CHENG KA PIU v. 黃明光 AND OTHERS

DCEC 516/2016 & DCPI 1619/2019

[2021] HKDC 950

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 516 OF 2016

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IN THE MATTER OF AN APPLICATION BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1619 OF 2019

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BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.  There are two actions before the court.  Both arose out of the same accident which happened to Mr. Cheng Ka Piu (ie the plaintiff in DCPI 1619/2019 and the applicant in DCEC 516/2016) (“the plaintiff”) on 18 March 2014. Mr 黃明光 (“Wong”) is the 1^st defendant in DCPI  1619/2019 and the 1^st respondent in DCEC 516/2016.  Wong has refused to accept service of the proceedings, and has not taken part in both proceedings all along.  Judgment on liability has been entered against Wong in both actions.  The present trial is in relation to quantum.

2.  As Wong has not taken part in both actions, and there is no evidence of any employees’ compensation insurance policy in force in relation to the plaintiff’s employment with Wong, the Employees Compensation Assistance Fund Board (“the Board”) has joined in as the 2^nd defendant in DCPI 1619/2019 and as the 3^rd respondent in DCEC  516/2016.  For the sake of completeness, I should mention that the plaintiff has discontinued his claim against the 2^nd respondent “永昇工程有限公司” in DCEC 516/2016 since 2017.

3.  By the order of Her Honour Judge Levy dated 6 May 2020, the assessment in both actions should be heard together.  The plaintiff and the Board accept that the court does not need to distinguish between the evidence filed in DCPI 1619/2019 and DCEC 516/2016, and the evidence filed in one action can be relied upon in the other action.

4.  The trial took place before me on 4 and 5 November 2020.  The plaintiff was represented by counsel Ms Vivian Chih, and the Board was represented by counsel Mr Timmy C H Yip.  Wong was absent at trial.  I understand from Ms Chih that all the relevant documents had been duly served on Wong.  I am satisfied that Wong should have notice of the trial but chose not to attend.  In fact, as mentioned above, Wong has not participated in both actions all along. Accordingly, the trial proceeded in Wong’s absence.

5.  The plaintiff had called two witnesses at trial, namely the plaintiff himself and one Mr 李文威 (“Lee”).  The Board did not call any witness.  Medical opinion evidence was agreed and admitted without calling the doctors at trial.

B. SUMMONS DATED 30 OCTOBER 2020 AND THE ADDITIONAL WITNESS STATEMENT

6.  Shortly before the trial, the plaintiff took out a Summons on 30 October 2020 for leave to file a 3^rd Revised Statement of Damages.  A copy of the draft 3^rd Revised Statement of Damages was attached to the Summons.  The application was heard on the first day of the trial.  I understand from Ms Chih that the Summons was served on Wong and Wong had not responded to it.  Mr Yip indicated that the Board had no objection to the application. 

7.  The principles governing late application for amendment are well-established.  In the present case, whilst I do not see any valid justification for the lateness of the application, I had granted the order given there was no objection to the application.  Ms Chih further indicated that she would like to add a further paragraph claiming a “grace period” after the sick leave period.  I allowed the request and invited Mr Yip to make submissions on that in due course.  I made an order that the plaintiff should file and serve the 3^rd Revised Statement of Damages by the morning of 5 November 2020 (which the plaintiff had done subsequently).  I also made the usual costs order against the plaintiff.

8.  I should however mention that it is the duty of the party seeking to amend the Statement of Damages to highlight the changes proposed to be made, in the same way as in amending pleadings.  In the present case, the changes proposed to be made in the 3^rd Revised Statement of Damages attached to the Summons were not tracked or highlighted, such that the court had to spend unnecessary time to compare it with the previous version in order to see the difference.  Whilst Ms Chih had helpfully gone through and identified the differences in her oral submissions when making the application, time could have been saved if the plaintiff simply marked the changes on the document in the first place.

9.  On 4 November 2020, the plaintiff also sought leave to adduce the 2^nd supplemental witness statement of the plaintiff.  As the Board had no objection, and I was told by Ms Chih that a copy of the same had been served on Wong and Wong had not provided any response, I granted leave to the plaintiff as well.  Costs were reserved at the time.  Given that the application was again made at a very late stage, and there was no justification for the lateness, I now make the order that the costs of and occasioned by the application should be to Wong and the Board, to be taxed if not agreed.  The costs of preparing the 2^nd supplemental witness statement of the plaintiff would be in the cause.

C. THE PLAINTIFF, THE ACCIDENT AND THE TREATMENT

10.  The plaintiff was born on 20 April 1971.  He was 42 years old at the time of the accident (ie 18 March 2014).  He was a smoker and an occasional drinker.  At the time of the accident, there is no dispute that the plaintiff was working as a technician (技工) mainly responsible for setting up and dismantling and/or removing stage platforms.  According to the plaintiff, he needed to stand or walk most of the time during work, and he also needed to climb frames and carry heavy objects (eg a heavy stage may require up to 4 people to lift).  He also needed to squat sometimes in his line of work.

11.  The accident took place on 18 March 2014.  At the time, the plaintiff was working at The Venetian Macao in Macau with a team of workers.  In the plaintiff’s 1^st witness statement, he said he fell off a platform of 8 metres in height.  I note that in the Medical Report dated 12 January 2017 (“the DOT Report”) prepared by Dr Ngai Tze Ling, Iris, Associate Consultant of the Department of Orthopaedics & Traumatology (“the DOT”) of the Queen Elizabeth Hospital (“QE”), it was stated that the plaintiff suffered a right ankle injury after he fell from a height of 2 to 3 metres.  In the Joint Medical Assessment & Report dated 8 March 2019 jointly prepared by Dr Lam Chi Keung, Johnson (“Dr Lam”) and Dr Wong Kwok Shing, Patrick (“Dr Wong”) (“the Joint Medical Report”), it was stated (on p 3) that the plaintiff fell from a platform of about 3 to 4 metres high.  At trial, no attempt was made to resolve the aforesaid inconsistency.  There is however no dispute that the plaintiff sustained his injuries because he fell from height while at work.

12.  According to the plaintiff, and as recorded in the Joint Medical Report, the plaintiff landed on both feet after falling from the platform.  He then sat on the ground and he felt pain and swelling in his right ankle.  There was no loss of consciousness.  He was sent to Kiang Wu Hospital in Macau, and the right ankle was temporarily fixed with some boards.  He then returned to Hong Kong for treatment.  A brief note was prepared by Kiang Wu Hospital subsequently on 26 September 2017 to record the temporary treatment of the plaintiff.

13.  After coming back to Hong Kong, the plaintiff attended the Department of Accident & Emergency (“DAE”) of QE on 18 March 2014 for treatment. According to the Medical Report prepared by Dr Leung Kar Ho of the DAE of QE dated 20 January 2017:-

(a) The plaintiff’s major complaint was right ankle pain.

(b) The general condition was satisfactory.

(c) Medical examination revealed a swollen right ankle and tenderness elicited over medial malleolus. 

(d) X-ray of right tibia, fibula, ankle and foot showed comminuted fracture over tibia and fibula.

(e) The clinical diagnosis was right ankle fracture.

(f) The plaintiff re-attended DAE on 8 August 2014 for right foot abscess. He was again admitted to DOT.

14.  The plaintiff was then sent to the DOT of QE for further treatment.

15.  According to the DOT Report:-

(a) Physical examination showed right ankle swelling with no open wound.

(b) X-ray showed closed pilon fracture right ankle. 

(c) Operation for closed reduction and external fixation of right ankle was performed on 21 March 2014.

(d) Operation for definitive internal fixation of a fractured ankle was performed on 8 April 2014.

(e) Postoperatively the plaintiff was stable and was discharged on 11 April 2014.

(f) Physiotherapy and a brace were given postoperatively.

(g) The plaintiff was last seen at an outpatient clinic on 19 November 2014, during which X-ray showed a healed fracture.  The plaintiff complained of residual pain over right ankle and ankle stiffness.  The plaintiff had defaulted in the follow-up since then.

(h) Sick leave had been granted to the plaintiff from 18 March 2014 to 28 January 2015, both dates inclusive.

16.  According to the plaintiff as recorded in the Joint Medical Report, the plaintiff had received about one year of physiotherapy, but he did not receive any occupational therapy.  The plaintiff also stated that he last attended the DOT “probably” in 2016 and that no further follow-up was required.  I note that this is not consistent with the facts stated in the DOT Report but nothing seems to turn on such inconsistency.

THE JOINT MEDICAL REPORT

17.  The Joint Medical Report has been admitted as evidence without calling Dr Lam and Dr Wong to testify at trial.  Both Ms Chih and Mr Yip have confirmed that they do not dispute the contents of the report. 

18.  According to the Joint Medical Report, assessment of the plaintiff was conducted on 31 January 2019.  I shall set out some of the key findings in the Joint Medical Report hereinbelow.  Whilst I may not have mentioned all the points stated in the Joint Medical Report in this judgment, I have carefully considered the entire report in order to come to the findings I make herein.

19.  During the assessment, the plaintiff said he still had right ankle pain and could not stand or walk for a long period of time after the expiry of the sick leave.  The plaintiff therefore claimed that he could not return to work. The plaintiff also said during the assessment that because of the increase in pain, he had attended the DAE once.  The plaintiff said he still had pain at the time of the assessment, but he did not take any painkillers.

20.  The plaintiff said he had no injury or pre-existing pain to his right lower limb before the accident.  He did not require any treatment or therapy for that region before the accident.  There was also no further injury to that region after the accident.  The plaintiff also stated that his general health was satisfactory, and he did not have any chronic disease or previous major surgery.  The plaintiff is right handed.

21.  According to the Joint Medical Report, at the time of assessment:-

(a) The plaintiff complained of intermittent pain reaching 3-4/10 over the inside part (within) of the right ankle.  The plaintiff said the pain was provoked by cold weather, walking for over an hour, or standing for over an hour.  The plaintiff did not take painkillers for such pain at the time of the assessment.

(b) The plaintiff was independent in activities of his daily living.

(c) The plaintiff said he did not play sport prior to the accident because he was very busy.  Before his job as technician, he used to play basketball about one to two times a month.

Assessment

22.  Dr Lam and Dr Wong had the following observation on the general physical examination of the plaintiff:-

(a) The plaintiff sat normally.

(b) The plaintiff walked with mild limping.

(c) The plaintiff was able to stand on tiptoes but could not walk on tiptoes.

(d) The plaintiff was able to stand on heels but could not walk on heels.

(e) The plaintiff could stand unilaterally on his left foot, but could not do so on his right foot.

(f) The plaintiff was able to squat ¾ with less bending of his right ankle. He leaned more on his left side for support.

23.  In relation to the lower limbs, Dr Lam and Dr Wong had the following observation following inspection and examination of the plaintiff:-

(a) There was wasting on right thigh and calf.

(b) There was a 15 cm scar over the lateral aspect of the ankle for open reduction and internal fixation of the fractures.  The scar was well healed with no hypertrophy.  There was mild scar tenderness and increase in pigmentation.  There was also swelling over the right ankle noted.

(c) There were skin lesions over both feet.  The plaintiff alleged that these lesions were diagnosed as fungal infection, and arose after the subject injury.  The plaintiff alleged that he contracted the infection while he was in hospital after the injury.  (This point will be further addressed below.)

(d) There was tenderness over the medial and lateral malleoli of the right ankle.

(e) The range of motion of hip flexion was the same for both the right and left sides.

(f) The range of motion of knee was the same for both the right and left side.

(g) In respect of the range of motion of the ankle:-

(i) the dorsiflexion of the right ankle was 10° whilst that of the left ankle was 20°;

(ii) the plantarflexion of the right ankle was 30° whilst that of the left ankle was 40°;

(iii) the eversion of both ankles is the same; and

(iv) the inversion of the right ankle was 10° whilst that of the left ankle was 25°.

(h) In respect of the power of the ankle and big toe:-

(i) The dorsiflexion (L4 & 5) of the right side was Grade 5-/5 whilst that of the left side was Grade 5/5; and

(ii) The plantarflexion (S1) of the right side was Grade 5- /5 whilst that of the left side was Grade 5/5.

(i) The thigh girth of the right side was 45 cm whilst that of the left side was 46.5 cm.

(j) The calf girth of the right side was 34.5 cm whilst that of the left side was 36.5 cm.

(k) Sensation for both sides was normal.

24.  A total of 7 radiographs were taken, which revealed the following:-

(a) AP view and lateral view of the right tibia reviewed previous pilon fracture of the right ankle was fixed with plates and screws.  The extra-articular alignment was acceptable.

(b) AP and mortise view of both ankles showed that the right ankle joint space was much narrowed compared to that of the left.  There was osteophyte formation over medial malleolus – features compatible with post-traumatic degenerative arthritis for the right ankle.  On the lateral side, there was a small ossicle/bone fragment noted at the tip of the lateral malleolus.  The bone density of the right ankle was mildly reduced compared to the left ankle.

(c) In the lateral view of the ankles, there was incongruity of the tibial plafond for the right ankle.  Dr Lam opined that such incongruity would greatly reduce the contact areas between the tibial plafond and the articular surface of talus, causing accelerated degeneration of the right ankle joint.

(d) The bone density of the right foot was mildly decreased compared to the left foot.

25.  Dr Lam and Dr Wong then came to the following opinion:-

(a) Intraoperative findings: Pilon fracture of right ankle with (i) comminuted fractures of shaft of fibula; (ii) comminuted fractures of distal tibia involving the medial and posterior malleoli, tibial plafond.  There were haemorrhagic blisters over medial side of ankle and few other transudative blisters over medial side of ankle and leg.

(b) The diagnosis was pilon fracture of right ankle with comminution involving the tibial plafond (tibial joint surface of ankle).  This is consistent with the mechanism of injury described (fall from height).

(c) Clinically, there was no pre-condition in the lower limbs.

(d) Functionally, the plaintiff could engage himself in a job that required long hours of standing or walking, climbing and heavy lifting.

(e) It is likely that the plaintiff enjoyed rather painless and satisfactory function in his right lower limb (including ankle and foot) before the accident.

26.  Dr Lam then explained that a pilon fracture is a type of break that occurs at the bottom of the tibia (shinbone), and involves the weight-bearing surface of the ankle joint.  With this type of injury, the other bone in the lower leg, the fibula, is frequently broken as well.  A pilon fracture typically occurs as the result of a high-energy event, such as a car collision or fall from height.  Surgery is commonly recommended for such severe fractures.  For such injuries, complications are common.  Ankle stiffness is very common after a pilon fracture.  In the majority of cases, the ankle will not be the same as it was before the injury.  For example, it may be difficult to bend the ankle in the same way, go up and down stairs, or climb a ladder. Posttraumatic arthritis is also common.  Posttraumatic arthritis is a type of arthritis that develops after an injury.  Even when the bones heal normally, the cartilage protecting the bones can be damaged, leading to pain and stiffness over time.  In pilon fractures, some degree of post-traumatic arthritis occurs in about half of all patients with pilon fractures.  The risk of arthritis is determined by a number of factors including the degree of comminution (number of broken pieces of bone), the degree of displacement, and whether it was an open or closed fracture.

27.  In the case of the plaintiff, Dr Lam stated that the facture was initially stabilized with external fixation, and later with internal fixation. The fracture healed.  There was no wound infection.  The extra-articular alignment was acceptable.  However, the intra-articular alignment was not congruous, and the plaintiff’s right ankle was complicated by significant post-traumatic arthritis with joint space narrowing and osteophyte formation just a few years after injury.  At the time of the assessment, the plaintiff still suffered from residue of the fracture and post-traumatic arthritis, with ankle stiffness, weakness, and reduced endurance (pain on prolonged standing or walking).  Dr Lam however stated that the plaintiff had apparently accepted his residue pain and impairment, and further surgery (might require ankle fusion) was not required in this case.

28.  As regards the fact that the implants were still in-situ, Dr Lam noted that the implants were actually rather deeply seated especially for the implants to fix the tibia (shin bone).  Dr Lam explained that the treating doctors had used one wound over the outer (fibular) side to fix both fractures, and much retraction would be required to fix the “deeper” tibial fracture, and removal would be difficult.  Further, since the implants were not causing any impingement or pain, Dr Lam’s view is that these should best be kept in-situ, and removal would not be mandatory.  Dr Lam opined that further surgery was not required for the plaintiff’s injuries.

29.  On the other hand, Dr Wong provided the following opinion:-

(a) The treatment received by the plaintiff was appropriate and adequate.

(b) The plaintiff did not require any ongoing symptomatic treatment.

(c) Implant removal was not indicated.

(d) No further surgery was required for the plaintiff’s injuries.

30.  Both doctors agreed that at the time of the assessment, the plaintiff’s right ankle injury had reached maximal medical improvement.

31.  On impairment, Dr Lam opined that the mechanism of the injury (falling from height) and the severity of the injury (pilon fractures, comminution) are serious injuries involving great degree of trauma to the bone/joint/soft tissue of the right ankle.  Dr Lam then scrutinized the various medical evidence available.  Dr Lam noted that the plaintiff still complained of intermittent pain reaching 3-4/10 over the inside (within) of his right ankle, provoked by cold weather, walking for over 1 hour, or standing for over 1 hour.  Dr Lam observed that there were multiple objective signs including mild thigh wasting, moderate calf wasting, right ankle swelling, stiffness of the ankle (and also mild stiffness of subtalar joint).  Dr Lam opined that the plaintiff’s complaints about the residue pain and impairment related to the right ankle was justified, and it is likely that the plaintiff still had residue genuine pain and impairment (stiffness, weakness, decreased endurance, and above all, joint incongruity complicated by post-traumatic arthritis with rather advanced changes (significant joint space narrowing plus osteophyte formation over medial malleolus)).  Dr Lam estimated the degree of residue pain and impairment to be moderate to severe.

32.  For assessment of permanent impairment and disability in practical terms, Dr Lam opined that activities that cause increased stress to the right ankle and foot (eg prolonged standing/walking, say over one hour; squatting, climbing; prolonged stair walking; running/jumping) can cause discomfort or even pain in his right ankle.  If the plaintiff engages himself in such activities on a regular or frequent basis, early and more advanced degeneration of his right ankle would be expected.

33.  Dr Lam further noted that the plaintiff should not be able to return to playing basketball which usually required considerable running/jumping.  Sports such as swimming would be more suitable (though at the time of the assessment, his skin problem could cause trouble if he wanted to swim).

34.  Dr Wong considered the prognosis of the plaintiff to be fair.  The plaintiff was expected to have residual pain in the right ankle aggravated by prolonged walking and heavy exertion.  Dr Wong opined that residual stiffness and mild weakness are likely to be permanent.

35.  Dr Wong further provided the following opinion:-

(a) The plaintiff’s ambulatory capacity for daily activities would be mildly reduced.  More impairment is likely for vigorous activities such as sports.

(b) The plaintiff should be able to manage his activities of daily living, and he can utilize public transport.

(c) The plaintiff’s enjoyment of life and ability to cope socially will be mildly reduced as a result of the accident.  He would not be able to play basketball as proficiently as before.

36.  On returning to work, Dr Lam opined that the plaintiff could not return to the pre-accident job of a technician which required considerable standing, walking, climbing and sometimes squatting.  Dr Lam considered that although hair cutting or styling did require considerable standing and walking, the plaintiff may be able to return to work as a barber or hair stylist or partner in a saloon with reduction in work capacity (eg shorter working hours; taking fewer cases and allowing more breaks for rest after work).

37.  Dr Wong shared the same view that the plaintiff was not fit to return to his pre-accident job as a stage installation worker.  Dr Wong was of the view that the plaintiff should be capable of working as a hair stylist or kitchen assistant, with mild reduced work efficiency and capacity. 

38.  Dr Lam estimated that the plaintiff’s pilon fracture that healed with intra-articular incongruity or displacement, and complicated by significant post-traumatic arthritis, should carry 8% whole person impairment.  Dr Lam further estimated that the plaintiff’s right ankle injury should carry 16% loss of earning capacity.

39.  Dr Wong agreed that 8% whole person impairment is appropriate, but he agreed with the Employees’ Compensation (Ordinary Assessment) Board’s (“Assessment Board”) assessment of 8% as loss of earning capacity as a result of the accident.

40.  On the question of sick leave, Dr Lam was of the view that the duration of the sick leave issued by the plaintiff’s treating specialists or doctors from time to time was appropriate and should be endorsed.  On the other hand, Dr Wong opined that the period of absence deemed to be necessary by the Assessment Board on Form 7 was reasonable. 

Skin problem on the plaintiff’s feet

41.  At the time of the assessment, the plaintiff was noted to have skin lesions on both feet.  The plaintiff alleged that these lesions were diagnosed as fungal infection that arose after the injury as he contracted such infection while he was in the hospital after the injury.  Dr Lam and Dr Wong then scrutinized the medical notes in details, and came to the following agreed conclusion (on p 15 of the Joint Medical Report):-

“Both doctors agree that although from Mr. Cheung’s perception, the skin problem of the feet might have arisen after the subject accident; however, based on the evidence reviewed, both doctors agree that there was no evidence to suggest that Mr. Cheng contracted fungal infection as a result of the subject injury to this right ankle; rather, there was probably tinea pedis (fungal) infection (which is a common problem) in his LEFT foot detected while he was in hospital.” (my emphasis)

42.  The above findings of Dr Lam and Dr Wong are not challenged and the doctors were not called upon to testify in court.

43.  I should further mention that the plaintiff’s alleged skin problem was not pleaded in the Statement of Damages dated 14 March 2017, the Revised Statement of Damages dated 15 October 2019,  and the 2^nd Revised Statement of Damages dated 20 May 2020.  It was only alleged for the first time in the 3^rd Revised Statement of Damages which the plaintiff sought to file shortly before the trial (§§2(d)(ix) & (x), 5(c) & 7(iv)). Likewise, the plaintiff’s alleged skin problem was not mentioned at all in the plaintiff’s witness statement and in his supplemental witness statement.  It was only mentioned for the first time in the plaintiff’s 2^nd supplemental witness statement which the plaintiff sought to adduce shortly before the trial.

44.  The skin problem of the plaintiff formed one of the main issues at trial, as one of the reasons put forward by the plaintiff in evidence as to why he could not return to work, either in a hair salon, in a restaurant or in a kitchen was partly because of his skin problem and that he feared his feet might get infected easily due to the environment.  The skin problem of the plaintiff is also relied upon by plaintiff in support of his revised claim on pain, suffering and loss of amenities (“PSLA”) (from HK$300,000 to HK$450,000) (though I note Ms Chih’s submissions in closing that the plaintiff is contending that he should be entitled to HK$450,000 even without taking into account the skin problem). 

45.  In the course of Ms Chih’s submissions, I asked Ms Chih that in the light of the unchallenged findings in the Joint Medical Report that there is no evidence to suggest that the plaintiff’s skin problem was caused by the injury, how the plaintiff can still rely on his skin problem in the present assessment. 

46.  In response, Ms Chih submitted that she was NOT putting forward a case which is inconsistent with the findings in the Joint Medical Report. Instead, Ms Chih argued that both Dr Lam and Dr Wong were only addressing on the specific complaint raised by the plaintiff, namely fungal infection, in the Joint Medical Report.  On the other hand, the case now put forward by the plaintiff is that his skin problem originated from the 2 haemorrhagic blisters found over the medial side of his right ankle and the few other transudative blisters found over the medial side of the ankle and the leg, which were all documented in the medical notes.  Ms Chih submitted that the blisters the plaintiff first experienced on his right foot during hospitalization had spread to both of his legs resulting in skin lesions.  She further submitted that such skin bacterial infection was a consequence arising from the accident. 

47.  Ms Chih reiterated that her submissions are NOT inconsistent with the views expressed in the Joint Medical Report.  First, she said (in her written closing submissions) that both doctors agreed that the plaintiff’s skin problem might have arisen after the accident.  With respect, this point is plainly misconceived because the doctors did not actually agree to that.  I have already reproduced the doctors’ findings in paragraph 41 above.  It is clear that the doctors were only saying that it was the plaintiff’s perception that the skin problem might have arisen after the accident, but the doctors stated that there was no evidence that he had contracted the fungal infection as a result of the injury.

48.  Second, in her closing submissions, Ms Chih invited the court to draw an inference that the plaintiff’s skin infection had originated from the two haemorrphagic blisters and a few transudative blisters over the medial side of his right ankle during hospitalization.  Ms Chih’s argument is that both Dr Lam and Dr Wong did not seem to have addressed on this very issue of whether the plaintiff’s skin problems originated from the blisters or whether the blisters were caused by the injury.

49.  In my view, Ms Chih’s submissions cannot stand.  First, I do not accept that Dr Lam’s and Dr Wong’s views on the plaintiff’s skin problem expressed in the Joint Medical Report are limited in the way Ms Chih suggested.  In my view, both doctors were clearly addressing the skin lesions noted on both feet of the plaintiff at the time of the assessment, and were determining whether those were caused by or the result of the injury by reference to the medical notes. Their conclusion is plain and clear – that there is no evidence suggesting that the plaintiff’s skin problem was the result of or caused by the injury.  In fact, in the Joint Medical Report, both doctors had expressly mentioned the presence of blisters on the plaintiff’s ankle and leg as recorded in the medical notes.  I also note that the plaintiff could have clarified with the doctors or seek to cross-examine the doctors at trial but he chose not to do so.  In the premises, I find that Dr Lam and Dr Wong had already addressed the skin lesions issue, and both of them had agreed and found that there was no evidence that such skin lesions were the result of or caused by the injury. Accordingly, it is not open to the plaintiff to run a case which is contrary to the views expressed in the Joint Medical Report, the contents of which have been agreed and not disputed.

50.  Second, even if I am wrong to hold that the both Dr Lam and Dr Wong had conclusively held that there was no evidence to suggest that the plaintiff’s skin lesions were the result of or caused by the injury, and assuming, as Ms Chih suggested, that the doctors were only addressing on the very narrow issue of fungal infection, but not on the blisters originally found on the plaintiff’s ankle and leg, the question then becomes whether there is any positive evidence in support of the plaintiff’s case that his skin problem was caused by or originated from the blisters resulting from the injury.  The answer must be in the negative.  There is no medical evidence in support of the plaintiff’s “new” case.

51.  Ms Chih asked me to draw the necessary inference on the basis that the plaintiff did not have skin lesions or any skin problem before the accident.  I reject Ms Chih’s submissions.  In my view, it is not proper for the court to draw such inference.  The court is not qualified to deduce whether the plaintiff’s skin lesions originated from the blisters or whether the blisters were the result of the injury.  If the plaintiff wishes to run such a “new” case, the burden is on him to adduce proper expert evidence in support, or to cross-examine Dr Lam or Dr Wong on their views in the Joint Medical Report.  The plaintiff has chosen not to do so.

52.  In the premises, the plaintiff is not entitled to claim damages arising out of his alleged skin problem.

E. THE WITNESSES

53.  Before I proceed to assess the plaintiff’s claims, I wish to briefly mention the credibility of the witnesses.

54.  Lee’s evidence is short and simple.  Mr Yip did not cross-examine Lee. There is nothing to suggest that Lee was not honest or that he was not telling the truth.  I have no hesitation in accepting his evidence.

55.  In respect of the plaintiff, I find him generally to be an honest witness, albeit he may have exaggerated his claims in some aspects.  I have reservations on whether I can comfortably rely on his recollection and his recollection alone on some crucial issues, for example, the number of working days and the amount of overtime payment he received, in the absence of any corroborating evidence in support.  This is particularly so when the plaintiff could not provide any particular reasons as to why he could be so certain of the number of days he used to work and the amount of over time he enjoyed every day. 

56.  I shall assess his evidence in greater details in the course of my assessment below.

F. THE CLAIMS IN DCEC 516/2016

57.  The plaintiff claims under Sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“the ECO”). 

58.  The plaintiff was assessed by the Assessment Board on 20 July 2016.  In the Form 7 issued on 3 August 2016, the plaintiff was found to have suffered a loss of 8% earning capacity permanently because of the injury, with a total of 171 days of absence being considered to be necessary as a result of the injury (from 18 March 2014 to 21 May 2014, and from 23 July 2014 to 5 November 2014).

59.  There was no appeal against the above assessment.

60.  The main dispute between the plaintiff and the Board is on the monthly earnings of the plaintiff at the time of the accident. 

Monthly earnings of the plaintiff at the time of the Accident

61.  The plaintiff has not adduced evidence showing his earnings for the month immediately preceding the date of the accident.  Accordingly, the plaintiff is only relying on his average monthly salary during the previous 12 months before the accident pursuant to section 11(1)(b) of the ECO.  The plaintiff’s case is that he was earning an average income of about HK$26,000 per month prior to the accident.  The plaintiff’s case is virtually entirely based on the plaintiff’s own recollection, and there is not a single document adduced in support of his alleged income. 

62.  According to the plaintiff, he was paid by cash at the end of each working day.  He was paid HK$600 for working from 9 am to 6 pm in Hong Kong per day.  If he worked during the night time, he would be paid HK$600 for about 6 to 8 hours.  For overtime work, the plaintiff would get $100 per additional hour.  According to the plaintiff, he had to work overtime for an average of 3 hours every working day in Hong Kong.

63.  Apart from working in Hong Kong, Wong sometimes required the plaintiff to work in Macau.  The plaintiff said he would be paid HK$1,500 for working in Macau per day.  He would be provided ferry tickets and meals.  There would be no extra overtime payment for working in Macau. 

64.  It is not clear how exactly the figure of HK$26,000 came about.  In Ms Chih’s opening, she relied on and referred to the witness statements of the plaintiff in support of the figure.  In the witness statements of the plaintiff, the plaintiff proceeded on the assumption that he worked for about 23 days in Hong Kong and 3 days in Macau per month.  Further, the plaintiff stated that he had about 3 hours’ overtime per day when working in Hong Kong.  Applying such assumption, the plaintiff would be earning HK$25,200 per month prior to the accident:-

(HK$600 + HK$300) x 23 + HK$1,500 x 3 = HK$25,200

65.  So even applying the plaintiff’s own assumption, one still cannot arrive at the figure of HK$26,000. 

66.  The plaintiff used the word “about” in his witness statements when referring to the number of days he was working in Hong Kong and the amount of overtime payment he earned per day when working in Hong Kong.  This is understandable because the plaintiff was speaking purely based on his recollection.  There is not a single document adduced which can support the plaintiff’s assertion or shed light on the reliability of the plaintiff’s recollection. 

67.  In cross-examination, Mr Yip challenged the plaintiff on his evidence. The challenge was mainly based on the fact that the plaintiff’s evidence was entirely based on bare assertions with no supporting document.  The plaintiff alleged that all payment was made in cash.  He said he had never filed any tax returns.  He did not have any bank accounts at the relevant time.  He kept the money in cash.  He had not applied for mandatory provident fund (“MPF”).

68.  In this regard, Mr Yip cited the decision of Recorder Paul Shieh SC in Chan Leung Sing v Ng Keung & Anor HCPI 3 of 2012, 27 August 2015, in which the learned judge was facing a similar situation.  The learned judge stated the following (at §§64 and 65):-

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

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

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

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

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

69.  In Chan Leung Sing, the plaintiff was primarily working as a welder and occasionally working as a vault-ceiling worker.

70.  In the present case, it is the plaintiff’s evidence that his job duties included climbing up and down, setting up stage platforms and removing the same.  He also needed to lift heavy objects from time to time.  Echoing the remarks of Recorder Paul Shieh SC, common sense dictates that given the nature of the work as the plaintiff has asserted, it is highly unlikely that the plaintiff was working for 26 days per month every month, with overtime work of 3 hours every day when he was working in Hong Kong. 

71.  In fact, the unreliability of the plaintiff’s recollection is demonstrated by his evidence on the number of days he worked in Macau prior to the accident.  The plaintiff stated that he worked for about 3 days in Macau every month prior to the accident.  However, the plaintiff’s travel records obtained from the Immigration Department (“the Immigration Department Records”) show that the plaintiff had only been to Macau for 15 times during the period from January 2013 to March 2014 (ie around 15 months), with each time staying less than a day.  So it is highly unlikely that the plaintiff had been working for 3 days in Macau every month during his employment with Wong.

72.  In the absence of any documentary evidence which can shed light on the pre-accident earnings of the plaintiff, and doing the best I can from the available evidence, I make the following findings:-

(a) Daily rate for working in Hong Kong: I am prepared to accept the plaintiff’s evidence that his daily rate for working in Hong Kong was HK$600.  In this regard, I consider that it would be easier for a person to remember a standard rate which had applied over a substantial period of time (in contrast to a varying figure such as the number of working days per month).  I also find support from the evidence of Lee that he was paid HK$600 for a day’s working as a stage technician for Wong in early 2014 upon the plaintiff’s referral. 

(b) Daily rate for working in Macau: I am also prepared to accept the plaintiff’s evidence that his daily rate for working in Macau was HK$1,500.  Again, I consider that it would be easier for a person to remember a standard rate which had applied over a substantial period of time.

(c) Number of working days per month in Macau:- Based on the Immigration Department Records, I reject the plaintiff’s bare assertion that he used to work in Macau for 3 days every month for Wong prior to the accident.  I find that he worked in Macau for Wong for one day per month on average (I note that there is no evidence showing the exact date on which the plaintiff commenced employment with Wong).

(d) Number of working days per month in Hong Kong:- Whilst I have reservation on the reliability of the plaintiff’s recollection, I am prepared to accept that the plaintiff on average worked for 26 days per month.  Given my finding in sub-paragraph (c) above, the plaintiff would accordingly have an average of 25 working days in Hong Kong per month.  In this regard, I find some support from the plaintiff’s evidence that during the period of employment with Wong, he would often travel to mainland China when he had time.  Based on the time the plaintiff had stayed in mainland China during the period when he was employed by Wong as revealed by the Immigration Department Records, it seems fair to accept that the plaintiff had worked for 26 days a month on average.

(e) Overtime work in Hong Kong: Given the nature of the work as asserted by the plaintiff, and in the light of my finding that the plaintiff had worked for 26 days a month on average, I have serious reservation on whether the plaintiff could have afforded (stamina-wise) to work overtime for 3 hours every day as alleged.  Whilst Lee’s evidence that the plaintiff told him he would get HK$800 or HK$900 for working for Wong in early 2014 may indicate that the plaintiff was expecting overtime work for that particular job for Lee, it does not show that the plaintiff was working overtime for 3 hours every day for the entire period when he was working for Wong.  The fact that Lee had no overtime work for that particular referral in the end further indicated that overtime work was not a given.  I find that the plaintiff has exaggerated his overtime work. In the premises, taking into account all the factors I have mentioned above, and considering the possible vicissitudes the industry may enjoy or suffer over the relevant period of time, I am only prepared to find that, on average, the plaintiff enjoyed one to two hours’ overtime work per day during his employment with Wong.  I am prepared to find that the plaintiff enjoyed about 40 hours of overtime work per month when working in Hong Kong on average.  I am prepared to accept the plaintiff’s evidence that he was paid HK$100 per hour for overtime work in Hong Kong.

73.  Applying my findings above, the monthly earnings of the plaintiff at the time of the accident would be HK$20,500:-

HK$600 x 25 + $100 x 40 + HK$1,500 = HK$20,500

74.  I note that the above average pre-accident monthly earnings of the plaintiff is also generally consistent with the average monthly salary of a joiner and a general laborer at the time, as published by the Census and Statistics Department submitted to the court.

Section 9 Assessment

75.  There is no dispute between the plaintiff and the Board on the applicable formula for the assessment under section 9 of the ECO.  Applying the plaintiff’s pre-accident monthly earnings which I have found above, the compensation under section 9 of the ECO should be HK$118,080:-

HK$20,500 x 72 x 8% = HK$118,080

Section 10 Assessment

76.  There is equally no dispute between the plaintiff and the Board on the applicable formula for the assessment under section 10 of the ECO.  Applying the plaintiff’s pre-accident monthly earnings which I have found above, the compensation under section 10 of the ECO amounts to HK$93,480:-

HK$20,500 x 4/5 x 171/30 = HK$93,480

Section 10A Assessment

77.  The plaintiff claims for HK$2,700 for the medical expenses.  The Board made no submissions on this claim.  In the light of the medical receipts produced, I am prepared to allow the claim for HK$2,700 in full.

Payment from Wong

78.  The plaintiff admitted that he had received HK$120,000 from Wong after the accident as gratuity payment.

79.  During cross-examination, Mr Yip challenged the plaintiff and suggested that he had in fact received HK$140,000 from Wong instead.  In this regard, Mr Yip relied on a letter issued by the plaintiff’s solicitors to the Board’s solicitors dated 10 November 2017 in which the plaintiff’s solicitors stated, inter alia, that the plaintiff had received a total of HK$140,000 from Wong. However, the plaintiff insisted that he had only received HK$120,000 from Wong, and the sum was received by instalments:- HK$10,000 per month for 12 months.

80.  Following the cross-examination by Mr Yip, I asked the plaintiff whether he could explain why the plaintiff’s solicitors stated that he had received HK$140,000 in that letter.  The plaintiff explained that after the payment of HK$120,000 to him by Wong over the period of 12 months, Wong contacted him and offered to give him a further sum of HK$20,000 in exchange for the plaintiff’s undertaking not to sue him.  The plaintiff refused and so he had not received the said HK$20,000 as a result.

81.  I am prepared to accept the plaintiff’s explanation and find that the plaintiff had only received HK$120,000 from Wong after the accident as gratuity payment.

Conclusion on DCEC 516/2016

82.  In the premises, the compensation awarded to the plaintiff under the ECO amounts to HK$:-

Under Section 9	HK$118,080
Under Section 10	HK$93,480
Under Section 10A	HK$2,700
Payment received from Wong	(HK$120,000)
	____________
Total:-	HK$94,260

83.  The plaintiff should be entitled to half of the prevailing judgment rate from the date of the accident (ie 18 March 2014) to the date of this judgment, and thereafter at the prevailing judgment rate until payment in full.

G. THE CLAIMS IN DCPI 1619/2019

PSLA

84.  In the Revised Statement of Damages dated 15 October 2019 and the 2^nd Revised Statement of Damages dated 20 May 2020, which were both filed after the Joint Medical Report, the plaintiff claimed HK$300,000 for PSLA. 

85.  In the latest 3^rd Revised Statement of Damages dated 4 November 2020, the plaintiff claims HK$450,000 for PSLA.  As identified above, one of the major changes made in the 3^rd Revised Statement of Damages is the inclusion of the plaintiff’s skin lesions which the plaintiff claims to have originated from or caused by the subject injury.  There is otherwise no explanation for the upward adjustment for the claim of PSLA.  As noted above, Ms Chih’s position is that the plaintiff should still be entitled to HK$450,000 for PSLA even without taking into account the skin problem. 

86.  On the other hand, Mr Yip submits that a sum of HK$300,000 should represent a reasonable figure for the claim for PSLA.

87.  I have already set out in details the plaintiff’s injury and impairment in Section C and Section D above and the same is not repeated here.  Both parties have cited a number of cases in support of their case on PSLA, including (but not limited to) Yuen Wai Chuen v Chan Wing Pui [2019] HKCFI 1521, Leung Yiu Sheung v Pa Ling Logistics Co Ltd [2019] HKDC 546, Sui Wai Man Ada v Lee Chi Chong & Anor HCPI 174/1994, 9 November 1998, Lau Yiu v Anwell Building Construction Co Ltd & Ors [2003] 3 HKLRD L14, Ip Chi Ching v Ng Sze Yam & Ors HCPI 324/2009, 24 December 2010, Lam Kam Fai v Yau Shing Scaffolding Co Ltd [2014] 2 HKLRD 448, Kwong Wan Kau v Yuen Wing Hong HCPI 142/2002, 1 September 2006, Tse Hing Wan v Choy Yuen Keung & Ors HCPI 889/1998, 24 January 2000, Wong Woon Hei v Dickson Construction Co Ltd & Anor HCPI 521/2000, 3 July 2001, Chan Mok Yau v 黃吉利 & Anor [2018] HKCFI 1084, Chan Sze Yuen v Tin Wo Engineering Co Ltd & Ors HCPI 427/2008, 5 February 2016, and Tsui Wai Ho v Pride Glory Ltd [2019] HKDC 657.  I have considered all the cases cited and the submissions made by the parties, including the detailed comparison prepared by Ms Chih in her closing submissions.  I do not consider it necessary to set out my views on the similarities and differences between those cases and the present case in detail.  It is sufficient for me to make the following general observations:-

(a) The injuries suffered by the plaintiff in each of the cases cited by the parties are not the same as the injuries suffered by the plaintiff in the present action.  Some are more serious and some are less.  The degree of impairment also varied.  The impact of the injuries to the victims also differs and depends on the particular circumstances of the case.  In comparing the damages awarded, I have to balance a number of factors in order to try to find the closest and most suitable comparables.

(b) For the damages awarded in cases which were decided many years ago, I also have to take into account the impact of inflation or deflation over the years.

(c) As explained above, I am of the view that I should not take into account the impact allegedly caused by the plaintiff’s skin lesions in this exercise, as there is no evidence that the skin lesions were caused by the injury.

88.  I accept the plaintiff’s evidence and the experts’ view that the plaintiff enjoyed good health generally before the accident, and had no conditions in respect of his right foot or ankle before the injury.  I also bear in mind that the plaintiff had to walk with crutches for about a year after the accident, and had to give up some of the exercise he used to do in the past. 

89.  Guided by the authorities and taking into account all the relevant circumstances of the case, I award damages for PSLA in the amount of HK$400,000 to the plaintiff.

Loss of pre-trial earnings

90.  The plaintiff was granted 317 days of sick leave by his treating doctors in Hong Kong.  Dr Lam considered the duration of sick leave appropriate.  On the other hand, Dr Wong agreed with the Assessment Board and stated that 171 days of sick leave were reasonable.

91.  As rightly pointed out by Mr Yip, the court is not bound by the mere issue of sick leave certificates to determine the appropriate period of sick leave: Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210.  Considering the Joint Medical Report as a whole and bearing in mind the nature and severity of the injury, and the various treatments the plaintiff had received, I am prepared to allow 250 days of sick leave.

92.  I further allow a grace period of 2 months (60 days) for the plaintiff to seek alternative job after the sick leave.

93.  In the premises, the loss of pre-trial earnings during the sick leave and grace period would be:-

HK$20,500 x (250 + 60)/30 = HK$211,833.33

94.  After the sick leave and grace period, based on the Joint Medical Report, I am satisfied that the plaintiff should be able to work again in a salon or in a kitchen. I note from the plaintiff’s testimony at trial that one of the main reasons why he considered himself unable to work in a salon or in a kitchen was because of his skin problem.  However, as I have already ruled above, there is no evidence indicating that the skin problem the plaintiff has suffered was caused by or the result of the injury.  Accordingly, I should not take that into account in considering whether the plaintiff would be able to work again. 

95.  I have considered the advertisements placed with the Labour Tribunal. Doing the best I can in the absence of any further and better evidence, I have come to the view that the plaintiff could have earned a notional monthly salary of HK$13,000 after the sick leave and grace period.  In coming to the said finding, I have assumed that the plaintiff would be working as diligent as before (26 days a month), although I have also taken into account the fact that the plaintiff may not able to work for the same amount of time per day as he used to physically due to his injury.

96.  I have found the plaintiff’s pre-accident monthly earnings to be HK$20,500.  By reference to the increase in the wage of (1) a general worker and laborer; and (2) joiner, between March 2014 and March 2020, I am prepared to adopt a rate of increase of 30%, as suggested by Ms Chih, in deducing the notional income of the plaintiff in 2020.  Accordingly, the notional monthly earnings of the plaintiff as a stage technician in 2020 would be HK$20,500 x 1.3, ie HK$26,650.  The median of the plaintiff’s pre-trial monthly earnings would accordingly be HK$23,575, being (HK$20,500 + HK$26,650)/2.

97.  In the premises, the plaintiff’s pre-trial loss of earnings after the sick leave and grace period would be:-

(HK$23,575 - HK$13,000) x (2,113/30) = HK$744,832.50

(NB: 2,113 being the approximate number of days from the expiry of the grace period to the date of the trial)

98.  There is a dispute between the plaintiff and the Board on whether MPF should be awarded given that the plaintiff did not enjoy MPF during his employment with Wong.  I am of the view that the plaintiff should be so entitled.  First, every employee should be entitled to MPF as a matter of law. The fact that Wong had not paid MPF for the plaintiff in breach of the law should not affect the plaintiff’s entitlement under the law.  Second, when assessing loss of pre-trial earnings and loss of future earnings, the court is conducting the assessment on “hypothetical” basis.  Under such circumstances, I do not consider it correct to assume that the new employer will similarly breach the law by not paying MPF for the plaintiff.  Even in respect of his employment with Wong, the plaintiff may take action against Wong for the recovery of the MPF.  In Hussain Kamran v Khan Amar CACV 255/2014, 5 October 2016, one of the issues before the Court of Appeal was whether the plaintiff should be entitled to MPF payment for the period up to the expiry of the sick leave, given that the plaintiff had admitted that he had no MPF benefits from the 1^st defendant.  Chu JA stated the following, at §32:-

“32. In coming to her view that the plaintiff should not be awarded MPF payment for the sick leave period, the Master did not appear to have considered that an employer is under a mandatory statutory obligation to make MPF contributions for his employees, and that employers who default in making contributions are liable to be prosecuted and ordered to make good the amount in arrears. MPF benefits are not contractual entitlements. Accordingly, the fact that the 1st defendant had not been making the MPF payments is not conclusive of the matter; it cannot be conclusively inferred that had the plaintiff continued to be in employment during the sick leave period, he would not have received MPF payments. I would reverse the Master's decision and allow 5% MPF payment for the 17 months that the plaintiff was totally out of employment.”

99.  Accordingly, the plaintiff should be entitled to MPF in respect of his pre-trial loss of earnings.  The total amount of pre-trial loss of earnings, including MPF, would be:-

(HK$211,833.33 + HK$744,832.50) x 1.05 = HK$1,004,499.12

Future loss of earnings

100.  At the time of the trial, the plaintiff was 49 years old.  The plaintiff testified in court that people in his profession (stage technician) usually retire at about 50 odd years old.  I accept his evidence and am prepared to find that but for the accident, the plaintiff would have worked as a stage technician until the age of 55.  Accordingly, a multiplier of 5.78 is appropriate.

101.  The plaintiff’s case is that the notional income of a hairdresser for the purpose of calculating future loss of earnings should be around HK$16,000 per month.  Mr Yip did not dispute the figure.  Accordingly, I am prepared to accept and adopt such figure.  Based on my findings above, the plaintiff’s post-trial loss of earnings would be as follows:-

(HK$26,650 – HK$16,000) x 12 x 5.78 x 1.05 = HK$775,618.20

102.  Ms Chih submitted that if I am to find the retirement age of the plaintiff as a stage technician to be before 65 years old, I should further award damages to the plaintiff to reflect the loss of earning arising from the plaintiff’s impaired manual labour capacity for the period between such retirement age I have found and the age of 65.  I have difficulty in accepting the submissions. First, such alternative future loss of earnings has not been properly pleaded. The plaintiff’s pleaded case on future loss of earnings has always been till the age of retirement as a stage technician.  Second, there is no evidence before me suggesting that the plaintiff will likely find another job after he retires as a stage technician, and if so, for how long.  In any event, I consider Ms Chih’s proposed formulation of damages in this regard to be unsupported by the evidence.  In the premises, I refuse to make any awards in this regard.

Loss of earning capacity

103.  The plaintiff claims HK$100,000 under this head.  Ms Chih submitted that the sum reflects around 6 months of the plaintiff’s notional income at HK$16,000.

104.  Based on the residual disability suffered by the plaintiff as stated in the Joint Medical Report, I am satisfied on a balance of probability that there is a substantial and real risk that the plaintiff will lose his job at some time before the estimated end of his working life.  Assuming the plaintiff will be out of work for about a month every year for his remaining working life for 6 years, he would have lost approximately HK$16,000 x 6, ie about $96,000. 

105.  Having considered all the circumstances of the case, I am of the view that an award for HK$100,000 as loss of earning capacity is fair.

Special damages

106.  The Board made no submissions on the special damages claimed in the sum of $4,200, being medical expenses, travelling expenses and tonic food.  I am of the view that these expenses were justified.

107.  The only dispute between the plaintiff and the Board is in relation to the claim of HK$53,640 for skin cream.  According to the plaintiff, such skin cream was necessary for his skin problem.  As I have already found that there is no evidence to suggest that the plaintiff’s skin problem was caused by or the result of the injury, I disallow such claim.

Summary of damages

108.  To sum up, I award the plaintiff the following damages:-

(a)	PSLA:	HK$400,000.00
(b)	Pre-trial Loss of Earnings:	HK$1,004,499.12
(c)	Post-trial Loss of Earnings:	HK$775,618.20
(d)	Loss of Earning Capacity:	HK$100,000.00
(e)	Special Damages:	HK$4,200.00
(f)	Less: (compensation awarded in DCEC 516/2016)	(HK$94,260.00)
		_______________
	Total:	HK$2,190,057.32

H. DISPOSITION

109.  To conclude, I enter judgment in favour of the plaintiff against Wong in DCEC 516/2016 in the sum of HK$94,260, together with interest at half judgment rate from the date of accident to the date of judgment, and thereafter at judgment rate until payment.

110.  I also enter judgment in favour of the plaintiff against Wong in DCPI 1619/2019 in the sum of HK$2,190,056.61, together with interest on the PSLA award in the sum of HK$400,000 at 2% per annum from the date of service of the Writ to the date of judgment, and also with interest on the total sum of HK$1,008,698.41 for pre-trial loss of earnings and special damages at half judgment rate from the date of accident to the date of judgment, and thereafter at judgment rate until payment.

I. COSTS

111.  As the plaintiff has succeeded in both actions, I order that Wong should pay the costs of both actions to the plaintiff, to be taxed if not agreed, with certificate for counsel. 

112.  In respect of the position of the Board, it is important to recognise the role of the Board in this type of proceedings.  In Wo Chun Wah v Employees Compensation Assistance Fund Board (2019) 22 HKCFAR 495, Ribeiro PJ stated the following at §45:-

“45. The Board’s role was properly recognised by the Trial Judge:

In participating in the proceedings, the Board’s function is neither to contest the employee’s claim in place of the employer nor to help save public funds, but is to ensure that employees in need can obtain such damages as they are entitled.  The Board has a duty to screen out unmeritorious or inappropriate claims to ensure (inter alia) that this assistance mechanism will not be abused, its recipients will not exaggerate their claims, and public funds will not be used for improper purposes.  Therefore, unless it is necessary to contest false claims or suspected fraudulent claims, the Board should not adopt an antagonistic attitude in the proceedings.  It should act as a filter and adopt an impartial attitude in the proceedings so as to assist the court in coming to a correct ruling.”

113.  Ribeiro PJ further stated (at §§46-47) that the general starting point should be no order as to costs between the applicant and the board, irrespective of whether the board sought to test the case as to liability, quantum or both.  A different costs order might be warranted on particular facts.  For example when the board’s conduct is unreasonable or misconceived or unjustifiably antagonistic, unnecessarily prolonging the intervention, or otherwise untoward, the court may order the board to pay the applicant’s costs.   

114.  In the present case, I find the Board’s intervention to be necessary. This is particularly so given that Wong has been absent all along.  The Board has a duty to ensure that the plaintiff would not exaggerate his claims and that the public funds would not be used for improper purposes.  I am also of the view that the Board has assisted the court in testing the plaintiff’s case on both liability and quantum.  I find that there is nothing in this case which warrants the departure from the general position.

115.  Accordingly, I make an order that there be no order as to costs as between the plaintiff and the Board. 

116.  Mr Yip has sought costs against Wong.  As one of the reasons for the Board’s intervention was Wong’s refusal to take part in the present proceedings, I am of the view that it is fair that Wong should also be responsible to pay the costs of the Board in these actions, with certificate for counsel, to be taxed if not agreed.

117.  I further order that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

118.  The above costs orders are made on nisi basis.  Such orders nisi will become absolute 14 days after the date of this judgment unless an application for variation has been made within the said period.

119.  Lastly, I thank counsel for their assistance to the court.