CHONG KO CHUEN v. JOINT WELL METAL CO LTD AND ANOTHER

HCPI 1210/2014

[2019] HKCFI 827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1210 OF 2014

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ASSESSMENT OF DAMAGES

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I. BACKGROUND

1.  The plaintiff was employed as a general/miscellaneous labourer (雜工, “Labourer”) by the 1^st defendant (“D1”) to work at a construction site in Tseung Kwan O, New Territories, Hong Kong (“1^st Site”). The 2^nd defendant (“D2”) was the principal contractor. D1 and D2 are collectively referred to as “Ds” below.

2.  By a work order no 104/WO/009 dated 17 August 2011, D2:

(a)	subcontracted to D1 miscellaneous works, ie “[supply] of General Labour and Concrete Hacking Work for the captioned project; including all necessary tools and equipment”;
(b)	required D1 to provide male/female Labourers with working hours from 8:00am to 6:00pm and “[overtime]: 18:00 to 8:00 per hour”;
(c)	required D1 to carry out “Concrete Hacking Work [that] include hacking machine by daywork  Working Time: 8:00 to 18:00 per day”.

3.  D1 started works at the 1^st Site in either April or June 2011, and completed such works in/about 1½ years, ie by late 2012 or early 2013. During the latter part of such works, D1 also “執手尾” for D2 at a construction site in Jordan (see item 1 of the schedule to this judgment (“Schedule”)). Thereafter, D1 carried out works at a construction site in Wanchai (“Wanchai Site”) for a few months in 2013, and then at another of D2’s construction sites in Tseung Kwun O (“2^nd Site”) from April or June/ July 2014 until end of 2015.

4.  At about 4:00pm on 27 November 2011, P in the course of his work for D2 went to the electric riser room on the 3^rd floor at the 1^st Site (“ER Room”) to collect construction debris for disposal. As he stepped into such room, he fell through an opening on the floor (“Opening”) for about 6.8m to the floor of the 2^nd floor below (“Accident”), and suffered personal injuries, especially to his trunk, back and left foot.

5.  P commenced DCEC2094/2013, and eventually received employees’ compensation (“EC”) in the sum of $631,586.67. On 20 November 2014, P commenced the present action against Ds to claim loss/damages for personal injuries suffered as a result of the Accident. On 24 December 2014, interlocutory judgment on liability was entered by consent in favour of P against Ds for damages to be assessed.

6.  P gave evidence and called his younger brother Chong Ko Yim (“Brother”) as witness. P adopted his 1^st and 2^nd witness statements respectively dated 25 September 2015 and 23 February 2016 (“P 1^st and 2^nd Stmts”), and the Brother adopted his. Ds’ witness Lam Tsz Fung (“Lam”) also adopted his witness statement. Lam formed D1 in 2010, and became its major shareholder and later its manager.

7.  The orthoapoedic experts Dr Lam Chi Keung Johnson (for P, “Dr Lam”) and Dr Lee Po Chin (for Ds, “Dr Lee”) (collectively, “Experts”) jointly examined P on 3 March 2015 (“Examination”) and compiled a joint expert report dated 15 October 2015 (“Jt Report”), which was adduced at the hearing of the assessment of damages (“Hearing”) without oral evidence.

II.  P’s BACKGROUND

8.  P was born in Mainland China on 7 March 1970, and was 41 years old at the time of the Accident and 48 years old by the end of the Hearing. The Jt Report stated P “had Form 1 education”, but actually he did not complete Form 1. He could read Chinese, but his ability to communicate in Cantonese (which carried accent of his native Shanwei dialect) was only 60%-70%, and he could only understand 40%-50% when spoken to in Cantonese.

9.  P’s wife (“Wife”) and 3 sons stayed in Mainland China when he came to settle in Hong Kong in/about June 2011. His daughter was born (and lived with him) in Hong Kong (“Daughter”), and the Wife shuttled between Hong Kong and Mainland China to take care of the children. In January 2016, the Wife and a son came to settle in Hong Kong.

10.  P’s general health was satisfactory with no chronic disease or previous major surgeries. There was no previous injury to or pre-existing pain over his back and left foot, and no previous treatment/therapy were required for these regions. There was no further injury to these regions after the Accident.

III.  BROTHER AND TURBO ENGINEERING COMPANY (“TURBO”)

11.  In 1993, the Brother came from Mainland China to settle in Hong Kong, and started to work in the construction industry. In 2002 he joined Turbo (that contracted government/private minor works projects[1]), and in April 2003 he became its sole proprietor. Turbo’s project portfolio improved by the time of the Hearing.

12.  Turbo carried out contracted works in-house or subcontracted part of such works to other subcontractors:

(a)

For in-house works, Turbo had a core gang of about 8 longer-term casual employees (“長散工人”) [2] who performed various tasks,[3] “就 …… 你識做咩嘢你就去做, 冇話規定即係話要落石屎, 釘板、紮鐵呢啲”, and recruited additional Labourers through (i) introduction by friends/colleagues in the construction industry or (ii) approach to those Labourers who had previously worked for Turbo and left upon completion of the relevant projects to see if they would work for Turbo again.

(b)

For works subcontracted to others being mainly “泥水” and “鐵器”, Turbo’s subcontractors would carry out such works by their core gangs of workers and by additional Labourers recruited in similar manner as in (a) above.

IV.  P’s WORK IN MAINLAND CHINA

13.  P used to be a factory worker, but for about 3 years before he came to Hong Kong he was a construction site Labourer whose physical labour duties included clearing miscellaneous items, collecting/removing/ clearing construction site waste items (eg concrete debris, wooden planks and other debris), drilling holes, hacking concrete with electric drill, casting concrete, and removing nails from wooden planks etc, and physical strength was especially required for moving construction materials/debris with square-shaped shovels and wheelbarrows.[4] I accept P was an experienced construction site Labourer before he came to Hong Kong.

V.  P’s WORK FOR TURBO IN HONG KONG

14.  All construction site workers had to take safety training course and obtain a Construction Works Registration Card (“CWR Card”). When P came to Hong Kong, the Brother arranged for him to take such course and to obtain a CWR Card, so P held a Construction Industry Safety Training Certificate (“CIST Cert”) issued on 29 June 2011 and effective until 28 June 2014, and a CWR Card issued on 28 June 2011 and effective until 28 June 2014. Turbo then hired P to work as a casual Labourer at a daily rate of $650 for 6-7 workdays/week[5] doing work similar to what he did in Mainland China. Such non-specialised but physically demanding duties were as set out in paragraph 13 above and also included “落石屎喇、打炮喇[6]、搬泥頭喇[7]”, “拆板喇、搬板呢啲喇” , “剷泥頭喇、推車仔喇、執板、執方[ie wooden planks]喇”, “攞電炮剷地台呀” and “起釘”. I also accept the Brother’s evidence that unskilled Labourers would “搬板同埋拆板” after skilled masters “咁紮完鐵就要釘板，同埋落石屎喇” since the employer would not pay the latter at their higher daily rate to carry out unskilled work.

15.  P worked for Turbo at various sites/places in Yuen Long from 30 June to 23 November 2011, ie a day before he went to work for D1,[8] and earned about $16,900 to $19,500 ($650 x 26-30 days/month) per month, but incurred substantial travel costs as he lived with another younger brother in Wong Tai Sin quite far away from Yuen Long. P did overtime work for about 2-3 hours a month (ie less than a man-day). P was paid in cash for which he signed wage receipts. Turbo used to have workers’ (including P’s) earnings records, but the Brother said Turbo no longer retained P’s records.

16.  At the Hearing (some 6 years after P worked for Turbo), the Brother could not remember whether MPF contribution was made and/or employer’s return was filed for P. But the letter dated 2 June 2015 by the Inland Revenue Department (“IRD”) confirmed there were no employer’s returns for 2007/2008 to 2010/2011 and 2012/2013 to 2014/2015, and no tax returns or salaries tax assessments for 2007/2008 to 2014/2015. There was an employer’s return for 2011/2012, but the IRD’s letter did not say it was submitted by Turbo or by D1.

17.  Ms Leong, counsel for Ds, complained about lack of documents to show P worked for 26-30 days at Turbo, but I find nothing inherently unreliable/incredible about this. First, Turbo/Brother were not required to make discovery, and the Brother confirmed Turbo no longer kept records of P’s earnings. Secondly, P could not have disclosed the wage receipts he gave to Turbo. Thirdly, it was more likely that D1 rather than Turbo submitted the employer’s return for 2011/2012 since D1 was more into the written word.[9] Since P was new to Hong Kong and had to make sufficient living to support himself and the Daughter in Hong Kong and to provide for 4 other family members in Mainland China, and further since the Brother as proprietor of Turbo was supportive and arranged work for P at Turbo, I find on balance P’s work/earnings were as set out in paragraph 15 above.

18.  Ms Leong suggested P’s post-Accident behaviour showed he would not have been so diligent as to maximise his earnings from available work. But I find P’s post-Accident behaviour did not reflect his pre-Accident work ethos. Before the Accident P was the healthy and able-bodied breadwinner of his family, who was anxious to (a) provide for himself and the Daughter in Hong Kong, (b) provide for 4 family members in Mainland China, and (c) support the Wife to join him here for family reunion, and there was ready work available for him at Turbo owned/operated by his own brother who was quite supportive, so there was incentive for P to work hard. Further, discussions below as to P’s reasons for changing job to work for D1 also spoke of a hardworking attitude. In my view, the luckless Accident, discouraging injuries, lingering disabilities (despite some exaggeration) and ready availability of comprehensive social security assistance (“CSSA”) all conspired to affect P’s post-Accident perspective towards work, but they had no relevance to his pre-Accident circumstances.

VI.  D1’s EMPLOYMENT OF LABOURERS

19.  D1 carried out works at the 1^st Site until late 2012 or early 2013 and thereafter at the Wanchai and 2^nd Sites. D1 did not have any core gang of workers, and instead employed casual Labourers. Some of D1’s Labourers worked at 1 site whilst others worked at more than 1 site. By the time of the Accident, D1’s workforce at the 1^st Site grew to 60-70 Labourers (28 of whom were female), mostly recruited through introduction by existing Labourers working for D1 at the 1^st Site and some recruited via Labourers who had previously worked for D1 (collectively, “Worker Introduction”).

VII.  P’s CHANGE TO WORK FOR D1

20.  There was no dispute (a) on 24 November 2011 D1 employed P as a Labourer to work at the 1^st Site, (b) P’s workhours were from 8:00am to 6:00pm with 1-hour lunch break, and (c) the Accident happened on P’s 4^th workday on 27 November 2011.

21.  Expected workdays/overtime  P joined D1 through introduction by fellow home-villagers Hui Wai Wong (許維往, “Hui”) and Chong Hou Kwan (莊孝坤, “Chong”) who were Labourers working for D1 at the 1^st Site. Lam understood that in the course of Worker Introduction D1’s existing Labourer would have told the new recruit D1’s employment terms (which I find would include expected daily/overtime rates, workhours, workdays and earnings). This was consistent with P’s evidence (which I accept) that Chong/Hui told him there was urgency to complete the works at the 1^st Site to meet the project deadline, so D1’s Labourers could work every day without day off (except on rainy days) with abundantly available overtime work that would translate into handsome earnings. I find such evidence convincing since Lam confirmed (a) Chong/Hui both did overtime work at the 1^st Site, and (b) Hui was one of the more diligent Labourers selected by D1’s foreman to be a gang leader and was entitled to an enhanced daily rate of $570 (see item 1 of the Schedule).

22.  P was not in a position to give discovery of documents as to Hui’s/Chong’s earnings. Ms Leong criticised P for not calling them as witnesses to produce such documents, but I accept P’s explanation that they declined his request for assistance, saying they had no time and it was inconvenient to show their bank passbooks to others. On the contrary, Ds failed to give discovery of their own documents concerning Hui’s/Chong’s employment, workdays, workhours, overtime work and earnings when D1 should have their duplicate employment contracts and employer’s returns (see Ds’ discovery of similar documents for other Labourers employed by D1 – see the Schedule), D1’s Records being attendance/ overtime records which they must have countersigned (see paragraph 34 below), wage receipts which they must have signed and given to D1 and checked by D1’s foreman, and D2’s Records being access card electronic records showing workers’ attendance and overtime (see paragraph 24 below). I find nothing inherently unreliable as to P’s evidence in this respect.

23.  Expected daily rate and earnings  P’s daily rate at Turbo was $100 more than D1’s daily rate of $550 for its Labourers as P understood from Chong/Hui, but P believed he would have earned higher take-home pay if he changed to work for D1 because (a) full workdays and constant overtime were expected at the 1^st Site, and (b) he would have savings in travel time/cost (see paragraph 15 above). Further, whilst Turbo had work for P at various sites in Yuen Long up to the time P left, Turbo was sometimes unsuccessful in bids for minor works. I find P decided to work for D1 upon Chong’s/Hui’s Worker Introduction for reasons explained above.

VIII.  P’s EMPLOYMENT WITH D1

24.  On 24 November 2011, P turned up for registration at D2’s site office at the 1^st Site. D1 had no staff there, and only borrowed some space from D2 to construct a storage shack at the 1^st Site (“Shack”).[10] Lam was not present that day, so P did not sign any employment contract. But D2 made an access card for him. Such access cards allowed D2 to electronically record entry/exit times of all workers (including P) at the 1^st Site (“D2’s Records”).

25.  P attended safety training session on 1^st day of work. Lam said D1’s foreman would have told P “……大致上嗰啲工種，人工幾多呀, 收幾點, 開工幾點, …… 同埋一般嗰啲紀律呀, …… 條款方面呢, …… 一般介紹嗰個 …… 有同佢講過嚟㗎喇, 介紹咗佢嚟做, 咁就嚟到呢度, 地盤呢, 就簡單同佢咁講, …… 做工種最少就做乜嘢, 咁就幾點 …… 因為佢嗰--介紹嗰個已經同佢講咗㗎喇, 喺佢嗰度都有講嘅, 係喇”. I find that on 24 November 2011 D1’s foreman[11] briefly told P his employment terms, so P knew his daily rate ($550) and overtime rate (which P said was $90/hour but Ds claimed it was $62/hour). The overtime rate is discussed below, but suffice to state here I find it was $90/hour.

IX.  P’s EARNINGS AT THE TIME OF THE ACCIDENT

26.  P claimed that had the Accident not happened he would have worked 30-31 days a month at the daily rate of $550 with daily overtime work for 1-2 hours (or average of 1½ hours) at the overtime rate of $90/hour, so his overall rate per workday was $550 + ($90 x 1½ hours) = $685, and his then average notional monthly earnings (had the Accident not happened) would have been about $20,000. But Ds claimed P did not have any overtime work, so his then average notional monthly earnings based on 26 workdays a month would have been $550 x 26 workdays = $14,300, or alternatively if P did overtime work (but there being no evidence he would have worked on all available workdays and/or would have done overtime work on each workday), then based on a reasonable estimate of overtime work for 1 hour on half of his workdays in a month (ie 13 workdays) at the overtime rate of $62/hour, his notional average monthly earnings at the time of the Accident would have been ($550 x 26 workdays) + ($62/hour x 13 workdays) = $15,106.

27.  Daily rate  The then daily rate of $550 was the standard rate for D1’s Labourers (including P) which translated into an hourly average of $550 ÷ 9 hours (8:00am to 6:00pm less 1-hour lunch break) = $61.11. But Lam claimed that out of D1’s 60-70 Labourers at the 1^st Site, about 7-8 (less than 10) Labourers (eg Hui and Liu Baohua) were especially diligent or acted as gang leader, so they were paid at enhanced daily rate of $570 and enhanced overtime rate of $65/hour (see item 1 of the Schedule). Further, D1’s foreman would select 3-5 workers out of D1’s 60-70 Labourers to be concrete hackers at enhanced daily rate of about $700:

“佢喺人哋間公司做過鑿石屎嗰啲工作嚟嘅，佢自己得，佢講，就畀佢試喇，okay，咁就佢唔係日日做嘅，嗰日鑿石屎，就計鑿石屎嗰個人工，嗰日做雜工，就計雜工嗰個人工 …… 咁突然間有多啲要打炮嗰啲嘢，咁[D2]嗰個老總話「你要加多一個炮工呀」，咁好喇，我當時就冇請到特別嗰個炮工，即係話喺呢班人之中係選擇，「邊個識打炮」，咁就有啲人講即係識，咁咪又去試下囉 ……. 隨時都會發生㗎喇，因為有時爆石屎㗎嘛，有時一爆石屎，就要拿拿聲打咗佢、清咗佢。……佢嗰度係喇，落石屎呀，落去爆咗，譬如嗰幅嘢，你一爆嘅，今日爆咗，咁聽日唔拿拿聲打，就一路硬嘅，就嗰個--就咩嘢㗎喇，即係工--做嗰個工夫多喇，即係咁就第二日，就你要加多兩支或者三支咁樣，拿拿聲搞埋佢咁樣 ……”

Lam confirmed concrete hacking was done at the 1^st Site almost every day, and the Labourers would have to clear away the concrete pieces/debris. Lam agreed that if P had previous concrete hacking experience and “…… 有能力咁樣做, 或者畀[P]試下咁樣囉, 係”.

28.  Workdays  P claimed work progress at the 1^st Site was very tight and demanding, so had the Accident not happened he could/would have worked 30-31 days a month. But Ds claimed P would have worked about 26 days a month.

29.  P testified D1 had to hurry with the works at the 1^st Site, and he understood from co-workers that the works had to be completed as soon as possible and that they had been told to try their best to work overtime. This dovetailed with Lam’s understanding that the works at the 1^st Site were targeted to be completed within a year or so with penalty to be imposed if there was any delay, so there was pressure on D2’s subcontractors to get on with the works. In my view, this lent weight to P’s case that almost every day of the month was an available workday, which was also corroborated by (a) the fact P did not take rest day on 27 November 2011 (Sunday), (b) the Jt Report that recorded P having told the Experts his pre-Accident job “required working 6-7 days a week”, and (c) what Chong/Hui told P when they introduced him to work for D1 (see paragraph 21 above).

30.  Further, Lam confirmed that about a month after D1 started works at the 1^st Site in about April or June 2011, the project deadline was so tight that “嗰啲嘢做唔切 ……”, so merely persuading D1’s then existing Labourers to work overtime was not enough, and D2 instructed D1 to recruit more Labourers. After all, whilst some of D1’s Labourers did overtime work, not all wanted to work late due to personal/family circumstances. Lam said there were 10 odd Labourers working at the 1^st Site who refused any overtime work (eg housewives who had to buy food and cook dinner, and those who lived far away with long travel time). By November 2011, D1’s workforce at the 1^st Site grew to 60-70 Labourers.

31.  D2 also instructed D1 to work on statutory holidays as permission had been obtained from the Environmental Protection Department to carry on works at the 1^st  Site even on statutory holidays.[12] Indeed, Lam agreed D1’s Labourers could work up to 30-31 days a month if they wished although D1 would not force them to do so.

32.  On balance, I find that but for the Accident P would have worked on average 29 days a month:

(a)	As explained in paragraph 18 above, I find P to be quite hardworking before the Accident.
(b)	P’s purpose in leaving Turbo to work for D1 was to make better living and to earn higher take-home pay by maximising workdays/overtime and making savings in travel time/cost. It would be quite pointless for P to change jobs if he did not maximise his workdays/overtime.
(c)	The relatively larger-scale operation at the 1st Site resulted in more abundant workdays/overtime than the more modest operation at the Turbo sites (even though P had steady work whilst he was with Turbo), and P changed jobs to take advantage of such abundance of work at the 1st Site.
(d)	P obviously had parental responsibilities towards the infant Daughter,[13] but at the time of the Accident they were living with P’s younger brother in Wong Tai Sin.[14] P had relatives in Hong Kong, and the Wife regularly visited to help look after the Daughter. The fact P picked up the Daughter from school, went grocery shopping, bought bread/oil when he had time on his hands due to unemployment or part-time employment after the Accident did not mean he would have acted similarly before the Accident when available work was abundant and he was able-bodied and had incentive to work hard (see paragraph 18 above). Anyway, familial responsibilities did not deter P from working on Sunday (27 November 2011). But that said, I accept P might take a day or so off in a month due to general vicissitudes.

33.  Dispute over overtime earnings  The relevant disputes were (a) whether P did any overtime work on 24-26 November 2011, (b) whether P would have done overtime work had the Accident not happened, and if so, on average how much overtime work he would have done in a month, and (c) what was the applicable overtime rate at the time of the Accident.

34.  Overtime work  D1 maintained attendance/overtime records of its Labourers who had to countersign D1’s record book upon entry into the 1^st Site and (if they did overtime work) upon exit therefrom with particulars filled in by D1’s foreman[15] (“D1’s Records”), and D1’s Records were stored in a cupboard at the Shack at the 1^st Site. Lam used D1’s Records to “計糧畀[D2]嘅”, “…… 就根據[D1’s]工人簽名嗰個嚟出糧畀[D1’s Labourers]嘅”, but “咁經過有啲畀[D2]查咗出嚟, 譬如嗰個工人就有簽嗰個加班, 但係嗰個--嗰個紀錄, 佢就冇 ……”, and “…… 後屘有發現幾個--頭先好似話早走, 譬如未夠半個鐘已經打咗卡喇, 我畀[D2]--畀佢扣咗錢”.[16] Given such poor experience, by the time D1 carried out works at the Wanchai Site, Lam also checked the main contractor’s access card electronic attendance records to “計糧” for progress payment from the main contractor.

35.  Lam claimed to have checked D1’s Records and there was no record of overtime work for P, but under re-examination he confessed he did not personally check D1’s Records and only relied on what D1’s foreman told him. But Ds/Lam did not explain why D1’s foreman was not called to give evidence (and there was no suggestion he was unavailable) despite the materiality of overtime work to P’s overall earnings.

36.  Further, Ds (including D1) did not make discovery of D1’s Records despite their relevance to the contested issues in paragraph 33 above and their availability given Lam’s claim that D1’s foreman had checked such records, and did not offer any or any convincing explanation for such omission. Still further, although Lam agreed D2’s Records were the most accurate records of P’s entry into and exit from the 1^st Site, he did not explain why he did not check such records even after P commenced DCEC2094/2013 and/or the present action. More importantly, Ds (including D2) did not make discovery of D2’s Records even when they would have shown quite accurately (a) when P left the 1^st Site on 24-26 November 2011 and (b) over a reasonable period of workdays when D1’s other Labourers left the 1^st Site, which would have revealed the overtime work (if any) done by D1’s Labourers.

37.  Instead, Lam admitted D2 required D1 to arrange for its Labourers to work overtime almost every day except on important festival days, and out of D1’s 60-70 Labourers at the 1^st Site usually about 50 of them (but the final number depended on D2’s instructions) had to work overtime each day. Lam said usual overtime was 2 hours/workday (consistent with D1’s work order with D2 – see paragraph 2(b) above), but sometimes D2 required even more overtime work. D1 let its Labourers decide whether or not to work overtime and for how long, but those willing to work overtime were allowed to do so to make up the number of overtime workers that D2 required.

38.  On balance, I find P did overtime work on 24-26 November 2011 for an average of 1½ hours per workday, and had the Accident not happened he would have worked overtime on all of his workdays (ie 29 days a month) given the abundant availability of overtime work at the 1^st Site:

(a)	Since usually 50 Labourers (ie about 70%-80% of D1’s entire workforce at the 1st Site) were required to work overtime on every available workday for usually 2 hours, but 10 odd workers out of D1’s 60-70 Labourers declined to do any overtime work (see paragraph 30 above), P would have regularly worked overtime for D1 to make up the needed number of overtime workers for D2 had the Accident not happened.
(b)	Ds’ unexplained non-disclosure of D1’s/D2’s Records and reliance on hearsay by D1’s foreman detracted from Lam’s veracity.
(c)	The abundant availability and urgent need for overtime work at the 1st Site did not sit well with Lam’s assertion that P did not do and would not have done any overtime work at all.
(d)	As P lived close to the 1st Site with less travel time on/off work, he would have taken up longer overtime work each workday.
(e)	P would have done overtime work and maximised his overtime pay otherwise it would not have been financially meaningful for him to change job from Turbo to D1. D1’s daily rate being $100 less than his daily rate at Turbo would only be competitive in the market for casual Labourers (especially in light of D1’s pressing need to recruit Labourers on D2’s instructions) if there was substantial overtime work/pay to supplement the lower daily rate.
(f)	I reiterate paragraphs 21 and 32 above that would apply mutatis mutandis to show P must/would have done overtime work.
(g)	The unreliability of Lam’s assertions in respect of the overtime rate below did not reflect well on his related evidence on the extent of P’s overtime work.
(h)	Although Ms Leong submitted P as a casual Labourer would not have the fortuity of working overtime every workday throughout the pre-trial period, it must be remembered that P’s purpose in changing job to work for D1 was to earn higher take-home pay of which regular overtime work/pay was a significant component, and with D1’s strong need for Labourers and overtime work at the 2nd Site (see paragraph 40 below), P could have worked at the 2nd Site via Worker Introduction. Anyway, the daily rate of another employer would probably be more competitive (eg Turbo’s daily rate) if there was less overtime work.

39.  Overtime rate Was the overtime rate $62/hour or $90/hour at the time of the Accident? Lam claimed he made reference to market overtime rate when he determined D1’s overtime rate, which he agreed was higher than the daily rate so as to attract Labourers to work overtime, but there was a ceiling for the overtime rate given the non-specialised nature of Labourers’ work.

40.  Yet, Lam claimed the overtime rate at the 1^st Site in 2011 was $62/hour (almost the same as $61.11 being the hourly average of the daily rate – see paragraph 27 above), and it only increased to $90/hour by the end of 2014 or early 2015 at the 2^nd Site. Lam tried to explain this away by saying he came up with $62/hour on the basis “我照我嗰個[550]鈫嚟計, 咁就計嗰個乘數, 咁應該積到幾多錢, 我咪定嗰個價囉” or “即係我嘅參考 [overtime rate in the construction industry]，我哋都係一個鐘就係咁多錢, 一個鐘, 即係計起嗰個嘅--整日嗰個人工, 除咗九個鐘, 嗰個--嗰個銀碼, 每小時”, but he had no or no convincing explanation for the conflict in his testimony that on one hand the overtime rate was based on and equivalent to the daily rate of $550, and on other hand the overtime rate was higher than the daily rate. Lam then went on to claim that the overtime rate of $62/hour only increased to $90/hour at the Wanchai Site or 2^nd Site following increase in the daily rate to $680. But such daily rate of $680 averaged out to $75.55/hour, so the overtime rate of $90/hour was higher than such daily rate. Lam tried to explain this away by saying that in respect of the 2^nd Site, “因為嗰陣時, 就地盤開始嗰陣時, [D2]講明嗰個地盤一年就要起貨, 咁就啱啱 …… 但係就啱啱請唔到人, 請唔到嗰個足夠嗰個人數, 咁就--我就要求嗰啲工人, 大家多啲加班, 所以嗰個加班費就提高啲, 吸引佢哋多啲加班”. But the evidence showed the project deadline as well as the demand for Labourers and overtime work at the 1^st Site were equally tight.

41.  Interestingly, although clause 6 of the pro-forma employment contract had a space for filling the overtime rate, the amount was illegible in P’s Employment Contract (see paragraph 48 below). But given Lam’s evidence that the standard overtime rate applied generally to D1’s Labourers at the 1^st Site, Ds could have produced employment contracts of D1’s other Labourers to demonstrate the value of such overtime rate, but none was disclosed.

42.  In my view, D1’s overtime rate for the 1^st Site at the time of the Accident was $90/hour. I note that shortly after D1 started to work at the 1^st Site, D2 was already pressing D1 to hurry up, to hire more Labourers and to arrange about 50 Labourers to do overtime work almost every day. In my view, such serious demand for Labourers at the 1^st Site (especially for overtime work as explained above) would have required D1 to offer attractive overtime rate that was higher than the hourly average of the daily rate to encourage sufficient number of Labourers to work overtime each workday to meet D2’s demands. But, as Lam explained, there was a commercial ceiling for the overtime rate. As the nature of Labourers’ work was non-specialised, there was little room for increment above the handsome rate of $90/hour. In my view, this explained why the overtime rate plateaued at $90/hour when the daily rate increased to $680 and still later to $730 (see items 5-10 in the Schedule), but it was still higher than the hourly average of $730 ÷ 9 hours = $81.11 based on the daily rate of $730.

43.  Although clause 6 of the Employment Contract (see paragraph 48 below) stated overtime pay was made for each full hour, Lam testified that D1 would pay for an hour’s overtime work if the Labourer worked for more than 45 minutes (which again demonstrated how accommodating D1 had to be in order to urge its Labourers to work overtime). Ms Leong submitted that even if P did overtime work for 1½ hours on a workday, his overtime pay would be for 1 hour only, so P’s overall rate for each workers inclusive of overtime work would be $550 + $62 = $612. But I have found the applicable overtime rate was $90/hour, and it was up to D2 to decide the required period of overtime work (ie 2 hours for most workdays but it could be more or less) and up to D1’s Labourers (including P) to decide how much overtime work they wished to do. So although P would be paid by the hour (after having worked for 45 minutes), he might have worked overtime for less than 2 hours on some workdays, so in my view 1½ hours’ overtime work per workday would be a fair averaged reflection of P’s overall overtime work that took into account abundant availability of overtime work at the 1^st Site and general vicissitudes.

44.  Concrete hacking Mr Lim, counsel for P, submitted that with P’s experience in concrete hacking with electric drill, he could have been selected by D1’s foreman as an additional concrete hacker earning a daily rate of about $700 if such need arose (see paragraph 27 above). But I am not convinced this would have happened shortly since (a) P was newly employed by D1, (b) there were 60-70 Labourers working for D1 at the 1^st Site, and (c) it was unclear for how many workdays in a month would additional concrete hackers be required. Hence, this factor did not weigh with me in assessing P’s notional average monthly earnings at the time of the Accident.

45.  Earnings of D1’s other Labourers in 2011/2012 and 2012/2013  Ms Leong alternatively argued that P’s average notional monthly earnings of $15,106 at the time of the Accident (see paragraph 26 above) were consistent with the actual earnings of (a) Liu Baohua who earned $175,332 between 1 April 2012 and 31 January 2013 (or $175,332 ÷ 10 months = $17,533.20 a month) (see item 1 of the Schedule and footnote 59 below), and (b) Kwok Wing Wah who earned $159,885 between 1 April 2012 and 31 January 2013 (or $159,885 ÷ 10 months = $15,988.50 a month) (see item 2 of the Schedule and footnote 59 below). It was said since Liu Baohua was paid at enhanced daily/overtime rates (see paragraph 27 above), P’s earnings should be lower than Liu Baohua’s but comparable to Kwok Wing Wah’s.

46.  I disagree. The actual earnings (not average earnings) of Li Baohua and Kwok Wing Wah extracted from their employer’s returns only showed what they earned from D1 during part of the 1 April to 31 March tax year (ie they ceased employment with D1 on 31 January 2013 before end of the 2012/2013 tax year), but their employer’s returns would not show the actual months worked or the actual workdays within a month, which detracted from the usefulness of such employer’s returns. After all, they (a) were paid for actual workdays at a daily rate, and (b) had no obligation to work exclusively for D1,[17] work for D1 every month and/or work for D1 on each available workday in a month within the period specified in such employer’s returns. Ds could have filled such lacuna by discovering/disclosing D1’s and/or D2’s Records that would have revealed the days they worked for D1 for all months during the period specified in the employer’s returns, but Ds did not do so and Lam did not give evidence in this respect. Thus, I find myself unable to draw any reliable conclusion as to Liu Baohua’s and Kwok Wing Wah’s average monthly earnings (as opposed to actual earnings) from D1’s employer’s returns, and unable to place weight on the average earnings suggested by Ms Leong.

47.  P’s notional average monthly earnings at the time of the Accident  Lam agreed that a diligent Labourer could have worked at the 1^st Site for 30-31 days a month with 1-2 hours’ overtime work on each workday, and would have earned $20,000/month given the urgency to complete the works at the 1^st Site, which meant almost every day was a workday with need for overtime work. So had the Accident not happened, I find P would have earned about $685 (overall daily rate) x 29 workdays = $19,865/month working for D1 at the 1^st Site. In coming to this view, I also took into account discussions in paragraphs 48-49 below.

48.  Employment contract and wage payment  When Lam visited P at hospital on the day of the Accident, he brought along D2’s 3-page short-form written employment contract and asked P to sign the same, which P did even when he felt dizzy and “嗰陣時嗰個天氣就黑擝擝咁樣, 呢張紙又黑擝擝喇, ……” (“Employment Contract”).[18] Lam also signed on behalf of D1 with D1’s company chop. The Employment Contract had P’s name/address, and the relevant terms (not completed by P) were inter alia as follows:

(a)	“Date of employment: Effective from 24 November 2011”;
(b)	“Position: Labourer (Temporary staff)”;
(c)	“Work hours: From 8:00am until 6:00pm (1 hour of lunch period inclusive)”;
(d)	“Wages: basic salary $550 per day, other allowances nil, overtime pay $[illegible] per each full hour, salary cut off day on the 31st day of each month”;
(e)	“Year end bonus: Nil”

49.  At the hospital, Lam gave the Wife a cash sum of $2,200. On balance, I accept such sum was P’s daily rate for 4 workdays (24-27 November 2011), but D1 failed to pay for P’s overtime work done on 24-26 November 2011.

X.  NATURE OF P’s WORK AT 1^ST SITE

50.  Ds suggested P’s work at the 1^st Site was light cleaning work such as disposing garbage and sweeping floor. But the Brother, who had worked at construction sites for over 20 years, had not heard of any construction subcontract for such light-duty “雜項工程”, and he could only think of site office “女工” who would carry out light work such as sweeping rubbish, preparing drinks etc.

51.  In fact, even Lam accepted P did more strenuous work. At first, Lam said P was mainly responsible for clearing garbage[19] with tools,[20] using a cart to move load of not more than 5kgs and getting help from co-worker to move load in excess of 5kgs, but it was not necessary to constantly lift/load objects weighing over 10kgs up to 30-40kgs onto wheelbarrows.

52.  In my view, Ds/Lam played down the physical demand of Labourers’ duties that required good physique and strong back/legs for lifting, loading and moving moderate to heavy loads. In my view, physical labour was the essence of a Labourer’s non-specialised work, and Lam could not shy away from such fact under cross-examination. Indeed, it was quite improbable for D1 to have employed 60-70 Labourers at the 1^st Site carrying out light duties of disposing rubbish and sweeping floor.

53.  I prefer P’s evidence that he worked as directed by D1’s foremen, who would assign him to work on his own or together with 5-6 co-workers as a gang, and P had to decide how best to carry out his assigned task, either working on his own,[21] asking D1’s foreman to arrange co-worker/equipment[22] or approaching co-worker directly for help if D1’s foreman was not around. In light of the above and given the need to hurry with the works at the 1^st Site to meet the project deadline, I find P’s duties included clearing miscellaneous items, sweeping floor with broom, collecting/removing construction site wastes such as concrete pieces/debris, wooden planks etc, and transporting wooden planks/battens, concrete debris, bricks and other construction materials/wastes by scooping them with square-shaped shovel and loading them onto wheelbarrow for removal to other locations at the 1^st Site. Whilst I accept that on an odd occasion D1’s foreman might have asked P “喺個壆嗰度做嗰啲石屎呀, 有落石屎嘅有” (not mentioned in the P 1^st/2^nd Stmts and/or in P’s declarations provided to the LD), I find it was not part of P’s regular duties as a Labourer at the 1^st Site.

54.  Lam claimed a large piece of concrete weighing 30-40kgs would have to be broken down into smaller pieces before they would be carried away by D1’s Labourers, who would lift/move concrete pieces weighing less than 5kgs each on their own, but it would take 2 male Labourers to move those concrete pieces weighing more than 5kgs each. On balance, I prefer P’s evidence[23] that there were always some large/heavy concrete pieces/debris, bricks and miscellaneous objects that generally weighed over 10kgs to be manhandled by D1’s Labourers at the 1^st Site, and there was such hurry to get on with works at the 1^st Site that the drill operators who hacked concrete slabs into large/small concrete pieces might not bother to further drill and break up the large pieces into smaller pieces. P would then shovel/load such concrete pieces and/or construction materials/debris onto a wheelbarrow until it was about 70%-80% full (ie weighing 100 catties or more than 50kgs).[24] But sometimes P had to lift concrete piece weighing 30-40 catties with his own hands and to lift/load heavier concrete pieces with co-worker assistance onto the wheelbarrow, which would then be wheeled to its destination. But if there was no suitable path for the loaded wheelbarrow or if the concrete pieces were to be moved just to a nearby spot, P found it might save time to carry each piece by hand (on his own or with help) to the relevant destination.

55.  P’s evidence was borne out by various declarations to the LD:

(a)	P’s declaration dated 10 January 2012 stated his job duties at the 1st Site included clearing away miscellaneous items, sweeping up garbage etc, but both P and the Brother testified that meant the Labourer had to carry out all miscellaneous tasks as needed at the construction site, which essentially were “雜項喇、清理下雜物呀、垃圾呀咁樣嘅 …… 即係咁樣, 乜都要做” (but not “紮鐵” and “釘板”).
(b)	P’s declaration dated 15 March 2012 stated “pieces of bricks, used wooden planks and wooden board” (ie the miscellaneous items and garbage referred to in (a) above) were scattered about in the ER Room on the day of the Accident, so P had to shovel concrete debris and broken pieces of wooden boards, but by the time of the Accident he was using his bare hands to pick up used formwork and other rubbish. Plainly, P’s work was not light-duty work as suggested in paragraph 50 above.
(b)	More specifically, the declaration dated 25 April 2012 by D2’s senior foreman Chan Kin Wa stated that on 27 November 2011 he asked D1’s foreman to arrange for D1’s Labourers (including P) “to clear away construction wastes such as rubbish, concrete debris, wooden planks at the [1st Site]” (which was consistent with P’s case and the clarification in paragraphs 53-54 and (b) above).

Further, P summarised the nature of his work to the Experts as follows: “[P] said during work, he needed to stand or walk most of the time. [P] needed to perform various duties including shoveling, pushing wheel-barrow, lifting heavy objects (eg up to 45 kg such as a bag of cement). Occasionally, he needed to climb ladder, but he did not need to climb scaffolding”.

56.  Further, Lam readily testified that clearing construction site debris/waste was part of Labourers’ duties because demolition and concrete hacking works were carried out at the 1^st Site almost every day, and generated debris/waste and broken up concrete pieces that had to be removed. In my view, the fact D1 employed 60-70 Labourers at the 1^st Site spoke volumes as to the quantity of construction debris/waste and concrete pieces that had to be cleared. Lam also agreed D1’s Labourers had to move wooden boards,[25] formwork and other construction debris/ wastes. Although Lam claimed “釘板嗰啲材料, 佢釘板嗰個判頭清走嘅, 佢自己搬嘅, 唔需要我哋搬嘅”, I prefer the Brother’s evidence that contractors would not pay skilled masters at their higher daily rate to carry out unskilled physical labour more suited to Labourers with lower daily rate (see paragraph 14 above). Lam also said D1’s Labourers had to fill and transport sandbags by shoveling sand into bags, loading sandbags onto wheelbarrow and wheeling them to relevant locations for water/flood control.

57.  In my view, P’s work as a Labourer at the 1^st Site required regular lifting/moving of moderate to heavy loads either on his own or with co-workers, moving about or wheeling loaded wheelbarrow on uneven ground at the 1^st Site, and at times climbing ladder, and such duties required strong physique, back and legs.

XI.  INJURIES, TREATMENT AND SURVEILLANCE RECORDINGS

58.  P did not lose consciousness after the Accident. He was taken by ambulance to the accident and emergency department (“AED”) of Queen Elizabeth Hospital (“QEH”). Preliminary examination revealed abrasion/tenderness over chest wall, tenderness over upper abdomen, and tenderness and stepping at thoracic spine. The clinical diagnosis was multiple trauma. P’s injuries were assessed to be critical.

59.  P was admitted under the care of QEH’s department of orthopaedics and traumatology (“DOT”) for his back and left foot injuries. Physical examination found T12 tenderness/deformity, neurological examination found mild weakness of both lower limbs, anal tone was a bit lax on assessment, and lateral aspect of the left foot was tender on palpation. X-ray spine revealed T12 fracture with 60% decrease in vertebral height and 30° kyphotic angulation. X-ray left foot showed displaced fracture of left 4^th metatarsal neck and fracture of left cuboid. Surgeries of posterior spinal fusion with instrumentation for T12 fracture as well as open reduction and internal/external fixation of left foot fractures were done on 30 November and 2 December 2011 respectively, and the surgeries were uneventful.

60.  On 7 December 2011, P was transferred to Kowloon Hospital (“KH”) for 1^st in-patient rehabilitation/physiotherapy during 9-28 December 2011. P went back to QEH from 28 December 2011 to 4 January 2012 for post-surgery follow up treatment. He stayed at KH for 4 – 26 January 2012 for 2^nd in-patient rehabilitation/ physiotherapy when he complained of mild pain over right upper quadrant of back, and mild pins and needles sensation around wounds over back and left foot. External fixator was retained over left foot but active movement was allowed. Active range of movement (“AROM”) over bilateral upper limbs, right lower limb and left hip, knee and toes were full, left ankle dorsiflexion was 10° less than full range, and plantarflexion was 40°. Muscle strength of bilateral upper limbs, right lower limb and left hip, knee and toes was all grade 5 and that of left ankle was grade 4. Upon palpation, P complained of tenderness over the right back. He was independent in bed mobility/transfer activities, and could walk with a frame (non-weight bearing over left leg) for 50m independently. Physiotherapy treatment and graded limb-strengthening exercise were given to increase muscle strength.

61.  Upon discharge from physiotherapy, P showed static condition over back and left ankle (which was still on external fixators). P complained of mild pain over back upon walking. AROM of left ankle dorsiflexion and plantarflexion were 10° less than full range and 40° respectively. Muscle strength of P’s left ankle dorsiflexion and plantarflexion were both grade 4. P complained of tenderness over back upon palpation, but was independent in bed mobility/transfer activities and could walk with a frame (non-weight bearing over left leg) for 20m under supervision.

62.  P went back to QEH from 26 January to 4 February 2012 for removal of left foot external fixators. Post-operative X-ray thoracolumbar spine and left foot showed good reduction and fixation of the fractures, and bone union was in normal progress. Walking exercise was started, and P was discharged home on 4 February 2012 (with lumbar brace and walking aids for protection of the fractures in the early post-operative period) after P mastered walking exercise techniques.

63.  P was regularly reassessed at the orthopaedic spine clinic after being discharged, and complained of persistent back pain. When seen on 13 March 2012, P was on lumbar brace for protection of the T12 fracture and walked with full weight-bearing and a pair of elbow crutches, but he walked unaided at home despite mild residual back pain.

64.  QEH’s DOT referred P for outpatient physiotherapy which started on 29 May 2012. On initial assessment, P claimed to have stiffness over low back aggravated upon bending and squatting. Objectively, tenderness was elicited over thoracic spine region upon palpation. AROM trunk was functional with pins and needles sensation elicited at the end of flexion and extension, but no significant inflammatory signs or neurological deficits were detected. Functionally P could walk unaided with mild limping. Various physiotherapy treatment, back mobilising exercise and care advice were provided, and back strengthening exercise was added on 28 June 2012 to improve P’s physical capacity. On 10 July 2012, P reported overall 50% improvement over his back. Objectively AROM trunk remained similar, and functionally P could walk for 20 minutes. Previous treatment regime continued. On 9 October 2012, P reported similar condition over his back. Objectively AROM trunk remained similar, and functionally P could walk for 20 minutes and could lift 15lbs from floor to knuckle. As P’s condition had become static, he was discharged after 26 physiotherapy sessions with reinforcement of home exercises and care advice.

65.  On 11 October 2012, QEH’s DOT’s specialist out-patient clinic referred P for work rehabilitation by the Occupational Therapy Department. P was first seen on 12 November 2012 with work capacity evaluation done on that day. Work hardening programme was provided for 2 sessions/week from 14 November 2012 to 18 February 2013. Physical assessment on 30 January 2013 revealed bilateral arm lifting was 24.4lbs, dynamic bilateral lifting of 10lbs was from floor to shoulder/knuckle and 20lbs was from knee to shoulder/knuckle, and unilateral carrying was 15lbs on both sides. P said he was told he could not take up heavy duties.

66.  When P was seen on 19 February 2013 (ie the day after he was discharged from occupational therapy), it was noted his condition was static but could not match his job demand according to the occupational therapist’s work rehabilitation assessment. P still had residual back and left foot pain, and numbness of left foot. He was referred to the Medical Assessment Board (“MAB”) with assessment done on 22 May 2013.

67.  When P attended follow up at QEH’s foot and ankle clinic on 21 February 2013, he walked with one elbow crutch with mild tenderness at the left foot fracture site, but AROM was satisfactory. It was recorded that P “claimed he is not confident to return [to work], no concrete further plan, Request further sick leave”, but P disagreed the doctor declined to grant sick leave. He said the doctor asked him whether he was working and granted him sick leave from 21 February to 2 April 2013.

68.  Form 7 (certificate of assessment) was issued on 5 June 2013. Under Form 7, P was granted sick leave from 27 November 2011 to 3 January 2013 and from 10 January to 22 May 2013 for “back and left foot injuries resulting in (i) compression fracture of T12 (ii) left foot and metatarsal fracture”, and was assessed to have suffered 16% loss of earning capacity.

69.  On 16 June 2013, P lodged objection against Form 7. P consulted QEH’s AED on 18 June 2013 for back and left foot pain. Examination showed tenderness in the thoracic spine, but lower limb power was full with no tenderness on left foot. P thereafter attended QEH’s AED on 5 July, 26 July, 30 August, 2 October and 20 November 2013.

70.  According to Form 9 dated 23 October 2013, P was granted sick leave from 27 November 2011 to 3 January 2013, from 10 January to 22 May 2013 and intermittently from 18 June to 7 October 2013[26] with 18% loss of earning capacity. In Form 5 (certificate of compensation assessment) dated 30 October 2013, P was regarded as having been granted 554 days (excluding 20 days of statutory holidays) of sick leave.

71.  P attended Our Lady of Maryknoll Hospital (“OLMH”) Family Medicine Clinic on 4 March 2014 complaining of pain over back (which had improved by 20-30% as compared with post-surgery condition) and saying he needed analgesics for pain on prolonged sitting/walking and for pain that affected his sleep at times. Physical examination showed P walked with a stick and had mild tenderness near old back surgical scar, but back flexion was full, “hands to below knee level” and left foot was non-tender. It was recorded “request SL cert, no SL given as MAB done already, analgesic given”. P agreed he did ask for sick leave, but the doctor declined and only asked him about his litigation which he said had not been completed.

72.  P was last seen in QEH’s foot and ankle clinic on 5 June 2014. He claimed to have residual back pain and walked with a stick due to the pain, but no radiating back pain and no lower limb numbness were found on examination. P’s left foot was functioning well with no pain/swelling while walking. X-ray spine showed normal alignment of spine and spinal implants. X-ray left foot showed fracture union and good alignment of the foot.

73.  P was placed under surveillance on 23 July 2014 (Wednesday). He was observed walking on the street carrying a walking stick in his hand, sometimes lifting it off the ground as he walked, and switching it to his other hand. P testified he could walk unaided and was then in a hurry to bring some documents for Lam, but he claimed to carry the walking stick in case he had leg cramps/numbness.

74.  On 8 November 2014 (Saturday), P was observed to leave home with walking stick to buy bread at a bakery. He was seen to lift the walking stick off the ground and stood with weight-bearing on left foot. He leaned slightly forward to pick up some bread and walked to the cashier without using the walking stick, and he was seen to walk upslope to return home. P testified he could walk unaided but carried a walking stick in case he had leg cramps. The recordings then showed P left home again to go to the wet market, and he was seen lifting his walking stick off the ground as he walked. At the wet market, he was seen turning his body and leaning back to look at some fresh food. He was also seen bending down to pick up some eggs from a basket on the ground and straightening up. Under cross-examination, P disagreed he was pain-free when he moved his back during activities of daily living, and claimed “如果我即係大力啲, 咁樣就會痛吖嘛, …… 喐就可以喐吖嘛”.

75.  The Experts noted the surveillance recordings in 2014 showed P carried a walking stick sometimes in his right hand and sometimes in his left hand, and he could walk normally without need to rely on it. He was seen bending down, but most of the bending occurred at the hip rather than the back which was quite stiff/straight even during bending. Dr Lee noted P was able to turn his body, which movements appeared to occur at the back. P was sometimes seen walking at a rather fast pace without need for walking stick, but he was not shown to engage in activities that would cause great stress to the back (eg heavy lifting) or in apparently gainful employment.

76.  On 25 January 2015 (Sunday), P was observed to leave home with a female to go to nearby stores, and he later returned home after the female left. P was observed to carry a hiking pole in his right or left hand (sometimes lifting it off the ground), to walk up a step to enter a shop with left foot forward, to bend forward to check goods at a shop window, to rest his hand(s) on the hiking pole as he stood in the street (sometimes with weight-bearing on left foot), to walk up stairs without holding handrails, to walk with hiking pole in one hand and bag of purchases in other hand, to sit for a while on a bench and getting up on both legs without using the hiking pole, and to walk upslope to return home (sometimes dragging the hiking pole in one hand and carrying bag of purchases in other hand). P agreed his gait was normal and not limping, but claimed the physiotherapist told him to do more leg exercises.

77.  On 16 February 2015 (Monday), ie about half month before the Examination, P was seen walking to check some goods at a stall and to make some purchases before returning home. P carried a hiking pole (which was sometimes lifted off the ground) in his hand, lowered his head to check some goods with his hand, and carried some purchases in his hand as he walked. P reiterated that the physiotherapist told him to walk more, and claimed that even though he could walk upslope in normal gait, “喺嗰陣時都腳都會痺㗎, 同埋會抽筋㗎”.

78.  According to the Jt Report, P told the Experts at the Examination on 3 March 2015 that he attended orthopaedic out-patient clinic in mid-2014 with next appointment in 2016, and he still attended general out-patient clinic (“GOPC”) intermittently for back pain and was given intermittent sick leave. P complained he had occasional cramps in his left calf about 4-5 times a week sometimes lasting up to 15 minutes, so he would carry a stick when going outdoors for fear of such cramps occurring, but he could walk without a stick at home. He was independent in his activities of daily living.

79.  On 14 April 2015 (Tuesday), P and a female were seen to leave home, but P went alone to a bakery to buy some bread and to do some shopping at a supermarket before returning home. Later, P left home to go to a primary school to pick up the Daughter, and was seen having her schoolbag on his right shoulder and carrying a hiking pole (which was sometimes lifted off or dragged on the ground) in his hand. P claimed the schoolbag was not heavy as the Daughter was only studying Primary 1 or 2 at that time. The recording went on to show P left the Daughter at a church before he went shopping on his own. P was also seen carrying the hiking pole in one hand and holding 3 bottles of cooking oil and vegetables in his other hand as he walked downslope/ upslope. When it was suggested that he walked in normal gait, P agreed “正常嗰陣時咩嘢事都冇嘅”. P was also seen walking downslope/ upslope carrying a hiking pole (which was sometimes lifted off the ground) in one hand. He was also seen carrying a large bag which P claimed “好輕嘅嘢嚟, 嗰啲拜神呀,嗰啲紙紥” in one hand. P was seen putting his right arm across his back and using his right hand to grab his left elbow whilst carrying the hiking pole in his left hand. P agreed under cross-examination his walking gait was normal/easy, but claimed he had taken painkillers then and on the following day.

80.  The Experts noted the surveillance recordings in 2015 showed P carried a walking stick sometimes in his right hand and sometimes in his left hand, used his left leg as supporting leg as he stood holding the walking stick, walked normally and at rather fast pace without need to rely on walking stick, was able to walk up/down steps without using handrails but with left foot as leading foot and carried a big bag (weight unknown), but P was not seen to engage in activities that caused great stress to the back (eg heavy lifting) or in gainful employment.

81.  P returned to the OLMH Family Medicine Clinic for persistent low back pain on 8 July and 28 December 2015 and 26 July, 24 October and 14 December 2016, and was prescribed medication and given sick leave.

82.  P claimed that as a result of the Accident he attended QEH, KH, United Christian Hospital, OLMH Family Medicine Clinic, Robert Black Health GOPC, Wang Tau Hom Jockey Club GOPC, East Kowloon GOPC and private doctors for treatment. P claimed to have consulted Chinese medical practitioner and bonesetter and received traditional treatment in Shanwei City, but P told the Experts he did not receive other treatments such as bonesetter treatment. On balance, I do not accept P received traditional medical treatment.

83.  On 30 December 2016 (Friday), P was seen walking unaided carrying a backpack on his back, holding some newspapers in his hand and sometimes putting both hands in his trouser pockets. On 7 February 2017 (Tuesday), P went to Shek Kip Mei Community Hall at Nam Cheong Street where he was seen entering a storeroom wearing a mask, taking out some cleaning tools and sweeping the floor. Later he went for grocery shopping. P was seen carrying a backpack (which P claimed was not heavy as it only contained a change of clothes and 2 towels) on his right/both shoulder(s) as he walked unaided. He sometimes swung his other arm as he walked. He raised both arms to put on shirt as he walked up some steps, carried a bag of purchases sometimes in right hand and sometimes in left hand, leaned forward to look at grocery items, organised things in his backpack with both hands, walked up some steps without holding handrails, and walked/stood for about 40 minutes. But P claimed under cross-examination there was still pain and numbness.

84.  On 9 February 2017 (Thursday), P was seen going to Mei Foo Government Complex in Mei Foo and entering Mei Foo Community Hall on the 1^st floor. He was seen sweeping the floor and mopping the stage. Later, P went to Home Affairs Department Lai Kok Community Hall in Lai Kok Estate and then to Wong Tai Sin before returning home. P was seen carrying a backpack on his back, carrying some purchased bread in his hand and swinging his right arm. He walked or ran down a ramp without railing, swept the floor with a broom with both hands and mopped the stage, walked up some steps without holding handrails, and ran a few steps when he went to and got off from work. Under cross-examination, P explained he walked quickly as he was pressed for time in going to work but “行得快就會痺同埋痛囉”, and he ran a few steps after getting off work because he received a telephone call from the Daughter’s school and was told a teacher wanted to see him.

85.  When pressed under cross-examination that his overall physical condition shown in surveillance recordings was better than his complaints to the Experts, P said “我响嗰一段時間, 個身體係會逐漸會好啲”.

XII.  EXAMINATION BY THE EXPERTS

86.  When P was examined by the Experts on 3 March 2015, he sat normally but walked with limping gait leaning on the right.[27] He was unable to stand/walk on tiptoes or on heels. His unilateral standing on the right was stable but on the left was unstable. He was able to perform half squat. The degree of wear of the soles of his shoes were comparable.

87.  Back  The range of flexion, extension, lateral bending to the right, lateral bending to the left, rotation to the right and rotation to the left[28] were respectively 40° (reached knee cap),[29] 10°, 20°, 20°, 10° and 10°. Axial compression, shoulder elevation, pinch and pelvic rotation tests were positive. There were (a) tenderness on palpation of back scar, (b) tenderness, muscle tightness and guarding but no spasm over bilateral paraspinal muscle over lower thoracic to lumbar region, and (c) tenderness over spinous processes in midline from lower thoracic to lumbar region with maximal tenderness over thoracolumbar junction. X-ray thoracic/lumbar spine showed spinal fusion from T11 to L1 and degree of collapse of T12 was 18% with implants still in-situ.

88.  Lower limbs Straight leg raising was 80° on both sides in supine/sitting positions, so flip sign was negative. Ankle dorsiflexion and plantarflexion were respectively 15° and 30° on both sides. Power of ankle and big toe on dorsiflexion (L4-5) and plantarflexion (S1) was full, sensation was normal, knee/ankle jerks were brisk, unsustained clonus on both sides, Babinski reflex was normal, and right/left calf girth were respectively 36cm/35.5cm. There was small well-healed and non-tender scar over the 4^th metatarsal area of left foot, and range of motion of subtalar joint of bilateral ankles was normal. There was mild stiffness over mid-foot of the left foot, and increase in pain in mid-foot with supination and pronation. X-ray of the left foot showed fracture of 4^th metatarsal neck had healed in satisfactory position, and fracture of cubiod had healed with mild displacement. The implants had been removed.

89.  Presentation to Experts  P claimed he had genuine back and left leg pain, but agreed that at the Examination “因為當時痛係會痛,誇係誇少少” (under cross-examination) and “當時我係誇--係有誇張少少, 有講過” and “係, 醫生就話我誇大咗啲” (re-examination). P further explained under re-examination “當時我係話畀醫生聽，係誇咗啲，係即係比較冇咁嚴重” and “我而家比以前就輕鬆咗啲啫”.

XIII.  JT REPORT

90.  The Experts agreed the diagnosis was (a) burst fracture of T12,[30] and (b) fractures of cuboid and 4^th metatarsal neck of the left foot. There was no significant pre-existing condition in the injured areas, the treatment received was appropriate, and further surgery was not required.[31] By the time of the Examination, P had reached maximum medical improvement for his back and left foot injuries.

91.  Dr Lam’s opinion Dr Lam considered the overall (including medical) evidence suggested that notwithstanding some gradual improvement there was persistent back pain/impairment (as most rehabilitation was focused on improving such condition), but the left foot fractures were probably much less problematic/symptomatic. Dr Lam also considered the following:

(a)	the Examination results and x-ray findings;
(b)	surveillance recordings in which (i) the 8 November 2014 footage showed P bent down to pick up bread/eggs, “but most of the bending occurred at the hips rather than the back which was quite stiff/straight even during bending”, and (ii) other footages showed P sometimes walked at a rather fast pace without need to rely on walking stick, but P was not seen to engage in activities that would cause great stress to the back (eg heavy lifting);
(c)	P tested positive in a number of Waddell’s signs, which suggested an element of exaggeration by P, but such inappropriate signs/symptoms merely meant they could not be explained in terms of a particular pathology and the patient was trying to convey to the examiner something was seriously wrong (eg trying to convey distress for neglect by the doctor).

92.  Upon such considerations, Dr Lam opined as follows:

(a)	P’s back had considerable improvement with surgery and various treatments, but given such major trauma requiring multiple levels of spinal fusion and despite presence of positive Waddell’s signs, it was likely P still had considerable genuine back pain/impairment, but the degree should not be as severe as P alleged, and the degree of residue pain/impairment should be moderate to severe;
(b)	the evidence including normal and sometimes fast gait shown in the surveillance footages, symmetric wear of soles of shoes, and findings at the Examination (eg mild stiffness and pain in forefoot supination/pronation) suggested only mild residual pain/ impairment as a result of fractures in the left foot;
(c)	activities that would cause increased stress to the back (eg frequent/prolonged bending of back, twisting and turning of back, heavy lifting of, say, over 20-30lbs, and climbing up and down) would likely cause discomfort or even pain in the back, but P was independent in activities of daily living, and he should be able to walk without need of a stick;
(d)	the T12 fracture and residual pain/stiffness of mid-foot should respectively carry 22% and 1% whole person impairment (ie 23% total whole person impairment).

93.  Dr Lee’s opinion  Dr Lee opined P’s burst T12 fracture with 60% loss of height and 30° anterior wedging was an unstable injury, but with proper treatment the fracture healed with 18° anterior wedging and no residual neurological deficit. The residual deformity of T11-L1 surgical fusion was mild, and successful fusion eliminated possible movements between T11 and L1 vertebrae. Such successful surgery (which restored the alignment and achieved rigid fusion between T11 and L1) should have removed the source of residual pain due to collapse fracture of T12 vertebral body (ie sagittal imbalance due to residual wedging and instability), so the residual pain should be mild, but stiffness of spine was expected which P compensated by movements at the hip (as seen in surveillance footages that showed P was able to bend his back to pick up object from the floor). Further, P was able to turn easily. Although P could bend his back to allow fingers to reach knee at the Examination, Dr Lee opined this was due to poor voluntary effort and the presence of Waddell’s non-organic signs suggested symptom magnification that raised doubt as to validity of P’s complaints. Dr Lee opined it was likely the T12 fracture and subsequent surgery left residual stiffness but not significant residual pain other than mild pain associated with soft tissue scarring at the lower back. There was also no verifiable radiculopathy.

94.  The left foot fractures of metatarsal neck and cuboid had healed with slight deformity at the cuboid but the length of the lateral rays of the left foot was maintained. There was no incongruity of the articular surface and no post-traumatic arthritis. Dr Lee opined there was no structural basis for severe left foot pain, but presence of mild pain could not be excluded. The mild residual stiffness found at the Examination was aftermath of the fractures, but decreased girth of left calf was compatible with normal anatomical variation. As the surveillance recordings showed P could walk in normal gait at fast pace and he held a walking stick which he did not often use for support (which suggested residual pain of left foot should be mild), Dr Lee opined limping and instability on left single leg standing at the Examination were likely due to poor voluntary effort.

95.  Dr Lee concluded that despite significant injury to the spine and left foot, P received adequate treatment and restoration of function should be good. The residual symptoms based on objective and radiographic findings should be mild and should allow good function of spine and left foot. Physical disability in low back was impaired movement in the upper lumbar spine, but residual pain should be mild as surgical fusion was successful, residual anterior wedging at T12 was mild and there was no radiculopathy, and the positive Waddell’s signs suggested element of exaggeration. The main left foot residual disability was stiffness, and objective findings suggested satisfactory function should have been restored. Dr Lee opined P suffered from 9% and 1% whole person impairment for T12 fracture and residues of cuboid and 4^th metatarsal neck fractures resulting in 10% total whole person impairment.

XIV.  PRESENT COMPLAINTS

96.  P claimed the pain/numbness over his trunk, back and left foot adversely affected his daily life, and prevented him from working. As a result, he was stressed and troubled over his health and finances, which made it difficult to fall asleep at night and caused insomnia. In the P 1^st Stmt, P claimed to still suffer orthopaedic symptoms, disabilities and health consequences:

(a)	persistent pain over trunk, back and left foot with numbness when stretching/flexing his trunk which affected his sleep quality and which required analgesics for pain relief;[32]
(b)	stiffness, numbness, pain and weakness over his back and left foot that made him incapable of lifting heavy object;
(c)	increase in pain over his back and left foot during walking, standing or sitting, and walking aid was required for walking;
(d)	increase in pain over trunk, back and left foot upon change in weather;
(e)	it took a lot of effort to ascend/descend stairs due to pain over his back and numbness over his left lower limb.

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

97.  P in his pleadings claimed $700,000 for PSLA for his injuries/disabilities which fell within “substantial injuries” category under the Chan Pui-ki guidelines. But Mr Lim submitted P’s injuries/ disabilities fell within “serious injuries” category, and appropriate PSLA award should be $530,000. Mr Lim referred to David John Slater v Commissioner of Police in which Bharwaney J awarded $250,000 for PSLA as he was bound by the pleadings, but said as follows:[33]

“22. I ought to mention, by way of a postscript, that in Wong Man Kin v. Golden Wheel (C&HK) Transportation Co. Ltd., HCPI 913/2011, 17 July 2015, I had held that awards for damages for PSLA in personal injury cases falling within the Serious Injury category started at $510,000. Inflation has not been high in the past 2 years but even so awards for damages for PSLA in personal injury cases falling within the Serious Injury category would start at $530,000 today.[34] In 2008, when Razaq-Akhtar v Wang Hoi Transportation Ltd, HCPI 303/2007, was decided, awards for damages for PSLA in personal injury cases falling within the Serious Injury category started at $413,000.[35] The increase in the level of awards in the 9 years from 2008 up to the present time has been to the order of 28%. Applying the same percentage of increase to the award of $250,000 would produce the sum of $320,000 today. I cannot award this amount to the plaintiff as it has not been claimed in the Revised Statement of Damages. Practitioners are reminded to have regard to the rise in the level of awards for damages for PSLA when updating their clients’ Statements of Damages.”

Ds in their pleadings claimed P’s injuries fell below the “serious injuries” category, and PSLA award should not exceed $250,000. But Ms Leong in her closing submissions suggested the award should be $300,000-$400,000.

98.  P’s initial injuries comprising T12 burst fracture and fractures of 4^th metatarsal and cuboid of left foot were serious. The burst fracture was an unstable injury, and even though the surgeries were successful and there was no neurological deficit, there was 18° anterior wedging upon healing. The rigid spinal fusion at multiple levels resulted in stiffness over low back aggravated by bending and squatting. I accept P went through a painful process of rehabilitation by re-learning to walk with frame, with pair of crutches, with single crutch, then unaided with mild limping before returning to normal gait, and by undergoing courses of physiotherapy and occupational therapy. Walking tolerance was initially limited but gradually improved.

99.  Although P’s condition became static by late February 2013 after completion of course of rehabilitation (see paragraph 66 above) and he was referred for MAB assessment, it did not mean he had fully recovered. I find that at that time P still had back and left foot pain, still walked with one elbow crutch with some mild tenderness at the left foot fracture site (see paragraph 67 above), and he had lifting and other physical limitations that did not match the requirements of his pre-Accident employment (see paragraphs 65-66 above). In my view, P’s lack of confidence in returning to work and his request for sick leave at that stage were understandable, and actually the treatment doctor saw fit to grant further sick leave until April 2013 (see paragraph 67 above).

100.  P’s left foot became better by mid-2013 when his lower limbs power was full with no tenderness on left foot (see paragraph 69 above). In 2014 the left foot continued to be non-tender (see paragraph 71 above), and by mid-2014 there was no radiating back pain and no lower limb numbness (see paragraph 72 above). But Dr Lee fairly accepted the presence of mild pain could not be excluded. I agree the left foot fractures recovered reasonably well, and the residual stiffness and pain should be mild. P’s left foot/leg were on a steady improving trend, and I am not persuaded that in 2014 P suffered leg cramps as alleged. There was little record of such complaint in the medical reports/records until P mentioned leg cramps to the Experts at the Examination, by which time the surveillance recordings in 2014-2015 revealed P was able to walk unaided in normal gait without actual reliance on the walking stick or hiking pole (see paragraphs 73-80 above). Even though I accept there was mild residue in relation to P’s left leg/foot, I find P’s assertions as to leg cramps to be nothing more than poor attempts to explain away the improved leg condition evident in the footages despite P’s complaints.

101.  But I find that in 2013 P’s back was still symptomatic with residual pain, especially on prolonged sitting/walking (see paragraphs 66 and 69 above). Whilst there was gradual improvement thereafter, I find on balance P still had residual back pain in mid-2014 (see paragraphs 71-74 above). Even though such back pain would not require continuous analgesics and would not be so bad as to disturb P’s sleep as P suggested, I accept such pain would exacerbate on exertion and prolonged bending, twisting and turning of the back. The surveillance recordings did not detract from this finding since they did not show P engaged in physically strenuous activities that stressed the back. Further, although the successful surgeries restored function and eliminated instability due to possible movement between T11 and L1, back stiffness was permanent which P had to compensate by hip movements. But I do not think P would require use of walking stick for ambulation. Although P told the doctor in mid-2014 he walked with a stick due to pain (see paragraph 72 above), there were no objective clinical signs of radiating back pain or lower limb numbness, and the left foot was functioning well without pain/swelling on walking. Surveillance recordings in July/November 2014 showed (and P readily admitted in evidence) P could walk unaided (in normal gait and sometimes at a fast pace) (see paragraphs 73-75 above), and as explained in paragraph 100 above, I do not believe P required a walking stick as precaution for leg cramps. But I accept there might be possibility of some mild residual pain (see paragraph 100 above).

102.  The surveillance recordings showed P gained even more confidence in ambulation in 2015 (see paragraphs 76-80 above). He could negotiate stairs without holding handrails, walk upslope/downslope without really relying on the hiking pole, tolerate weight-bearing on left leg, rise unaided from seating position, and bend his back (albeit at the hips) to check store display. P was at ease in his walking gait (using left foot forward), and in carrying the Daughter’s schoolbag and purchases. On balance, I do not accept P had left calf cramps 4-5 times/week lasting up to 15 minutes, especially when there was no neurological deficit or verifiable radiculopathy, the left foot fractures had healed well, and the left foot fracture site was generally non-tender (except for mild residual stiffness and pain at times). But the surveillance recordings did not show P engaged in activities that would stress his back, and I agree P still had moderate to mild back pain.

103.  Nevertheless, P’s presentation at the Examination was somewhat exaggerated, and he failed to exert full voluntary effort in demonstrating his range of movements to the Experts. In light of the almost contemporaneous surveillance recordings in January/February/ April 2015 (see paragraphs 76-80 above), the comparable wear of the soles of P’s shoes, and the objective findings by the treatment doctors and Experts, I find the positive Waddell’s signs, P’s walk with limping gait leaning on the right (see paragraph 86 above), and P’s complaints to the Experts about cramps in his left calf (which I have rejected) were signs of symptom magnification and not mere signs of distress as Dr Lam suggested (see paragraph 91(c) above). I agree with Dr Lee that P’s range of movement should be better than presented at the Examination, but I accept there was still back stiffness and moderate to mild residual back pain, and some left mid-foot stiffness with mild pain at times. When faced with the surveillance evidence, P was constrained to accept there was some exaggeration on his part during the Examination.

104.  P’s condition further improved by late 2016 and early 2017 when he was seen working as a cleaner in the surveillance recordings. P was able to use his arms/hands freely, walk and negotiate stairs easily, and even ran a few steps (see paragraphs 83-84 above). Further, his walking/standing tolerance was more than he claimed (see paragraph 83 above). But cleaning job was not a strenuous activity and P was not seen carrying any heavy load. I accept P had some further improvement, but he still had moderate to mild back pain now and then, and some left mid-foot stiffness and mild pain especially on prolonged walking. Indeed, P accepted his condition was improving (see paragraph 85 above). In my view, P’s condition at the Hearing should be better than his complaints set out in paragraph 96 above.

105.  But that said, I accept P suffered significant injury to his back that required multiple levels of spinal fusion, and despite functional recovery he still had genuine back stiffness and moderate to mild back pain, and stiffness and perhaps some mild pain in left foot. I also accept P would have exacerbation of pain on exertion (eg lifting heavy object) and on stress to the back (eg frequent/prolonged bending, twisting/turning the back, and climbing up and down). Taking into account the seriousness of P’s initial injuries, his treatment history, the successful surgeries, his reasonable rehabilitation, his moderate residual condition, his residual symptoms/disabilities, the discussion as to P’s sick leave below, and the Experts’ opinion, and after carefully considering the comparable cases cited by Mr Lim[36] and Ms Leong[37] but reminding myself that each case turns on its own facts, I find the appropriate award for PSLA in respect of P’s injuries/disabilities would be $400,000.

XVI.  SICK LEAVE AND RETURN TO GAINFUL EMPLOYMENT

106.  Sick leave  Ds claimed the reasonable sick leave period should be up to end of February 2013 as Dr Lee opined or at the latest up to 22 May 2013 when continuous sick leave expired whereupon P should return some form of employment.

107.  According to the agreed summary of medical certificates, P received 609 days of sick leave between 26 January 2012 and 23 September 2017 with almost continuous sick leave up to 22 May 2013, but intermittent sick leave in the remaining months in 2013,[38] 9 days’ sick leave in 2014,[39] intermittent sick leave in most months in 2015,[40] intermittent sick leave in 4 months in 2016,[41]and intermittent sick leave in most months in 2017.[42] As Mr Lim succinctly put it, there was intermittent sick leave from 18 June 2013 to 17 January 2014, and sporadic sick leave afterwards. Such intermittent/sporadic sick leave was usually 3-4 days at a time, and were initially granted by QEH and later by UCH, OLMH East Kowloon GOPC, Wang Tau Hom Jockey Club GOPC, Robert Black GOPC and OLMH Family Medicine Clinic for back pain, low back pain and/or left foot pain.[43] P was not given sick leave on some consultations.

108.  In the Jt Report, Dr Lam opined that given the multiple nature and severity of injuries, need for surgeries/rehabilitation, progress with treatment, and demands of P’s pre-Accident job, the sick leave granted to P was appropriate and should be endorsed. But Dr Lee noted the fractures took 12 weeks to heal with no report that healing was unduly delayed. P finished physiotherapy in October 2012 and occupational therapy in mid-February 2013, so Dr Lee considered sick leave up to end of February 2013 would be appropriate and further sick leave pending MAB assessment and/or review of such assessment did not serve any therapeutic purpose and was not justified. Dr Lee said the presence of multiple non-organic signs raised possibility that P might have complained of persistent back and/or left foot pain even when his pain had improved, so sick leave given for P’s subjective claims was not justified.

109.  The starting point is Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[44] in which Le Pichon JA said medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge could not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff. However, the end of sick leave as a result of static of maximum medical improvement state on the basis that no further active or therapeutic treatment will be of assistance does not necessarily mean the patient has made full recovery or he can immediately return to pre-Accident work or other gainful employment. It is a matter of assessment and degree.

110.  In light of my findings in paragraph 99 above, sick leave up to 22 May 2013 was therapeutically justified. After QEH’s DOT ceased to grant continuous sick leave, P visited UCH, QEH’s AED and various GOPCs. Ms Leong submitted they were for getting more sick leave rather than for treatment/medication, and the fact that P only had 9 days’ sick leave in 2014 and the further fact that the doctors declined to grant sick leave on 4 March 2014 (OLMH Family Medicine Clinic) and 5 June 2014 (QEH’s foot and ankle clinic) suggested P’s condition did not require sick leave, which was consistent with Dr Lee’s opinion and the surveillance recordings in 2014. Ms Leong further submitted P’s assertion that he did not require frequent follow up in 2014 because he was prescribed a large quantity of painkillers and analgesic ointment which he would finish before seeking further medical consultation was not supported by the medical records.[45] But P explained that the doctors told him to take such medication sparingly, ie only when he felt quite painful, and to stop when the pain lessened, so he did not attend frequent follow up in 2014.

111.  Mr Lim’s submissions did not say when proper sick leave should expire. He argued that quite irrespective when therapeutic sick leave should expire, P could not have returned to any gainful employment until P started to work for Hugo Services Company Limited (“Hugo”) on 15 July 2016, which tallied with surveillance recordings on 20 December 2016 that showed for the 1^st time P walked without a walking stick. Mr Lim reminded that surveillance recordings in 2014-2015 showed P had a walking stick or hiking pole (which P explained was a precaution in case of leg cramps), and it was unlikely for P to be hired if he turned up for work with a walking stick or hiking pole.

112.  It was true that P’s condition became static by May 2013 and he no longer required active treatment. But, as explained above, that did not mean he had recovered and was ready for work. It merely meant he could not expect any more significant medical improvement. But P still had to cope with his back pain that would exacerbate on exertion and (to a lesser extent) left foot stiffness/pain as discussed above. The fact P did not physically require a walking stick for walking and my finding that he did not have leg cramps did not mean he had sufficiently prolonged tolerance for return to work in 2013. But P’s condition bettered over time, and by mid-2014 he only had mild left foot stiffness with mild pain at times, and his back pain became moderate except it would exacerbate upon exertion. On balance, I find that physically speaking P should be able to return to some form of part-time employment by July 2014 (and to look for such work for a reasonable period before then) to ease back into the labour market. I will discuss in Part XVIII below as to when if at all P should return to full-time work.

113.  But in reality P only returned to work in July 2016. In light of the finding in the above paragraph, the real question was not whether P could have returned to gainful employment prior to July 2016 (as I have found he could), but whether given P’s condition he was practically employable in the labour market for work that suited his condition. This nicely brings me to P’s attempts to find work after the Accident.

114.  Social welfare and post-Accident attempts to find work  P had no income apart from EC after the Accident, and as breadwinner of the family he was constrained to apply to the Social Welfare Department (“SWD”) for inter alia CSSA on the basis of being a single parent (ie the Wife had no right of abode in Hong Kong at the time) with child (ie the Daughter) under 12 years. P’s application was approved on 10 September 2014, and he received $7,000-$8,000/month for himself and the Daughter. P claimed he was unaware of (a) the Support for Self-reliance Scheme (“Scheme”) which was to encourage/assist able-bodied CSSA applicants to secure paid employment to move towards self-reliance while providing them with financial assistance[46] and/or (b) under the Scheme the monthly income an applicant earned from working would be partially disregarded up to a prescribed limit for calculation of entitlement to financial assistance.

115.  In the P 1^st Stmt made in September 2015, P claimed he could not secure work given his injuries, surgeries, condition, back pain and frequent numbness/cramps/pain over the left leg. In the P 2^nd Stmt, P claimed that despite disabilities (particularly in left foot and back) as a result of the Accident, he started to look for a job when he felt his health situation became stable, but had not approached the LD for such purpose up to the time of the P 1^st Stmt. Although P testified that he asked his friends to introduce work without success before he first went to the LD on 30 November 2015 to look for job vacancies (see paragraph 117 below), this was not mentioned in either the P 1^st Stmt and/or P 2^nd Stmt, which omission P tried to explain away on the basis that they were just oral enquiries without written record.

116.  On balance, I am not persuaded that P made attempts to find work before he went to the LD on 30 November 2015. He did not identify the type of work he looked for or the friends he approached (or whether they were in the relevant trade/industry) and/or did not give particulars of any actual referrals made. In my view, this was nothing more than bare hindsight allegation which I reject. I bear in mind the P 2^nd Stmt was solely focused on P’s job-seeking attempts. Had P approached his friends to find work but was unsuccessful, he would have mentioned such efforts in the P 2^nd Stmt. I find on balance that, having been through injury/treatment with the residual symptoms/disabilities discussed above but having successfully obtained CSSA from SWD, P realised he could no longer work as a Labourer (see paragraphs 126-130 below) and had little incentive to find less physically demanding part-time work, say, as a cleaner that paid less than CSSA received.

117.  The P 2^nd Stmt stated that on 30 November 2015 P accompanied by the Wife went to the LD Kwun Tong Job Centre to look for work and applied for 7 job vacancies.[47] P telephoned the relevant employers but was not invited for interview. They refused to hire him when upon enquiry he told them he had suffered previous injury on duty to his back and left leg at a construction site (despite allegedly stressing his medical condition was stabilised). P said a potential employer even asked him whether he had completed his litigation to which P answered in the negative, and for reasons unknown to P such employer remarked “If I hired you, I am afraid I would break the law”.

118.  In January 2016, the Wife and a son came to settle in Hong Kong. When P applied for CSSA for his family of 4 in Hong Kong, SWD staff told him about the Scheme and explained the prescribed income exemption limit ($2,500) for calculating entitlement for financial assistance. P testified “…… 我兩公婆都去搵嘢--搵兼職做, 因為我就搵唔到, 我老婆就容易搵吖嘛”. According to the P 2^nd Stmt, on 5 January 2016 P accompanied by the Wife went to LD’s Kowloon West Job Centre to look for work, and applied for 6 job vacancies.[48] P telephoned the relevant employers, but after learning about P’s previous injury on duty they declined to hire him, and he was not invited for any interview.

119.  P said that in May 2016 he went for an interview (employer not identified) and found a job as washroom cleaner. He was ready to sign the employment contract when he reported for duty on 24 May 2016, but in the end the employer decided not to employ him. Since 15 July 2016 P worked as a part-time cleaner for Hugo, which job he secured after he went to the LD with the Wife to look for work and telephoned Hugo. P claimed that in view of previous unsuccessful attempts to find work and since Hugo did not raise direct enquiry, he did not tell Hugo he had previous injury on duty. P was told at the job interview he would be paid $8,000/month or $40/hour (if calculated on hourly basis), but P only worked as part-time cleaner on weekdays, ie “…… 星期六同埋星期日呢, 因為社區嗰啲有時唔使做嘅, 有需要嗰陣時就打電話畀我, 叫我去, 冇需要嗰陣時就冇”. By his Answer to Interrogatories filed on 7 December 2016, P claimed Hugo deployed him to work with 1-2 co-workers at various workplaces[49] to clean floor, tables and chairs, and he further claimed he adopted a standing position to carry out such works with towel, broom, mop, mask and water-proof gloves, which ordinary cleaning tools/equipment were not heavy. P held onto such part-time cleaning job from July 2016 up to the time of the Hearing.

120.  Ms Leong suggested P could have gotten a job if he genuinely tried to seek employment, but his efforts were just a hollow ruse to show the court he tried to mitigate loss and to justify why he could not find work when the Experts said he could work. But Mr Lim submitted P made genuine efforts to find work, and as P had not worked for 4 years it was only natural for employers to ask about his previous job/earnings, so there was nothing sinister in P disclosing his previous injury on duty as his explanation.

121.  In paragraph 112 above, I have found P could have returned to some part-time employment by July 2014. I have also found that P’s condition would have improved to the extent that he should look for work shortly before that, and in my view there was failure to mitigate loss when P did not look for work until end of November 2015. In my view, there was force in Ms Leong’s submissions that P looked for work in November 2015 because he understood from the Jt Report compiled on 5 October 2015 that the Experts (including Dr Lam) considered he was not totally incapable of work, ie he could return to some form of gainful employment. But P was still receiving CSSA at the time, and there was little incentive to look for alternative part-time work that paid less than CSSA received. I am also not convinced P was sincere in his telephone conversations with potential employers, especially when he admittedly (and as I have found) exaggerated presentation of his complaints, symptoms and disabilities to the Experts in March 2015 when compared with what was observed in the objective surveillance recordings. I find on balance P must have coloured his response to the potential employers by exaggerating his limitations/disabilities and his lack of confidence in returning to work.

122.  As regards P’s efforts to look for work in January 2016, there was also force in Ms Leong’s submissions that they were prompted by his enlightenment as to the Scheme requirements after the Wife came to Hong Kong. P had to work or at very least make proper efforts to find work to preserve his entitlement for CSSA, but I find on balance P only made cursory efforts to satisfy the Scheme’s requirements rather than reasonable efforts to find suitable work. Given P’s exaggeration of his condition as discussed above, I find it probable that P coloured his response to potential employers in the manner discussed above which contributed to their unwillingness to hire him.

123.  I agree with Ms Leong that P’s alleged job-seeking efforts were not reasonable efforts to look for work, but were restrained attempts with a view to demonstrate he was unemployable so as to answer expert opinion on his work capability and to preserve his CSSA entitlement. P eventually found work in May 2016[50] and July 2016. Whilst I accept at a later stage P refrained from telling potential employers (including Hugo) about his injury at duty, I find P realised by then he could not have continued to expect the SWD, Ds and/or court to accept he could not find any work at all when the job openings he tried were essentially for light-duty cleaning work, which was suitable work even for less able-bodied workers. I find on balance P eventually secured work because he made more positive efforts in his dialogue with potential employers who also must have been realistic about the quality of their potential employees given cleaners’ limited duties and pay. Hugo offered full-time work to its employees, but P only took on part-time cleaning work earning about $2,000 a month. Bearing in mind that P knew he had to report and did report his earnings to the SWD, my findings as to improvement in P’s condition by 2016, and my finding in Part XVIII below that P could have returned to full-time work by January 2015, there was force in Ms Leong’s submissions that P did part-time cleaning work for Hugo in order to keep his earnings beneath the Scheme’s radar rather than because of his physical limitations/disabilities.

124.  P agreed he would have worked more hours or even taken up full-time work if he were physically better, but claimed he had to take things gradually. In my view, he had already gradually improved and should have been able to take up part-time cleaner’s work by July 2014 and full-time cleaner’s work by January 2015. I find there was no justification for P to still work as part-time cleaner for Hugo at the time of the Hearing.

XVII.  SUITABLE POST-ACCIDENT WORK

125.  In the Jt Report, Dr Lam noted P’s pre-Accident job as construction site Labourer required him to stand or walk most of the time during work, and he had to perform various duties including shoveling, pushing wheelbarrow, lifting heavy objects (eg up to 45kgs such as a bag of cement), and climbing ladder occasionally. Since 14 November 2012 P was put on work hardening programme for 2 sessions a week by QEH’s Occupational Therapy Department, but when he was physically assessed on 30 January 2013 before discharge from therapy on 18 February 2013, his lifting capabilities as explained in paragraph 65 above did not meet job demand. Considering the available evidence, findings at the Examination and P’s residual pain and impairment, Dr Lam opined that P could not return to his pre-Accident job as construction site Labourer, but would be suitable for jobs that would not require such heavy labour, eg security guard, shopkeeper and/or gas station worker. On the other hand, Dr Lee opined that P should be able to return to work in construction sites with restrictions as there would be impairment in maximum weight he could lift, and he might encounter discomfort walking on / climbing scaffolding or walking for long period on uneven ground. In short, P would have to work in lighter capacity on the construction site.

126.  Labourer  P claimed he could not return to work as a Labourer at construction sites because the QEH doctor who performed the surgeries told him “你做地盤嗰啲工係做唔到㗎喇”, and all he could do at a construction site was to “執下--清潔呀, 執下嗰啲罐仔呀, 嗰啲就可以囉, 寫字樓嗰度, 嗰面”. But Ds contended P could have returned to light-duty work as a cleaning/general worker (which Ds understood was equivalent to a Labourer) at construction sites on full-time basis if he had taken reasonable steps to mitigate loss, and this must be what P intended to do (probably after the present litigation) as he twice completed safety training course to twice renew his CWR Card (which card was necessary to work even as an office cleaner in construction sites) in June 2014 and June 2017.[51]

127.  First, the work of a construction site Labourer (as explained in Part X above) was quite different from a construction site office light-duty cleaning/general worker (as explained in paragraph 126 above). Although Lam said D1 would not be deterred from recruiting a Labourer with history of minor injury on duty so long as he was diligent and able to perform his duties, he agreed the main contractor (whose prime considerations were worker capability and efficiency) might not tolerate a Labourer with disabilities that required having a break now and then, and D1 would have to respect the main contractor’s decision:

“你--呢個我請咗個工人，做下、唔做下，唞下、唞下，[D2]呢，「呢個人咁樣我唔要喎」，或者「佢咁樣做，個效率咁差」，即係[D2]決定喎，唔係我決定喎，我請咗返嚟，咁試過畀佢炒咗好多個喇，係，因為佢覺得「呢個人咁懶，你幫我炒咗佢，我唔要」，即係咁樣囉，係。…… 我首先就同呢個工人傾，「你可唔可以做呢啲嘢，最輕嗰啲畀你做喇」咁樣，掃下地或者乜、乜、乜喇，跟住好喇，我就去徵求[D2]嗰個意見，[D2]嗰個主管嗰個意見，「呢個--呢個--呢個工人有--有少--有啲特殊嘅，佢咁樣，可唔可以呢」，即係咁樣，係，可唔可以請佢呢，係，一般嗰啲，就我首先--首--請咗，我決定喇，係咪先，即係佢要唔要呢，就由[D2]，「咁嘅工作效率」，佢話「我唔要呢啲喇」，即係喺--係佢決定喇，係，就算--係喇。”

Thus, realistically speaking, employers of Labourers engaged in moderate to heavy physical labour would have to be satisfied such Labourers would meet the job demand, which was understandable as most Labourers were paid at the standard rate.

128.  Here, I agree with QEH’s assessment that P’s condition did not match Labourers’ job requirements. Not only did P have impairment in the maximum weight he could lift, he would encounter discomfort in extended walking on uneven ground (and construction sites were often littered with materials/debris) or climbing ladder/scaffolding. His rigid spinal fusion also led to a stiff back, and it would be difficult for him to bend his back and exert strength to shovel or lift concrete pieces or other objects onto wheelbarrow for transport. I have found P had residual back pain that would exacerbate on exertion, and there was no avoiding physical exertion in carrying out work as a Labourer. On balance, I find P could not have managed the work of a Labourer nor the work of a concrete hacker of which he has experience (especially when the electric drill weighted about 25kgs – see footnote 6 above). Indeed, had he been capable of such work, he could have returned to work as such for Turbo/Brother (if not for any other employer) when his earnings would have been higher than CSSA payments.

129.  Ms Leong argued P could have worked in a lighter capacity on a construction site, but it begged the question whether there was such light-duty work when the essence of Labourers’ work involved moderate to heavy duty. Mr Lim referred to Khan Amar v Cheung Ying Construction Engineering Limited & anor in which Reyes J said as follows:[52]

“103. Although Dr Wong says that Mr Khan may return to his pre-accident occupation, Dr Wong accepts that there is likely to be a reduction in Mr Khan’s efficiency. Accordingly, especially in times of a weak or competitive construction market, the reality is that Mr Khan will experience difficulty in finding work. Companies will prefer to hire the more able-bodied before considering someone with reduced efficiency. Dr Wong’s reference to Mr Khan electing to work as a security guard strikes me as tacit acknowledgment of this reality.” (my emphasis)

This was reinforced by Stone J when the matter went on appeal to the Court of Appeal:

“53. For our part we did not read this passage as evincing the proposition that in spite of his injuries Mr Khan would be able to revert to the level of physicality of his previous construction site work. We consider that that which was being suggested within the rubric ‘with reduction in efficiency at work’ was that whilst he may be able to work in some capacity on a construction site, he was not in a position to return to the type of more physically demanding work that he had been doing prior to his accident; or, in other words, that he was not as able a worker as before his accident. Dr Wong also was saying that henceforth Mr Khan could reasonably be expected to perform light to moderate manual work; this was precisely what he did, and it was on this basis that the learned judge assessed loss of earnings.”

130.  The above judicial observations echoed Lam’s evidence as to expectations by main contractors. I agree P could not return to work as a Labourer at construction sites. P’s evidence that he could do some cleaning work at the site office (see paragraph 126 above) might explain why he still renewed his CWR Card, but this was cleaner’s work (which I will turn to below) and not Labourer’s work.

131.  Security guard Ms Leong submitted that had P taken reasonable steps to mitigate his loss, he could have worked as a full-time security guard, but P disagreed. In June 2016 (ie about a month before P started to work for Hugo), P applied and took relevant test for and obtained security personnel permit, which was required for working as a security guard. But P did not seek employment as a security guard because he made enquiries with his friends who worked as security guards and was told he would not be employed as such since his Cantonese was unclear and heavily accented with his native dialect, ie “因為保安嗰啲, 因為原因就係我嘅語言即係唔得清, 即係人哋聽唔明喇, 即係就冇人需要我, 就唔請我囉”. P felt it would be futile (so he did not try) to go to the LD to find such type of work.

132.  Ms Leong noted that since June 2011 P lived in Hong Kong, completed safety training course, worked at construction sites, attended medical consultations, shopped for food in markets, received telephone call from the Daughter’s school to see her teacher, contacted prospective employers by telephone,[53] and managed to find and keep his job with Hugo. Whilst I accept P could go about daily life with his poor/accented Cantonese (as he had to when dealing with, say, doctors/therapists, shopowners and teachers), and he could have simple communications with construction site co-workers[54], it was a far cry from saying his command of Cantonese would not affect job-seeking as security guard whose work required communications with occupants/residents and visitors on all sorts of matters/complaints and on dealing with unexpected events, and it might not be easy for local people to understand him. I find on balance P did not act unreasonably in considering his command of Cantonese was insufficient to meet the work needs of a security guard despite his qualification. Further, it was the usual duty of security guards to carry out foot patrol of the building or site at regular intervals, and despite improvement P still had residual back pain on prolonged walking. On balance, I find P did not fail to mitigate loss in not looking for work as security guard, and I accept that a cleaner’s job was appropriate for his condition.

XVIII.  FULL-TIME OR PART-TIME?

133.  Hugo hired both full-time and part-time cleaners, and deployed them to work at different venues. P said he usually worked on part-time basis for 4 hours/day from 9:00am to 1:00pm (his workhours could be longer or shorter), but would take time off if he had leg pain, so he worked about 40-50 hours/month (or about 10-12 days a month). P explained he had to await telephone call by his boss to assign cleaning job for him, and there would be no work if his boss did not call. He was paid $40/hour, so his pay records/cheques from 15 July 2016 to 30 September 2017 showed his monthly income at Hugo ranged from $1,760 and $2,720[55] and his average monthly income was $2,361.[56]

134.  P testified that at the suggestion of Hugo’s boss he tried 3-4 times to work 8 hours/day every several months in 2016-2017 to see whether he could work full-time, but claimed he could not manage, ie “…… 但係有時因為個腰頂唔順, 即係咁樣, 就冇做咁長”. P claimed to have recorded his work at Hugo including his attempts to work 8 hours/day in a notebook, but it was lost when his knapsack was stolen, so he could not remember the details.

135.  At the time of the Hearing, P still worked for Hugo with average monthly income of about $2,000. P agreed that at that time his physical condition was better than when he started to work for Hugo, but he still had to take painkillers for pain relief, and felt he could not take up full-time cleaner’s work as yet. However, P claimed he hoped his eventual recovery would enable him to return to full-time work, “即係我就希望續漸好啲, 就五個鐘, 或者一路做落去, 即係咁樣”.

136.  Ms Leong submitted P’s low income at Hugo did not reflect his actual earning/work capacity, and he merely chose to work on part-time basis rather than he was unable to get a full-time job. It was said there was no medical evidence to suggest P could only work about 12 days on part-time basis (ie 4 hours/day), which was less than half month for each month, in doing light-duty cleaning work. Ms Leong suggested P continued to work for Hugo on part-time basis merely to ensure his earnings would not exceed the earnings threshold of $2,500 per month under the Scheme. It was said that had P taken reasonable steps to mitigate his loss, he should at least have been able to work as a full-time cleaning worker. On the other hand, Mr Lim submitted that given P’s evidence that he thought he would be able to work as full-time cleaner in future, he should be allowed pre-trial loss of earnings and future loss of earnings for the 1^st future year after the Hearing on the basis that he could only work part-time, and for the remaining future years on the basis he could return to full-time work.

137.  I have found P could have returned to part-time work by July 2014 (see paragraph 112 above). In my view, his then physical condition would have allowed him to work as a part-time cleaner similar to the work he did at Hugo since July 2016. On balance, I am of the view that with continued improvement of his condition, P could have worked as a full-time cleaner from January 2015 onwards, and in coming to such view I bear in mind the light nature of cleaner’s duties that did not require prolonged walking, use of heavy equipment/tools or strenuous exertion in lifting heavy loads. I do not forget that in 2015 P exaggerated his symptoms/ disabilities in reporting his condition, in presenting his range of movements to the Experts, and in describing his complaints in the P 1^st Stmt. Even though P had back stiffness and residual back pain, his condition and walking ability had improved by 2015, and he should be able to manage full-time cleaner’s duties. I find myself unable to accept that P tried but was unable to work full-time as a cleaner even for a few days in 2016-2017. In my view, this was no more than a poor attempt to minimise recovery so as to preserve his CSSA when P was constrained to accept his physical condition had bettered.

XIX.  POST-ACCIDENT NOTIONAL EARNINGS OF A LABOURER

138.  According to the wage statistics (“Statistics”) of the Census and Statistics Department (“C&SD”), the average daily wages of general workers and labourers engaged in public sector construction projects as reported by main contractors increased from $614.60 (November 2011) to $904.90 (August 2015), $907.10 (September 2015), $981.50 (September 2016), $1,073 (May 2017), $1,037.60 (June 2017), $1,027.60 (July 2017), $1,028.50 (August 2017) and $1,039.50 (September 2017).

139.  P adopted the aforesaid Statistics, which (according to Mr Lim) at the very least showed the general trend of rise in wages. In his written opening submissions, Mr Lim noted the November 2011 daily rate in the Statistics ($614.60) was 11.75% higher than P’s daily rate at the time of the Accident ($550), so the resultant daily rate ($930) after applying 11.75% reduction to the September 2017 daily rate in the Statistics ($1,039.50) was still more than what Lee Wing Keung (comparable worker put forward by Ds) earned in January 2016 ($730) (see item 10 of the Schedule). In fairness, I do not think that by such submissions Mr Lim conceded that the daily rate shown in the Statistics should be reduced by a proportionate percentage in ascertaining the updated notional daily rate of a Labourer. Rather he was making the point that even with a commensurate reduction upon comparing P’s actual daily rate with the one in the Statistics, a Labourer’s updated daily rate would have been more than $730. In any event, Mr Lim’s submissions were made before the witnesses gave evidence, and P was entitled to take into account relevant evidence in closing submissions.

140.  In his closing submissions, Mr Lim relied on the 2017 daily rate in the Statistics ($1,039.50) without discount on the basis that it was consistent with the Brother’s evidence that (a) by the time of the Hearing the daily rate for construction site casual Labourers was at least $900 for those over 60 years and $1,000 for those between of 40-50 years because the latter were physically stronger than the former, and (b) the updated daily rate for skilled “釘板同埋紮鐵” worker exceeded $2,000. The Brother also explained that even though different contractors might offer different daily rates for Labourers, the daily rate for Labourers working on public projects was not necessarily higher than that for Labourers working on private projects, and some subcontractors of private projects actually paid higher daily rate for its Labourers. So Mr Lim invited this court to adopt $1,039.50 (daily rate) x 26 days = $27,027 as notional average monthly earnings at the time of the Hearing. Mr Lim confirmed P would forego his claim for 30 workdays/month in acknowledgment that in the longer term overtime work might or might not be available at other sites, and realistically one could not go on working without rest days forever.

141.  Ms Leong complained that Turbo did not produce up to date attendance, wage, overtime and earnings records of its Labourers even though Turbo must have such records as required for subcontracting minor works from the government. There was, of course, no obligation on the part of Turbo/Brother to give discovery, but that meant the Brother’s assertions in the above paragraph did not have documentary support.

142.  Ms Leong submitted that D disclosed documentary evidence of actual earnings of “comparable” Labourers[57] from 2011 to late 2017 (see Schedule) which showed the daily rate increased to $680 in June/July 2014 (see items 4-6 and 8 of the Schedule) (which was far below the average daily rate of Labourers engaged in public sector construction projects shown in the Statistics) and was maintained at this level in 2015 (see items 7 and 10 of the Schedule) before it was increased to $730 in 2016 (see items 9-10 of the Schedule), which demonstrated that the daily rate did not increase proportionately. However, the “comparable” workers in items 4-10 of the Schedule were not employed by D1 but by Kin Wai Metal Company Limited (“Kin Wai”) and there was no evidence about this company (apart from the fact that Lam signed employment contracts on behalf of Kin Wai with the relevant Labourers), what sort of business it carried on, and what sort of work was done by its Labourers.

143.  Ms Leong submitted that where there was evidence of actual earnings of “comparable” workers in the pre-trial period, the court should not apply the “assumed” workdays and overtime hours on a particular site at the time of the accident to the entire pre-trial period in determining the injured worker’s notional earnings had the accident not happened. After all, a casual Labourer would have worked for different employers at different sites.[58] It was said that as casual Labourers “come and go”, there might be some days between jobs with no work/pay. Further, different construction projects might or might not require overtime work and/or require different number of workers and/or overtime workers, so it could not be assumed that casual Labourers would always work on busy construction sites.

144.  Of the 10 “comparable” workers disclosed by D1 as shown in the Schedule, Ms Leong submitted that (a) the then “average” monthly earnings could be ascertained from the sums D1 / Kin Wai paid to such workers as shown in the employer’s returns by dividing the total sum paid by the number of months specified therein,[59] but the most updated evidence would be the cheque counterfoils[60] and employer’s returns of Wong Yuet Fu and the cheque counterfoils[61] and employer’s returns of Li Wing Keung (see items 9-10 of the Schedule) that allegedly showed the former had worked “every month” between July 2016 and April 2017 (except January 2017) with average monthly income for 2016/2017 and 2017/2018 at $16,953.33 and $16,173.68 respectively (after adding 5% employee mandatory provident fund (“MPF”) contribution to the total sum of $15,365 shown in the cheque counterfoils), and the latter had worked “every month” from April to November 2017 with average monthly income for 2016/2017 and 2017/2018 at $17,690 and $16,207.52 (after adding 5% employee MPF contribution to the total sum of $15,397.14 shown in the cheque counterfoils).

145.  On such basis, Ms Leong submitted that the current monthly earnings of a Labourer would be ($16,953.33 + $16,173.68 + $17,690 + $16,207.52) ÷ 4 = $16,756.13, so the notional median average monthly earnings of a Labourer in the pre-trial period would be ($15,106[62] + $16,756.13) ÷ 2 = $15,931.07, which was said to be reasonable when cross-checked with the actual earnings of “comparable” workers summarised in the Schedule.

146.  On balance, I do not accept such submissions. There was no dispute that the daily rate of Labourers was on a rising trend. P’s notional average earnings at the time of the Accident were $19,865 (see paragraph 47 above), and would not have significantly regressed to $15,931.07 in 2016 or 2017. As seen from the Schedule, the earnings of the workers in items 1-8 thereof were based on employer’s returns and those in items 9-10 thereof were based on employer’s returns and cheque counterfoils. For the employer’s returns, the employment period specified therein would only give the dates when the Labourer was first and last employed during the relevant tax year, but not his actual workdays or worked months, which was significant as he was only paid on actual days of work at daily/overtime rates. This was borne out by the employer’s return of Wong Yuet Fu that covered the period from 1 July 2016 to 31 March 2017 (without any indication that there was no payment for January 2017 by Kin Wai), and it was the cheque counterfoils that showed there was no work/payment for January 2017 (see item 9 of Schedule). Further, even within a month for which some payment was received by a Labourer, it was unknown (a) whether he worked on all available workdays or whether he took a break on some available workdays, and (b) whether he worked for D1 or Kin Wai and not for any other employer during a particular month. After all, as Ms Leong submitted, casual Labourers “come and go” and could work for different employers. In summary, the employer’s returns and cheque counterfoils only showed what D1 or Kin Wai paid to their Labourers over particular periods, but did not show what such Labourers actually earned during such periods. This was especially so when Ds did not disclose/discover the corresponding D1’s Records that would show the attendance and overtime work of such workers and/or D2’s Records for the 2^nd Site (and similar records of the main contractor of other sites that D1 cross-checked), which would have revealed the actual workdays of such workers with D1 or Kin Wai during the relevant periods covered by the cheque counterfoils and employer’s returns to facilitate accurate calculation of the average monthly earnings of various “comparable” Labourers.

147.  Further, Lam admitted under cross-examination that the amount of work at the 2^nd Site was comparable to the 1^st Site. When he gave evidence as to Lam Key Ping’s earnings (see item 4 of the Schedule), he alleged there was less overtime work at the 2^nd Site when compared with the 1^st Site, but this contradicted his evidence set out in paragraph 40 above which suggested a strong need for overtime work at the 2^nd Site that justified a higher overtime rate of $90/hour (although I have found this was the overtime rate all along). In such circumstances, I agree with Mr Lim that even on Ds’ case the notional average monthly earnings of a Labourer at the 2^nd Site should be more than that at the 1^st Site upon increase in daily rate to $680 and later $730. Lam confirmed that Lam Key Ping was especially diligent and was paid at an enhanced daily rate of $690 when other Labourers were paid at $680. If that were so, Lam Key Ping could have earned ($690/day + $90/hour x 2 hours) x 29 days = $25,230 per month, and yet the “average” monthly earnings shown in his employer’s return for 1 April 2014 to 31 March 2015 were $13,530. Lam did not put forward any or any convincing explanation. Given the abundant work (including overtime work) available both at the 1^st Site and 2^nd Site (but with increase in daily rate at the 2^nd Site), it was also strange that the “average” monthly earnings of other “comparable” workers in the Schedule based on their employer’s returns were less than P’s notional average monthly earnings at the 1^st Site at the time of the Accident. This significant and unexplained disparity, in my view, reflected the concerns explained in paragraphs 46 and 146 above, and the unreliability of extrapolations from the employer’s returns and cheque counterfoils as Ms Leong suggested. Rather, it pointed towards the real possibility that these “comparable” workers did not work for D1 fully on all available workdays in a month and/or for all months during the relevant tax year or period specified in the employer’s return. I am unable to accept Ds’ approach to ascertaining the updated notional average monthly earnings of a Labourer.

148.  In my view, taking into account that (a) P could have worked as a Labourer in both public sector projects (eg when he worked for Turbo) or private sector projects (eg when he worked for D1) with possibility of some difference in the daily rate, (b) the rising trend in daily rate as reflected in D1’s or Kin Wai’s increase in daily rate from $550 to $680 and then $730, (c) D1’s lower daily rate (as compared with Turbo’s daily rate and with that shown in the Statistics for public sector projects) was compensated by abundant overtime work at $90/hour, (d) it was likely that but for the Accident P would have worked at the 2^nd Site given D1’s reliance on Worker Introduction for recruitment and thus P would have enjoyed the abundant daily and overtime work, and (e) Mr Lim’s fair recognition that P could not have worked indefinitely for the rest of his working life with full overtime work and without rest days, I find on balance that but for the Accident P have earned an average overall rate of about $920/day in 2017 (ie (a) less than the daily rate of $1,000 mentioned by the Brother and $1,039.50 in the Statistics to reflect that at times a Labourer might not be engaged in public sector projects, (b) more than $730 offered by D1 or Kin Wai to their Labourers which was only viable because it was supported by abundant overtime work, (c) overtime work varied at different construction sites, and (d) with more experience in working at Hong Kong construction sites P might have been able to secure some work as concrete hacker on some workdays at enhanced daily rate). In the circumstances, the notional average monthly earnings that P could have earned as a Labourer in 2017 had the Accident not happened would have been $920 x 26 days = $23,920. Thus, the median notional average monthly earnings of a Labourer in the pre-trial period would be ($19,865 + $23,920) ÷ 2 = $21,892.50.

XX.  PRE-TRIAL LOSS OF EARNINGS AND MPF CONTRIBUTION

149.  In the circumstances, P suffered (a) total pre-trial loss of earnings from 27 November 2011 to 30 June 2014 (ie 31 months) when he could not return to any form of employment in the sum of $21,892.50 x 31 months x 1.05 = $712,600.88, (b) partial pre-trial loss of earnings from 1 July 2014 to 31 December 2014 (ie 6 months) when he could have returned to work as part-time cleaner in the sum of ($21,892.50 - $2,361 [adopting P’s average monthly earnings at Hugo from 15 July 2016 to 30 September 2017 based on hourly rate of $40/hour – see footnote 56 above]) x 6 months x 1.05 = $123,048.45, and (c) partial pre-trial loss of earnings from 1 January 2015 to 14 March 2018 (ie 38½ months) when P could have returned to work as full-time cleaner in the sum of ($21,892.50 - $8,320) x 38½ months x 1.05 = $548,668.31. Mr Lim’s proposal to adopt $40/hour x 8 hours x 26 days = $8,320 as the average monthly earnings of a full-time cleaner was fair on the evidence. Thus, P’s pre-trial loss of earnings were $712,600.88 + $123,048.45 + $548,668.31 = $1,384,317.64.

XXI.  FUTURE LOSS OF EARNINGS AND MPF CONTRIBUTION

150.  I accept that but for the Accident P would have worked until retirement at 65 years. The updated notional monthly earnings of a Labourer was $23,920, so the monthly multiplicand for partial future loss of earnings was $23,920 - $8,320 = $15,600. Thus, P’s future partial loss of earnings would be $15,600 x 12 months x 13.54[63] x 1.05 = $2,661,422.40.

XXII.  LOSS OF EARNING CAPACITY

151.  Mr Lim asked for a lump sum award of $100,000 for loss of earning capacity, and Ds in their Answer averred that the loss under this head should not exceed $100,000. I agree P would be less competitive than comparable workers who are able-bodied (as he would have stiff back, inability to lift heavy weight and residual back pain) should he be thrown into the labour market, and he would probably need a longer period of time before he can find himself suitable employment in the open market. Ds had not withdrawn from their position in their pleadings, and given that I am satisfied an award should be made under this head of claim, I allow the sum of $100,000.

XXIII.  INCURRED MEDICAL EXPENSES

152.  Incurred medical expenses were agreed at $10,681.

XXIV.  FUTURE MEDICAL EXPENSES

153.  Although P in his pleadings averred he would have to follow up at OLMH Family Medicine Clinic for back/foot pain, Mr Lim did not seek any award for future medical and related expenses.

XXV.  TRAVELLING AND TONIC FOOD EXPENSES

154.  P’s claim for travelling and tonic food expenses were agreed at $15,000.

XXVI.  CONCULSION

155.  I summarise the above awards as follows:

PSLA	$400,000
Pre-trial loss of earnings and MPF contribution	$1,384,317.64
Post-trial loss of earnings and MPF contribution	$2,661,422.40
Loss of earning capacity	$100,000
Medical expenses	$10,681
Travel and tonic food expenses	$15,000
	$4,571,421.04
Less EC received	$631,586.67
Total:	$3,939,834.37

156.  I therefore grant judgment in favour of P against Ds in the sum of $3,939,834.37. Interest is payable on the award for PSLA at 2%pa from the date of the Writ of Summons to the date of judgment herein, and on special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment.

157.  There is no reason why costs should not follow event. I grant a costs order nisi that Ds shall pay P costs of P’s claim on quantum against Ds in the present action (including all costs reserved, if any) to be taxed if not agreed, and that P’s own costs be taxed in accordance with Legal Aid Regulations.

Schedule