MOHAMMAD WAHEED KHAN v. RISING SUN TRANSPORTATION CO LTD

HCPI 241/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 241 OF 2010

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J U D G M E N T

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1. The Defendant in this case carries on a transportation business. The Plaintiff was employed by the Defendant as a driver. In this Action, the Plaintiff claims against the Defendant in respect of the injuries he sustained during his employment.

2. One of the principal customers of the Defendant was Golden Resources Development International Limited (金源米業), a major importer and supplier of rice in Hong Kong.  The Defendant was engaged to deliver the rice from Golden Resources’ warehouse in Tsing Yi to various supermarkets, restaurants and stores at different locations across the territory. 

3. The Plaintiff was employed to drive the Defendant’s 9-tonne lorry.  He and his co-worker, Mr Yung (also called “Ah Hung”), were responsible for delivery of the rice. 

4. The Plaintiff commenced work for the Defendant on 1 May 2006 when the previous driver, Mr Ma, resigned.  Ma stayed on until 6 May 2006 to help familiarise the Plaintiff with the various routes for delivering the rice.

5. The Plaintiff and Yung followed a daily routine for delivery.  They would begin work by receiving orders from Golden Resources’ supervisor at the Tsing Yi warehouse.  They would then load the lorry and transport the rice to the customers.  The rice was either packed in 25-kg sacks individually or bundled together in five 5-kg bags.

6. On weekdays they would normally deliver two truckloads but there had been occasions on Saturdays when they were required to deliver three truckloads.  Each truckload would take about 150 sacks. 

7. The Plaintiff and Yung would finish duty after completing all deliveries for the day.  There was no set time for when they could go off duty.  If they were efficient, they could sometimes complete the day’s work as early as about 3 to 4 pm.  On a busy day if they were required to deliver an extra truckload, they would finish duty at about 7 to 8 pm.  They would receive overtime-pay for the extra work.

8. In this case, the Plaintiff alleged that he had met 2 accidents respectively on 22 and 23 September 2006 during his employment with the Defendant.  He said he had sprained his back during the accidents. The Defendant does not admit the accidents.

9. But before examining the details of the accidents, there is an issue regarding the capacity in which the Plaintiff was employed.  It is the Plaintiff’s case that he was employed as a driver-cum-delivery-worker.  As such, his duties included not only the driving of the lorry but also assisting in loading and unloading the rice and carrying them manually during delivery.  The Defendant, on the other hand, contends that the Plaintiff was engaged solely as a driver and that it was Yung’s responsibility, as the vehicle attendant, to handle the physical delivery of the rice.

10. I have considered the evidence.  While I accept that the Plaintiff was employed as a driver, he was clearly expected to help in the physical delivery of the rice.  Indeed, Madam Yau (the director of the Defendant) was at pains to tell the Court how she had demonstrated to the Plaintiff what the proper posture should be when carrying the rice (a question I will return to later in this Judgment).  Also, Yung and Ma both testified that the Plaintiff had helped with the physical delivery of the rice.  In my view, for the purpose of considering the employer’s duties owed by the Defendant to the Plaintiff, the question does not turn on defining the exact scope of the Plaintiff’s employment whether as a driver or driver-cum-delivery-worker.  The Defendant, being aware that in addition to driving the vehicle the Plaintiff would be carrying the sacks of rice in the course of his work, would be under a duty to take reasonable care that the Plaintiff would be carrying out such work safely. 

The first accident

11. According to the Plaintiff, on 22 September 2006 at about 5 pm, he and Yung were delivering the rice to Fairwood Fast Food Centre at the Sau Mou Ping Shopping Centre as instructed.  After parking the lorry at the carpark, he and Yung loaded bags of rice onto a trolley which was then pushed to the entrance of Fairwood’s kitchen.  The entrance was however too narrow to allow the trolley to pass.  The Plaintiff and Yung therefore took turn to carry the bags manually to a designated place inside the kitchen.

12. According to the Plaintiff, he lifted two 25-kg bags onto his shoulder at a time, carried them into the kitchen and dropped them on the ground inside.  He had completed 3 rounds in the manner as described.  During the fourth round when he was carrying 2 bags as before, he slipped on the kitchen floor and fell, spraining his back as a result. 

13. Yung, who gave evidence for the defence at the trial, also described how the two of them had pushed the trolley loaded with the bags to the entrance of the kitchen.  He confirmed that they each took turn to carry the bags manually into the kitchen.  He said that the passage was only wide enough to admit one person to carry one bag of rice to pass through.  He remembered them only carrying one bag at a time into the kitchen.  He said after a few rounds, he saw the Plaintiff coming out of the kitchen, claiming that he had slipped on the floor and was feeling pain in his back.  Yung did not actually witness the accident.  He told the Plaintiff to take a rest while he completed delivering the rest of the rice.  He did not report the matter to their boss.

14. I believe that Yung did not actually witness the accident.  On the other hand, I accept the Plaintiff’s evidence that he did slip and fall inside Fairwood’s kitchen.  In this connection, I prefer the Plaintiff’s evidence to that of Yung’s and find that he (the Plaintiff) was in fact carrying two 25-kg bags at a time when he was delivering the rice.  

15. In fact, in cross-examination, Yung was frank enough to admit that he had on occasions seen the Plaintiff carrying two bags at a time, although he also said that that did not happen too often but only occasionally.  He admitted that sometimes he would also carry two bags together himself.  No one ever stopped them from doing so.  In this regard, I prefer the Plaintiff’s evidence to Yung’s and I find that more often than not, they would be carrying 2 bags at one time when making delivery.  The sooner they could complete the delivery, the sooner they would go off duty.  In this connection, I do not find Ma’s evidence very useful.  Because he left the Defendant’s employment on 6 May 2006, he was unable to tell how the Plaintiff actually carried out his duties after that date.  On the whole, despite Yung’s evidence, I find it more probable that the Plaintiff was indeed carrying two 25-kg bags from the trolley into Fairwood’s kitchen at the time of his accident.  He fell on the wet floor in the kitchen.

16. The Plaintiff said Yung reported the accident to his boss’s son “Mr Au Yeung” or “Ah Yeung”. Madam Yau on the other hand said, which I accept, that her son’s name was neither “Au Yeung” nor “Ah Yeung” and there was no one in the company with that name.  On balance, I am not satisfied that Yung or the Plaintiff had reported this accident to the Defendant on that day.  However, that did not alter my view as to how the accident had happened.

The second accident

17. On the following day, 23 September 2006, the Plaintiff and Yung continued with their usual routine.  After about 10 to 15 deliveries at various locations, they came to Cheung Kee at Canal Road near Times Square.  The Plaintiff parked the lorry alongside the pavement just outside the store’s entrance.  The rice would have to be unloaded from the lorry and be deposited at a spot inside the store about 3 to 4 metres away from the lorry. 

18. As is evident from a photograph showing the shop front of Cheung Kee, the store was rather small and was already packed with all kinds of other goods.  According to the Plaintiff, which I accept, they did not use the trolley because it would be impractical to push the trolley into the store.  In any event, as Yung said, it was only a short distance between the store and where the lorry was parked. 

19. I accept that after parking the lorry the Plaintiff took 2 bags and, as he had always done in the past, lifted them onto his shoulder and delivered them to the store.  Yung did the same for the second round.  When it came to the Plaintiff’s turn, on this occasion, the Plaintiff had to pick them up from the ground.  In this connection, although it was not detailed in his witness statement, I accept the Plaintiff’s evidence given at the trial that while he was standing on the pavement-side of the lorry and pulling the 2 bags from the platform, they slipped from the platform and fell to the ground.  I also accept that as the Plaintiff was lifting the bags from the ground onto his shoulder, he sprained his back due to the heavy load.  He dropped the bags and had to take a rest at the side of the road. 

20. I accept that Yung did not actually witness how the Plaintiff had sprained his back.  According to Yung, when he returned from the store he saw the Plaintiff leaning against the railing with only one bag on the ground instead of two.  In this regard, I prefer the Plaintiff’s version to Yung’s.

21. The Plaintiff left the scene and eventually took a taxi to the hospital.  There was some cross-examination of the Plaintiff about the means of transport to the hospital and why it had taken nearly an hour before he arrived at the hospital.  However, in my view, nothing turns on that aspect of the evidence.  I accept the Plaintiff’s explanation in that regard.

22. Yung reported the incident to Madam Yau, who eventually got Ma to drive the lorry away from the scene. 

23. The Plaintiff had not since reported back to duty with the Defendant.

Defendant’s duty with respect to Plaintiff’s accidents

24. Madam Yau gave evidence that about a week after the Plaintiff had started work, there was an occasion when she went to Golden Resources’ warehouse to demonstrate to the Plaintiff how to handle heavy load. In her oral evidence, she admitted that it was a simple demonstration without using an actual bag of rice because it would be too heavy for her.  She said her demonstration showed only how the bags were to be placed onto the trolley but not how the rice was to be carried from the trolley into the shops.  She said she had no idea that her workers would be carrying the bags on their shoulders in making delivery.

25. When being asked in cross-examination to demonstrate how a worker should carry the rice when walking through narrow passages, Madam Yau showed that the bags should be lifted with both hands and carried in front of the body.  When it was pointed out that her demonstration was not in fact the safe method or how the load should be properly carried, Madam Yau became defensive by saying that she was well aware of what the proper procedure should be. 

26. Madam Yau further said that she had shown the Plaintiff a booklet on safety issued by the Occupational Safety and Health Department.  She said the booklet was placed in the Plaintiff’s vehicle. Although it was written in Chinese and admittedly not helpful to the Plaintiff, she said she had shown it to him. 

27. I do not consider Madam Yau’s evidence concerning her instructions to the Plaintiff on safety procedures to be reliable.  She had never mentioned the safety booklet in her witness statement and in any event I have grave doubt about her evidence that she had shown the booklet to the Plaintiff when she knew that it would not be very useful to the Plaintiff.

28. I have also taken note of Yung and Ma’s evidence that they had never seen anyone showing the Plaintiff the safe method to lift and carry the bags of rice.  Madam Yau also admitted that she had never accompanied the Plaintiff and Yung on their deliveries to supervise their work.  It would appear from the evidence that the only person who had demonstrated to the Plaintiff how to carry the bags of rice was Madam Yau’s son.  However, there is nothing to suggest that the demonstration was the proper manner of lifting and carrying the bags of rice.  If anything, the Plaintiff said that Madam Yau’s son had shown him how 2 bags of rice could be carried on the shoulder together. 

29. On balance, I do not believe that the Defendant had properly instructed the Plaintiff how to lift and handle heavy load generally, or specifically in relation to carrying the sacks of rice.  Despite the fact that the Defendant was clearly aware that the Plaintiff would be involved in moving and carrying the rice, the Plaintiff was simply left to carry out the task as he (and his co-worker) saw fit. 

30. While I do not think there was particular time pressure as such, the Plaintiff and Yung were naturally keen to complete delivering all the rice as quickly as possible so that they could go off duty early rather than finishing late.  Where physically possible, it was more likely that both Yung and the Plaintiff would lift and carry 2 bags at a time to speed up the delivery. 

31. In this case, I find that the accidents were the result of the Plaintiff’s lifting and carrying an excessive weight (totalling 50 kgs at a time) when he was carrying out his duties.  This is a clear case where the Defendant, as employer, has been negligent in failing to devise a safe system of work in relation to the Plaintiff, and in failing to render any effective supervision to prevent the Plaintiff and his co-worker from adopting an unsafe method of work.  The Defendant should also be liable for failing to provide any proper instructions to the Plaintiff as to how the work should be performed safely, for instance, with regard to the proper posture to be adopted when lifting heavy loads and cautioning against overloading oneself in the course of one’s work. 

Contributory negligence

32. I bear in mind the observations of Denning LJ in General Cleaning Contractors Ltd v Christmas [1953] AC 180 as quoted in the speech of Earl Jowitt at p 187.  I also bear in mind the passage in the judgment of McNair J in Machray v Stewarts and Lloyds Ltd [1965] 1 WLR 602 at 610, which has been referred to by Mr Shum (counsel appearing for the Plaintiff). 

33. I also have regard to the decision of the Court of Final Appeal in Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371, the case of Cheung Suk Wai v Attorney General [1996] 4 HKC 288 and the observation of the judge by way of obiter dictum in Tsang Yip Kwong v Ng Kwong Yui trading as Ng Yiu Kee Transportation Co, HCPI No 1186 of 2004 at pp 9 - 10.  The circumstances of the accident in each case are different. 

34. In the present case, I am not dealing with a skilled worker performing work that requires special skill or knowledge.  On the other hand, even though the Plaintiff was performing unskilled work, the risk of overloading oneself by carrying something weighing 50 kgs (with the attendant risk of injury) ought to have been apparent.  This is particularly so in relation to the second accident after the Plaintiff had already hurt himself the previous day in Fairwood’s kitchen.  Whilst I appreciate that the Court should be slow to blame an employee who is doing the work in the way the employer is expecting him to do it, the present case on the other hand is not one where the Defendant required the Plaintiff to lift and carry 2 bags in one go.  In all the circumstances, I think the Plaintiff should bear 30% of the responsibility for his own injuries.

Plaintiff’s injuries

35. Following the second accident, the Plaintiff attended the Accident & Emergency Department of Ruttonjee & Tang Shiu Kin Hospitals for treatment.  On examination, the Plaintiff was found to suffer from sprained lower back.  X-ray showed stretched lumbar spine without fracture or dislocation.  He was treated and discharged.

36. On 26 September 2006, he attended the Accident & Emergency Department of the Queen Elizabeth Hospital for examination and treatment.  The clinical diagnosis was low back pain.  He received physiotherapy and was treated with medication and discharged.

37. He was reassessed regularly in general out-patient clinic.  He was referred to Kwong Wah Hospital for persistent low back pain.  Examination revealed that there was mild tenderness over his lower lumbar spine region.  Objective assessment showed that all trunk movements were limited by severe pain.  Straight leg raising test showed restrictions in both sides but no significant neurological deficit of the lower limbs was detected. The provisional diagnosis was lower back sprain.  MRI in August 2007 revealed that there was mild posterior central intervertebral disc bulging between the 4^th and 5^th lumbar spine level.

38. He was given sick leave from 23 September 2006 until 29 October 2007. 

39. The Plaintiff was examined jointly by Dr Jack WK Wong and Dr Lee Po Chin on 27 November 2009.  According to the physical findings in the Joint Report, there was mild tenderness over midline upper lumbar region and sacrum, moderate tenderness over midline lumbo-sacral junction, mild tenderness bilateral paraspinal muscles at lumbo-sacral junction.  The Plaintiff also suffered slightly reduced active movement, and reduced straight-leg-raising on lying but satisfactory on sitting. 

40. Both doctors opined that the injury was compatible with the Plaintiff’s description of the circumstances of the accident on 23 September 2006.  They agreed that accident had caused soft tissue sprain injury to the Plaintiff’s lower back. At the time of examination, the Plaintiff still suffered from some residual back pain during his daily activities such as when sleeping, taking shower, sitting on toilet, sexual intercourse, walking, dressing and in cold weather. He will continue to have some back pain with excessive exertion, bending or lifting.  But his injury should not have any significant negative impact on his social and recreational activities.  I accept the views expressed by the doctors.

41. Both doctors further agreed, and I accept, that the Plaintiff should be able to resume work as a driver.  But there would be mild (according to Dr Lee) to moderate impairment (according to Dr Wong) of his capacity as a delivery worker or if he were to be engaged in other manual work.  It seems to me that the difference of opinion on impairment is not significant.  I would accept that work which involves manual labour, for instance, requiring lifting, repeated bending of the back or handling heavy objects would be unsuitable for the Plaintiff. 

42. In this regard, I further accept Dr Wong’s view that the Plaintiff may require occasional symptomatic treatment, and the average annual cost is about $2,000.

43. There is no reason to question the appropriateness of the period of sick leave granted to the Plaintiff. 

Pain, suffering and loss of amenities

44. I have considered the authorities cited by counsel:

(a)  Ali Shoukat v Hang Seng Bank Ltd, HCPI 3 of 2003;

(b)  Choi Ying Chi v Loyal Engineering Limited, HCPI 53 of 2006;

(c)  San-to, Po Yuk Hitler v Wing Kwong Painting Co Ltd, HCPI 387 of 2002;

(d)  Tamang Rabichandra v VSL SWC (a firm) and another, HCPI 659 of 2007; 

(e)  Chimmalee On-Uma v Waylung Waste Services Ltd, DCPI 1945 of 2006;

(f)  Gurunt Lachhaman v Gurung Chandra Prakash t/a Metro-Construction Co & others, HCPI 672 of 2008;

(g)  Poon Kwok Wing Ernest v Airport Authority Hong Kong, HCPI 305 of 2004.

45. Having considered the authorities and in light of my findings above, I think the appropriate award under this head is $180,000.

Pre-trial loss of earnings

46. The Plaintiff claims that at the time of the accidents, he was being paid $13,000 a month.  He said that his wages were paid in two instalments on the 5^th and 20^th day of each month.  He was paid partly by cheque and partly in cash, the cash being given to him in an envelope.

47. The Defendant, on the other hand, says that the Plaintiff only earned $6,500 per month.  Madam Yau said that the Plaintiff was always paid by cheques, whether for his salary, for reimbursement of vehicle maintenance or parking charges.  For the salary, Madam Yau relied on the cheques given to the Plaintiff twice a month in the sum of $3,250 each. Madam Yau denied ever paying the Plaintiff’s salary by cash. 

48. Whether or not the Plaintiff was given cash as part of his monthly salary in addition to the cheques largely turns on the credibility of the witnesses.  There is no record to show whether cash was actually paid as part of the salary or not. 

49. To begin with, the Plaintiff had tendered evidence of the earnings he received in previous employments.  The Plaintiff asked me to take note that before his employment with the Defendant he had invariably earned a lot more than $6,500 a month.  With the Defendant, as he was required to carry out driving as well as delivery work it would be improbable that he would agree to work for and be paid only $6,500 per month. 

50. The evidence shows that between November 2003 and March 2004 when the Plaintiff was employed by one Sunbase International Properties Management Ltd, he was paid less than $5,000 a month.  But it appears that he also worked for one Kong Fai Construction Company between December 2003 and February 2004, and from that job he earned a monthly pay of approximately $10,781. 

51. Since March 2004, the Plaintiff was employed as a workman by one Success Rich Construction Engineering Ltd.  His salary was $12,000 a month.  There were some discrepancies in his oral evidence as to how long he had worked in Success Rich.  I bear in mind in this connection the Plaintiff’s evidence that the letter from Success Rich confirming his salary (dated 20 May 2004) was written for the purpose of his wife’s visa.  I note however that his marriage did not take place apparently until 2005. Despite these discrepancies, I accept that because of the lapse of time, such discrepancies in the details are not material.  

52. For 3 months between 21 August and 20 November 2004, he worked for one Fu Tat Engineering & Construction Ltd.  He earned a total of $29,360 for the period.  His basic monthly salary was about $5,350, but he received an allowance making his monthly income about $10,000.  For 2 weeks between 6 and 20 November 2004, according to the employers’ returns he also worked for one Man On Engineering & Construction Ltd. The Plaintiff was questioned whether the two companies were related and how he managed to work for two employers at the same time.  He said, and I accept, that he had 2 or 3 Chinese bosses and was not clear about their company names.  Another return shows that the Plaintiff was employed by one Wah On Investment & Construction Co Ltd as a watchman between 10 December 2004 and 3 January 2005.  I accept in this regard the Plaintiff’s explanation that for several years between 2000 and 2006, he had been employed by several construction companies but not as a watchman.  I have not overlooked that there were some unsatisfactory aspects of the Plaintiff’s evidence when he was questioned with reference to the employers’ returns.  However, even assuming that the details stated on the employers’ returns were accurate, given the lapse of time and that the periods of employment shown in those returns were relatively short, the fact that the Plaintiff had not given a complete explanation of everything based on those returns was not, in my view, of any great significance.  I do not consider his evidence in that regard had compromised his credibility.  On the contrary, I would accept that previously the Plaintiff had mostly worked on construction sites and he would be paid generally $500 to $600 a day.  With overtime, he would sometimes be able to earn even more than $20,000 a month. 

53. Among the evidence, there are some returns filed by one Optiview Co Ltd. According to Optiview’s returns, the Plaintiff was employed as a casual worker during the period from December 2004 to May 2007. It transpired that Optiview was the operator of a guest house in Kowloon Tong. According to its register of employees, there was indeed an employee of the name Mohammd Waheed Khan and with the same ID card number as the Plaintiff’s. There is also another return filed by one Fu Tai Cheung Co Ltd indicating the Plaintiff’s employment as a substitute casual worker for a month in October 2006.  The Plaintiff denied ever having worked for Optiview or Fu Tai Cheung at all. 

54. Some of the returns from Optiview and Fu Tai Cheung stated that the address of the Plaintiff was 65 Jordan Road, 5/F, flat A.  In this regard, I accept the Plaintiff’s evidence that he had never lived at that address.  On the other hand, although the address stated in some other of the Optiview returns was 61-65, 5/F, Woosung Street which indeed was where the Plaintiff had previously stayed, I accept the Plaintiff’s evidence that he stayed there only for about a year between the latter half of 2003 to the first half of 2004, and not the period as shown on the returns.

55. I believe, on balance, that the photograph of the particular employee shown in Optiview’s register was not the Plaintiff.  I also accept the Plaintiff’s evidence that he was never called “Sunny”, which apparently was the Chinese name of the employee in question, and that he had never lived at the address of 23/F, Ka Lung Street, Tsuen Mun, and that the mobile phone number appearing on the register did not belong to him. 

56. In this connection I am prepared to accept the Plaintiff’s evidence, on balance, about the incident concerning his missing wallet some 7 or 8 years ago.  I would accept his explanation as to why he thought someone might have impersonated him in obtaining employment with Optiview.  I have taken note of the Plaintiff’s evidence under cross-examination and the inconsistencies of his evidence as compared with the statement he gave to the police in March 2010.  It suffices to say that when considering the evidence as a whole, none of those discrepancies had caused me to conclude otherwise.  In particular, I have taken note of the evidence, which I accept, that the manager of the guest house had told the police that the Plaintiff was not the one who had worked at the guest house.  In short, I am satisfied that the Plaintiff did not in fact work for Optiview or Fu Tai Cheung, despite the employers’ returns. 

57. I accept the Plaintiff’s evidence that he had returned to Pakistan in about March 2005 to get married, and stayed there for about 8 months.  He returned to Hong Kong in 2006, and had worked for a friend in San Po Kong for a short time earning approximately $14,000 a month. 

58. On the whole, I do accept that the Plaintiff’s earnings from his previous employments would average over $10,000 a month.

59. The Defendant asked me to consider the fact that Ma’s salary was only $6,500 at the time he left the Defendant’s employment in May 2006.  I note in this connection, that it was also Ma’s evidence that he considered his wages to be low at the time and that was the reason why he decided to leave the Defendant’s employment.  It was also Ma’s evidence that in 2006, for someone employed as a driver with delivery duties, he would have to be paid more than $6,500.  When Ma rejoined the Defendant in September 2006, his salary was $8,000. 

60. I would reject the Defendant’s suggestion that Ma’s salary in May 2006 was a good indication of the Plaintiff’s salary.

61. In fact one would expect that the most direct evidence to show an employee’s wages would be the employer’s returns to the Inland Revenue Department and documents relating to the employee’s MPF contributions.  In this case, however, the MPF documentation showed apparently that no contribution had been made with respect to the Plaintiff.  No IRD returns had been filed in respect of him either.  Other than the cheques, no ledgers had been tendered showing the monthly wages of the Plaintiff.

62. Madam Yau admitted not filing any IRD return in respect of the Plaintiff.  As for the absence of reference to the Plaintiff in the Defendant’s MPF documentation, Madam Yau sought to explain that she had not been able to obtain the Plaintiff’s signature to submit an application for MPF for him.  I find such explanation incredible.  I find it hard to believe that for several months it had been so difficult as not to be able to procure the Plaintiff’s signature at all.  It also gives me reason to believe that Madam Yau was not always prepared to tell the entire truth in giving evidence. 

63. Whilst I am sceptical as to why the Defendant has not disclosed the ledgers, I am not prepared to go to the extent of drawing the inference that if the ledgers had been produced they would have shown that the Plaintiff was paid $13,000 a month. 

64. I am presented with two conflicting versions as to whether the Plaintiff received cash in the amount equal that on the cheque every time he received his wages.  Of the two versions, having regard to the overall evidence on this issue, I would prefer the Plaintiff’s account to Madam Yau’s. I would find that the Plaintiff was paid $13,000 a month by the Defendant.

65. Before I leave the question of the Plaintiff’s monthly earnings, I should mention that a witness statement of one Abid Khan was filed by the Plaintiff in this Action.  The Plaintiff, however, did not call Khan to testify at the hearing, and in the circumstances no account has been taken of the content of his statement.  Mr Wong, counsel appearing for the Defendant, however asked me to draw the inference that Khan was not called because the Plaintiff feared that Khan’s testimony would be detrimental to his case, citing the comments of Fuad JA in Hongkong and Shanghai Banking Corporation v Chan Yiu-wah [1988] 1 HKLR 457 at 467 C-H, as quoted in the judgment of Le Pichon JA in Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd, CACV 201 of 2000 at p 11.  In the present case, it suffices to say that I am far from satisfied that the proper inference to be drawn from the absence of Khan’s evidence is that the Plaintiff feared that Khan’s testimony would expose facts unfavourable to him.  On the basis of Khan’s statement, if he had been called he would probably give evidence in support of the Plaintiff.  I am not convinced that the fact that he was not called is sufficient to enable adverse inference to be drawn against the Plaintiff in the way I have been invited by Mr Wong to do.

66. Turning now to the Plaintiff’s situation after expiry of the sick leave period.  As earlier noted, his sick leave came to an end on 29 October 2007.  After that period, according to paragraph 34 of the Joint Report of Dr Lee and Dr Wong, the Plaintiff had worked as a part-time security guard at a carpark which was a sitting job without manual duties.  He resigned after 4 to 5 months and returned to Pakistan.  In cross-examination, the Plaintiff sought to explain that what he in fact told the doctors through the interpreter was that he was searching for a light-duty sitting job.  He denied having worked for 4 to 5 months.  In this regard, I would agree with Mr Wong (Defendant’s counsel) that it was unlikely for there to be such misunderstanding on the part of the doctors.  There was no evidence that the Plaintiff or his lawyers had sought clarification on that particular paragraph from the doctors.  On balance, I would find that the Plaintiff had indeed worked in a sitting job for 4 to 5 months after the end of his sick leave period.  Although there is no evidence to that effect, doing the best I can, I would attribute a total sum of $20,000 as the Plaintiff’s earnings for that period. 

67. The Plaintiff had given evidence on his attempts to find suitable work after the end of the sick leave period.  In a nutshell, his evidence (which I accept) was that he had attended some interviews but without success.  He also tried to ask his friends to assist in finding suitable work but to no avail.  He returned to Pakistan as he did not find any work here.  On his return to Hong Kong, he finally got the job as a salesman for Fletcher Jon’s Custom Tailors in Tsimshatsui from 1 January 2010.  He was initially paid $4,150 a month and from January 2012, his monthly salary was increased to $4,800.

68. I have considered the Plaintiff’s evidence about his inability to find work between end of October 2007 and January 2010.  I have not overlooked my finding that he had, contrary to his evidence, in fact worked for 4 to 5 months as a part-time carpark attendant.  However, taking the evidence on this issue as a whole, I have come to the view that apart from the 4 to 5 months in question, the Plaintiff had not derived any other income from other work before January 2010.

69. Insofar as there may be an ancillary issue as to whether the Plaintiff had mitigated his loss of income, I am mindful that the burden of establishing failure to mitigate lies on the Defendant.  I pause here to note that such an issue has not in fact been specifically pleaded in the Defence.  But in any event on my assessment of the evidence, the Defendant has not discharged that burden that the Plaintiff had failed to use reasonable endeavours to obtain work before his employment with Fletcher Jon’s. 

70. I should also mention that I have rejected Yung’s evidence that shortly after the Plaintiff had left the Defendant’s employment, he had seen the Plaintiff driving a vehicle of another company on one occasion.  Yung admitted in cross-examination that he could have mistaken that driver as the Plaintiff.

71. Accordingly, I would find that the Plaintiff’s pre-trial loss of earnings to be as follows:

(a)  From 23 September 2006 to 31 December 2009 (39.3 months):

  ($13,000 x 39.3 months) - $20,000 = $490,900

(b)  From 1 January 2010 to 31 December 2011 (24 months):

  ($13,000 - $4,150) x 24 months = $212,400

(c)  From 1 January 2012 to 27 February 2012 (date of trial) (2 months):

($13,000 - $4,800) x 2 months = $16,400.

The total pre-trial loss is thus $719,700.

Pre-trial loss of MPF

72. The pre-trial loss of MPF from the date of the accident is therefore:

$719,700 x 5% = $35,985

Special Damages  

73. The sum of $6,650, being accrued special damages for medical expenses, travelling expenses and tonic food, has been agreed between the parties.

Post-trial loss of earnings

74. The Plaintiff was 23 years old at the time of the accident, and was 28 at the date of trial.  But for the accident, it is likely that he would have continued to work until about 60 as a driver and delivery worker.  I accept that a multiplier of 15 will be appropriate to calculate post-trial loss of income. 

75. I would also accept that the Plaintiff’s condition has now improved as compared with the time of the joint examination by the doctors in 2009.  He will be able to return to work as a driver, but probably not as a manual labourer. 

76. Taking Ma’s salary of $8,000 a month (employed solely as a driver) as a yardstick, I would find that the Plaintiff’s loss of future income to be as follows:

   ($13,000 - $8,000) x 12 months x 15 = $900,000

Post-trial loss of MPF

77. The post-trial loss of MPF is therefore:

   $900,000 x 5% = $45,000

Future medical expenses

78. As already indicated, I accept that the Plaintiff may require the occasional symptomatic treatment, amounting to an average of $2,000 a year.  I would accept the Plaintiff’s claim of $10,000 under this head.

Loss of earning capacity

79. In the circumstances of this case, I accept that the Plaintiff will be handicapped in the labour market.  From the history of his employment, it would seem that apart from driving, the Plaintiff was not a skilled worker in any particular area.

80. I have proceeded on the basis that the Plaintiff would have been able to obtained work as a driver for calculating his post-trial loss.  As a result of his injuries, the range of suitable work for him will be limited to either driving or some light-duty work.  I accept that if he were ever to lose his job, it would take him longer than otherwise to find suitable employment.  See Lai Jianxing v Sakoma (HK) Ltd & others, CACV 220 of 2011, at paras 41 to 43. 

81. I think it would be appropriate to make an award in the global sum of $78,000 under this head.

Summary

	HK$
Damages for PSLA	180,000
Pre-trial loss of earnings	719,700
Pre-trial loss of MPF	35,985
Post-trial loss of earnings	900,000
Post-trial loss of MPF	45,000
Loss of earning capacity	78,000
Accrued special damages	6,650
Future medical expenses	10,000
Total:	1,975,335
	========

82. As earlier discussed, I am of view that the Plaintiff’s own negligence has contributed to his injuries.  His award should be reduced by 30%.  Accordingly, the Plaintiff will be entitled to an award in the sum of $1,382,734.50.

83. I understand that the Plaintiff has received $124,653.34 by way of employee’s compensation.  After giving credit for that sum, the Plaintiff will be entitled to judgment in the sum of $1,258,081.16.

Interest and costs

84. Interest for general damages for pain, suffering and loss of amenities will be awarded at 2% per annum from date of commencement of the Action to date of this Judgment. 

85. Interest for special damages and pre-trial loss of earnings and pre-trial loss of MPF will be awarded at 4% per annum (being half judgment rate) from date of the second accident, that is, from 23 September 2006.

86. I will leave it to the solicitors to work out the interest on the claims. 

87. I would make an order nisi for costs of the Action in favour of the Plaintiff, to be taxed if not agreed.

88. The Plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.