CHIN MAN WO v. CHO CHUN KIT trading as YAN KIT INTERIOR DESIGN AND ANOTHER

DCPI 1168/2022

[2026] HKDC 399

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1168 OF 2022

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ASSESSMENT OF DAMAGES

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A.  Introduction

1.  This is the assessment of damages for the personal injuries sustained by the Plaintiff (“P”) in an accident happened on 9 September 2019 (the “Accident”) in the course of his employment with the 1^st Defendant (“D1”).

2.  Interlocutory judgment on liability was entered against D1 (who has been absent throughout) on 1 August 2022, leaving damages to be assessed.

3.  The Employees Compensation Assistance Fund Board (the “Board”) was joined on 17 April 2023 as the 2^nd Defendant pursuant to Section 25A of the Employees Compensation Assistance Ordinance (Cap 365) to contest the issue of quantum.

4.  In this regard, the Board’s role when participating in an existing action for damages was explained in Wo Chun Wah v Employees Compensation Assistance Fund Board (2019) 22 HKCFAR 495 at §§43-46. In short, the Board carries out a filtering or monitoring function to test P’s case so as to ensure that public resources are properly applied and not subject to abusive or unjustified claims.

5.  D1 was absent at the assessment hearing. I am satisfied that he has been duly informed of the date of assessment and I therefore proceeded in his absence.

B.  Factual background

6.  P was born on 25 December 1985. He was 33 at the time of the Accident and is now 40.

7.  On the date of the Accident, P was employed by D1 as a casual worker to do renovation work. He was instructed to prune a tree with his co-workers, in the course of which he fell from a height of about 2 metres and sustained injuries to his right hip and right wrist.

8.  After the Accident, P was admitted to the Prince of Wales Hospital. CT scan of the pelvis revealed non-displaced fracture in the right iliac bone, extending down to the right acetabulum. P was given conservative treatment (he was assessed as unsuitable for operation), including physiotherapy from 9 October 2019 to 25 May 2020.

9.  He was granted sick leave by the treating doctors from 9 September 2019 to 27 April 2023 (i.e. around 44 months).

C.  Expert assessment

10.  P was jointly examined by Dr Danny Tsoi (appointed by P) and Dr Arthur Chiang (appointed by the Board) on 15 June 2023. They compiled a joint medical expert report dated 2 July 2023. I did not consider it necessary to call either expert to give oral evidence.

11.  Both experts agree that, as a result of the Accident, P suffered:

(i)  undisplaced fractured right iliac bone with extension to the right acetabulum;

(ii)  avulsion fracture in the right pubic bone at the inferior aspect of the right hip; and

(iii)  soft tissue injury to the right wrist.

12.  Both experts also agree on the following matters:

(i)  The right wrist achieved complete recovery;

(ii)  There was some wasting of right buttock (gluteal muscle);

(iii)  P did not require further treatment; and

(iv)  P should be able to resume his pre-injury job.

13.  For the purpose of the assessment exercise, the experts have 2 disagreements that are relevant:

(i)  Effect on working capacity – Dr Tsoi opined that P would have reduced capacity in performing strenuous manual duties, like tree climbing, lifting of more than 20-30 kgs or working in squatting position for a long period of time, while Dr Chiang opined that there would only be a mild reduction in work efficiency;

(ii)  Sick leave period – Dr Tsoi endorsed the sick leave granted by the treating doctors (i.e. up to 27 April 2023, around 44 months after the date of the Accident), whereas Dr Chiang took the view that a sick leave period of 6 to 9 months after the last physiotherapy session (25 May 2020) would be appropriate (i.e. from about 25 November 2020 to 25 February 2021, being around 14.5 to 17.5 months from the date of the Accident).

D.  Issues in dispute

14.  By the time of closing submissions, the parties were able to narrow down their issues in dispute. P and the Board agree on the quantum for PSLA (at HK$275,000) and special damages (at HK$10,000). P also agrees that he should give credit to the advance payments that he received from D1 on account of his sick leave.

15.  The following outstanding matters require deliberation:

(i)  P’s daily wage before the Accident;

(ii)  The number of days that P would work per month before the Accident;

(iii)  The reasonable period of sick leave;

(iv)  The period of time that P was in custody (it being common ground that no award for loss of earnings should be made during that period);

(v)  Loss of earning capacity (if any);

(vi)  The amount of advance payments that P received from D1.

E.  Factual witness and credibility

16.  P is the only witness who gave oral evidence before me. I bear in mind the usual principles in assessing credibility. I take into account the inherent probabilities and the contemporaneous records and documents, and demeanour may sometimes be an inaccurate indicator.

17.  I also note that the Board produced a surveillance report and video depicting P’s conditions on various dates (including the date when he attended the joint medical examination with Dr Tsoi and Dr Chiang). I have fully taken the contents of the report and the video into account.

18.  The Board has elected not to call any factual witness.

F.  Pre-trial loss of earnings

F1.  P’s daily wage and the number of working days each month

19.  P says that his daily wage was HK$600 prior to the Accident, while the Board says the evidence shows that it was likely P only earned HK$500 per day.

20.  P has not disclosed much contemporaneous documents to prove his daily wage (e.g. tax returns, pay slips and receipts etc). On the other hand, the bank statements disclosed would appear to show that many of the deposits received by P prior to the date of the Accident (most of which would be his salary) were either for HK$500 or multiples of HK$500 (and not HK$600 or its multiples).

21.  Moreover, while P accepted during cross-examination that there were WhatsApp communications between him and D1 in relation to the work arrangements and payment of wages, none of these communications was disclosed by P.

22.  P’s assertion in his supplemental witness statement that the money credited to his bank account would be subject to further adjustments (“對數”) is unsupported by any documentary record. I also find it inherently incredible for D1 to deposit HK$500 (or its multiples) into P’s bank account with the balance to be left for future adjustment.

23.  For these reasons, I find as a fact that P’s daily wage was HK$500.

24.  The next sub-issue I need to address is the number of days that P would go to work every month prior to the Accident. During cross-examination, P’s evidence was that once he had started to work for D1, he was required to work continuously; there was job after job (一個盤接住一個). He therefore maintains that he would work 26 days in a month. This again is only P’s bare assertion without any documentary support (e.g. WhatsApp exchanges with D1 on his work arrangements are completely lacking).

25.  The Board drew my attention to the case of Chan Leung Sing v Ng Keung (unreported, HCPI 3/2012, 27 August 2015) where Recorder Paul Shieh SC held at §§64-65:

“64. Further, the best way of showing the past pattern of work and earnings would be to produce documentary evidence such as tax returns, bank passbooks or documents provided by past employers. While I accept that sometimes workers such as the plaintiff may not have very organized financial affairs — income may fluctuate, not all income may be paid into the bank account, salary slips may be missing for a month or two, etc. However, in the present case, the plaintiff has not presented a jot of documentary evidence about his past earnings. I do not regard the plaintiff’s explanation (at §10 of his 2^nd Witness Statement) of such wholesale absence of documentary evidence as satisfactory. Without contemporaneous documents, it is impossible to properly test the veracity of the plaintiff’s oral assertion as to the number of working days and as to daily rate. And I have already alluded to the unsatisfactory and evasive oral evidence given by the plaintiff above.

65. Common sense dictates that because of the nature of the work in question it is unlikely for a worker such as the plaintiff to be employed for 26 days per month on an indefinite basis. In this regard I am in the good company of DHCJ Hartmann in Lo Wai Shing v Lik Sang Engineering Company Limited, HCPI 15/2012 where he said:

“… I must recognise two things, first, that casual work of this kind is highly unlikely to be available every day of every month on an indefinite basis and second, that the plaintiff is equally unlikely to be able to arrange his affairs so that he is able to take advantage of that work every day of every month.

… In my view, the obvious realities that apply to working as a labourer on a casual basis in a market which over any extended period of time has its ups and downs must tell against the submission made on behalf of the plaintiff that it is reasonable to proceed on the basis that, if it was not for the accident, he would have been able to work indefinitely … as a casual labourer earning a minimum of $630 per day for 26 days in each and every month. …”

His Lordship went on to hold that 22 days per month was a realistic number. I reject the plaintiff’s evidence and figure of 26 days and, like Deputy Judge Hartmann, I adopt the figure of 22 days instead.”

26.  In my judgment this case is particularly instructive. I will also adopt the figure of 22 days per month.

27.  I therefore find that that the pre-Accident monthly income of P was HK$11,000 (22 days x HK$500/day).

F2.  Sick leave period

28.  It is well established that the Court is not obliged to endorse the sick leave granted by the treating doctors, and sick leave certificates are no more than a piece of evidence to be evaluated in light of other pieces of available evidence: Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at §18.

29.  I will say at the outset that I prefer Dr Chiang’s opinion (that sick leave should only run up to 9 months after the last physiotherapy session) to that of Dr Tsoi, for the following reasons:

(i)  I accept the Board’s submission that Dr Tsoi’s overall opinion is largely premised upon P’s allegations of pain and symptoms which are mostly subjective. In this regard I bear in mind that it is for the Court, not the expert, to decide as a matter of fact whether certain subjective complaints made by the victim are genuine: Ale Thak Prasad v Tsang Chin Keung (unreported, HCPI 579/2012, 29 December 2017) at §§32-38; Singh Bal Winder v IWS Waste Management Co Ltd [2018] HKCFI 1107 at §§35-39;

(ii)  Notably, apart from opining generally that he considers P’s complaints to be genuine, Dr Tsoi did not really evaluate or test such complaints against the objective medical evidence (including those specifically referred to by Dr Chiang);

(iii)  I therefore agree with the Board’s submission that Dr Chiang’s opinion on sick leave is more cogent with reference to the medical notes and records. On the contrary, Dr Tsoi’s opinion that sick leave up to 27 April 2023 was “acceptable” and that P “may” take a longer period of rehabilitation provides no answer to the objective medical evidence highlighted by Dr Chiang on the progress of P’s recovery and the extent of his conditions in around 2020-2021.

30.  P further submits that at the last physiotherapy session on 25 May 2020, further sessions of treatment were recommended (which P did not attend), and this showed that P’s conditions had not stabilized by then. In my view this is neither here nor there. It is pertinent to observe that Dr Chiang did not suggest that sick leave period should end on the very day of the last physiotherapy session; rather he allowed a significant sick leave period thereafter. Implicit in that opinion is that P had not fully recovered by the time of the last physiotherapy session. I maintain my view that Dr Chiang’s opinion is to be preferred.

31.  Accordingly, I find that the appropriate sick leave period should be 9 months after the last physiotherapy session on 25 May 2020, i.e. up to the end of February 2021 (which is about 17.5 months after the Accident).

F3.  The period when P was in custody

32.  There is no dispute that, during the sick leave period (i.e. up to end of February 2021), P was sentenced to 2 separate terms of imprisonment, each for 8 months, on 25 November 2019 and 28 December 2020 (there was another imprisonment term in July 2022 but it is irrelevant for present purpose since it is not within the sick leave period). On P’s case and evidence, for each of these terms he was only in custody for “5 months odd” because of his good behaviour (see also Revised Statement of Damages §5f which pleads that P was in custody for 5 months for each of these imprisonment terms). The Board’s Answer §12 pleads that P’s sentence “after 1/3 deduction for good behaviour” was for 5.3 months for each of the imprisonment terms. P submits that as a result of this plea, it never occurred to P that he needed to tender positive evidence (e.g. asking for a letter from the prison authorities) to show the exact period of his custodial terms.

33.  I accept P’s explanation as to why there is no documentary evidence showing the precise period in which P was in custody or the exact dates when he was released. It does not appear to be a contentious issue on the state of the pleadings. I also accept that, as a matter of fact, P was released early from the 2 imprisonment terms as a result of good behaviour.

34.  In closing submissions P put forward the figure of 5.5 months for each of the 2 imprisonment terms. Having considered P’s evidence and the Board’s pleaded case, I accept that this is an appropriate figure. However, for the 2^nd imprisonment term, the deduction should only run up to the expiry of the sick leave period (which is about 2 months after P was in custody). The overall reduction should therefore be 7.5 months.

F4.  Overall – loss of earnings

35.  The overall award for loss of earnings (including loss of MPF) is therefore HK$115,500[1].

G. Loss of Earning Capacity

36.  I note that while both experts agree that P should be able to resume his pre-injury job, he still suffers from muscle wasting of right buttock and there is some (the experts differ on the extent) reduction in work efficiency.

37.  Given the reduction in work efficiency, I am of the view that P would be at risk of suffering a disadvantage in the labour market. I further note that he still has a relatively long working life ahead of him (he is now 40 years of age). That risk is however not a very serious one given the expert’s common opinion that he should be able to return to his pre-accident job.

38.  I am therefore prepared to allow an award for loss of earning capacity, being 2 months of P’s present income as a Café de Coral kitchen worker (at HK$14,000 per month), to reflect that risk. The award comes to HK$28,000.

H.  Advance payments received by P from D1

39.  It is P’s case that after the Accident, D1 paid him a total of about HK$310,000 on account of sick leave. On the other hand, the Board’s case is that all credit entries in P’s bank account between the date of the Accident and the end of December 2022 were sick leave payments made by D1 (it is common ground that these credit entries come to a total of HK$400,665).

40.  The Board submits that there is no evidence to substantiate P’s case. In particular, P’s evidence that the remainder of the credit entries (i.e. the total HK$400,665 less HK$310,000) comprises casual earnings and funds deposited for friends (“我記憶所及，其中只有約 HK$310,000 是被告人左俊傑轉給我的病假工資。其餘的是有時間中打散工，或借戶口給朋友收款的存款”) was accepted by P himself in cross-examination to be incorrect because it is also his evidence that he was unable to work after the Accident (witness statement §19). There is equally no substantiation in relation to P’s allegation that he lent his account for friends to receive payment.

41.  While I can fully understand the Board’s argument, on balance I am inclined to accept P’s case as credible. The fact that P was unable to provide the full details of each of the credit entries is perhaps understandable given the lapse of time. Further, there was a transaction on 6 June 2022 that concerned a credit transfer of HK$2,000 which was obviously unrelated to D1 (the transfer was recorded to be made by one Lock Man Yan). This reinforces P’s case that not all credit entries were advance sick leave payments from D1.

42.  Further, P’s evidence that he also lent his account to his friends to receive money seems to be consistent with some of the transactional patterns as shown in the bank statements. I take the view that the bank account was more likely to have been used by P for purposes other than receiving sick leave payments from D1.

43.  I therefore find as a fact that P received advance payments in the sum of HK$310,000 from D1 on account of sick leave.

I.  Conclusion, interest and costs

44.  In conclusion, I assess P’s damages at HK$118,500.

	Total
PSLA (agreed)	HK$275,000
Pre-trial loss of earnings	HK$115,500
Los of earning capacity	HK$28,000
Special damages (agreed)	HK$10,000
Sub-total	HK$428,500
Less: Advance payments	(HK$310,000)
Total	HK$118,500

45.  Interest on PSLA is awarded at 2% per annum from the date of writ to the date of judgment on assessment of damages, and thereafter at judgment rate until payment in full.

46.  Interest on all pre-trial special damages is awarded at half judgment rate from the date of the Accident to the date of judgment, and thereafter at judgment rate until payment in full.

47.  As to costs, I make an order nisi as follows:

(i)  D1 shall pay P’s costs of the assessment of damages including all costs reserved, to be taxed if not agreed;

(ii)  D1 shall pay the Board’s costs of the assessment of damages including all costs reserved, with certificate for counsel, to be taxed if not agreed;

(iii)  There be no order as to costs between P and the Board;

(iv)  P’s own costs be taxed in accordance with Legal Aid Regulations.

48.  The above costs order nisi will become absolute in the absence of any application to vary within 14 days.