WAN CHUEN HOI v. WING SHUN ENGINEERING TRANSPORTATION LTD

HCPI 530/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 530 OF 2008

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BETWEEN

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ASSESSMENT OF DAMAGES

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I.  BACKGROUND

1.  On 25 July 2008, the Plaintiff commenced the present proceedings to claim damages for personal injuries and other loss and damages suffered in the course of his employment with the Defendant as a result of an accident at a container depot in Yuen Long, New Territories (“Depot”) on 9 March 2006 (“Accident”).

2.  The Defendant did not file any notice of intention to defend, and interlocutory judgment for damages to be assessed was entered on 23 February 2009 (“Judgment”).  The Defendant never appeared and did not participate in the present proceedings.

3.  In fact, the Defendant company was deregistered and dissolved pursuant to section 291AA(9) of the Companies Ordinance Cap.32 on 15 February 2008.  On 2 November 2009, Chu J (as she then was) ordered that the registration of the Defendant be reinstated to the register of the Companies Registry.  On 1 December 2010, Fok J (as he then was) ordered that the commencement of the present proceedings and all acts done relating thereto be validated with retrospective effect as against the Defendant as if it had not been deregistered.

4.  On 23 May 2011, the Plaintiff applied by summons (“Summons”) for special leave to further revise the Revised Statement of Damages (“RSOD”). The Plaintiff filed an affirmation of service on 24 May 2011 verifying service of the Summons, but the Defendant was absent at the hearing of Summons returnable at the same time as the hearing of the assessment of damages (“Hearing”). I therefore proceeded to hear the Summons.

5.  Mr Wong, counsel for the Plaintiff, submitted that the proposed further revision of the RSOD was necessitated by the Plaintiff’s return to full-time work since 28 May 2010, and that the Plaintiff’s current monthly earnings exceeded his pre-Accident monthly income, so he would no longer claim for loss of earnings on/after 28 May 2010, but would only claim damages for loss of earning capacity.

6.  I expressed concern that the Plaintiff failed to inform the court of his return to full-time employment in May 2010 or apply for leave to further revise the RSOD before leave was granted for this action to be set down for assessment of damages 8 months later on 27 January 2011.

7.  But after hearing submissions from Mr Wong and upon being satisfied that (i) the Plaintiff did not have any further discovery of documents and (ii) the proposed further revision of the RSOD would reduce his overall claim for damages, I granted inter alia the following orders at the Hearing:

(a)   special leave be granted to the Plaintiff for issuing the Summons;

(b)   leave be granted to the Plaintiff to further revise the RSOD in the manner as appeared in red in the draft Further Revised Statement of Damages (“FRSOD”) annexed to the Summons;

(c)   the Plaintiff do file and serve the FRSOD within 3 days of the Hearing, and such FRSOD shall be accompanied by its statement of truth;

(d)   time for service of the Summons be abridged;

(e)   there be no order as to costs of the Plaintiff’s application by the Summons, and the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations;

(f)   leave be granted under Order 38 rule 2A(7)(b)(i)-(ii) of the Rules of the High Court for the Plaintiff to give evidence on his return to employment since May 2010 and, in view of his post-Accident employment, on his condition and circumstances that allegedly constituted residual risk of him losing his employment and thereby having to compete in the labour market.

8.  From various affirmations of service filed with the court, I am satisfied that (a) the Defendant had been notified of the progress of the present proceedings, (b) the previous court orders in this action, the Plaintiff’s witness statement dated 18 February 2009 (“Statement”), the orthopaedic expert report of Dr Johnson Lam (“Dr Lam”) dated 4 September 2007 (“Report”), the treatment medical reports/records and documents discovered and disclosed by the Plaintiff, and the hearing bundle for the assessment of damages (“Bundle”) had been served on the Defendant, and (c) the Defendant had been notified of the Hearing.  In such circumstances, upon the undertaking by the Plaintiff’s solicitors to the court through Mr Wong to file and serve the FRSOD within 3 days of the Hearing and notwithstanding the Defendant’s absence at the Hearing, I allowed the assessment of damages to proceed.

9.  The Plaintiff being the sole witness as to quantum gave evidence at the Hearing, and adopted the contents of the Statement as part of his evidence.  The court had previously ordered that the Report shall be adduced as expert evidence at the assessment of damages without oral evidence.

II.  ISSUE ESTOPPEL

10.  In respect of the Accident, the Plaintiff also instituted proceedings against the Defendant under the Employees’ Compensation Ordinance Cap.282 (“Ordinance”) in DCEC 1059/2007 (“EC Action”).  On 3 April 2008, HH Judge Leung delivered judgment in the EC Action (“EC Judgment”), and found that the Plaintiff was injured in the course of his work as a truck driver for the Defendant.

11.  The learned judge accepted the Plaintiff’s evidence that at the material time he was instructed to drive a 16-ton truck with a 3-ton backhoe and a drill on board to the Depot.  Whilst at the Depot and in the course of driving the backhoe with its arm carrying the drill from the truck, the backhoe lost balance and tilted to the right.  As he escaped from the driver’s cabin of the backhoe, the Plaintiff’s left hand hit the guardrail of the truck before the left side of his body landed on the truck platform.

12.  The learned judge further referred to the medical history in the hospital medical records of the Plaintiff, and found that he suffered from fractures of the left wrist and left hip.  The left wrist was treated with external fixation while the left hip was treated with open reduction and internal fixation.  The Plaintiff was hospitalised for several weeks.  The external fixator was removed weeks later and physiotherapy followed.  The learned judge found that the Plaintiff’s major problem was residual pain over the left hip, and pain and numbness over the left wrist.

13.  The learned judge “had no reason to query Dr Lam’s evidence” in the form of the Report (which I shall refer to in greater detail below), and found that the Plaintiff was unemployed and dependent on comprehensive assistance since the Accident.

14.  In Amjad v Wong Yui Cheong trading as Cheong Kee Transportation Company HCPI 943/2007 (unreported, 21 April 2011), Mr Recorder Benjamin Yu SC said as follows:

“ 8. In determining liability under the Employees’ Compensation claim, the Court had to be satisfied that personal injury by accident arising out of and in the course of the employment was caused to the plaintiff: see s. 5 of the Employees’ Compensation Ordinance Cap 282. The Court would not be concerned with how the accident actually happened, and in particular, whether the accident was caused by the alleged negligence on the part of the defendant. The judgment [in the employees’ compensation proceedings] only recited the non-controversial background that the accident happened when the plaintiff was in the course of transporting the cartons of goods on the truck to a customer, and that the plaintiff was unable to stop the truck which collided into the concrete barrier. I am unable to accept [counsel’s] submission that [such judgment] gives rise to an estoppel against the defendant that the accident happened as described by the plaintiff, at least to the extent that any part of the plaintiff’s case on liability was controversial.

9. [Counsel] is on stronger grounds when he sought to rely on [such judgment] as constituting an estoppel against the defendant in respect of her finding as to the injuries which the plaintiff sustained as a result of the accident, and her finding that the plaintiff would not be able, by virtue of the injuries he sustained as a result of the accident, to return to his job before the accident.  As noted above, the learned Judge had the benefit of medical evidence before her. It is also apparent from the judgment that the learned Judge had fully considered the evidence before her in coming to her conclusions.  It would plainly be an abuse of process if the defendant were to be allowed to re-litigate the issues which have been fully canvassed at the Employees’ Compensation claim.  I accept that the defendant should be precluded by issue estoppel from raising any such challenge. ……”

15.  I respectfully agree with such observations. In light of the Judgment, I am not concerned with any question of issue estoppel or otherwise over the issue of liability.  However, on the issue of quantum, I shall apply the above principles in considering the effect of the EC Judgment on the assessment of damages before me.

III.  PLAINTIFF’S PERSONAL AND WORK HISTORY

16.  At the time of the Accident, the Plaintiff was 51 years old.  He received up to Primary 1 education, and could read, write and understand Chinese and punti languages.  He was licensed to drive trucks and other vehicles including small tourist buses.  He had a Construction Industry Safety Training Certificate, a Slinger & Signaller Training Certificate and a 起重機操作員證明書.  He was also registered with the Construction Workers Registration Authority as a skilled worker in the following categories: (a) plant and equipment operator (truck-mounted crane), (b) truck driver (heavy goods vehicle) and (c) truck driver (medium goods vehicle). The Plaintiff is right-handed.

17.  According to the medical history recorded in the Report, the Accident was the Plaintiff’s 5^th injury on duty.  The first 3 accidents happened many years ago, and he had forgotten most of the details.  He suffered from head injury, right and left upper limb injury and low back injury in such episodes.  The 4^th episode occurred about 3 years before the Report dated 4 September 2007 when the Plaintiff suffered from injury to upper back and chest.  He rested for 1 month and returned to work.

18.  The Plaintiff further told Dr Lam that apart from the above he did not have previous disease, pain, symptom or injury in respect of his left hand/wrist and left hip.  He also did not have any further injury after the Accident.

IV.  INJURIES AND TREATMENT

19.  According to the Statement (the contents of which the Plaintiff adopted when he gave evidence) and as found in the EC Judgment, the Plaintiff’s left hand hit the guardrail of the truck before he slided down on the truck platform and landed on the left side of his body, and he suffered fractures of left wrist and left hip.  At that time, the Plaintiff was still conscious, and he called the police for help.

20.  The Plaintiff was sent by ambulance to the accident and emergency department of Tuen Mun Hospital for treatment.  Medical examination revealed that his left wrist was deformed, and x-ray showed fracture of left distal radius.  His left hip was tender on palpation with decreased range of movement, and x-ray showed fracture of neck of left femur.  He was admitted to the orthopaedic ward and hospitalised overnight before being sent to Alice Ho Miu Ling Nethersole Hospital (“AHMLNH”) for further management due to geographic reason.

21.  At AHMLNH, tenderness was noted over left wrist and left hip regions, but no neurological deficit was detected. X-ray revealed left distal radius fracture and trochanteric fracture of left femur.  Close reduction and external fixation of left wrist, and open reduction and internal fixation with metal implants of left femur under general anaesthesia were done on 14 March 2006.  The Plaintiff was transferred to Tai Po Hospital for further rehabilitation from 6 to 30 April 2006.  The external fixator of the left wrist was kept for 6 weeks.  The left wrist and left hip fractures healed clinically and radiologically.  The Plaintiff was discharged home in June 2006. 

22.  The Plaintiff was granted sick leave for rehabilitation and for receiving a course of outpatient physiotherapy treatment of the left wrist and left hip.  There was gradual improvement.  In July 2007, he moved to live in Kowloon and continued to receive physiotherapy treatment at Kwong Wah Hospital.  After 3 odd months, he was discharged from outpatient physiotherapy, and was advised to continue with exercises at home.  He continued with outpatient orthopaedic follow up at AHMLNH.  When seen on 30 August 2006, he still had residual pain over left wrist and left hip regions, but was able to walk unaided for about 30 minutes.

V.  PLAINTIFF’S COMPLAINTS

23.  The Plaintiff complained that at the time of the Statement (ie as at 18 February 2009) and even at the time when he gave evidence the injury sites were still painful.  It was still painful whenever he used or lifted his left leg, eg when ascending staircase or walking on uneven surface, and the pain would increase upon change of weather.  When the pain became intense, he would take analgesics for pain relief.  He walked with a limp, and his left thigh was painful with every step he took.  He had to rest every 30 minutes.  He could not carry heavy objects because his legs would not support the load.  His walking, sitting and standing tolerance was limited, and he had to change his posture every now and then.  The Plaintiff also complained of weakness of the left wrist, pain of the left wrist on stretching, and numbness of left wrist and fingers.

24.  The Report similarly noted that the Plaintiff complained of (a) pain over left hip, which increased with climbing up and down the truck or the excavator, with squatting or with walking on uneven surface, (b) reduced walking and standing tolerance of up to 1 hour but requiring rest after 30 minutes, (c) pain on exertion and numbness over left wrist, and (d) numbness over the dorsal aspect of left wrist and fingers.  Dr Lam noted that the Plaintiff’s ability to play sports was not much affected because he did not play much sport before the Accident.

VI.  REPORT

25.  According to Dr Lam, the Plaintiff suffered trochanteric fracture of the left femur and fracture of left radius and ulnar styloid, which were consistent with the mechanism of the Accident.

26.  When Dr Lam examined the Plaintiff on 1 August 2007, the Plaintiff walked into his clinic with mild limping, but his general condition appeared satisfactory.  For the left hip, the fracture had united in satisfactory position with about 1cm shortening of the fracture site.  There was some residual pain and stiffness of the left hip, and there was complaint of pain over the left hip area on squatting and pain when he stood single-legged on his left leg.  There was a well-healed scar as a result of fixation of the fracture over left hip, but tenderness on palpation of the scar.  For the left wrist, there was mild irregularity at the joint line (so it was probable that the initial fracture had an intra-articular extension) and non-union of the ulnar styloid.  X-ray showed mild reduction in the bone density of the left wrist/hand which was consistent with some disuse osteoporosis.  There was mild residual tenderness over the dorsum of the wrist and mild weakness.  There were 2 incision scars as a result of external fixation of the fracture.  Dr Lam opined that although the fractures had united, considering the severity of the injuries, some residual pain was probable.

27.  Dr Lam was of the view that the implants for the left hip could be left in-situ and removal was not obligatory, but this could be a contributory cause of the residual pain with large movements of the hip.  If the Plaintiff wanted to remove such implants, Dr Lam would consider such request reasonable.  Such removal including after care would cost about HK$24,000.00 in the private sector and 2 weeks of rehabilitation would be required.  Such removal is usually straightforward, and unlikely to have significant complications or affect the final impairment analysis.

28.  Dr Lam concluded the Plaintiff’s injuries had reached maximum medical improvement.  There would probably be some mild residual weakness and stiffness for the left wrist, and some stiffness and (with prolonged activities that put increased stress to the hip, eg prolonged sitting/squatting and frequent climbing, etc) increase in pain for the left hip.

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

29.  The Plaintiff impressed me as an honest witness, and on the balance of probabilities I accept his evidence.  I find he has strived diligently to recover from the Accident and to seek gainful employment.  I concur with HH Judge Leung that whilst the Plaintiff has recovered substantially from his fracture injuries, he still suffers from residual pain and stiffness that limited his walking, standing and sitting tolerance as well as his ability to carry heavy loads.  I have observed the Plaintiff walking to and from the witness stand at the Hearing.  Although his mild limp was not too noticeable to an untrained eye, I accept that with his left leg injuries he is less agile and/or swift in his work than before the Accident.  I daresay an experienced employer or supervisor engaged in his pre-Accident trade (which work requires physical fitness and agility) may notice his mild limping and/or reduced agility.

30.  The Plaintiff claimed damages for PSLA in the sum of HK$400,000.00.  It was argued that his injuries and resulting disabilities placed him just below the bottom end of the “serious injury” category.

31.  As Mr Wong rightly pointed out, it would be inappropriate to assess the amount of damages for PSLA by combining awards for fracture of left hip and for fracture of left wrist.  One needs to look at the claimant’s overall injuries/disabilities, his medical condition and his loss of amenities and suffering to make an assessment of the appropriate award, and in doing so previous authorities merely serve as a reference (see Yun Pun Yuen v Ng Kwok Man trading as East Mountain Engineering Company & ors HCPI 293/2002, Suffiad J (unreported, 9 May 2003) paras.81-82 and my decision in Lee Yau Wai v Yeung Kam Wing HCPI 281/2009 (unreported, 29 March 2011) para.46).

32.  Mr Wong referred me to the following cases:

(a)   Sun Jianqiang v Chan Tai Kau HCPI 1375/2000, DHCJ Carlson (unreported, 16 March 2010);

(b)   Waan Chuen Ming v Lo Kin Nam trading as Kar Kin Engineering & Supplier Co & anor HCPI 588&591/2003, Suffiad J (unreported, 21 July 2008);

(c)   Lee Kwan Tong v Liu Yee Lim & anor HCPI 383/1996, Master Chu (as she then was) (unreported, 8 April 1997);

(d)   Lee Yuk Man v Hillberg Limited trading as Tsui King Lau Restaurant (FWS) DCPI 1998/2006, DDJ K Lo (unreported, 6 June 2007);

(e)   Mehmood Khalid v Million Harvest Wharves & Logistics Limited & ors HCPI 401/2006, Saunders J (unreported, 25 July 2007).

33.  In Sun Jianqiang, the plaintiff suffered serious open fracture of the left femur and a number of cracked ribs.  He underwent 4 operations for the leg injury, and chest drain for the rib fractures.  Following discharge from hospitalisation, he was able to walk with crutches.  But he had to live with pain, and undergo extended regime of physiotherapy and exercise to overcome muscle wasting and diminished strength.  There was slow progress.  Just over 2 years after the accident, the plaintiff could walk well with a slight limp. 6 years later, the pain was greatly diminished and he was able to walk over substantial distance unaided and at a decent pace.  By then, the effect of the injury was moderate.  Although he was unable to return to his pre-accident work as coach-driver, most other jobs short of heavy manual labour were open to him.  The PSLA award was HK$430,000.00.

34.  In Waan Chuen Ming, the plaintiff suffered fracture of left femur with compartment syndrome, open fracture proximal phalanx of right middle, ring and little fingers, laceration of left shoulder with fracture left clavicle, fracture of left distal radius, laceration injury to scalp and right foot injury.  He had 5 operations and was hospitalised for 9 months.  He also attended outpatient follow up and extended regime of physiotherapy and occupational therapy treatment.  The implants of the left femur were subsequently removed.  Movements of the left shoulder/forearm/wrist and the fingers of the right hand were impaired.  Grip strength of the left hand was limited by wrist pain, and motor power of the right upper limb was weaker.  There was tissue loss, generalised weakness and generalised diminished sensation of left leg, and decrease in sensation of 3 fingers of the right hand.  The plaintiff was left with considerable stiffness and limitation in movement although he could walk unaided.  But he could not return to his pre-accident employment, and was only fit for sedentary work or work requiring moderate physical demand with avoidance of squatting and prolonged standing.  The PSLA award was HK$500,000.00.

35.  In Lee Kwan Tong, the learned master awarded HK$440,000.00 for PSLA to the plaintiff who suffered a fracture shaft of the right femur and compound fracture of the right tibia.  Internal plating was performed for the right femur and external fixation was done for the right tibia.  Skin grafting and debridement were also performed.  The plaintiff was initially hospitalised for almost 2 months, and was re-admitted twice.  Healing of the tibia was unsatisfactory and further operation was done.  Thereafter he attended follow up and physiotherapy treatments, and was granted extended sick leave.  At time of trial, 9 years after the accident, the plaintiff walked with a limp, still felt pain and needed to rest after walking for 40-60 minutes.  He had to give up driving and also sports and outdoor activities, and could not wear shorts because of the scars.  There was ligament laxity of the right knee and likely risk of osteoarthritis.

36.  In Lee Yuk Man, the plaintiff suffered contusion injury to right chest wall and right wrist, and avulsion fracture of the triquetral bone.  He was treated conservatively, and prescribed with a splint that was removed after 2 weeks.  He recovered full range of movement of the right wrist and muscle power was good.  There was residual tenderness at right chest and right wrist that equated to 3% whole person impairment, which would make it difficult for him to return to full duties as a chef. Normal sick leave would be about 3 months.  The PSLA award was HK$160,000.00.

37.  In Mehmood Khalid, the plaintiff suffered a wrist fracture that could not be treated by a plaster cast and required surgery with external fixation, which was said to be “undoubtedly a distressing and uncomfortable experience”.  The plaintiff continued to suffer from pain on exertion and in cold weather.  He enjoyed playing cricket prior to the accident, but could no longer wield a cricket bat.  The PSLA award was HK$200,000.00.

38.  In my view, the injuries suffered by the plaintiffs in the above cases with leg injuries are much more serious than the injuries suffered by the Plaintiff in the present case, so they do not bear useful comparison.  Bearing in mind the Plaintiff’s injuries and disabilities, and the effect of his injuries and disabilities on loss of amenities in his work and daily activities, I agree that the Plaintiff’s injuries and disabilities fall below the “serious category”.  The question of how far below is very much a value judgment taking into account all the circumstances.  In all the circumstances, I consider that an appropriate award for PSLA in this case is HK$370,000.00.

VIII.  PRE-ACCIDENT WORK AND EARNINGS

39.  According to the Plaintiff and as found by HH Judge Leung in the EC Judgment, the Plaintiff started working for the Defendant in July 2005 as a driver responsible for transporting heavy machinery for use at construction sites.  He worked 10-11 hours a day.  He was supposed to work 26 days per month, but in fact only took 2 days off in view of the workload, so he actually worked 28 days per month.  Twice a month, he received his income in cash, the amount of which varied in accordance with the quantity of goods transported, the distance travelled and the time taken.  He could not tell precisely how the amount was calculated, but claimed his average monthly income was about HK$12,000.00.

40.  In the EC Judgment, HH Judge Leung found that the tax return filed by the Defendant for the year of assessment 2005/2006 recorded that the Plaintiff was paid a total sum of HK$99,526.00.  “Plainly, during this period, [the Plaintiff] only started to work for [the Defendant] on 16 July 2005 and his last day of work for [the Defendant] was 9 March 2006, i.e., the date of the [Accident].  That was about 7.7 months.  The average monthly income was therefore HK$12,925.45” (see paragraph 12 of the EC Judgment).  On the principle of issue estoppel, I accept that the Plaintiff’s average pre-Accident monthly earnings were HK$12,925.45.

41.  According to the Statement (the contents of which the Plaintiff adopted when he gave evidence) and also the personal history given by the Plaintiff to Dr Lam, his job duties (excluding driving) whilst working for the Defendant did not require heavy lifting, but he had to climb up and down the truck and/or the excavator about 30-40 times a day to transport different kinds of machinery.  The Plaintiff further told Dr Lam that “he needed to deliver the excavator to the construction site, and then drove the excavator out of the truck to land on the construction site …… he said he also needed to walk on uneven grounds of the construction site”.

IX.  PRE-TRIAL LOSS OF EARNINGS

(a)  Sick leave

42.  According to the Form 9 dated 5 July 2007, the assessed duration of absence from duty necessary as a result of the fracture of left wrist and hip resulting in pain (which was consistent with the Plaintiff’s sick leave under the medical certificates) was from 10 March 2006 to 7 March 2007, and the assessed loss of earning capacity permanently caused by such injury was 2%.

43.  Taking into consideration the severity of the injuries, the need for rehabilitation, and the Plaintiff’s pre-Accident job demand, Dr Lam opined that the duration of sick leave issued by the Plaintiff’s treatment doctors who assessed him from time to time was appropriate and should be endorsed.

(b)  Report

44.  According to Dr Lam, the Plaintiff would have some pain with frequent climbing, so there would be some decrease in efficiency and endurance in his pre-Accident work and some difficulty in returning to such work.  More frequent breaks for rest and climbing more slowly would be required.  As an alternative, Dr Lam opined that the Plaintiff should be able to work in jobs requiring light physical demand on his left wrist and left hip, such as salesman selling light goods or an ordinary driver.

(c)  Plaintiff’s post-trial work history

45.  After expiry of his sick leave, the Plaintiff claimed he tried hard to look for work as a transportation driver.  Being on comprehensive assistance, he registered with 綜合就業援助計劃of the Hong Kong Employment Development Service on 20 November 2008 and with the Labour Department’s employment centre on 16 March 2009 to look for work through the Labour Department and newspaper job advertisements.  The bundle of (a) 綜合就業援助計劃– 求職記錄及工作計劃表for the Hong Kong Employment Service covering the period from 20 January 2009 to 17 May 2010 showing at least 2 attempts to find work per month with details of the Plaintiff’s face to face and telephone job interviews and (b) the Job Application Forms for the Labour Departmentbears evidence of his diligent but unsuccessful efforts to look for work.

46.  The Plaintiff attempted to work for 肥九運輸公司 as a driver at a daily wage of HK$500.00.  He ceased working for肥九運輸公司 after 4 days because he was physically incapable of moving large tools and equipment at the construction sites.  Indeed, he told Dr Lam that after the expiry of his sick leave he “tried to return to work in another job.  He said he needed to climb up and down a lot during work, and he complained of increase in pain in the left hip and left wrist after heavy work, and he said he resigned from work ……”

47.  Despite effort, the Plaintiff could not find other work until October 2009.  From 21 October to 14 November 2009, he worked as a rubbish removal truck driver for 19 days at a daily wage of HK$500.00 for進業建築公司.  He was dismissed when his boss found out he was less agile (and therefore less capable) than other able-bodied workers in handling the work.

48.  The Plaintiff was unable to find other work until 28 May 2010 when he became a day-time driver and miscellaneous worker for Riseway Construction Engineering Limited (“Riseway”) at a daily wage of HK$480.00.  He worked for Riseway until mid-March 2011 when he left the employment as a result of differences with his supervisor.

49.  Whilst working for Riseway (which was in the business of carrying out road works), the Plaintiff was responsible for driving an ordinary truck to transport workers to and from work sites.  He might have to direct traffic after arrival at the work site, but he did not have to load or unload goods/equipment. His workday would end after driving the workers away from the work site.

50.  About a week after he left Riseway, the Plaintiff commenced employment with 王棠吊機車公司 (“Wong Tong”) at a daily wage of HK$650.00, and he has been working for such company ever since.

51.  Wong Tong was in the business of hiring out truck-mounted cranes together with drivers/operators to construction companies for use at construction sites.  Depending on the terms of the hire, the Plaintiff would work for different hirers for different periods of time.  He would act on the hirer’s instructions to drive the truck-mounted crane to the work site and then operate the crane to lift goods by pushing buttons whilst sitting in the cabin at the back of the truck.  He had to climb on and off about 2 times each morning or afternoon to drive the truck to where the goods were located. Since his duties did not require frequent climbing up and down, the Plaintiff was physically able to handle his present job with Wong Tong.

52.  Whilst working for Riseway and Wong Tong, the Plaintiff’s weekly rest day should fall on Sunday.  But sometimes his supervisor would ask him on Thursday whether he would be prepared to work on Sunday and/or public holiday, and he would agree.  The Plaintiff gave evidence that in the 2 months since he started working for Wong Tong, he worked on all Sundays except one.

(d)  Pre-trial loss of earnings

53.  I am satisfied that the Plaintiff was unable to work during the period of his sick leave until 7 March 2007.  I am further satisfied that after the expiry of his sick leave, he made diligent efforts to look for work but could not find gainful employment.  His brief spells of working for肥九運輸公司and 進業建築公司 show that with a mild limp and inability to carry heavy objects he was not ready for jobs that required agility, frequent climbing and substantial physical demand.  I am satisfied on the balance of probabilities that the Plaintiff was unable to return to full-time employment until 28 May 2010.

54.  I find that the Plaintiff’s pre-trial loss of earnings should be HK$652,712.50 (ie HK$12,925.00 x 50½ months) less his earnings from 肥九運輸公司in the sum of HK$2,000.00 (ie HK$500.00 x 4 days) and from 進業建築公司in the sum of HK$9,500.00 (ie HK$500.00 x 19 days).  Thus, the award for the Plaintiff’s net pre-trial loss of earnings is HK$641,212.50 (ie HK$652,712.50 – HK$2,000.00 – HK$9,500.00).

(e)  Pre-trial loss of MPF contributions

55.  The total pre-trial loss of MPF contributions is HK$641,212.50 x 5% = HK$32,060.63.

X.  LOSS OF EARNING CAPACITY

56.  The Plaintiff had been gainfully employed since end of May 2010 with similar or even better income than before, so he no longer claimed for any loss of future earnings.  However, he claimed damages for loss of earning capacity.

57.  The Plaintiff gave evidence that it would be difficult for him to return to his pre-Accident work, which required him to manually handle all operations himself without assistance and which required frequent climbing up and down over 30 times a day.  He said that even if he could manage such work with difficulty in the short term, he would not be able to manage in the long term.

58.  At the time of the assessment of damages, he was still on his 3-month probation with Wong Tong. If he passes probation, he will remain a casual worker earning a daily wage but can expect greater job security.  The Plaintiff was concerned that the nature of Wong Tong’s business operation meant his supervisor would not personally attend his workplace to observe his work performance, and hence might not realise he was less agile than other drivers/operators in getting on/off the truck or getting on with his work due to his mild limp until Wong Tong’s customers would reflect his reduced work ability or efficiency to his employer, which might then adversely affect his job security.

59.  In Moeliker v A Reyrolle & Co. Ltd [1977] 1 WLR 132, 141, it is said as follows:

“Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market?  I think the question is whether there is a “substantial” risk or is it a “speculative” or “fanciful” risk … …  If the court comes to the conclusion that there is no “substantial” or “real” risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.”

60.  In Chan Wai Tong v Li Ping Sum [1985] HKLR 176, 183, Lord Fraser of Tullybelton said as follows:

“…… A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk – see Moeliker v. A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140 where Browne, L.J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant’s age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant’s earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant. In the present case there is no evidence at all on these matters. Accordingly their Lordships are of opinion that the sum of $108,000.00 awarded by the Court of Appeal under this head was unjustified and must be deleted.”

61.  Thus, in respect of the considerations to be taken into account to identify whether the risk that a plaintiff will at sometime before the end of his working life lose his current job and be thrown on the labour market is a “substantial” or a “speculative” or “fanciful” risk, all sorts of factors will have to be taken into account varying almost infinitely with the facts of the particular case, eg the nature and prospects of the employer’s business, the plaintiff’s age and qualifications, his length of service, the remaining length of his working life, the nature of his disabilities, and any undertaking or statement of intention by his employer as to his future employment.

62.  I accept that the Plaintiff’s post-Accident employment as a casual worker at a daily wage is arguably less secure than his regular pre-Accident employment with wages paid on a bi-monthly basis, but one cannot ignore the fact that he has worked continuously for Riseway for more than a year and has been able to secure a new job with Wong Tong within a week of departure from Riseway.  I also bear in mind that the Plaintiff’s departure from Riseway was wholly unrelated to his injuries and impairments, but due to differences with his supervisor.

63.  Nevertheless, I accept that with his injuries and disabilities and further given the nature of his present work, there is a real possibility of the Plaintiff losing his present employment at some future point in time.  If this should happen, he will be disadvantaged in competing with other able-bodied persons in the labour market.  His post-Accident work history also illustrates his initial difficulty (despite diligent efforts) in securing and/or keeping a job prior to working for Riseway, and his reduced endurance and efficiency in handling work that requires frequent climbing up and down and/or carrying heavy loads.

64.  Mr Wong submitted that an award equivalent to 6 months’ loss of his present earnings being HK$101,400.00 (ie HK$650.00 x 26 days x 6 months) is appropriate.

65.  I accept that the Plaintiff’s general earning capacity has been impaired as a result of his left leg and left wrist injuries.  I also bear in mind the following matters: (a) his education and background, (b) the fact that he has worked for Riseway and Wong Tong for more than a year yet he remains a casual worker paid on the basis of a daily wage rate for the days he actually worked, (c) the difficulties he will face in securing other work if he were to lose a regular employer albeit on casual basis, (d) his injuries and residual disabilities which are not inconsequential although not within the “serious category”, and (e) the vicissitudes of life.  Whilst I am satisfied that the Plaintiff’s injuries leave a legacy of residual impairment and/or disability that will disadvantage him in holding onto and finding work in future, I also bear in mind that the Plaintiff left Riseway for reasons other than his injuries and disabilities, that he was able to secure work with Wong Tong very quickly after leaving Riseway, and that he has been busy working on most of his rest days as well.  Taking into account the above matters as well as the length of his service with Riseway and Wong Tong to date, and following Moeliker and Chan Wai-tong, I award HK$70,000.00 under this head.

XI. SPECIAL DAMAGES

(a)  Incurred medical expenses

66.  The Plaintiff claimed for incurred medical expenses in the sum of HK$160.00.  The amount is minimal because the Plaintiff was eligible for social welfare payments soon after the Accident, and his medical expenses were largely exempted.  I find such claim justified, and allow an award of HK$160.00 under this head of claim.

(b)  Tonic food expenses

67.  The Plaintiff claimed HK$5,000.00 for incurred expenses for tonic food which is unsupported by any receipt.  There is no evidence before me (documentary or otherwise) as to what tonic food has been purchased or consumed.  Only a reasonable sum will be awarded where there is no evidence as to the advisability or suitability of tonic food from any doctor or herbalist or person with medical knowledge.  Following Yu Ki v Chin Kit Lam [1981] HKLR 419 (see also King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54 and Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575) and judging from the nature of the Plaintiff’s injuries and disabilities, I allow a global sum of HK$3,000.00 for his claim under this head.

(c)  Travelling expenses

68.  The Plaintiff claimed a sum of HK$2,000.00 for travelling expenses.  He has attended the hospitals on the various occasions specified above.  In the early stages of his recovery when his left hip condition was more acute, it would have been reasonable for the Plaintiff to travel by taxi, and I allow the sum of HK$2,000.00 under this head of claim.

XII.  FUTURE MEDICAL AND TRAVELLING EXPENSES

69.  The FRSOD claimed a sum of HK$10,000.00 for future medical expenses on the basis that he would need to seek future medical consultations on a need-to basis as a result of his residual pain, weakness and stiffness over the left wrist and left hip, and a further sum of HK$3,000.00 for future travelling expenses for attending such medical consultations.

70.  When the Plaintiff gave evidence, he agreed that the doctor at AHMLNH recommended him to attend orthopaedic follow up, but he refused because (a) he did not want to forego the earnings of a workday in order to attend follow up and (b) he did not consider the recommended follow up useful since the doctor would only provide some painkillers and tell him to pay attention to safety.  In light of such evidence, I do not find it appropriate to make any award for future medical and travelling expenses.

XIII.  EMPLOYEES’ COMPENSATION

71.  In the EC Judgment, final judgment was granted in favour of the Plaintiff against the Defendant for employees’ compensation in the sum of HK$203,288.07 with interest thereon at half judgment rate from the date of the Accident (9 March 2006) to the date of the EC Judgment (3 April 2008) and thereafter at judgment rate until full payment.  Since the Plaintiff is entitled to enforce recovery of employees’ compensation pursuant to the EC Judgment, and in light of section 26(1) of the Ordinance, the value of the EC Judgment ought to be deducted from any damages that may be awarded in this case.

XIV.  SUMMARY

72.  I summarise the above awards as follows:

	HK$
PSLA	370,000.00
Pre-trial loss of earnings	641,212.50
Pre-trial loss of MPF contributions	32,060.63
Loss of earning capacity	70,000.00
Incurred medical expenses	160.00
Incurred tonic food expenses	3,000.00
Incurred travelling expenses	2,000.00
Less employees’ compensation	(203,288.07)
	915,145.06

73.  I therefore grant judgment in favour of the Plaintiff against the Defendant in the sum of HK$915,145.06.  Interest is payable on the award for PSLA at 2% pa from the date of the Writ of Summons to the date of judgment herein, and on pre-trial loss of earnings and other special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment.

74.  There is no reason why costs should not follow event.  I grant a costs order nisi that the Defendant do pay the Plaintiff costs of the assessment of damages (including all costs reserved, if any) with certificate for counsel to be taxed on High Court scale if not agreed, and the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.