious injuries, diagnosed as (i) right hip dislocation with sciatic nerve contusion injury; (ii) open fracture of right tibia shaft; (iii) right index finger injury with extensor tendon cut; (iv) L2-L4 lumbar spine transverse process fracture; and (v) right rib fracture with pneumothorax.  It is not disputed that the Accident was the sole cause of P’s injuries.

12.  In view of his injuries, P was granted a total of 410 days of sick leave by his treating doctors at Queen Mary Hospital (“QMH”) and MacLehose Medical Rehabilitation Centre (“MMRC”) from 25 October 2015 to 6 December 2016 and on 6 June 2017.  However, before the expiry of his sick leave, P resumed his employment with BVHK as technical director on 1 June 2016. During his resumed employment, P was further granted two consecutive 84-day sick leave periods from QMH on 21 June 2016 and 13 September 2016 respectively.  

13.  Around 8 months after resuming his job, P was given notice by letter of his dismissal on 19 January 2017 (“Dismissal Letter”), to take effect from 19 March 2017.  By the same letter, P was asked to vacate the office premises by close of business of the same day, and he has not returned to the office since.

14.  Following further discussions, P and BVHK entered into an agreement on 30 March 2017 whereby BVHK would pay P a monthly sum of HK$80,465 from April to July 2017 in consideration of P agreeing to certain undertakings in connection with the termination of his employment with BVHK (“Release Agreement”).  The aforesaid monthly payments were duly made to P.

15.  Subsequent to his dismissal from BVHK in March 2017, P was engaged in various forms of alternative employment:-

(1)  From 4 September to 14 September 2017, he was employed by Triton Textile Limited, a textile sourcing company, as an Assistant QA Manager under probation and earned a total of HK$16,894.63. 

(2)  From 14 December 2017 to 16 June 2018, he then worked as a part-time taxi driver for 2 to 3 days a week, earning approximately HK$500 to HK$600 per day, and a total of HK$26,400 during this period. 

(3)  From 1 July to 31 August 2018, he worked as a private car chauffeur for 2 months, and earned a total of HK$42,000 during this period. 

(4)  From 15 October 2018 to 21 October 2018, he worked in a Maxim Cake factory as a chef’s assistant, and earned a total of HK$2,835. 

(5)  From 1 November 2018 to 10 January 2019, he worked as a part-time office assistant, and earned HK$10,640 during that period.

16.  Since 11 February 2019, P has been employed as an administrative assistant in a fencing centre, earning a monthly salary of HK$10,000.  As of 14 November 2019, P has earned HK$90,000.

C.  INJURIES, TREATMENT AND JOINT ASSESSMENT BY EXPERTS

17.  It is not in dispute that P has received the following medical treatments since the Accident, as evinced by contemporaneous medical records.

18.  After the Accident on 25 October 2015, P was sent to the Accident and Emergency Department of QMH on the same day, where he underwent emergency surgery.  After being treated by the Intensive Care Unit and the orthopaedic ward for 11 days at QMH, his condition stabilised and he was transferred to MMRC for in-patient rehabilitation.  After 23 days of treatment, P was discharged on 27 November 2015.

19.  Since his discharge, P has regularly attended follow up appointments at the orthopaedic clinic of QMH.  In the course of these follow-ups, P underwent another surgery on 4 January 2016 for revision fixation of his right tibia fracture, and again on 23 March 2016 for removal of cement and bone graft from the iliac crest to the tibia bone defect.

20.  Between April and October 2016, P attended a total of 30 physiotherapy sessions at Kowloon Hospital (“KH”).  To highlight a few of these sessions in order to track the progress of P’s physical recovery during this period:- 

(1)  At one of the earlier sessions on 6 May 2016 (after P had attended 5 sessions), P complained of tenderness over his right quadriceps and calf muscles, and decreased skin sensation over his right anterior lower leg region.  It was observed that P was able to walk independently with crutches, and had a walking tolerance of around 10 minutes. P rated his Numeric Pain Rating Scale (NPRS, a scale reflecting intensity of pain with a maximum score of 10) at 0, and his overall subjective improvement as 60%.   

(2)  Shortly after P resumed work with BVHK, at the session on 20 June 2016 (after attending 18 sessions), he still complained of tenderness over his right quadriceps and calf muscles, and decreased skin sensation over his right anterior lower leg region by 20-30%.  However, it was observed that P was able to walk independently with a single crutch, and had a walking tolerance of around 20 minutes.   He rated his NPRS as 1, and his overall subjective improvement at 80%.

(3)  Near the end of P’s physiotherapy treatment, at the session on 6 September 2016 (after he had attended 28 sessions), P complained of tenderness over his right calf muscles, and decreased skin sensation over his right anterior lower leg region by 20-30%.  However, it was observed that P was able to walk independently unaided by crutches with a normal gait, and had a walking tolerance of around 30 minutes.  He rated his NPRS as 2, and his overall subjective improvement at 80%.

(4)  According to a Progress Sheet tracking P’s physiotherapy progress at KH, it was recorded that on 16 September 2016, P rated his NPRS at 2, and his overall subjective improvement at 80%.  It was noted that P did not complain of any hip pain. 

(5)  The same Progress Sheet goes on to record that on 6 October 2016 (P’s last session), P complained of right hip soreness after walking for 30 minutes (which subsided after rest), but made known that he experienced no pain at his right hip these days.  He also indicated a reduction in right knee pain frequency with a NPRS of 2, described as a “dull ache”.  He was able to walk independently unaided by crutches with a normal gait.  His muscle strength of right hip, knee and ankle were assessed to be grade 5 in general, indicating full strength, even though his right knee and ankle movement were relatively limited.  P rated his overall subjective improvement at 80%, and indicated that his condition did not affect his activities of daily living.   

21.  Meanwhile, from 22 April to 14 June 2016, P received occupational therapy treatment at QEH for his right index finger splint.

22.  Since 14 November 2016, P has been receiving psychiatric treatment from various departments of Kwai Chung Hospital (“KCH”), primarily under the supervision of Dr Benjamin Lau (“Dr Lau”).  Again, to highlight some of these consultations in order to track the progress of P’s psychiatric recovery:- 

(1)  In his first consultation with Dr Lau at the Common Mental Disorder Clinic of KCH on 14 November 2016, P complained of low mood, insomnia, crying episodes and negative cognition after he was discharged following treatment for the Accident.  He also informed Dr Lau that he had “resumed work, but was struggling to cope”.

(2)  Two weeks later, at the consultation on 28 November 2016, P informed Dr Lau that his mood was “improving”.  Dr Lau also opined that P was alert, euthymic, and had lowish energy and drive.  Similarly, according to the KCH Occupational Therapy Progress Report’s entry of the same date, P’s mood had improved with medication, and that he was working as a customer service manager who coped well and mixed well with colleagues.

(3)  That said, I would observe that when P was attended to by another therapist just 2 days later on 30 November 2016, he was recorded as complaining of low mood and poor sleep (with nightmares at least once every two weeks), and being distressed by pain regularly.  

(4)  At the consultation with Dr Lau on 9 January 2017, P indicated that his mood had improved to 60% of normal levels, and this further improved by the time of Dr Lau’s consultation on 20 March 2017.  On both occasions, P was observed to be alert and euthymic. 

(5)  In his consultation with Dr Lau on 10 July 2017, P indicated that his mood was good.  It was also observed that P appeared alert, euthymic and of fair energy and drive.  These observations were repeated by Dr Lau with respect to P’s consultation at the East Kowloon Psychiatric Centre (“EKPC”) of KCH on 30 October 2017.

(6)  P appears to have attended consultations with two departments of KCH on 5 February 2018.  On one hand, according to the Clinical Psychology Progress Note prepared by a psychologist of the Allied Health Department, P stated that he had low mood, was worried about the future, had nightmares once a week, and had palpitation and fear.  By contrast, according to the Consultation Summary prepared by a psychiatrist of the EKPC, P stated that he had normal mood, sleep, and appetite, although he felt a bit anxious when he took the minibus.      

(7)  In the latest Medical Report dated 20 April 2018, Dr Lau opined that (a) although P suffers from depression, he is in good remission; (b) P’s future vocational capability depends on the degree of recovery from physical illness; and (c) no permanent psychiatric disability is expected.

23.  On 27 November 2018 (around 3 years and 2 months after the Accident), P was jointly examined by two orthopaedics experts, Dr Lie Wai Hung Chester (“Dr Lie”) (for P) and Dr Yip Kwok Hing Daniel (“Dr Yip”) (for Ds), who subsequently prepared a joint medical report dated 14 February 2019 (“Joint Report”) for the purpose of this trial.  By an Order of Master Roy Yu dated 23 July 2019, the Joint Report was adduced at trial without either expert giving oral evidence.

24.  The Joint Report recorded that P complained of continuous right leg pain, occasional right hip pain, right index finger stiffness/weakness, and insomnia or poor quality of sleep.  It noted that P did not complain of any chest or back pain.

25.  The joint examination by the experts revealed the following:-

(1)  P was able to sit comfortably for 40 minutes, and was able to walk unaided and perform squatting exercises with 80% normal capacity.

(2)  P’s chest and lumbar spine were unremarkable.

(3)  P experienced right hip pain on deep terminal flexion, numbness over scars over his right leg, a diffuse tenderness over his right medial shin, 50% decreased sensation over his right medial leg, and some loss of flexion over his right knee at end range. 

26.  The experts were in agreement on certain aspects of P’s condition.  They agree that P’s injuries were properly diagnosed, that such diagnoses are consistent with the Accident as alleged, and that the Accident was the sole cause of P’s injuries.  They also agree that the necessary sick leave period was from 25 October 2015 to 6 December 2016 and on 6 June 2017, and that P had been promptly and adequately treated so not to require any further treatment.

27.  There are however differences in material aspects between the experts in the Joint Report.  Relevantly, for our purposes:-

(1)  Regarding P’s prognosis, Dr Lie was of the view that due to P’s present complaints, he could not resume his work in the garment testing industry (which required outdoor work and meeting with clients), but could work as a part-time driver or a part-time office assistant.  Dr Yip was more positive, opining that despite P’s injuries, he has recovered extremely well after receiving treatment, and thus his future prognosis must be at least good if not approaching excellent.  Dr Yip was also of the view that P was functionally and ambulatory independent. 

(2)  As for P’s working capacity, Dr Lie opined that P will have difficulty in resuming his pre-injury work in the garment testing industry, as it required 70% outdoor work to meet clients and a lot of walking, but would be able to take up work which do not require prolonged walking, standing and lifting weight.  On the other hand, Dr Yip pointed out the unclear circumstances of P’s dismissal, and that given P’s progress of recovery, he should have no problems coping with factory work and travelling outside the office/factory.  Dr Yip also opined that P should be open to employment for a wide variety of jobs.

(3)  Based on the experts’ respective assessments, Dr Lie assessed P’s total Whole Person Impairment (“WPI”) as well as his Loss of Earning Capacity (“LOEC”) at 8%, whereas Dr Yip considered both P’s WPI and LOEC to be 3%.

D.  THE ISSUES AT TRIAL

28.  At the start of the trial, the parties notified the Court that Ds agreed to accept liability on the basis that P was 10% contributorily negligent (which will be reflected in quantum).  Thus, liability was no longer in issue at trial.

29.  As regards quantum, P has claimed for multiple heads of damages amounting to some HK$13,798,768.48 plus interest as at the date of his Revised Statement of Damages (“RSOD”), ie 5 March 2019.  In their Answer dated 17 May 2019 (“ASOD”), Ds averred that P should not be entitled to more than HK$549,555 plus interest.  The stark differences between the parties’ position are summarised in the following table:-

Head of claim	P’s figures (HK$)	Ds’ figures (< HK$)
Pain, suffering and loss of amenities (PSLA)	800,000	250,000
Pre-trial cost of care	30,000	15,000
Pre-trial loss of earnings (up to 10 February 2019)	2,261,756.96	214,555
Pre-trial loss of MPF (up to 10 February 2019)	54,311.52	Nil
Post-trial loss of earnings (until P reaches 65 years of age)	10,152,000	Nil
Post-trial loss of MPF (until P reaches 65 years of age)	169,200	Nil
Loss of earning capacity	250,000	30,000
Special damages	81,500	40,000
Total	13,798,768.48	549,555

30.  Fortunately, much of these differences were narrowed down during the course of the trial.  Specifically, the parties have reached agreement on PSLA in the sum of HK$450,000, pre-trial cost of care for services rendered by P’s wife during his hospitalisation in the sum of HK$15,000, and special damages (including medical expenses, travelling expenses, tonic foods, and damaged properties) in the total sum of HK$57,750.

31.  In this light, what divides the parties is P’s loss of earnings, especially P’s post-trial loss of earnings which forms the single largest sum claimed by P (over HK$10 million), and his loss of earning capacity.  In particular, the main issue at trial is whether P is able to prove that the injuries he has sustained as a result of the Accident were causative of such losses.  

32.  P’s pre-trial loss of earnings are ascertained by reference to the period during which he was prevented by his injuries suffered as a result of D1’s negligence from returning to work: Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at §18 per Le Pichon JA. 

33.  P’s case under this head as pleaded is premised on the contention that but for the Accident, P would have continued his employment with BVHK throughout the pre-trial period.  In the RSOD, P takes the figure of HK$96,000 (ie his average monthly income for the 2014/2015 and 2015/2016 years of assessment) as his base monthly income, and further assumes that his income would have increased by 5% per annum since his effective date of dismissal from BVHK on 19 March 2017 (based on the historical rate of increase in P’s income prior to the Accident from 2012 to 2015 according to P’s tax returns).  

34.  However, P invited the Court in closing to calculate the rate of increase in P’s income based on inflation rates since 19 March 2017 as reflected in the Composite Consumer Price Index instead, viz 2.6% (year-on-year from March 2017 to March 2018), 2.1% (year-on-year from March 2018 to March 2019) and 1.93% (from March 2019 to September 2019).  On this basis, P would now be earning around HK$102,505 [ie HK$96,000 x 1.026 x 1.021 x 1.0193], yielding a rounded-off median of HK$99.250 per month throughout the pre-trial period [(HK$96,000 + HK$102,505) / 2]. 

35.  Against this, Ds submit that P’s loss of earnings should be limited to the time he returned to his pre-Accident job on 1 June 2016 because he should have had no problems performing his pre-Accident work having regard to his progress of recovery by that time.  Furthermore, Ds pointed to P’s failure to give any discovery of and its decision not to call any witnesses from BVHK regarding the circumstances of his dismissal, and submitted that the Court was entitled to draw adverse inferences in respect thereof.

36.  Having considered the views of P’s treating doctors and the experts, I accept that the sick leave period of 410 days is reasonable.  Out of this period, it is common ground that P is entitled to loss of earnings from the date of the Accident up until the time he resumed work with BVHK on 1 June 2016.  It is also not in dispute that P’s average monthly income during the 2015/2016 year of assessment (ie when the Accident occurred) was around HK$92,000, as evinced by the Inland Revenue Department’s records. Taking into account the total actual earnings received by P from November 2015 to May 2016 (ie HK$482,260), P’s pre-trial loss of income for the period between 25 October 2015 to 31 May 2016 (before deduction for tax) should be HK$190,940, ie HK[$92,000 + HK$1,500 (MPF)] x 7.2 months – HK482,260.

37.  As for the period between 1 June 2016 and 19 March 2017 when P resumed work with BVHK from, P’s salary advices indicate that he earned HK$817,505 (inclusive of salaries, MPF and other benefits), and so he is not entitled to claim any pre-trial loss of earnings during this period. 

38.  The real question is whether P was prevented by his injuries sustained as a result of the Accident from returning to his pre-Accident work since 19 March 2017.  This requires consideration of the following sub-issues: (i) the nature of P’s pre-Accident work; (ii) whether P was able to resume his pre-Accident work on 1 June 2016 until his dismissal; and (iii) whether P was dismissed from BVHK by reason of his injuries suffered as a result of the Accident.

D1.  P’s Duties as Technical Director before the Accident

39.  At the time of the Accident, P was employed by BVHK as a ‘technical director’ belonging in the ‘Top Management II’ grade. According to P’s evidence, he was in charge of the Apparel Department and was mainly responsible for ‘technical’ matters such as inspecting the component, safety, washability, and coloring of apparel.  Depending on the location of his clients’ factories and their production requirements, such inspections may be carried out by P personally in Hong Kong, the Mainland, or other southeast Asian countries if he was the person-in-charge of the brand in question, notwithstanding the fact that BVG may have on-the-ground personnel and facilities.

40.  P has also described himself as a “customer manager”, whose responsibilities include contacting clients and providing quotations on technical matters.  During cross-examination, P explained that such tasks could be dealt with in the office, but it was not uncommon that he had to travel to meet with clients to discuss their production problems.  If he had to travel within Hong Kong, he would take public transport, whereas if he had to travel outside Hong Kong, he would do so by air or train to the destination before switching to local transportation.  To that end, P described his pre-injury work as “70% outdoor, to meet clients”, and “30% in office” when he was interviewed by the experts who prepared the Joint Report. 

41.  Taking his role as customer manager first, P’s assertion that he spends 70% of his time at work outdoors is an assertion unsupported by any other witness testimony or documentary evidence.  In any event, it appears from his evidence that most of the time he spends “outdoors” is actually for transportation purposes.  To the extent that he had to travel overseas to meet clients, P’s immigration records prior to the Accident suggest that he did not do so frequently.  For example, between 4 January to 14 October 2015 (with the exception of a 5-day trip in June 2015), P made 20 day-trips of which 5 were personal trips during weekends.  In other words, in a span of over 9 months, P made 14 day-trips for business reasons and they were all short trips.   

42.  As for garment testing, it is important to point out that in the evidence adduced by him, P did not explain what exactly he was required to do when he carried out onsite inspections.  At the beginning of the trial, Counsel for P only requested to supplement P’s witness statement by clarifying two matters through oral evidence: (i) the current condition of P’s injuries; and (ii) the difference in P’s monthly income as pleaded in his RSOD and that stated in his witness statement.  Nor was this explored during cross-examination.

43.  It was only during re-examination that P, upon his Counsel’s prompting, explained that such inspections may involve P adopting certain physically-demanding postures and standing for long periods of time (1-2 hours) for the purposes of carrying out inspections such as pulling and drawcord tests that are designed to ensure that children’s garments are safe to wear.  In this regard, P testified that he conducted 80% of the onsite testing himself.  It is not surprising that Mr Sakhrani for Ds objected to such re-examination.

44.  Although I allowed such matters into evidence during re-examination because they strictly arise from cross-examination, I attach little weight to it.  As Mr Sakhrani submitted, P’s evidence is clearly self-serving, and the fact remains that such evidence has not been properly tested in cross-examination.  Thus, P’s evidence is of limited probative value.  It is clear that such matters did not emerge from cross-examination was due to no fault on Ds’ part: P’s pleaded case all along was that his residual disabilities had seriously affected his job performance “as he was unable to travel to places to meet clients” and this was also the sole basis that his case was put during the opening submissions by Mr Kenny Lin for P (see §42 of his Written Opening).  P was thoroughly cross-examined by Mr Sakhrani on this matter.

D2.  Was P Able to Resume his Work at BVHK?

45.  As stated above, P’s pleaded case (repeated in his written opening submissions) is that since he resumed his pre-Accident work at BVHK in June 2016, his residual disabilities had seriously affected his job performance and he was unable to travel to places to see and advise clients as before.  No other reason that his job performance was detrimentally affected has been pleaded.

46.  Even then, the evidence is not entirely clear as to what precisely his duties were between June 2016 and January 2017, when he was given notice of his dismissal.  According to P’s evidence, his scope of work remained unchanged when he resumed employment, but his supervisor was considerate and assigned him to work mainly at the office.  Yet, the patient history particulars taken from P as appears in the Joint Report records that while P mainly worked in the office and did not need to go out to meet clients in the first 2-3 months whilst he was still relying on crutches, he later resumed normal duty including outdoor work and meeting with clients.

47.  I consider that the Joint Report contains the most reliable and plausible account of what occurred after P resumed employment with BVHK. 

48.  First, it is in line with the unchallenged physiotherapy records tracking P’s physical recovery, which consistently show (by P’s own admission) that his condition did substantially improve in the period between May and October 2016.  In functional terms, P was able to walk unaided by crutches with normal gait for 30 minutes at least by September 2016, when he rated his overall subjective improvement at 80%.  P’s complaint that he was “struggling to cope” at work during his consultation for psychiatric treatment on 14 November 2016 is ambiguous as it is unparticularised, and should not be taken to detract from the general tenor of the progress of his physical recovery.

49.  Second, and insofar as P was required to travel abroad for work purposes, such account of the facts is consistent with P’s travel records, which show that he did not leave Hong Kong from the time of the Accident until September 2016, during which he resumed traveling abroad.  The records indicate that P took a number of multi-day trips all the way up to March 2017 when his dismissal took effect, albeit that P was unable to recall the purpose of most of these trips.

50.  That said, it does not follow that I accept P’s case that his residual disabilities have detrimentally affected his job performance by reason of him being unable to travel and meet with clients. This is because P’s case necessarily excludes the period when he was confined to the office in the first 2 months, and so did not have to go out to meet with clients.  Thereafter, when he resumed outdoor work and meeting with clients (whether in Hong Kong or abroad) at least by September 2016, P’s progress of recovery suggests that his physical condition would have permitted him to take public transportation without any problem.  Indeed, no evidence has been adduced to show that P had experienced any difficulty doing so, and there is no reason to expect that his superiors would require him to travel despite any such difficulty.

D3.  Was P Dismissed because of his Injuries?

51.  From the foregoing discussion, it is apparent that P faces significant difficulties in proving that he was dismissed from BVHK because of his injuries.  Not only is the present state of the evidence insufficient to show that P’s injuries have detrimentally affected his ability to perform his work, more importantly, P has not adduced any evidence apart from his own assertions as to the actual reasons why he was dismissed. Certainly, such reasons are not apparent from the Dismissal Letter nor the Release Agreement. 

52.  Faced with these difficulties, Mr Lin invited the Court to draw the inference that P must have been dismissed from BVHK due to his injuries, in view of the fact that he was a career employee in a senior position who was suddenly dismissed within 7 months of his return to work, where the only thing that stood out before his dismissal was his injuries.  He relies on P’s complaint recorded in Dr Lau’s consultation notes dated 14 November 2016 (around 2 months before P was given notice of dismissal) that he was “struggling to cope” with a job he had done for 26 years. 

53.  On the basis of the evidence available, I am unable to accept Mr Lin’s submissions.  It is established that the facts proved must provide a reasonable basis for a definite conclusion before one enters the realm of drawing inferences in a civil case: Natuzzi Spa v De Coro Ltd HCA 4166/2003 (unrep, 16 June 2006) at §12 per Lam J (as he then was); SFC v Wang Jian Hua HCMP 745/2013 (unrep, 29 October 2015) at §78 per G Lam J.  Absent objective proof that P was in fact prevented from resuming work due to his injuries, I am far from satisfied that there is a reasonable basis to conclude simply from the circumstances of his dismissal and his own subjective complaint that it is more likely than not that P must have been dismissed due to his injuries.  In fact, there may be a myriad of other reasons as to why he was dismissed.

54.  As P has simply failed to discharge his onus to show that he was dismissed from BVHK by reason of his injuries, there is no need for me to consider Mr Sakhrani’s further submission that the Court is entitled to draw adverse inferences against P as to the true reason for his dismissal by reason of his election not to seek documentary evidence from BVHK and/or call a former colleague to give evidence. 

55.  Accordingly, I reject P’s claim for pre-trial loss of earnings from 19 March 2017 onwards on the basis that P would have continued his pre-Accident employment with BVHK throughout the pre-trial period but for the Accident. 

D4   Post-Trial Loss of Earnings and MPF

56.  As with the case for pre-trial loss of earnings, the underlying premise of P’s claim for future loss of earnings is the contention that but for the Accident, he would have continued his pre-Accident employment with BVHK until retirement at 65 years of age, earning a monthly salary of HK$102,505.  Again, Ds have challenged this premise, arguing that P is not entitled to claim under this head because the Accident did not render him unable to return to his pre-Accident work (or comparable employment).    

57.  Having regard to the totality of the medical evidence, I have no doubt that P’s physical impairments suffered as a result of the Accident had substantially improved (80% according to P’s own subjective assessment) by the time he completed his physiotherapy sessions in October 2016 with KH.  As Dr Yip observed in the Joint Report, the medical records clearly indicate that he could ambulate independently on ground and stairs by April 2016, and “although his endurance would have been less at that stage, he would be expected to continue to improve given that all targets had been achieved”. Certainly, by October 2016, P was able to walk unaided by himself for 30 minutes (albeit needing to rest to alleviate his right hip soreness), and had fully functional muscle strength for his right hip, knee and ankle.   

58.  In addition, I am satisfied from the medical evidence that whilst P suffered from depression (with the concomitant symptoms of low mood, insomnia, crying episodes and negative cognition) when he first attended KCH in November 2016, his psychiatric condition had steadily improved with treatment such that by April 2018, his depression was in the progress of good remission.  That was certainly the view of Dr Lau, P’s principal psychiatrist at KCH since November 2016.  Dr Lau’s view is also not inconsistent with the progress notes of the clinical psychologist of KCH, which record that P has indicated subjective improvement since October 2017.   

59.  For completeness, I should mention that I have also reviewed the surveillance videos conducted by Incredible Investigation Consultants Ltd on P in May/June 2018 and September/October 2019 adduced by Ds. By and large, the videos show that P was capable of walking unaided at a reasonable pace for extended periods of time, even though (as pointed out by Mr Lin) a number of frames might suggest that P had to take rests and twist his ankle for relief.  Not much turns on these videos at the end of the day: an individual may have good and bad days, and it would be dangerous to extrapolate general observations of fact from a select few recordings. 

60.  On the pertinent question of whether P would be able to return to his pre-Accident work (or other comparable employment) after trial, I have derived further assistance from the Joint Report.  In this regard, I prefer the assessment of Dr Yip to that of Dr Lie for the following reasons:-

(1)  A persistent problem permeating Dr Lie’s assessment of P’s impairment is that he seems to have simply accepted P’s subjective complaints made to the experts during their joint examination with little objective and critical analysis. 

(2)  For instance, in his assessment of P’s prognosis, Dr Lie mainly recited P’s diagnoses and subjective complaints of continuous right leg pain, on-and-off pain at the right hip, continuous right index finger stiffness/weakness, and poor sleep, without referring to any of the clinical notes provided.  Whilst noting that P experienced some stiffness, tenderness or numbness at his right hip, right medial leg (including his knee and shin), and his right index finger upon varying degrees of flexion, Dr Lie does not explain why these findings supported his conclusion that P could not resume his work in a garment testing factory requiring outdoor work and meeting with clients.

(3)  A substantially similar approach was adopted by Dr Lie in his assessment of P’s working capacity.

(4)  By contrast, Dr Yip’s assessment of P’s prognosis and working capacity was more nuanced.  He opined that P’s complaints were either not expected for his type of injury (eg diffuse tenderness over medial shin), not functionally important (eg slight numbness of index finger), or not supported by the medical evidence such as the KH physiotherapy progress notes of 6 October 2016 (eg on-and-off pain at the right hip).  He justified his conclusion that P should have no problems coping with factory work (including garment testing involving the need to carry sample products weighing some 10 pounds) and travelling outside the office/factory by reference to the fact that P had recovered extremely well after receiving treatment, being functionally and ambulatory independent by April 2016.

(5)  Conspicuously, Dr Lie did not make any comments on Dr Yip’s above opinions at all. 

61.  Taking all these matters into account, I am not satisfied that P was unable to resume work comparable to his pre-Accident job with BVHK after trial.  Thus, P is not entitled to any loss of future earnings.

D5.  Loss of Earning Capacity

62.  The purpose of damages for loss of earning capacity is to compensate for the disadvantage in the labour market which P has suffered as a result of his injuries arising from the Accident.  In this regard, P asks for HK$250,000 in the RSOD, reduced to HK$200,000 in his closing submissions.  On the other hand, whilst Ds averred in the ASOD that P should only be entitled to HK$30,000 under this head, they were prepared to compensate P up to HK$120,000 under this head by the time of their closing submissions.

63.  As I have held that P should have been able to resume work comparable to his pre-Accident employment, he must prove that, had he returned to such a job, there is a real or substantial risk that he might lose the job in the future and suffer financial loss because of his disadvantage in the labour market: Tamang Tikaram v Tong Kee Company Ltd HCPI 19/2013 (unrep, 1 April 2015) at §§82-83 per DHCJ Paul Lam SC.

64.  In the present case, there is a lack of evidence as to the reason of P’s dismissal from BVHK, and whether that was related to his injuries.  Moreover, whilst P averred in his RSOD that he had submitted numerous job applications but was rejected due to his injuries, there is no other evidence before the Court on the practical difficulties faced by P in finding other jobs (especially those comparable to his pre-Accident employment) besides the fact that he obtained alternative employment described in paragraphs 15-16 above.

65.  That said, both experts agreed that P will suffer a small degree of WPI and LOEC (3-8%).  Indeed, P was found to have experienced some right hip pain on deep terminal flexion and some loss of flexion over his right knee at end range upon examination by the experts.  Hence, one cannot exclude the possibility that P might suffer from such problems in the future, be prevented from working from time to time because of these problems and suffer financial loss as a result.   

66.  Furthermore, I accept that the reality is that employers would prefer to employ fully able-bodied persons if they can, so P’s residual physical and psychological impairments (though slight) may have some impact on his ability to secure a new job if he is thrown into the labour market: see Khan Amar v Cheung Ying Construction Engineering Limited & Or HCPI 231/2005 (unrep, 14 March 2006) at §103; upheld on appeal in CACV 153/2006 (unrep, 5 June 2007) at §54.

67.  For these reasons, I am satisfied that there is sufficient evidence to support an award for loss of earning capacity.  Although it is impossible to accurately quantify the extent of the risk, doing the best I can in light of the totality of the evidence, I am prepared to grant the full sum of HK$200,000 as claimed by P taking into account the extent of P’s residual ailments and Dr Yip’s assessment of P’s WPI and LOEC.  

68.  The reasonableness of the sum could be cross-checked this way.  Assuming that P is entitled to claim future loss of earnings on a multiplier/multiplicand approach, the multiplier should be 9.39 (calculated with allowance for projected mortality and a net rate of return of 2.5%, for a person aged 54 at the date of trial who would work to age 65). Applying such a multiplier, a sum of HK$200,000 will yield HK$21,299.25 a year.  Taking the daily rate derived from P’s average monthly pre-Accident income as the comparator, ie HK$3066.67 [HK$92,000 / 30 days], the sum of HK$21,299.25 postulates that P will lose around 7 days’ wage a year if he resumes work comparable to his previous job with BVHK in the future up to his retirement.  Such an estimate of P’s risk of financial loss due to his reduced earning capacity seems reasonable in view of Dr Yip’s assessment of P’s WPI and LOEC.

D6.  Summary of Quantum

69.  In summary, I assess damages for P’s personal injury claim as follows:-

Special damages

(1)  Pre-trial loss of earnings and MPF	HK$190,940
(2)  Medical expenses, travelling expenses, tonic foods, and damaged properties	HK$57,750
(3)  Pre-trial cost of care	HK$15,000

General damages

(4)  PSLA	HK$450,000
(5)  Post-trial loss of earnings	Nil
(6)  Loss of earning capacity	HK$200,000
Gross Total:	HK$913,690
Discount for 10% contributory  negligence:	(HK$91,369)
Net total:	HK$822,321

70.  There will be an award of interest on special damages at half judgment rate from the date of the Accident, and interest on PSLA at 2% from the date of the writ of summons.  Interest from judgment until full payment runs at judgment rate.

E.  CONCLUSION

71.  For the foregoing reasons, I order that Ds do pay P the sum of HK$822,321 by way of damages.  

72.  Given the quantum of damages awarded, I also make a costs order nisi that Ds do pay P’s costs of the trial to be taxed if not agreed on District Court scale.  The costs order nisi shall become absolute in the absence of any application within 14 days unless an application is made to vary the same.