SULTAN ZAHID v. HAO TAI CONTRACTOR LTD AND OTHERS

DCPI 1445/2022

[2026] HKDC 663

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1445 OF 2022

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JUDGMENT

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Introduction

1.  This is a personal injury trial for an industrial accident, which took place on 31/5/2019 in a construction site located at a site of Road Improvement Works in West Kowloon Reclamation Development, Hong Kong (“the Site”).

2.  The Plaintiff (“P”) was legally aided when this action was instituted on 12/5/2022, and his pleadings were drafted by his lawyer. Though he was a Pakistani, his witness statement dated 8/8/2023 was prepared in Chinese with the help of an interpreter, while he was acting in person. At the trial, there was no dispute that the content was properly interpreted to him, and he fully understood before he signed on it.

3.  As said, at certain stage of these proceedings, he had acted in person. The relevant periods are from 19/1/2023 to 26/10/2023, and from 26/2/2025 and 13/7/2025. In other words, it was only about 10 days before the commencement of the trial that he instructed his present legal team to represent him.

4.  On the other side, all three Defendants ("Ds") have been legally represented by Messrs Deacons from the start. There is no dispute that at the time of the accident, the 1^st Defendant (“D1”) was P’s employer, the 3^rd Defendant (“D3”) was the principal contractor of the Site, and the 2^nd Defendant (“D2”) was D3’s subcontractor, and D1 was in turn D2’s subcontractor.

5.  Although Ds lodged with the Court their Opening Submissions dated 18/6/2025 challenging both liability and quantum of P’s claim, after seeing that P's Opening Submissions dated 16/7/2025 prepared by his counsel Ms Linda Cho, Ds through their counsel (Mr Simon Wong leading Ms Sabina Sui) submitted a short note dated 21/7/2025 informing the Court that:-

(1)  All Ds would not contest P’s pleaded case on the circumstances of the accident;

(2)  D1 would not contest liability on its part;

(3)  D2 and D3 would continue to contest liability;

(4)  All Ds would not argue contributory negligence;

(5)  The issue of quantum would remain in dispute;

(6)  Ds would not call any factual witness at trial[1].

Liability

6.  After carefully considering all the evidence before me (in particular, P’s witness statement prepared for this action[2], and his earlier statement given to the loss adjuster dated 7/8/2019[3]), I find the following facts, matters and circumstances in relation to the accident established, especially noting P’s case and evidence on how the accident actually happened was not really challenged under cross-examination, or otherwise taken issue by Ds:

(1)  On 31/5/2019 between approximately 1 pm and 2 pm, P was performing manual‑handling work as part of the grouting work activities took place at the Site, under the instruction of D1.

(2)  It was raining at the time. Sacks of cement, each weighing about 45 kg, had been piled up in layers of four. P had to stand on top of the piled-up sacks, approximately 10 feet above ground level[4], and to lift and pass the cement sacks at the top to his co‑worker, Ali, for pouring into a cement fixer in the vicinity, apparently used in relation to the grouting activities.

(3)  As instructed by D1, P1 was the only worker lifting and passing on the cement sacks to Ali at the time.

(4)  While lifting a sack with both hands, P1’s left foot twisted on the uneven surface of the top of piles of cement sacks, causing him to lose balance, fall to the ground landing on his buttock and back.

(5)  At the material time, no supervisor or foreman from D1, D2 or D3 was present in the vicinity of the place of accident to supervise their work. P had not been given instructions or training on how to transport the cement sacks (at the top of the piled-up sacks) at the place of work. Nor was he provided with any equipment (in particular, any appropriate mobile working platform) to assist him to reach a height with a proper foothold to carry out the assigned task safely.

Issue of liabilities in dispute

7.  Since D1 has admitted liability, the remaining issues in dispute at the trial against D2 and D3 were: whether either or both of them would be liable under common law negligence claim or otherwise in breach of the statutory duties under the Reg 38A(2) and (3) and/or Reg 38AA(2) and (3) of the Construction Site (Safety) Regulations (Cap 59I) (“CSSR”) under the Factories and Industrial Undertakings Ordinance (Cap 59) (“FIUO”) and/or under Occupiers Liability Ordinance (Cap.314) ("OLO") as pleaded in the Statement of Claim for P to pursue his civil claim of damages against D2 and D3 arising out of the accident.

Common law negligence

8.  Having carefully considered counsel's submissions from both sides and all the evidence before this Court, I cannot agree with Ms Cho's submissions that D2 and D3 ought to be held liable under common law negligence. It is well settled that D2 and D3 did not owe any common law duty to take care of its independent contractor's employee (i.e. P) merely by virtue of the subcontracting relationships in question. See Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14. Therefore, P's common law negligence claims against D2 and D3 are rejected.

Breach of the CSSR

9.  P claims that D2 and D3 are in breaches of their statutory duties under the Reg 38A(2) and (3) and/or Reg 38AA(2) and (3) of the CSSR, and relies on these breaches to hold D2 and D3 civilly liable for his loss and damages suffered flowing from the accident.

Ds' contentions

10.  As gathered from Mr Wong and Ms Sui' submissions, D2/D3's responses to such breach of statutory duty claims are essentially as follows:-

(1)  D3 admits it is a contractor responsible for the construction site under the CSSR[5], but there is no evidence adduced by P to prove that D2 was such contractor ("Point 1").

(2)  P has not pleaded D2 and D3 are the contractors having direct control over the construction work, namely the handling of the cement sacks at the time of the accident. P cannot run this "unpleaded" point ("Point 2").

(3)  The Reg 38A(2) and (3) and Reg 38AA(2) and (3) are irrelevant, as the accident was caused by a system of work (i.e. moving cement bags), but not about any unsafe condition of a workplace ("Point 3").

(4)  D2 and D3 put P to strict proof of the alleged breaches of statutory duties under Reg 38A and Reg 38AA, and on the issue of causation ("Point 4").

Points 1 and 2

11.  Since Point 1 and Point 2 are closely related, this Court will address them together.

Pleading point

12.  In my view, when P has specifically identified the relevant regulations, namely, Reg 38A(2) and (3) and Reg 38AA(2) and (3) of the CSSR that D2 and D3 are in breach of. It can be seen from the statutory wordings of these regulations themselves that they are applicable to "contractor responsible for the site" (for Reg 38A) or "contractor having direct control over the construction work" (for Reg 38AA) respectively.  In these circumstances, this Court has no difficulty in appreciating that what elements of the statutory regulations have to be satisfied in order to hold D2 and D3 liable under the relevant regulations. I see no unfairness or difficulty for D2/D3 to meet such claim. Accordingly, the pleading point (i.e. Point 2) is rejected.

Contractor responsible for the construction site

13.  Regarding Point 1, according to the definition of "contractor responsible for the construction site" under Reg 2(2) of the CSSR, it would appear only D3, being the principal contractor, can be such contractor under the circumstances of this case and this Court do find D3 to be such contractor. This Court however do not find that D2 was qualified to be such contractor in this case.

14.  Reg 2(1) and 2(2)(a) provides the definitions of “construction site”, “place of work”, "direct control", and “contractor responsible for a construction site” respectively as follows:-

“(1) In these regulations, unless the context otherwise requires

...

construction site means a place where construction work is undertaken and also any area in the immediate vicinity of any such place which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work;

...

place of work means any place which is used by any person for the purposes of—

(a) construction work[6]; or

(b) any work activities arising from, or in connection with, construction work,

and includes any place to which such a person has access whilst at work;

...

direct control, in relation to any construction work, process, excavation, operation, or erection, substantial addition, alteration or dismantling of scaffold, means control over the way the construction work, process, excavation, operation, or erection, substantial addition, alteration or dismantling of scaffold, as the case may be, is carried out;

(2) For the purposes of these regulations—

(a) a contractor is responsible for a construction site if he is undertaking construction work there or, where there is more than one contractor undertaking construction work at the site, if he is the principal contractor undertaking work there;” (emphasis supplied)

Evidence for proving D2/D3 are contractors having direct control over construction work

15.  It is noted that P's witness statement was prepared when he was acting in person in these proceedings, and the contents focused on how the accident happened, but the evidence about D2/D3's status under the CSSR referred therein is rather minimal.

16.  However, this Court is entitled to look at all the evidence from both sides as available before it to justly and properly resolve the issues related to this matter.

17.  Initially, D2 had arranged one Mr. Lau Wai Ming (its site agent) ("Mr Lau") and D3 its safety officer (Mr Cheung Chi Wo) ("Mr Cheung") (both were working at the site at the time of accident) to prepare two witness statements respectively. But Ds decided not to call them to testify at trial in the eleventh hour, this Court however retains a discretion to admit such evidence as hearsay for the purpose of disposing fairly of the cause having regard to all the circumstances of this case.

18.  Although Ms Cho invited this Court to expunge the two witness statements (and Mr Wong agreed), this Court had not made any ruling on this matter at the trial, and their parties' indications would not override the Court's power to deal with the evidence before it as it see appropriate in the interest of the overall justice, noting particularly that one of the key roles of the Court is to make findings of fact according to all relevant evidence before it to justly and properly determine the issues in dispute. On the other hand, the parties' stances as to how the evidence ought to be dealt with is a factor that this Court should take into account in the exercise of the discretion.

19.  After carefully balancing the relevant factors in this case, this Court do not see it appropriate to exclude the two witness statements as hearsay, nor expunge them as Miss Cho requested. This is because they did contain material probative evidence to assist this Court to properly resolve the questions as to whether D2 and/or D3 was or were "the contractor having direct control over the construction work" at the time of accident. The Court finds no real prejudice to Ds in admitting the witness statements as hearsay. If accepted, these statements constitute the Ds' own evidence any. Conversely, if any part of the evidence is rejected upon analysis, it is noted that Ds had elected not to call these witnesses in the first place. Looking at the matter in the round, the exercise of judicial discretion tilts clearly in favor of admitting these hearsay evidence to ensure a proper fact-finding exercise, as the overall justice of this case demands.

20.  Insofar as may be necessary, this Court can and would also invoke its power as conferred under Order 24 rule 12 of the Rules of District Court (Cap.336H) to order these two witness statements (as hearsay documents) be produced for consideration by this Court as they are necessary to assist this Court for fairly disposing the cause of this case.

21.  In his witness statement, Mr Cheung said he was D3's safety officer and that D3 was the principal contractor of the Site, who subcontracted the socketted H-piling works to D2[7]. Mr Lau in his witness statement said that he was D2's site agent, and that D2 further sub-contracted the grouting work to D1[8]. Both of them in their witness statements said in unison that prior to the accident, regular safety patrols and inspections were conducted by the Defendants' safety officer(s) and foremen to ensure, amongst other measures, that the working environment was in a reasonably safe condition and that workers (including P) were working safely[9].

22.  In Attorney-General v John Lok & Partners [1986] HKLRD 325, Hooper J gave a shorthand description of what "undertaking construction work at the construction site" would generally entail at p.335E-F of the report judgment:-

“... Furthermore, " construction site" is defined as being a place where construction work is undertaken. I have reached the conclusion that in the context of this regulation, the word "undertake" must have a construction associated with the words (sic) "carry out". A construction site would therefore be a place where construction work is carried out, carried into practice or carried through. And a person is undertaking construction work there if he is involved in that carrying out of the construction work there." (emphasis supplied)

23.  In Paul Y General Contractors Ltd v HKSAR (2013) 16 HKCFAR 487, Tang PJ endorsed another passage from Hooper J's judgment on what constitutes a contractor undertakes construction work under the CSSR at para 45 of the CFA's decision thus:-

“45. It is clear these regulations cast a wide net. Thus, Hooper J explained in Attorney-General v John Lok & Partners [1986] HKLR 325 that a contractor undertakes construction work if he is managing, organizing or supervising etc the work: at 335G. John Lok rightly decided that one could be a responsible contractor although one was not carrying out any actual physical work.” (emphasis supplied)

Ds' control over how the construction work was carried out

24.  Having considered the totality of the evidence, this Court finds, on balance of probabilities, that all three Ds were involved at different levels of construction hierarchy in managing, organising and/or supervising how the grouting work (including the preparatory work of mixing/processing of cement for such purpose) was carried out at the construction site, or at the very least concerning the aspect of safety compliance in relation to such work.

25.  In particular, through the chains of sub-contracting arrangements under the circumstances of this case, all three Ds would likely be working in coordination with each other in relation to such grouting work (involving the cement handling work as carried out by P and Ali at a place of work within the construction site), which formed part of the larger construction operation as required for the H-piling work.

26.  In the normal course of things, D2 being the intermediate sub-contractor, would have its own representative to liaise between the principal contractor (ie D3) and its sub-contractor (ie D1) to oversee that the contractual requirements specified under its main contract with the principal contractors would be carried out by D1 accordingly.  Mr. Lau was D2's site agent at the time of the accident. All three Ds had their safety officer(s) and foremen at the site for the purpose of ensuring that workers were working safely at the Site.

27.  In these circumstances and under the factual matrix of this case, this Court has no hesitation to find that both D2 and D3 (let alone D1) would naturally have a say over how the construction work ought to be performed and performed safely, and in particular, in accordance with the statutory requirements under the CSSR (and specifically, Reg 38AA).

28.  In these circumstances, I find all three Ds were contractors having direct control over the construction work (namely, the grouting and cement handling work in which P and Ali had participated) under Reg 38AA at the time of accident.

Reg 38A and Reg 38AA

29.  The relevant parts of Reg 38A and Reg 38AA are cited as follows:-

Reg 38A

“38A Duty of contractor responsible for construction site to ensure safety of places of work

(1)  Without prejudice to the other provisions of this Part, the contractor responsible for any construction site shall, so far as reasonably practicable—

(a)  identify the hazardous conditions of persons working at a height in the construction site;

(b)  rectify any hazardous conditions of persons working at a height in the construction site; and

(c)  safeguard any person working at a height in the construction site against all hazardous conditions.

(2)  The contractor responsible for any construction site shall ensure that, so far as is reasonably practicable, suitable and adequate safe access to and egress from every place of work on the site is provided and properly maintained.

(3)  Subject to paragraph (4), the contractor responsible for any construction site shall take suitable and adequate steps to ensure that, so far as is reasonably practicable, no person gains access to any place on the site where any hazardous conditions are present.

...

(4A)  For the purpose of this regulation, hazardous conditions includes the following conditions that may give rise to a risk of persons falling from a height—

(a) unprotected edge or opening at a place of work;

(b) improper design and construction of a place of work;

(c) inadequate or insecure support or anchoring of a place of work;

(d)  improper maintenance of a place of work;

(e) any mobile working platform (other than a suspended mobile working platform) that fails to comply with the provisions of the Third Schedule applicable to it." (emphasis supplied)

  Reg 38AA

“38AA Duty of other contractors to ensure safety of places of work

(1)  Without prejudice to the other provisions of this Part, any contractor who has direct control over any construction work shall, so far as reasonably practicable—

(a)  identify the hazardous conditions of persons working at a height in the construction work;

(b)  rectify any hazardous conditions of persons working at a height in the construction work; and

(c)  safeguard any person working at a height in the construction work against all hazardous conditions.

(2)  The contractor who has direct control over any construction work shall ensure that, so far as is reasonably practicable, suitable and adequate safe access to and egress from every place of work where the construction work is being carried out is provided and properly maintained.

(3)  Subject to paragraph (4), any contractor who has direct control over any construction work shall take suitable and adequate steps to ensure that, so far as is reasonably practicable, no person gains access to any place which is within the place of work where the construction work is being carried out and where any hazardous conditions are present.

...

(5)  For the purpose of this regulation, hazardous conditions includes the following conditions that may give rise to a risk of persons falling from a height—

(a) unprotected edge or opening at a place of work;

(b) improper design and construction of a place of work;

(c) inadequate or insecure support or anchoring of a place of work;

(d)  improper maintenance of a place of work;

(e) any mobile working platform (other than a suspended mobile working platform) that fails to comply with the provisions of the Third Schedule applicable to it." (emphasis supplied)

The construction work, work of place and hazardous conditions

30.  In this Court's view, the grouting work is caught by limb (a) of the definition of 'construction work' under the CSSR, and the cement handling work carried out by P and Ali can be properly regarded as preparatory work for such grouting operation, and hence is covered by limb (b) of the definition[10].

31.  The place of work (where P was working at a height) for carrying out the relevant construction work at the time were present with hazardous conditions thus:-

(1)  the surface of the top of the piled up cement sacks which constitute a de facto place of work was uneven and unsafe for a worker to stand on for carrying out the subject task, and it was not meant to be a proper design for a place of work;

(2)  the worker standing thereon may easily lose his balance whilst at work (just as P did) thereby being rendered highly vulnerable to an accidental fall from height of about 10 feet, and hence potential personal injuries.

Interpretation of Reg 38A and 38AA

32.  Upon a careful survey of Regs 38A and 38AA against the whole CSSR, and bearing in mind the CSSR’s statutory objective of providing comprehensive safety protection to a huge number of construction workers who are frequently required to work at height (whose safety or even their lives may be at stake) across diverse construction operations and sites of varying scale, this Court considers it appropriate to adopt a purposive interpretation of these regulations and comes to the following views and observation:-

(1)  The respective sub-regulations in Reg 38A and Reg 38AA are basically mirror images to each other, with the former applies to the contractor responsible for the site, whereas the latter the contractor having direct control over the construction work. Both are aiming at protecting workers' safety from the perspective of ensuring safety of places of work, and holding two different classes of contractors statutorily responsible for the related safety matters to afford a comprehensive protection to construction site workers.

(2)  To facilitate giving effect to their statutory purposes, sub-reg. (1) of these two regulations imposes three express essential duties on the relevant contractors: to (a) identify, (b) rectify and (c) safeguard against hazardous conditions for any person working at height. These duties are non‑delegable and bind both the contractor responsible for the site and any contractor with direct control over the relevant construction work.

(3)  Sub-regs (2) and (3) of the two regulations were designed complement each other with the intended purpose to prevent hazardous conditions (in particular hazardous conditions of persons working at height) from occurring, and if occurred, to rectify them after they had been identified, so far as reasonably practicable.

(4)  Reg 38A(2) and Reg 38AA(2) would require the relevant contractors to take positive steps to ensure safe access to and egress from every place of work on the site was provided and maintained, subject to the requirement of reasonable practicability. Whereas, Reg 38A(3) and Reg 38AA(3) work in a negative manner by requiring the relevant contractors (who are likewise subject to the same reasonable practicability requirement) to ensure every person was prohibited from gaining access to any place on the site, or any place within a place of work where construction work is being carried out, with hazardous conditions present.

(5)  In my judgment, the "place of work" under sub-reg (2) of both regulations with the determiner "every" (which is supposed to be all-embracing) placed before it, ought to be given a wide interpretation to include an elevated position in air space which the worker is required to reach (such as by using appropriate equipment like working platform or ladder) in order to carry out the work concerned, so as to accord with the statutory utilities as intended by Reg 38A and 38AA to protect the safety of workers working at height (and the importance of such protection is in fact specifically highlighted and provided  for under sub-reg (1)).

(6)  Like the present case, in my judgment, given the working environment and condition as faced by P on the date of accident, the relevant contractors (ie D2 and D3 in this case) under Reg 38A(2) and 38AA(2) had to ensure, so far as is reasonably practicable, that suitable and adequate safe access (such as by means of an appropriate mobile working platform) would be provided and maintained for P to reach an elevated position (which is also qualified as a place of work on site as envisaged under the two sub-regulations) next to the piles of the cement sacks, for him to carry out the assigned task safely.

(7)  By adopting the same purposive approach to interpreting the phrase “any hazardous conditions” in Reg 38A(3) and Reg 38AA(3), this Court considers that such phrase was intended by the Legislature to cover not only those "hazardous conditions" which has already existed before a worker gains access to a place within the place of work where the construction work is being carried out with such conditions present, but also those "hazardous conditions" arisen in such place after he has gained access to it.  

(8)  This is because, understandably, there can be a myriad of scenarios in which "hazardous conditions" may arise to justify such term to be construed widely: whether out of the design and/or implementation of a system of work, the adequacy or suitability of necessary equipment, manpower arrangement, and/or other components of the work process, especially noting that site conditions and work processes may vary as construction operations of different kinds progress.

(9)  But without the safe means of access as contemplated under Reg 38A(2) and Reg 38AA(2) being provided, as soon as P climbed to the top of the piles of cement sacks, and worked at such place to carry out the assigned task, that would instantaneously become a place of work where construction work was being carried out presented with the hazardous conditions (as identified in paragraph 31 above). So that, when P continued to move around from one place to another within "such place of work" (i.e. on top of the piled-up cement sacks), he would effectively be gaining access each time to a place within "such place of work" as caught by sub-reg (3) of both regulations.  In these circumstances, both Reg 38A(3) and 38AA(3) would be engaged.

(10)  In light of the aforesaid, under the circumstances like the present case, in this Court's view, upon reasonable construction of sub-reg (1) and sub-reg (3) when read alongside with each other, this Court would need to examine by reference to the reasonable practicability test to see whether it was or was not practicable for D2 and D3, being the relevant contractors (as so found by this Court), to identify the hazardous conditions to stop P from continuing to gain access to such place presented with hazardous conditions at the material time, so as to decide whether any of them was in breach of Reg 38A(3) and Reg 38AA(3).

33.  In light of the above analysis, the unsafe and dangerous working conditions (as identified in paragraph 31 above) would in this Court's view plainly fall within those mischiefs that Reg 38A and 38AA were enacted to militate against.

34.  In my judgment, the cause(s) of the "hazardous conditions" (whether arising from an unsafe system of work or otherwise) is or are quite irrelevant at the stage of the definitional inquiry of "hazardous conditions".  However, the consideration of the cause(s) may become relevant when the Court comes to assess whether the relevant contractors have taken precautions “so far as is reasonably practicable” in discharging their statutory duties under Reg 38A and/or 38AA.

35.  Therefore, according to Reg 38A(3) and Reg 38AA(3) so construed above, in this Court's view, when P (on the date of accident) had been moving around on the top of the piled-up cement sacks to carry out the assigned task presented with hazardous conditions, these two sub-regulations would be engaged.

36.  On the basis of this Court's findings, it would be impossible for P to discharge the subject task of transporting the cement sacks at the top of the piles by standing on the ground. For such items at such height (which were placed about 10 feet from the ground) would be beyond his reach, given that P is only approximately 170 cm tall. Viewed thus, according to Reg 38A(2) and Reg 38AA(2) so construed in paragraph 32(5) above, suitable and adequate safe access to reach an elevated position at the air space next to the piled-up cement sacks to carry out the assigned task ought to have been provided and maintained (but this was not done).

37.  In these circumstances, Reg 38A(1)-(3) are plainly engaged with respect to D3, and Reg 38AA(1)-(3) with respect to all three Ds on the evidence before this Court.

38.  Hence, Point 3 is misconceived, and rejected.

Point 4

The relevant factual matrix

39.  After carefully considering all the evidence, this Court would tend to think that P climbed to the top of the cement sacks to carry out the transporting task at the material time not to suit his personal convenience but to implement the instructions as directly given to him by one of his "bosses" called Ah Chi (阿志), as best he could in response to the situation he was then faced with. In this connection, I accept the following evidence set out in P's witness statement (which was not really challenged during his cross-examination):-

“... 2019年5月16日，浩榮營造有限公司聘用本人為普通工人，每日早上8時至下午6時工作，... 我有兩位老闆，一個叫阿志，一個叫阿浩，每天的工作都是聽從兩位老闆吩咐，而這段時間老闆安排我在西九龍道路的改善工程工作。

意外當日，即2019年5月31日，這天仍然下着雨，地盤的機器不停轉動，環境極為嘈吵。當天十二時吃午飯，一時開工，我如常是和我的拍檔Ali（應該是巴基斯坦籍）一齊工作，工作流程大致如下：老闆已事先安排工人用吊機將45 kg的水泥包擺放在一個用粗大鐵枝搭建而成的大型帳篷內，水泥包一包疊一包，不平坦、不規則的擺放，有時橫放，有時直方，每個水泥包的面積大約是：長60-70 cm，闊30-40 cm，厚度10-15 cm，一層疊一層大約有30包水泥包，估計大約有10尺高，而水泥包不是直接放在地上，而是放在預先已搭建的平台上，平台與地面距離約一尺。老闆阿志吩咐我的工作就是需要將帳篷內的水泥包搬運到下處，我的拍檔Ali，他會將水泥包開啟，倒進攪拌機內攪拌，但老闆阿志沒有提供任何器材輔助我搬運水泥包，我只好用我自己可行嘅方法去完成老闆的命令，同拍檔Ali商量後，唯一方法就是企在水泥包上，沒有任何安全措施，用雙手托舉水泥包，貼近身體借力，由於周邊滿佈水泥包，我需要退後轉身才可交到在下方等待接手的拍檔Ali手中，他接手後會快速開啟水泥包，倒在身旁已開動的機器攪拌，機器是不停轉動，除非是有人關掉總掣，如是者我都是重複此動作，我交，Ali接，當我完成前面的水泥包時，老闆會搵工人用吊機再添加水泥包，當前面的水泥包完成時，老闆又未及時添加我就需要上高處，Ali會用雙手承托我雙腳，我踩住水泥包攀爬上高處，同樣做交接的步驟。此日，大概下午二時，正當我企在最高處，提取接近馬路邊的水泥包時，由於水泥包不平坦，我的左腳在水泥包上核了一下，隨即手上的水泥包從我手中鬆脫，我就在最高處拋到地上，...” (emphasis supplied)

40.  In fairness to Ds, since the witness statements of Mr Cheung and Mr Lau have been considered by this Court as hearsay evidence, and I would also express my observation on those parts of their evidence which may affect this Court's deliberation on the issue of whether there was any breach of statutory duties on the part of Ds:-

(1)  Both Mr Cheung and Mr Lau said in their witness statements that there was sufficient space for P to stand on the ground and transport the cement sacks together with his foreman and/or co-workers. But such evidence is directly contradicted by P's testimony. For, as pointed out above, the cement sacks at the top level was at a height of about 10 feet, which was beyond the reach of P by just standing on the ground. P's testimony is inherently more probable and preferred.

(2)  Notably, Mr Cheung and Mr Lau did not state in their witness statements there was any appropriate mobile working platform or any other appropriate tools provided at the scene or in its vicinity that P could make use of to assist him carrying out the assigned task safely.

(3)  Mr Lau in his witness statement said sufficient manpower was assigned for the grouting work at the material time with proper supervision. P was working in a team of 4 workers (including P himself) under the supervision of a foreman. He could have sought assistance from his foreman and/or co-worker(s) to transport the cement sacks together. However, this is prima facie contradicted by P's evidence (which this Court prefers and accepts) that he was assigned to work together with Ali only at the time, which in my view, is much more credible given P's description of how the accident which was unchallenged. On the overall evidence before me, I do not find such evidence in Mr Lau and Mr Cheung's witness statements credible, and hence rejected.

(4)  Their witness statements further stated that the task of transporting the cement sacks was a daily and ordinary task frequently performed by P.  But P was not instructed by D1 to transport cement sacks placed on the ground to his co-worker at the material time. It was his unchallenged testimony (and accepted by this Court) that, on the date of accident, he was specifically asked by his "boss" Ah Chi to remove cement sacks already piled up to a height of about 10 feet. His own wordings as translated into Chinese are "一層疊一層大約有30包水泥包，估計大約有10尺高，而水泥包不是直接放在地上，而是放在預先已搭建的平台上，平台與地面距離約一尺。老闆阿志吩咐我的工作就是需要將帳篷內的水泥包搬運到下處". (emphasis supplied)

(4)  It was said in their Cheung and Lau's witness statements that, prior to the accident, they had never been informed by P of any difficulties or problem in performing the task of transporting cement sacks, nor had there been any prior incidents similar to the accident at the Site. They even said in their witness statement that no one had required or instructed P to climb up and stand onto the pile of cement sacks in order to pass cement stacks to his co-worker.

(5)  These matters cannot constitute a valid defense to the claim for breach of statutory duty in this case. In my judgment, each defendant has a  non-delegable duty under the relevant governing regulation(s) to ensure their compliance so far as was reasonably practicable (for more detailed discussion, see paragraphs 69 to 71 below).

(6)  The Ds' two witness statements also stated that P had attended safety induction training provided by D3, which included explaining safe manual operations and seeking assistance from supervisors and co-workers if encountered any difficulty in performing. On balance, this Court would not take such evidence on its face value, and the attendance and training record (in Chinese) exhibited to Mr Cheung's witness statement did not show there was such specific training or instructions given.

(7)  In any event, even assuming purely for the sake of argument but not the otherwise such training or instructions was given, this could not absolve Ds positive duty to comply with the statutory regulations.

(8)  In this regard, Gleeson NPJ's observation made in HKSAR v Gammon Construction Ltd (2015) 18 HKCFAR 110 (at para 21) about the non-delegable nature of s.6A of the FIUO is equally instructive here:-

“21. In a case where a worker has been injured, and the circumstances of the accident are relied upon as evidence of a breach of s.6A, negligence on the part of the worker is not of itself an answer to the charge. The duty to ensure safety, qualified as it is by reference to reasonable practicability, extends to protect workers who fail to take reasonable care for their own safety. In the present case a line of argument pursued at trial and on appeal was that the case went far beyond mere negligence, and that the worker, regrettably, was entirely the author of his own misfortune. That argument failed on the facts." (emphasis supplied)

(7) In this case, P testified (and this Court accepts) that he adopted the subject method by climbing to the top of the piled-up cement sacks to perform the assigned task after discussing with Ali to come a conclusion that it was the only way to carry out D1's orders given the lack of proper equipment. Importantly, Ds indicated to the Court at the commencement of the trial that they would not contend there was any contributory negligence on P's part in bringing about the accident.

41.  Given the above primary facts (as found by this Court) and after carefully reviewed all the evidence, this Court would draw a reasonable inference that D1's key personnel, Ah Chi, had known and ought to have known that the cement sacks had been piled up to a height which was beyond the reach of P when he was standing on the ground, and there was no adequate tool (such as an appropriate mobile working platform) provided to enable him to reach and work at a height, to carry out the assigned task safely.

42.  But as soon as he climbed to the top of the piles of cement sacks to carry out the assigned work, the hazardous conditions instantaneously arose.

43.  In light of the above analysis, I have no hesitation to find that not only D1 (qua P's employer) was breach of its common law duty of care as owed to P, but it would also be in breach of its statutory duty under Reg 38AA(2), by failing to ensure, so far as is reasonably practicable, that P was provided with suitable and adequate means of access (such as a mobile working platform) to reach an elevated position to carry out the assigned task safely, and such breach had also caused or materially contributed to the happening of the accident.

Whether the reasonable practicability requirement is met vis-a-vis D2/D3?

44.  In Gammon (supra), Gleeson NPJ at paras 25 and 26 explained the meaning of the phrase “so far as is reasonably practicable” in s.6A of the FIUO (which is the same legal test built into Regs 38A(2) and 38AA(2)), quoted as follows:-

“25. There are many authorities, all substantially to the same effect, which recognise that, in considering reasonable practicability, a court may have regard to the need to balance the likelihood of risk against the cost, time and trouble necessary to avert the risk. In so doing, regard will be had to what was known at the relevant time. In Marshall v Gotham Co Ltd, Lord Keith said that what is called for is an assessment of the situation at the material time.

26. I would stress also what Lord Reid said in Marshall v Gotham Co Ltd:

I do not find it helpful to consider whether this statutory duty is in every case the same as an employer’s common law duty. I think it enough to say that if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men’s lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable." (emphasis supplied)

Ds' statutory duties under Reg 38A (2) and Reg 38AA(2)

45.  Under Reg 38A(2) and 38AA(2), P is entitled to the statutory safety protection as afforded to him that he be provided with such safe access at the material time, yet D1 (and D2 and D3 also) adduced no evidence to explain why it is not reasonably practicable to provide such access to P on the date of the accident. There is no evidence of any adequate equipment (including any appropriate mobile working platform) being available at the site ready for P's use at the time.

46.  The overall evidence before this Court indicates that a mobile working platform (being a basic, low‑cost measure) was prima facie necessary and suitable to enable P to reach and work at a height safely under the then working conditions. This is reinforced by the fact that P fell from the top of the piles of cement sacks to the side where Ali was working, and landed on "even driveway floor surface"[11], where such location could prima facie have been used for placing a mobile platform. There is no evidence that such a platform was readily available nearby, nor he had been given any prior instruction to locate one himself upon encountering the situation.

47.  If D1 (and likewise D2 and D3) wished to contend that it was not reasonably practicable to provide a mobile platform at the material time, it was incumbent upon them to adduce evidence explaining why. The Court would assess the state and quality of the evidence from both sides in determining whether the reasonable practicability test is met in the circumstances.

48.  But all three Ds did not call any witness to testify why it was not reasonably practicable for them to do so. Even according to the Ds' two witness statements as admitted by this Court as hearsay evidence, they did not mention what reasonable positive steps have been taken by D2 and D3 to ensure the compliance of Reg 38A(2) and Reg 38AA(2).

49.  Having considered the totality of the evidence, this Court is satisfied that with respect to D2 and D3, it was reasonably practicable for both of them to ensure that suitable and adequate safe access was provided and maintained for P to reach a height as required for carrying out the construction work concerned at the material time, but they have failed to do so. Insofar as may be necessary, after considering all the evidence and how they were presented, this Court is entitled to and would draw the adverse inference against Ds that any witness from their side, if called, to testify on this issue would not be helpful to advance their case.

50.  In these circumstances, I find D3 is in breach of Reg 38A(2) and D2 and D3 are in breach of Reg 38AA(2) in the circumstances, and each of the breaches was causative (at least materially contributing) to the occurrence of the accident.

51.  This Court is satisfied that, had the safe access as required under these two statutory regulations been provided to P, he could have avoided climbing to the top of the piles of cement sacks to carry out the task by stepping on the cement sacks at the lower level (which course was obviously dangerous and could not serve as a safe means of access), but he could have stood on the mobile working platform safely to reach a height to perform the task instead.

52.  In Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768 (a House of Lords' decision)[12], the appellant’s husband, an experienced steel erector, sustained a fatal accident after falling 22 feet from a ladder while repairing wire netting beneath an aerial ropeway in the respondents’ factory. Although he was a chargehand responsible for general repairs, there was no evidence that he had previously undertaken this type of work or received any instruction on the correct method or materials to use. It was just left it to him to carry out the work in his own way. The court accepted that the proper and safe equipment for the task was a movable platform, but there was no evidence that such equipment was available.

53.  The appellant alleged breach of s.26(1) and (2) of the Factories Act 1937 as amended by Factories Act 1959[13], arguing that the respondents failed to provide safe means of access and a safe place of work. The respondents denied liability, contending that the deceased, as chargehand, was responsible for the method adopted and that the accident was caused solely by his own negligence.

54.  The trial judge found breaches of statutory duty but dismissed the claim, holding that the sole cause of the accident was the deceased’s decision to use a ladder. The Court of Appeal upheld that view, treating the deceased’s fault as coterminous with the respondents’ breach.

55.  The House of Lords allowed the appeal. It held that the respondents’ breach caused the accident, that the deceased could not be treated as an expert in this type of work, and that responsibility should be apportioned two‑thirds to the respondents and one‑third to the deceased, with damages to be assessed accordingly.

56.  In this Court's view, the House of Lords' decision in Ross is applicable to the present case in several respects.

57.  Firstly, the breach of statutory duty imposed under the Factories Act also concerned, among other things, with safe means of access to place of work be provided and maintained 'so far as is reasonably practicable', which statutory wordings and purposes behind for the protection of workers' safety are similar to our present case.

58.  Secondly, Lord Reid's reasoning when commenting on the correctness of the trial judge's finding of the defendant's breach of statutory duty is also pertinent here:-

“...Before I deal further with the facts I must note that both the respondents and Lloyd Lawrence, who appeared as defendants at the trial, elected to lead no evidence and to rely on a contention that the appellant's evidence was insufficient to prove her case. They were quite entitled to do that but they cannot complain if in those circumstances the most favourable inferences are drawn from the appellant's evidence of which it is reasonably capable.

Boss and Boughen were both skilled steel erectors, Boss being a chargehand. It appears to me to be a proper inference from Boughen's evidence that the respondents' chief engineer simply gave instructions to Boss to make the ropeway safe, and left it to him to carry out the work in his own way. Certainly Boss was entitled to use any equipment he could find in the factory. But, again, I think that it is a proper inference from Boughen's evidence that there was no available equipment except a long ladder. It can be inferred that Boss was entitled to go to the chief engineer and ask for other equipment but there is nothing to show that he had received any instructions or encouragement to do that; and it is to be noted that this case was fought by the respondents on the basis that a ladder was perfectly safe for this job if a safety belt had been used, tout that was disproved. Moreover, the evidence was that this was an unusual type of work for steel erectors; Boughen had never done it before, and we do not know whether Boss ever had.

What happened was that they began to work outwards from one of the pylons by putting boards on the netting. But after a time they could not use that method any longer and the question was what to do next. Boss and Boughen discussed the matter. Boughen said "it was not just a question of 'We had better do it with a ladder,' it was a question of 'We cannot do it from the pylon, we had better find another way of getting up there.' Later he said that using a ladder was the best "we could do at the moment," and added " we discussed various ways we thought we could do it, but the conclusion we arrived at was this was the only thing we could use at that moment to do the job." (emphasis supplied)

59.  Thirdly, the HL's approach in Ross towards the question of causation vis-a-vis the breaches of relevant statutory duties of the Factories Act is likewise instructive here.  

60.  Lord Guest at p.781 said:-

“... In the present case there was an obligation under section 26 upon the respondents so far as was reasonably practicable to make safe the working place of the deceased. According to the findings of the learned judge the working place was not so far as was reasonably practicable made safe, and this was a cause of the accident. The respondents cannot escape liability by saying, as they do, "You worked in a place which was obviously unsafe. You cannot therefore recover." If this were available as a defence to employers under section 26, it would very largely defeat the purpose of the section because they would have a complete answer to every action brought under section 26 (1)—"You chose an unsafe working place." Upon the findings of the learned judge I have little difficulty in finding the necessary causal connection between the breach of the section and the accident....Before I deal further with the facts I must note that both the respondents and Lloyd Lawrence, who appeared as defendants at the trial, elected to lead no evidence and to rely on a contention that the appellant's evidence was insufficient to prove her case. They were quite entitled to do that but they cannot complain if in those circumstances the most favourable inferences are drawn from the appellant's evidence of which it is reasonably capable..." (emphasis supplied)

61.  By parity of reasoning, it is likewise impermissible for D3 to deny liability under Reg 38A(2), nor D2 under Reg 38AA(2) wholesale by contending that "there is no evidence suggesting D2 and/or D3 knew of the operation (i.e. standing on the cement packs to move the packs without tools) inside the tent. In fact, evidence suggests that they could not have had such knowledge. Such way of moving packs was something “designed” by P and Ali themselves on that day of the Accident" (as stated in Ds' Closing Submissions, at para 24).

62.  Notably, this contention was raised expressly only under “common law negligence” in the Defendants’ Closing Submissions. However, as D2/D3 in their Supplemental Closing Submissions put P to strict proof on breach of statutory duty and causation, this Court considers it appropriate, for completeness, to address here such contention (set out in para 61 above) also.

63.  According to Ross, any argument of Ds saying that the way of moving packs was something designed by P and his co-worker themselves to excuse their liabilities under Reg 38A(2) (for D3) or Reg 38AA(2) (for D2 and D3) cannot get off the ground given this Court's finding that the each individual breach of these regulations, was materially contributing to the happening of the accident.

64.  Evidentially speaking, it is insufficient for D2 or D3 to merely assert a lack of knowledge regarding the operation; they must adduce evidence to substantiate such a contention. The weight of the evidence currently before the Court does not support such position and, in fact, suggests the contrary.

65.  Mr Wong submits that the accident occurred inside a “tent” such that those outside could not see what was happening inside. With respect, I cannot agree.

66.  There is no evidence regarding the specific design of this "tent" or specifically, whether all sides were obstructed by canvas. Notably, the cement mixer was in close proximity. According to P’s testimony, Ali had to receive cement sacks from him, open them and pour the cement into the mixer.

67.  There is a lack of evidence concerning the mixer's size or its orientation relative to the tent. If all the canvas sides were lowered, it is unclear how Ali could have efficiently transported the cement sacks to the mixer. Furthermore, a crane was utilized to replenish the cement piles (see paragraph 39 above). It is difficult to conceive how such crane operation could be conducted if the tent were fully enclosed: an assumption for which, in any event, there is no evidence before this Court.

68.  Importantly, D2/D3 are not facing here with a common law negligence inquiry (which was disposed in paragraph 8 above). Therefore, even assuming, purely for argument’s sake but not the otherwise, that they genuinely lacked knowledge at the time, such absence of knowledge can in theory be due to no fault on their part, or can equally be consistent with their having fault in compliance with the statutory duties.

69.  Further, if D2 and/or D3 had in reality fully entrusted their respective duties under Regs 38A(2) and/or 38AA(2) to D1, neither of them can escape liability but merely saying that that they had already selected a "competent" contractor, D1, and delegated their duties to it to ensure their compliance. This is because the statutory duties so imposed are non‑delegable.

70.  In this regard, in Charlesworth & Percy on Negligence (16^th ed), the learned editors while discussing on defences to breaches of statutory duties provided a commentary at para 13-105 thus:-

“13-105 Delegation of duty Lastly, it remains to be considered whether delegation of duty can be a defence in the light of the general principle that, if a duty has been cast on a person to perform, he or she cannot escape responsibility for seeing to its performance by employing an independent contractor. Obviously, if there is a breach of statutory duty, it will not be a defence that a contractor was employed to fulfil it, unless delegation itself can be regarded as a fulfilment of the obligation, which, in turn, depends upon the true construction of the statute concerned." (emphasis supplied)

71.  In this Court's view, Regs 38A and 38AA given their statutory objective to afford comprehensive protection for construction site workers concerning the aspect of safety of places of works, would also preclude the escape route by delegation. Otherwise, the utility of the regulations would be seriously undermined. Nothing in the CSSR provides that delegation can be regarded as fulfilment of these statutory obligations.

72.  Lastly, for the sake of completeness, D2 and D3 cannot rely on an alleged "absence of knowledge" to argue that the site operation in question was not reasonably foreseeable, thereby making compliance with Reg 38A(2) and (3) and 38AA(2) and (3) not reasonably practicable.

73.  If the defendants intended to mount a defence asserting that P’s claim for breach of statutory duty is not maintainable on these grounds, they were required to specifically plead so under Order 18 rule 8 of the RDC, but they failed to do so. In any event, the evidence before this Court is plainly insufficient to support such a contention, if made.

D2/D3's statutory duties under Reg 38A (3) and Reg 38AA(3)

74.  Regarding the statutory duties under Regulations 38A(3) and 38AA(3), P's testimony (which this Court accepts) is that he and Ali had been working for about an hour since the resumption of work at 1 pm (after lunch break), and the accident happened around 2 pm[14].

75.  Upon careful consideration of the evidence, I find a prima facie case established that had D2/D3 deployed sufficient safety officers, commensurate with the size of the site, to conduct proper and adequate patrolling during this interval, they would have enough time, and hence it would be reasonably practicable for them, to identify and rectify the hazardous conditions under which P was working atop the cement sacks.

76.  I have not lost sight that Mr. Cheung and Mr. Lau stated in their witness statements that Ds' safety officer(s) and foremen conducted regular patrols and inspections to ensure working environment was in a reasonably safe condition, and that workers were working safely, and they would immediately reprimand workers for unsafe practices[15]. Yet, Ds selected not to call these witnesses to testify at trial. This Court would not take such hearsay evidence on its face value.

77.  In particular, I see no credible explanation proffered from D2/D3 for not calling these two witnesses, if their evidence in truth would indeed be helpful to advance their case to defend P's claim for breach of statutory duty (under the CSSR) against them. Consequently, after carefully considering all the evidence, this Court draws an adverse inference against D2 and D3 on this issue, and finds that it would have been reasonably practicable for both of them (through proper and sufficient patrolling by their safety officer(s) and/or foremen at the site) to identify the hazardous conditions (under which P was subject at the site) during that approximately 1 hour period, but they had failed to do so.

78.  Further, on this basis, the Court finds that D3 is breach of its statutory duties under Regulations 38A(1) and (3), and D2 and D3 are in breach of their respective duties under Regulations 38AA(1) and (3), and each of the breaches was causative (in materially contributing) to the happening of the accident.

79.  In this Court's view, had such patrolling been conducted, the hazardous conditions which P was subject to at the material time, more likely than not, could have been identified and then rectified in time by stopping P from continuing to gain access to the top of the piled-up cement sacks, thereby avoiding the accident.

Authorities relied on by Ds to contend no breach of the CSSR

80.  Two authorities were cited by Mr Wong and Ms Sui : (1) Chan Wai Fai v Sun Luen Scaffolding (a firm) (unrep, HCPI 356/2000, 12/6/2001); and (2) Nguyen Van Vinh v Cheung Ying Construction Engineering Ltd and Another (HCPI 1173/2004, 27/05/2008) as instances were the courts rejected claims basing on breach of the CSSR regulations.

81.  Needless to say, each case has to be decided in its own merits. In my view, the material facts of these two authorities are wholly different from the present case.

82.  In Chan Wai Fai, the trial judge found no breach of Regulation 38A primarily because the plaintiff, a veteran "master" scaffolder, acted on his own initiative and took a unilateral risk by climbing an asbestos roof for an unnecessary inspection, for which the court held him wholly responsible.

83.  In stark contrast, no issue of CN was taken, nor any fault was established against P in the present case. Rather, I find P was effectively forced to work under unsafe working conditions, as materially contributed by, among other things, D2 and D3's failure to comply with their respective statutory duties as discussed above.

84.  Regarding Nguyen Van Vinh, its facts are wholly different. In that case, the trial judge held that the specific work (removing nuts and bolts) was not legally "caught" by Regulation 43 of the CSSR. Since the work fell outside the type of activities defined by that regulation, no statutory duty to provide goggles existed in that case. On the contrary, this Court has explained in detail why the regulations of the CSSR under consideration are engaged.

85.  Lastly, apart from the aforesaid, I have also considered all the other hearsay evidence contained in Mr Cheung and Mr Lau's witness statements, and all the other authorities and submissions from Mr Wong and Ms Sui, they cannot advance D2/D3's case any farther in defending P's claim basing on breach of statutory duties under the CSSR. With respect, they are largely tangential, neither here nor there, or are otherwise effectively addressed by way of the foregoing analysis. It is therefore unnecessary for this Court to list out and deal with each of them separately, so as to avoid unduly lengthening this judgment.

86.  In the premises, in light of this Court's above findings of the D2 and D3's breaches of their respective duties under Reg 38A(2) and (3) and Reg 38AA(2) and (3) of the CSSR, thereby causing or materially contributing to the happening of the accident, they are all civilly liable to compensate P's damages suffered as a result. See Rainfield Design & Associated Ltd v Siu Chi Moon (2000) 3 HKCFAR 134.

87.  Due to the above reasons, this Court finds that all three Ds are liable to P's claim herein accordingly.

88.  In light of the aforesaid, it would be unnecessary for this Court to further deal with P's claim based on the OLO.

Quantum

89.  Following the accident, P was taken by ambulance to the Accident & Emergency Department ("A&E Dept") of Queen Elizabeth Hospital (“QEH”). The A&E Dept Notes documented his report of lower‑back and left hip/thigh pain after falling from height and landing on his buttock and back, and diffuse pain at left thigh[16].

90.  Examination revealed tenderness over the lower back, left hip and thigh (with remarks of decrease in ROM shown for lower back/buttock area, and his left leg). X‑rays of the lumbar spine, pelvis and left hip showed no fracture.

91.  He was admitted to the orthopaedic ward with a diagnosis of back and left hip/thigh injuries. During admission, physical examination noted lumbar‑spine tenderness and motor weakness of the left lower limb. He received analgesics and physiotherapy and was discharged on 20/6/2019, having been hospitalised for 21 days.

92.  On 26/6/2019, P began to receive physiotherapy at Pok Oi Hospital (“POH”), completing 12 sessions over 23 weeks and the last session treatment was done on 9/12/2019.

93.  On 6/7/20219, an MRI of the lumbosacral spine was performed at QEH[17], and it showed mild disc bulging at L3/4 and L4/5 and no significant spinal stenosis, nor nerve root impingement was evident.

94.  On 6/8/2019, he was examined by Dr Tse Kwan Yiu Derek of the Department of Oral Maxillofacial Surgery & Dental Unit of QEH, and diagnosed to have subluxation of four teeth at (a) upper right lateral incisor (12); upper right central incisor (11); upper left central incisor (21) & upper left lateral incisor (22). Though there was no mandibular fracture.[18]

95.  On 21/11/2019, P continued to suffer low back pain, with persistent tenderness and left leg motor weakness, and was ambulating with two elbow crutches. An MRI performed on the same day revealed[19]:-

(1)  Mild lumbar spondylosis with mild lumbar scoliosis;

(2)  Mild retrolisthesis of L3 on L4 and L4 on L5;

(3)  Small posterior annual tear at L3/4 and L4/5;

(4)  Moderate bilateral recess narrowing at L4/5 with encroachment of both descending L5 roots;

(5)  Severe bilateral exit foraminal narrowing at L4/5 with mild compression of bilateral descending L4 roots.

96.  Between 17/12/2019 and 15/5/2021, P consulted a private doctor, Dr David Ip for 25 times, it was documented in Dr Ip’s medical record that P had inflamed lumbosacral tissues and left‑knee symptoms. On 15/5/2021, MRI scans of the lumbar spine and left knee were performed again.

97.  P was granted sick leave by QEH treating doctors from 31/5/2019 to 18/12/2019[20], and another period between 12/3/2020 and 1/4/2020.

98.  Apart from the aforesaid sick leave, Dr David Ip also issued sick leave certificates to P basically from 17/12/2019 up to 29/10/2021[21]

99.  On 12/4/2021, P was medically examined by both parties' orthopaedic experts: Dr Wong Chin Hong (for P) and Dr Ko Put Shui Peter (for Ds), with a joint orthopaedic expert report issued on 4/9/2021 (“JOR”).

Analysis of P's medical conditions

100.  Having carefully considered all the medical evidence before this Court (in particular the two experts’ opinions), and also the parties’ submissions on the same, including Mr Wong’s submissions attacking P’s credibility on the complaints of his injuries, and Miss Cho’s submissions in response on these matters, this Court finds that P had exaggerated his symptoms in relation to his lower back and left knee at the time of joint examination, and I do not find such complaints about his symptoms reliable.

101.  However, on the other hand, this Court would prefer to assess P's medical conditions according to the available objective medical documents/evidence (including those identified in paragraphs 89 to 97 above) with the assistance of the experts' evidence, and make the necessary findings, on balance of probabilities, accordingly.

102.  Overall speaking, for reasons as shall be further explained below, this Court prefers Dr Wong’s expert opinion to Dr Ko’s, in case the two experts have disagreement on any particular issue, unless otherwise stated.

103.  On this basis, after carefully considering all the evidence and counsel's submissions before me, I find that P did suffer injuries at his low back, left lower limb (including left knee pain), and subluxation of four teeth at his upper jaw, as a result of the accident.

Low back injury

104.  Dr Wong opined that P suffered soft tissues contusion/sprain injury to his low back and left buttock/hip. Dr Ko actually had no qualms with that. What the two experts actually differed was on their interpretation of the impact of the injuries on his degenerative lumbar spine. Dr Wong categorically stated his opinion that the traumatic fall from 10 feet height could have precipitated/aggravated the annular tear noted on the MRI scan[22].

105.  In Dr Wong's opinion, the pre-existing degenerative changes were mild and could remain asymptomatic but for the accident.[23] Upon closer reading, Dr Ko did not really differ much from Dr Wong on this point, noting at p.147 of the JOR where he said that “[h]owever, suffice to say, the degenerative changes of his lumbar spine could already account for Mr Sultan’s symptoms and complaints of low back region.”, while casting no doubt over P's claim (as stated in the earlier part of the report) that he had no previous history of any injury, problem or symptoms related to his low back region[24].

106.  On balance, by taking a common sense approach towards the issue of causation and carefully considering all the medical evidence, I find that the medical conditions of P's low back since the accident (as accepted by this Court) has been, more likely than not, caused by the contusion injury to his low back region at the time, and the aggravation of his pre-existing asymptomatic degenerative lumbar spine being rendered symptomatic by the accident.

107.  In Lok Kwok Fai  v Ngan Cheung Wah [2003] 1 HKLRD 82, DHCJ Barma SC (as he then was) in addressing the question of causation (at paras 18 to 21) adopted the ratio in Lee Kin Kai v Ocean Tramping Co Ltd [1991] 2 HKLR 232, in which the Court of Appeal held that causation was a matter to be determined by the judge using a common sense approach when applying the standard of proof on a balance of probabilities to facts and the medical expert evidence.

108.  As for the nature and degree of such degenerative condition, after carefully considering P's condition (both before and after the accident) together with MRI and X-rays results of the lumbar spine, this Court would tend to think P's case ought to fall within scenario (ii) as referred to in Chan Kam Hoi v Dragages Et Travaux Publics [1998] 2 HKLRD 958.

109.  Having said that, given the relatively mild degenerative changes of P's lumbar spine as evidenced, in particular, by X-rays taken by the two experts who commented that they revealed "minimal degenerative changes" with preserved disc spaces[25], Dr Wong's estimate would appear reasonable in opining that P would be able to continue working as construction worker for another 10-15 years without developing low back pain severe enough to affect his work but for the accident[26]. On the other hand, I do not find Dr Ko's view too convincing in suggesting that "the alleged accident might have had advanced his condition by ~ 4 to 5 years"[27] without much articulation to explain why it was so. Especially, P was relatively young (at the age of 38 only) at the time of accident. In these circumstances, I prefer Dr Wong's expert evidence in this regard, but do not accept Dr Ko's opinion.

Left knee injury

110.  Mr Wong urged this Court to accept Dr Ko’s opinion there was no left knee injury suffered by P as a result of the accident. With respect, I disagree.

111.  Dr Ko did comment at p 19 of the JOR to the effect that all contemporaneous medical records from the AED, O&T and Physiotherapy departments at QEH consistently documented only complaints of low back pain, with no mention of any left knee symptoms or injury. Throughout the entire treatment period from 26/6/2019 to 9/12/2019, P’s only problem was low back pain. But that cannot be correct. The left knee issue was clearly documented in the medical record from the start:

(1)  In the A&E Department Notes dated 31/5/2019, a diagram was drawn therein showing the tenderness extended from thigh to the upper portion of lower leg (covering the left knee)[28].

(2)  As Ms Cho rightly pointed out, in QEH’s Progress Note dated 31/5/2019, there was a remark of P's complaint that “back pain radiating to left thigh and knee afterwards”, “left knee no local tenderness/swelling/bruise, limited by AROM[29] due to pain”[30]

(3)  Ms Cho also drew this Court’s attention to the Physiotherapy Musculoskeletal Assessment Form (print out date: 17/9/2019), according to the assessment done on 26/6/2019 by the physiotherapist, there is a record “F[31] limited, knee only able to bend ~40 then pain++”.[32]  On the next page, it was recorded: “Lx rotation and knee flexion ex as pain initiated (to the range of ~NPRS 4/10)” ie indicating that P’s lumbar spine rotation and knee flexion exercise at home was likely stopped or limited when pain began.

(4)  In the Progress Note dated 17/9/2019, there is a further record of remark that “[p]ain level similar painful at sacral area, also new left knee pain this 2 weeks: NPRS 8-9/10”. In the O&T’s Consultation Summary dated 26/9/2019, P was recorded to have complained: “not tolerated mobilization ex in sitting due to pain over coccygeal region, sacral pain, and knee pain.” And, there was a documented examination result: “knee joint line tenderness, ROM limited by pain:.[33]

(5)  In the Radiological Examination Report dated 7/11/2019, the reason for referral for the procedure was stated to be “IOD LBP and knee pain”.

112.  Against such unchallenged and objective contemporaneous medical record documenting P’s left knee pain since the accident, this Court would prefer Dr Wong’s opinion that P could also have soft tissues contusion/sprain injury to his left knee when he fell from height[34]. On balance of probabilities, this Court finds that P's left knee pain and related problems as documented in the aforesaid medical records was caused by the accident.

113.  That notwithstanding, regarding the left knee condition as appeared in Dr Ip's medical record, it would appear doubtful why the condition would suddenly deteriorate to such degree documented by Dr. Ip, especially as his records consistently report both an inflamed left knee[35] and an inflamed spine[36] between December 2019 and May 2021.

114.  Given that both experts are largely in consensus that these records are unreliable, this Court would accord them little weight in assessing P’s residual low back and left knee conditions.

115.  On the issue of causation of the partial tear in the ACL and tear in the medial meniscus noted on MR1 of his left knee taken 2 years after the accident, even according to Dr Wong, it is unclear if they were caused by the accident, especially noting the absence of obvious inflammatory sign over his left knee according to the X-ray done on 26/9/2019. On balance, this Court is not satisfied that P can discharge his burden to prove that the conditions as appeared in such MRI was caused by the subject accident.

116.  This Court also finds that the overall objective medical evidence do not support the need of P to use wheelchair for ambulation by the time he was examined by the two experts in April 2021 (nearly two years after the accident). Even Dr Wong, his own expert, pointed out that his condition should improve to the state that he would be ambulate without assistant, and he would not have major difficulty with the activities of his daily living[37].

117.  In light of the aforesaid, I accept Dr Wong's expert opinion that P could have sustained soft tissues contusion/sprain injury to his left knee when he fell from height. After carefully counsel's submissions against the objective medical evidence as accepted by this Court and by taking a common sense approach in assessing the evidence, I find, more likely than not, P did suffer such injury as a result of the accident. Likewise, it is observed that there is no evidence he had suffered any problem with his left knee before the accident, and the knee pain and other issues already occurred soon after his admission to hospital as illustrated above.

118.  Having given due regard to the two experts' opinions in the JOR in light of the above findings, this Court is of the view that P's low back and left knee conditions ought to have stablised around the end of December 2019[38].

119.  On this basis, while these conditions of P should improve enough to allow unassisted walking, this Court accept Dr Wong's opinion that these symptoms are unlikely to resolve completely. Taking a balanced view over the objective medical evidence as accepted by this Court in light of the above analysis, I would think that P would still have residual pain on exertion at his low back (as caused by the accident which has aggravated/precipitated his asymptomatic pre-existing annular tear condition to make it become symptomatic)[39]. Additionally, P would also suffer from persistent left knee pain during prolonged walking/standing, as sequelae of the soft tissue sprain and contusion injury to his left lower limb, but only to the extent of such degree of impairment as assessed by Dr Wong.

120.  Regarding the experts’ assessments of the percentage loss of whole person impairment (WPI) of P:

(1)  Dr. Wong assessed a total WPI of 5% for the low back (applying a 40% apportionment to pre-existing degenerative changes) and 2% for the left knee (with no apportionment required), hence the resultant WPI as attributable to overall residual disabilities (after apportionment) is about 5% according to Dr Wong[40].

(2)  Dr. Ko assessed a significantly lower WPI of 1% for the low back (applying a 50% apportionment to pre-existing conditions) and 0% for the left knee, opining the latter was unrelated to the accident.[41]

121.  In light of the above analysis, I also prefer Dr Wong's assessment of WPI of P.

122.  In addition to the aforementioned injuries, this Court also find on the overall evidence that, more likely not than, P suffered the subluxation of four teeth during the accident. However, the objective medical evidence regarding the severity of the subluxation and any lasting adverse implications remains limited and vague.

PSLA

123.  P claims HK$380,000 for PSLA. Ds proposed an award of HK$100,000, but reduced to a net sum of HK$50,000 after applying their contested discount of 50% for the pre-existing lumbar spine condition.

124.  The authorities submitted by Ms Cho are : (1) Chan Lok Hang v Swire Resources Ltd [2018] HKCFI 1463; (2) Tang Siu Tung v Sunbase International Properties Management Limited [2021] HKDC 543; (3) Wong Bik Chuen v Hua Min Tourism Automobile [2011] HKDC 21; (4) So Sau Man v Leung Ming Kwok & Another [2005] HKDC 202.

125.  The PSLA authorities relied upon by Mr. Wong and Ms. Siu are all involving soft tissue injuries to the lower back: (1) Bin-Yamin v Chuen Ho Construction & Engineering Company [2022] HKDC 747; (2) Yip Mau Kei v Wong Kam Tim (unrep, DCPI 1905/2013, 10/02/2015); (3) Tamang Udas v Global Sunny Engineering Limited (unrep, HCPI 732/2011, 07/01/2013); (4) So Chi Keung v Hospital Authority [2021] HKDC 1246.

126.  In short, I find the injuries suffered by P to be significantly more serious than those in the authorities cited by Ds. In particular, P’s lower back injury resulted from a high-energy fall from height. In contrast, the Ds' authorities largely involve accidents of lower energy: Bin-Yamin and Tamang Udas concerned back sprains from pushing or lifting heavy objects; Yip Mau Kei involved spraining back injury in a rear-end taxi collision; and in So Chi Keung, the plaintiff hit a bedside cabinet after losing balance while handling a patient.

127.  Having considered and comparing the authorities on PSLA submitted by counsel and all the relevant circumstances of the present case, in particular, the nature and extent of P's overall injuries, and the residual disabilities of P resulting from the accident, the Court finds an appropriate award to be HK$250,000 (before applying any discount for his pre-existing lumbar spine condition).

Appropriate discount to apply for PSLA

128.  Mr Wong submitted that the disagreement between the experts on apportionment for pre-existing conditions is 10% only: Dr. Ko proposes 50%, while Dr. Wong suggests 40%. He urged this Court to adopt Dr. Ko’s assessment to make a 50% discount to PSLA, if not, 40% according to Dr Wong's apportionment.

129.  As indicated above, this Court accepts the apportionment made by Dr Wong (instead of Dr Ko's) for P's lower back pre-existing condition.

130.  That said, it would be incorrect to translate Dr. Wong’s pathological apportionment directly into a percentage discount for the PSLA award. The two operate on different logic.

131.  While Dr. Wong’s 40% apportionment reflects the pre-existing condition's contribution to P’s current medical impairment, it must be noted that this condition was rendered symptomatic only by the accident. The evidence before this Court confirms that, prior to the accident, P’s lumbar spine was entirely asymptomatic.

132.  In 鍾玉珍 對 嘉頓有限公司 [2024] HKDC 260  (at paras 58 and 59), I held that the assessment of apportionment is not a matter approached by scientific methodology. While medical experts provide guidance on impairment from a clinical perspective, the final determination of the legal discount remains a matter of judicial discretion. This requires a holistic evaluation of the evidence to ensure the award fairly reflects the reality of the plaintiff’s loss and damage suffered as attributable to the defendant’s fault.

133.  Having reviewed the matter in the round against the totality of the evidence, particularly the relatively mild nature of the pre-existing lower back condition and Dr. Wong’s opinion that P could have continued working for another 10 to 15 years but for the accident, I consider a 15% discount to the PSLA award is appropriate.

134.  Accordingly, P is granted a net PSLA award of HK$212,500.

Pre-trial loss of earnings and MPF benefit

135.  The parties are on common ground that P's monthly salary at the time of accident was HK$19,200.

Loss during reasonable sick leave period

136.  Since Dr. Ko's opinion on the appropriate period of sick leave would appear to be more reasonable than Dr. Wong’s in light of the above analysis, this Court allows P’s loss of earnings and MPF benefit for a total of period of 7 months from the date of accident till around the end of December 2019 (as given rise by reasonable sick leave period), which is quantified thus:-

HK$19,200 per month x 7 months x 1.05 = HK$141,120 (I)

Whether P is fit to resume his pre-accident job as construction site labourer

137.  Ds contend that since P is fit to resume his pre-accident job duties as construction site labourer, he would suffer no further loss of earnings after the expiry of the reasonable sick leave period.

138.  Accordingly, this Court is required to determine whether this is really so, and if this Court is not with Ds, to assess the extent of loss of earnings and MPF benefits that ought to be awarded to P.

139.  While Dr Ko opines that P should have been able to resume full duties by late 2019 without significant impairment of work efficiency or effectiveness[42], that assessment does not sit well with the practical demands of P’s pre‑accident job. Dr Wong, for his part, considered that if P wants to return to work at construction site, he would need to modify his work to avoid repeated heavy lifting (e.g. loads over 5 kg) and take frequent rest breaks from standing or walking (e.g. every 30 minutes). But in this Court's view, this is in substance another way of saying that P is unfit to resume his pre‑accident duties unless the job can be materially modified to accommodate his residual limitations.

140.  While I have reservation about the frequency of rest intervals suggested by Dr Wong (particularly in light of this Court’s findings on P’s residual knee condition), I nonetheless accept his view that, given the present state of P’s lumbar spine and the significant impairment he assessed, P ought to avoid heavy lifting, even without adopting a weight limit as low as 5 kg, it would appear obvious to this Court that lifting and carrying cement sacks of 45 kg each, a task not uncommon in construction work, would pose a highly hazardous risk to P’s current lumbar spine.

141.  Viewed thus, P's pre-accident job required frequent lifting and carrying of heavy construction materials, would place immense stress on his lower back upon resumption of such work. In my judgment, quite regardless of any symptom magnification, the objective history of a high-energy fall that already precipitated the pre-existing annular tear into a symptomatic state and carries with it significant residual exertional pain (as opined by Dr Wong which this Court accepts), this would really make it unfitting for P to manhandle heavy construction materials daily.

142.  In Tsang Chiu Yip v Ho Kwok Leung (unrep, HCPI 305/2013, 29/2/2016), Marlene Ng J underscored the necessity of considering the factual and practical realities of a plaintiff's pre-accident job demands. The crucial concern in that case was the plaintiff’s ability to lift and carry heavy weight, despite the Court finding the plaintiff had suffered only soft tissue injuries to the low back/waist[43], with MRI scans also showing no nerve root compression.

143.  Notwithstanding the learned Judge's finding that the plaintiff's residual condition was generally mild characterized only by occasional discomfort, and the two medical experts suggested the plaintiff could resume work with either "lower efficiency" or "slight impairment,"[44] the Court ultimately held that the plaintiff was unfit to return to his pre-accident job, which imposed daily heavy physical demands of lifting and manual transport.

144.  At para 135 of Tsang Chiu Yip, Her Ladyship held that:-.

“... I have found P had exaggerated his symptoms/disabilities, he could negotiate stairs with ease, and he had better standing/sitting/walking tolerance than he would have let this court believe. I accept Dr Lee’s view that P’s residual condition was generally mild with occasional pain/ discomfort. But in considering whether he could return to his pre-Accident work on full-time (not work-trial) basis, the crucial concern was P’s ability to lift and carry heavy weights. As explained in footnote 19 above, the weight of full 5gals and 3gals syrup Cylinders was 28kgs and 18kgs, and that of 13.5lbs, 20lbs and 22 lbs CO 2 Cylinders was 14.57kgs, 20.47kgs and 23.78kgs respectively17. The weight of some Cylinders when full would pose difficulty for P even on the basis of Dr Lee’s opinion. Whilst the Experts might focus on medical fitness for pre-Accident work with lowered/impaired efficiency, the factual/practical reality was that P’s pre-Accident job required him to manhandle heavy

Cylinders on a daily basis, sometimes taking the stairs or going up/down slopes. Each delivery worker on the team had to pull his own weight to complete the delivery/collection of the Cylinders otherwise it would affect the whole team, and it appeared unlikely that in making individual delivery on foot by handcart assistance could be expected from co-workers who had to make their own deliveries. In my view, quite irrespective of the further back sprain in August 2011 and P’s symptom magnification, P would not be able to return to his pre-Accident work, which view accorded with that of PMH’s occupational therapists." (emphasis supplied)

145.  In light of the aforesaid, this Court finds that P is unfit to resume his pre-accident job as construction site labourer. On the other hand, I accept Dr Wong's expert opinion that P's present condition is suitable for taking up job, such as a security watchman.[45]

P's loss of earnings and MPF during the remaining pre-trial period

146.  Notwithstanding that P was only entitled to a shorter reasonable sick leave period than he contends for, it would be unrealistic to assume that he could simply have located an appropriate alternative job immediately after the expiry of the reasonable sick leave period. In the normal course of things, one would need to spend time looking for a new job that fits his or her own personal background and requirement. Of course, such time spent would vary case by case.

147.  There is a line of authorities where the court was prepared to allow the plaintiff a reasonable period for job locating after the expiry of the relevant sick leave period having regard to the individual circumstances of each particular case. See Iau Kau Ih v Wan Kei Geotechnical Engineering Co Ltd & Ors [2002] 4 HKC 76, at para 39; Wong Yun San v Cheng Yue Yiu t/a Radio Engineering Co (unrep, DCPI 1909 of 2007 – decision of Deputy District Judge Richard Khaw at para 26(1);Chong Yiu Ta v Fong Man Chi & Ors (unrep, HCPI 742 of 2001) at para 94; Mohammed Sayeed v. Leighton Road Hotel Management Services Ltd (unrep, DCPI2072/2012, 21/10/2014), at paras 130 and 131. In these cases, the reasonable period for job locating as allowed by the court was either 3 months or 4 months.

148.  In this case, it is noted that security guard/watchman work in Hong Kong may require pre-job training and certification, and there is no evidence P has already possessed these qualifications. Furthermore, P required an Urdu interpreter at trial, evidence of his actual English proficiency remains unclear despite there is evidence suggesting that he can understand and communicate in simple English. Before that as it may, since Ms. Cho conceded on behalf of P that he is currently capable of earning an income commensurate with a security guard, the Court will proceed on that basis.

149.  Having considered the overall circumstances, I consider it fair and reasonable to allow a further 3 months (after the expiry of the reasonable sick leave period) for P to secure a new alternative employment.

150.  Hence, the plaintiff’s loss of earnings and MPF benefit during this period is quantified thus:-

HK$19,200 per month x 3 months x 1.05 = HK$60,480 (II)

Loss during the remaining period up to the 1st day of trial

151.  As indicated in P's Closing Submissions of 25/7/2025 (at para 61), P would only claim for his loss of earnings and MPF benefit up to the 1st day of the trial. Ms Cho further informed this Court that P would waive his claims for future loss of earnings and MPF benefits previously sought in the Revised Statement of Damages.

152.  Ds do not have any fallback case as to what alternative employment that would fit with P's condition in the event this Court finds him unfit to resume his pre-accident job.

153.  According to the C&S figures on security guard job supplied by Ms Cho at the trial, this Court tend to think that it is fair and reasonable to adopt an average monthly figure of HK$15,000 per month for such alternative employment in quantifying P's loss of earnings during the remaining period.

154.  Upon survey of the C&S data over the years since 2019 up to April 2025 produced at pp.515 to 516 of the Trial Bundle, there had been a trend of increase of the average daily wage of general labourer at construction site from $979.13 (in Jun-Dec 2019) to $1,189.13 (in Jan-Apr 2025), showing there is an increase of approximately HK$21.45%. The average daily wage figures calculated by Ms. Cho and set out in her Supplemental Closing Submissions dated 4/8/2025 were not disputed by Ds' legal team.

155.  Prima facie, it would appear fair and reasonable to this Court to adjust P’s pre-accident earning by the aforementioned percentage increment. Accordingly, I consider it appropriate to adopt a figure of HK$23,318 (i.e. HK$19,200 x (100% + 21.45%)) as the average monthly earning that P could have reasonably achieved as a general construction labourer by around April 2025 (but for the accident).

156.  In these circumstances, this Court would also consider it fair and reasonable to adopt a median monthly figure of HK$21,259 (ie HK$19,200 + HK$23,318) / 2) to quantify P’s loss of earnings and MPF benefit during the remaining period up to 23/7/2025 (approximately 63.7 months), which is quantified thus:-

HK$(21,259 - 15,000) per month x 63.7 month x 1.05

= HK$418,633  (III)

157.  Therefore, the total pre-trial loss of earnings and MPF benefit would be :-

(I) + (II) + (III)

= HK$(141,120 + 60,480 + 418,633)

= HK$620,233

158.  For the avoidance of doubts, this Court should mention that since it accepts Dr Wong's opinion that P would be able to continue working as construction worker for another 10-15 years without developing low back pain severe enough to affect his work but for the accident (despite his pre-existing lumbar spine condition) (see paragraph 109 above), after considering the matter in the round, I do not think it appropriate to apply any discount on P's loss of earning and MPF benefit which over a period just over than 6 years.

Loss of earning capacity

159.  Ms Cho urged this Court to allow a figure of HK$115,200 under this head, whereas the Mr Wong submitted that no award ought to be made.

160.  In light of the above findings, P’s residual disabilities are significant. The Court is satisfied that P will be less competitive in the labor market, particularly regarding his diminished capacity for lifting and carrying heavy weight. Overall, in this Court's view, there exists a real and substantial risk of P suffering future unemployment and financial loss resulting from these disabilities

161.  Having considered the overall circumstances of this case, this Court awards a sum of HK$90,000 under this head.

Future dental expenses

162.  Although as explained above, this Court is satisfied that it is likely that P suffered subluxation of four teeth as a result of the accident, there is however no clear evidence produced by P to demonstrate the dental treatment or the costs for either treatment plan as stated in the quotation issued by Dr Brian Leung in November 2019 is really warranted[46]. There is no expert evidence adduced in this regard, nor other sufficient evidence to satisfy this Court such dental treatment is really necessary for his case. As such, the claim under this head (be it at the figure of HK$38,560 submitted under para 65 of P’s Closing Submissions, or in any other sum) is disallowed.

Special Damages

163.  In line with the above analysis, this Court would disallow any expenses paid to Wellness Clinic and Pain Centre since 17/112/2019, for this Court do not find P can prove to its satisfaction the need or reasonableness in incurring these further medical expenses.

164.  On this basis and further taking into the overall circumstance of this case, this Court consider it fair and reasonable to allow medical expenses in the sum of HK$4,000 only.

165.  Having considered the overall circumstances of this case, I think it would be fair and reasonable to allow a sum of HK$3,000 for travelling expenses.

166.  As for tonic food, since it is not too clear by viewing P’s evidence as a whole whether he had indeed incurred any expenses on tonic food item despite HK$4,000 was claimed in the RSOD, this Court cannot allow this item.

167.  In these circumstances, an award in the total sum of HK$7,000 is awarded for special damages.

Employees' compensation

168.  The parties agree that credit will be given to the employees’ compensation of HK$450,000 which P already received.

Summary of Quantum

169.  The quantum of P's claim as allowed is summarized below:-

Head of Damage		Amount (HK$)
PSLA		212,500
Pre-trial loss of earnings & MPF		620,233
Loss of earning capacity		90,000
Special Damages		7,000
		_______
	Sub-total:	929,733
Less: Employees' compensation		(450,000)
		_______
	Balance:	479,733
		======

Interest

170.  Interest shall accrue on the PSLA award at 2% per annum from the date of service of writ until the date of judgment, and thereafter at judgment rate until payment; and interest on the pre-trial loss of earnings and special damages (after deducting the EC compensation) would be at half judgment rate from the date of the accident until the date of judgment, and thereafter at judgment rate until payment.

Disposition

171.  In the premises, judgment was entered in favour of P in the sum of HK$479,733 together with interest as aforesaid.

Costs

172.  Costs should normally follow the event. I make a costs order nisi that all three Ds shall pay P costs of this action (including all previous reserved costs, if any), with certificate for counsel, to be taxed if not agreed. Such costs order nisi shall become absolute in the absence of any application within 14 days to vary the same.

173.  P's own costs (incurred while he was legally aided) to be taxed in accordance with Legal Aid Regulations.

174.  Lastly, it remains for me to thank counsel on both sides for their assistance rendered to the Court.