WONG OI KWOK v. YAU YUET MAN trading as WU SO CHAI BUILDING MATERIALS AND ANOTHER

HCPI 34/2020

[2026] HKCFI 2812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 34 OF 2020

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J U D G M E N T

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1.  The plaintiff (“Wong”) sustained injuries in an explosion-cum-fire in the course of his work in 2017. He claims against the 1^st defendant (“D1”) as his employer and the 2^nd defendant (“D2”) as the principal contractor of the work in question.

BACKGROUND

2.  In February 2017, Wong was engaged by D1 to carry out demolition work inside a flat (“the Premises”) on the 2^nd Floor of the residential building in question (“the Building”) at Tsing Lung Tau, Castle Peak Road, New Territories. D1 subcontracted the work from D2.

3.  On 17 February 2017, Wong was carrying out demolition work in or near the bedroom of the Premises. In the course of using the handheld electric drill provided by D1 to break the floor tiles, an explosion-cum-fire occurred due to suspected ignition of liquefied petroleum gas (“LPG”) vapour in the atmosphere. Wong sustained extensive burn injuries to his body on the spot. There was no eye witness of the accident.

4.  With the assistance of legal aid, Wong filed application for employees’ compensation against the defendants in December 2017 (DCEC 227/2019). On 7 February 2020, Wong commenced the present action against the defendants alleging negligence, breach of common duty of care, implied terms of employment contract and statutory duties on their part in causing the accident.

5.  On 2 March 2023, the District Court found after trial that D1 was at all material times the employer of Wong, and therefore was jointly and severally liable with D2 to pay employees’ compensation in the agreed sum of HK$1,500,000 (inclusive of interest) to Wong for his injuries caused by the accident in and arising out of the course of such employment.

6.  On 17 May 2023, legal aid to D1 was discharged. D1 has since been absent from court hearings in the present action.

7.  D2 has not entered appearance in the present action, so that interlocutory judgment on liability for damages to be assessed was entered against him on 30 June 2022.

8.  On 3 October 2023, the defendants were adjudged bankrupt by the court in HCB 4418/2023 and HCB 4419/2023 respectively. Leave has since been granted by the Bankruptcy Court to Wong to continue his legal actions, including the present action, against the defendants.

9.  The defendants were absent from the trial.

10.  D1’s insurer has been duly informed of this claim and this trial, but has not intervened. Nor has the Employees’ Compensation Assistance Fund Board. The Official Receiver in whom D1’s property is vested has indicated no intention to participate or consent to D1 to carry on his defence.

11.  Satisfied with due notice of trial given by those acting for Wong, this court saw no good reason for preventing him from proceeding with the trial notwithstanding the absence of the defendants.

WONG’S PLEADED CASE

12.  According to Wong, the accident was caused or contributed to by the existence of LPG vapour at the Premises at the material time. Such LPG vapour is said to have come from the main switch and/or branch switch of LPG supply, a disconnected stove and hose or a LPG cylinder present on site at the material time. The vapour was ignited by one or more of the sources present at the time, namely cigarette butts not completely extinguished, butane lighter, the extension power socket, heat and/or spark generated from the drill in the course of the drilling work. Hence the explosion-cum-fire.

13.  On the basis of how the accident happened as mentioned above, Wong contends that that the defendants failed to provide a safe system of work, including safe and appropriate equipment to Wong to carry out the work, such as explosion-proof or flame-proof drill and protective eye wear or shield. The defendants are said to have failed to maintain a safe place of work where the objects potentially carrying LPG residue were left on site unattended. The defendants are also said to have failed to implement a no-smoking policy on site. Failure to supervise, train and warn Wong of, and thus exposure of him to, the risk of accident and damage known or ought to have known by the defendants is also alleged. The principle of res ipsa loquitur is also relied on.

14.  In the circumstances, the defendants are said to have been in breach of duties on their part generally and specifically under common law and various statutes. D1 was allegedly in breach of his duty as the employer while D2 was allegedly liable both independently and vicariously for D1’s breach. The pleaded particulars of such alleged liability of the defendants are extensive.

15.  According to his revised statement of damages filed in April 2024, the quantum approaches HK$5.3 million.

D1’S DEFENCE

16.  D1 filed his defence while being legally represented. He denies Wong was his employee but an independent contractor of his at the time. He admits that the handheld electric drill used by Wong at the time was provided by him, but denies how the accident happened as well as the alleged duty towards Wong and breach of that on his part in causing the accident. He also pleaded contributory negligence on the part of Wong in causing the accident.

ISSUES

17.  The major issues in dispute between Wong and D1 are:

(1)  How the accident happened;

(2)  What duties D1 owed to Wong in respect of the safety at work at the material time, including whether he owed such duty as the employer of Wong;

(3)  Whether D1 was in breach of any of the above duties, and that caused the accident;

(4)  Whether Wong was negligent in causing or contributing to the occurrence of the accident;

18.  Between Wong and both defendants, there is the issue of quantum of damages.

THE WITNESSES

19.  Wong gave evidence by way of adopting his witness statement dated 3 December 2020 and his supplemental witness statement dated 30 August 2024.

20.  D1 and his other witness Mr Keung Po Ming did not attend the trial. Their respective witness statements were accordingly expunged.

21.  The principles relating to assessment of credibility and reliability of witnesses are often cited: see for instance Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors HCA 1734/2009 (8 April 2014) §§75-82. Essentially, the court will assess the inherent and relative credibility of witnesses against the evidence of other witnesses as well as the undisputed and indisputable evidence. While mistake and inaccuracy in specific aspects must be taken into account, the evidence of a witness and credibility has to be considered as a whole. Demeanour of the witness is relevant but any reliance on that must be placed with caution.

HOW THE ACCIDENT HAPPENED

22.  The accident has been investigated by the Labour Department (“LD”) and the Fire Services Department (“FSD”), which respectively produced the following accident investigation reports:

(1)  accident report prepared by the LD dated 14 August 2017;

(2)  technical report compiled by the LD dated 2 August 2017; and

(3)  incident report compiled by the FSD dated 19 May 2017.

23.  After post-accident site inspection, interview with persons concerned and analysis, the departments came up with the following findings:

(1)  There were debris lying on the floor across the Premises, including the bedroom, the living room and the kitchen.

(2)  There were electric drills and blue buckets with electric appliances left in the bedroom and the living room.

(3)  There were signs of burning on the wall and the ceiling of the bedroom, with some parts of the walls and ceiling charred.

(4)  The glass windows near the charred area were found opened with no signs of glass breakage. The glass windows installed on the other side of the bedroom were found broken with some glass chips at the bottom.

(5)  Some packs of cigarettes and lighters were found inside a wooden box on the floor in the bedroom. There were cigarette butts and a lighter lying on the floor of the bedroom.

(6)  A disconnected LPG stove was found inside the bedroom, with a hose connected to the stove and the other end disconnected.

(7)  A kitchen exhaust hood and microwave were found in the bedroom.

(8)  The control valve of the main switch of LPG supply was located inside the kitchen, and was found to be secured in a close position at the time of investigation. No branch switch of LPG supply was found inside the kitchen.

EXPERT EVIDENCE

24.  Leave has been given for the parties to adduce expert evidence on liability from fire and explosion experts. On behalf of Wong, Professor Lee Hung Kwong (“Prof Lee”) and Mr Yip Sung Tat (“Mr Yip”) were instructed. On behalf of D1, Professor Christopher Chao (“Prof Chao”) was instructed.

25.  Mr Yip was instructed as the occupational safety and hygiene expert to provide his opinion on specific subject to enable Prof Lee to come to his expert opinion. Mr Yip produced his report dated 17 August 2020, which was taken into account by Prof Lee in compiling his report dated 21 August 2020. Prof Chao produced his report on 15 February 2022. Prof Lee and Prof Chao prepared their joint statement in June 2022. The reports were adduced into evidence without oral testimony from the makers.

26.  It is common ground, which is in line with general common knowledge, that the explosion was the result of combination of fuel source, heat source and oxygen in play.

Fuel source

27.  According to the accident investigation reports mentioned above, the FSD arrived at the Premises 24 minutes after the accident. Gas detector did not detect sensitivity of LPG existence. The FSD was unable to detect any possible source of fuel and potential ignition accounting for the explosion.

28.  The investigating officers of the Electrical and Mechanical Services Department (“EMSD”) arrived at the Premises about 3 hours after the accident. According to EMSD, no LPG residue was detected at the Premises during the investigation.

29.  No criminal prosecution arising out of the accident has been laid.

30.  Whilst the departments were unable to conclude in this respect, the parties’ experts opined that LPG was the sole possible fuel source that could account for the accident. They explained that LPG is a high-pressure gas, which could burn completely in open air upon explosion, combustion or fire. Hence no LPG residue left in the open air afterwards. This explained the failure to detect the existence of LPG residue by the time the FSD and the EMSD arrived at the scene after the accident.

31.  On this basis, the experts proceeded to consider the possible source(s) of the LPG present at the time, including leakage from the LPG residue inside the disconnected stove and/or the hose, the main switch and/or the branch switch of the LPG supply or the LPG cylinder (which Wong referred to) or the cigarette lighter found on site.

32.  Prof Lee and Prof Chao stated their respective opinion that LPG could have come either from the residue inside the stove and/or the hose or the main and/or branch switch. They considered the chance of source from the cigarette lighter found in the bedroom to be unlikely. Regarding the LPG cylinder referred to by Wong, the experts’ approaches were different.

33.  Prof Chao tended to believe that the LPG cylinder did not exist, and suggested that Wong mistook a blue plastic bucket at the Premises to be the LPG cylinder. He held such view of the matter upon considering what were depicted in the photographs taken during the accident investigation. That was partly his inference from the belief that there was no need to place a LPG cylinder in the kitchen, if not for normal cooking (when there was fixed main supply). On this basis, he would rule out the alleged LPG cylinder as a possible fuel source in the explosion.

34.  Whilst not disputing Prof Chao’s observation from the photographs (ie lack of sight of a LPG cylinder) Prof Lee noted that the documented renovation work at the Premises included water proofing works and copper piping works which could have entailed the bringing in of a LPG cylinder. He preferred not ruling out the presence of LPG cylinder.

35.  Whether the alleged LPG cylinder existed at the material time is a matter of fact to be found by the court upon considering all the circumstances discernible or inferable from the evidence: see Chinachem Charitable Foundation Ltd v. Chan Chun Chuen & ors (HCAP 8/2007, unreported, 2 February 2010) at §§485-486. The extent to which expert opinion may assist, if at all, in this respect is limited. Whilst the oral evidence of Wong in this respect was not contradicted, the state of the circumstantial evidence mentioned above, in my judgment, is equivocal and less than corroborative of his evidence.

36.  As to the main gas supply, the accident investigation reports, as mentioned, revealed that the main switch was found to be in a secured state. According to the management company of the Building, no person had applied for any LPG disconnection work at the Premises prior to the accident. Nor was there evidence suggesting that the state of the main switch so found was the result of post-accident tampering. These tend to point away from the leakage from the main switch of LPG supply as the fuel source of the explosion.

37.  That leaves the remaining possibility, which was LPG residue inside the stove and/or the hose after their disconnection from the gas supply, be it the fixed main supply or a LPG cylinder, if it in fact existed.

38.  According to the experts, LPG is 1.5 to 2 times denser than air. LPG residue leaking from the disconnected stove and hose could be trapped within the large amount of debris scattered across the Premises and stayed at that level at the time. The disconnected stove and hose were found in the bedroom. Signs of burning on the wall and the ceiling of the bedroom, with parts charred, were found but none in other parts of the Premises. Glass windows of the bedroom were found to be broken after the accident. The aftermath suggested that the leakage of LPG in such circumstances was likely minimal, yet sufficient to trigger an explosion.

39.  Whichever of the possibilities analysed it was, the existence of the fuel source being LPG vapour among the debris on the floor of the bedroom which contributed to the potentially dangerous state of where Wong was working. The most probable of them, in my judgment, was the leakage from the LPG residue in the disconnected stove and/or hose left there.

Heat source

40.  The evidence suggests different possible heat sources on the spot at the time, including sparks from the power extension socket as well as heat and sparks generated from the handheld drill being used by Wong. Cigarette smoking would have been a possible heat source. Indeed, remains of cigarette pack and butane lighter were found on site after the accident as the post-accident photographs of the scene depict. Wong was admittedly a cigarette smoker but he denied having done so at the time of the accident. This was his uncontradicted evidence at the trial. There was no other worker on site at the time of the accident.

Oxygen

41.  It was the shared opinion of Prof Lee and Prof Chao that there was sufficient oxygen present at the Premises at the time to contribute to the explosion. This was supported by the post-accident technical report mentioned above.

DUTIES AND BREACH

42.  The issue of whether D1 was at the time of the accident employer of Wong has been tried in the related DCEC 227/2019, in which D1 was legally represented. The judgment dated 2 March 2023 binds the parties so that D1 is estopped from denying the employment relationship. Hence his duty as the employer towards Wong at the time.

43.  D1 owed Wong the duty as the employer to provide a safe system of work, which included providing sufficient training, sufficient and competent co-workers, proper instructions and equipment as well as a safe place of work: see Charlesworth & Percy on Negligence (16^th Ed) at §12-04, Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371 at §24, Lai Wah Wai v Castco Testing Centre Ltd [1996] 2 HKC 44 at §§74-75.

44.  Both defendants had the necessary degree of control over the Premises as the occupiers of it at the time for the purpose of section 3 of the Occupiers Liability Ordinance, Cap 314 (“OLO”). As such, they owed the common duty of care to Wong who was there in exercise of his right as a lawful visitor for the purpose of carrying out his work. Liability arose where the accident and damage were caused by the unsafe state of the Premises resulting from the act or omission on the part of the defendants at the time.

45.  Definition of the scope of the duty and the issue of breach must be premised on the cause of the accident and damage. There is no basis for suggesting that the hand-drilling operation of Wong would entail the risk of explosion-cum-fire in the normal course of events, notwithstanding the potential of spark or heat generated from the use of the handheld drill or the drilling process. What was beyond normal in the present case was the existence of the LPG vapour amongst the debris on the floor of the Premises, which provided the fuel source entailing the risk of explosion and fire in case of ignition. The question is whether and, if yes, what the duty of either or both of the defendants was with regard to assigning Wong to carry out his work in such state of the Premises and the risk arising out of that at the material time.

46.  There is no direct evidence that the defendants caused the existence of the disconnected LPG stove and hose at the Premises at the time. Nor is there evidence in respect of their state of knowledge about the state of the disconnected stove and hose at the Premises at the time. However, that did not absolve them from their duty. Where the demolition work at the Premises would in fact entail the disconnection of the LPG gas supply or the stove and hose, which was in fact also carried out by some other workers assigned or allowed by the defendants to work at the Premises, it would be the duty of the defendants to assess and to devise a safe system of work encompassing such part of the demolition work on site and its associated risk: see General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 194.

47.  There is no contention of that having been done, even on the basis of D1’s pleaded case. Nor is there evidence of that. Effectively, the defendants simply assigned or allowed the demolition work to be carried out by their workers, including assigning or allowing the disconnection of the LPG stove and hose as well as assigning Wong to carry out his work at the material time, without such assessment. The lack of assessment of the risk associated with the disconnection of LPG supply or the stove and hose may somehow be corroborated by the other circumstances. Finding of remains of cigarette and lighter at the Premises after the accident suggests the possible lack of prohibition or control of cigarette smoking at the Premises. That would have been unexpected had safety assessment and measures been put in place to address the risk associated with disconnecting LPG installation.

48.  Wong’s reliance on the statutory duties is extensive.

49.  Wong relies on sections 6 and 7 of the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”) and sections 3 and 12 of the Occupational Safety and Health Regulations, Cap 509A. These prescribe the duty of an employer to ensure that the employee is reasonably safe at work, which is co-extensive with and adds nothing material to the like duty under the common law discussed above: see Lam Wai Chi v Project Concern Hong Kong, HCPI 78/2002 (10 April 2003) at §48. At the trial, counsel for Wong also confirmed that reliance is no longer placed on section 7 of the OSHO.

50.  Section 6A of the Factories and Industrial Undertakings Ordinance, Cap 59 (“FIUO”) was pleaded. Whilst this may provide a reference for the measurement of the duty of care on the part of the persons in control of the undertaking in question, section 19 makes it clear that the ordinance does not confer a right of action in civil proceedings in relation to a breach of Section 6A.

51.  Wong also relies on the subsidiary regulation 43 of the Construction Sites (Safety) Regulations, Cap 59I and regulation 5 of the Factories and Industrial Undertakings (Protection of Eyes) Regulations, Cap 59S. He also relies on regulations 11(a) and (c) and 12(a) and (b) of Factories and Industrial Undertakings (Dangerous Substances) Regulations (Cap 59AB), which categorises LPG as dangerous substance under its Schedule 1. All these are apparently premised on the duty and steps reasonably expected to address the risk of injuries resulting from explosion or fire caused by the LPG. According to Wong, he only used a towel to cover his face and eyes when carrying out his work, and no protective shield or goggles was provided by the defendants.

52.  However, the work which Wong was assigned to carry out at the material time was not associated with LPG or any dangerous substance which entailed the risk of explosion-cum-fire. His work by using the handheld drill at the time should not have entailed such risk. As found, the duty of the defendants in the circumstances of the present case lied with their assessment and devising of a safe system of work encompassing the disconnection of LPG supply or the stove and hose from the gas supply. Their omission resulted in the state of the Premises in which Wong was assigned to work. But for such state of the Premises, the accident would not have occurred in the course of Wong’s work using the handheld drill. There is therefore no real factual basis for the contention that steps ought to have been taken to protect Wong from the risk of danger at work, such as explosion or fire caused by LPG as if such was a known or reasonably anticipated risk to address. The fact, as found, was that they simply made no attempt to appreciate and assess the risk.

53.  In the circumstances, the above statutory duties are of secondary, if any, relevance to the issue of breach.

54.  Reliance on regulations 38A(3) and 38AA(3) of Cap 59I is probably misplaced. Those provisions are premised on hazardous conditions of the place of work as defined in regulations 38A(4A) and 38AA(5) respectively, which refer primarily to the risk of falling from height at work.

55.  Reliance on Gas Safety (Gas Supply) Regulations, Cap 51B is doubtful, as they regulate the gas installation and work in the vicinity of and potentially affecting the integrity of the gas installation.

56.  Gas Safety (Installation and Use) Regulations, Cap 51C prescribe the proper and safe execution of work in relation to a gas fitting. They include the general safety precautions set out in regulations 5 and 23. Gas Safety (Registration of Gas Installers and Gas Contractors) Regulations, Cap 51D prescribe the requirement for registered gas contractor or its employee to carry out gas installation work. Breach would be an offence. Again, they may provide reference for measuring the reasonable duty of the defendants in causing or allowing work to be done in relation to a gas fitting or appliance. The statutes do not afford an actionable cause for damages: see Dah Sing Insurance Services Ltd v Gill Gurbux Singh [2014] 4 HKC 179 at §59.

57.  In view of the finding in respect of the absence of assessment and arrangement for a safe system of work entailing disconnection of the LPG stove and hose from the gas supply at the Premises at the material time, be it the fixed LPG supply installation of the Building or the LPG cylinder referred to by Wong in his evidence, breach of duty under the common law and the OLO was apparent even without reference to the measure of the relevant duty under the statutes in relation to work relating to gas installation or appliance.

58.  I find liability is established.

CONTRIBUTORY NEGLIGENCE

59.  D1 did not come forward to substantiate his contentions in respect of contributory negligence. The above findings leave no factual basis for contending that Wong was somehow to blame for the explosion-cum-fire at the Premises. No contributory negligence may be found in the circumstances.

QUANTUM

60.  Wong claims damages in the region of HK$5.2 million net of the employees’ compensation actually received.

Injuries and treatment

61.  After the accident, Wong was admitted to the Accident & Emergency Department (“AED”) of Tuen Mun Hospital (“TMH”) where physical examination revealed extensive burns covering about 50% of his body. Prophylactic intubation was performed in view of the major circumferential neck and chest burns. CT scan revealed no intracranial haemorrhage, cervical injury or internal organ injury. On the same day, he was transferred to the Intensive Care Unit (“ICU”) of Prince of Wales Hospital (“PWH”) for further management.

62.  Wong was diagnosed to have suffered burns to the face, neck, chest, back, upper limbs (including hands, arms and shoulders). He was also found to have swollen eyelids, singed eyelashes, burnt eyelid skin and chemosis, as well as swollen upper limb with impending compartment syndrome. He required immediate emergency surgical decompression by way of bilateral upper limb fasciotomy.

63.  On 21 February 2017, he underwent an operation for debridement and autograft to bilateral upper limbs and neck. He remained intubated until 23 February 2017. His condition deteriorated on the following day when he developed septic shock and required high doses of vasopressor support. He developed renal and liver impairment. He required re-intubation and ventilator support due to desaturation and lung infiltrates. Broad spectrum antibiotics were given. CT scan of the abdomen and pelvis was performed, and it did not reveal any septic focus. Klebsiella was found in his blood and tracheal aspirate. After gradual improvement from the sepsis, he was extubated on 27 February 2017.

64.  On 28 February 2017, Wong was discharged from the ICU and transferred to the Burns Unit.

65.  On 13 March 2017, Wong underwent another debridement and skin grafting.

66.  On 12 April 2017, Wong was discharged after 7.5 weeks of hospitalisation.

67.  Wong continued to be followed up at the Surgical Clinic of PWH until 20 October 2017.

68.  Between 14 June and 26 October 2017, Wong attended 29 sessions of physiotherapy, including upper limbs mobilisation, at the Department of Physiology of the Caritas Medical Centre (“CMC”).

69.  Between 28 April and 21 September 2017, Wong received 59 sessions of occupational therapy at the Department of Occupational Therapy of CMC. Pressure therapy and reconditioning training were given. He was found to have a decreased active range of motion over his shoulders, elbows, forearms, wrists, thumbs and fingers.

70.  Since the accident, sick leave had been given to Wong until 11 January 2019.

Present complaints

71.  Wong still has the following complaints:

(1)  persistent pain, irritation and itchiness around the scars all over his body and both upper limbs, which is aggravated by hot and cold weather and which affects his sleep;

(2)  occasional skin break or skin erosion over the scars;

(3)  on-and-off numb-pain over bilateral upper limbs from shoulders to hands which happens 2 to 3 days a week and lasts for 2 to 3 hours each time and which is aggravated by extreme weather or exertion with upper limbs;

(4)  weakness over right thumb;

(5)  weakness and stiffness over both upper limbs;

(6)  fatigue; and

(7)  permanent scars and cosmetic deformity.

Medical expert evidence

72.  Wong was jointly examined by the orthopaedic and traumatology experts, namely Dr Tio Man Kwun Peter (“Dr Tio”) instructed on his behalf and Dr Miu Yin Shun Andrew (“Dr Miu”) instructed on behalf of D1 on 25 January 2022. They produced their joint expert report dated 21 March 2022.

73.  On 13 January 2022, Wong was also examined by the parties’ single joint plastic surgery expert, Dr Walter Wing Keung King (“Dr King”), who produced his expert report dated 18 January 2022.

74.  The medical expert reports were adduced into evidence without their makers called to testify at the trial.

75.  The orthopaedic experts recorded Wong’s complaint about hearing loss in his right ear but there was no definite diagnosis after seeing the ear doctors at PWH. He also complained generalised itchiness and discomfort of scars over his body and both upper limbs, especially during hot or cold weather. However, no specific treatment was sought and such discomfort would heal after a few days. Further, he complained that there would be on and off numb-pain from shoulders to his hands 2 to 3 days a week, which would last for 2 to 3 hours and would further be exacerbated by extreme weathers. There was subjective weakness and stiffness in both his upper limbs and complaint about fatigue.

76.  Upon physical examination, the orthopaedic experts found dense scarring over the front and back of Wong’s body trunk caused by the burn injury. The skin graft was well healed. There was only mild tenderness in both upper limbs. There were scars over both hands with mild degree of subcutaneous tissue atrophy. General decrease in light touch sensation in both upper limbs amounted to about 10%.

77.  The orthopaedic experts agreed that the accident resulted in partial thickness burn of around 50% of Wong’s body involving the head, neck, trunk, bilateral upper limb and hand. There was no brain, spine or internal organ injury. There was no further active treatment since his discharge from the therapies mentioned above in October 2017. They agreed that Wong has reached maximal medical improvement after 9 months since the accident. No further treatment was recommended.

78.  The orthopaedic experts also agreed that there was a reduction in Wong’s handgrip range. Dr Tio further opined that the reduction in handgrip range is likely to be permanent and may pose difficulty in daily activities such as heavy manual labour and physical exertion. Sensory loss of his upper limbs may prevail. Dr Miu considered the prognosis would likely be good. There was no deep structure involvement in the partial thickness burn. The scar has healed well and there was no pain over the burn area. The range of movement of both upper limbs was good.

79.  Dr Tio agreed with the assessment of the Employees’ Compensation (Ordinary Assessment) Board. According to Form 9, the loss of earning capacity arising out of the multiple burns and resultant conditions of Wong amounted to 58% for the purpose of employees’ compensation. Dr Miu assessed the whole person impairment suffered by Wong to be 15%. Purely for comparing with the assessment of Dr Tio, I mention that Dr Miu assessed Wong’s loss of earning capacity to be 15%.

80.  Reference value in quantitative terms aside, both experts opined that Wong should be able to return to his pre-accident work with reduced capacity and efficiency. Dr Miu considered such impact to be mild while Dr Tio considered that that mainly affects his capacity to handle heavy manual labour, physical exertion as well as hot and humid working environment. Dr Tio recommended lighter duties in better working environment instead.

81.  Dr King observed that Wong has healed from his 50% body surface burns. There was minimal scar formation, which has also matured and settled as well as responded well to multiple sessions of scar therapy by the occupational therapist and limb stretching exercises by the physiotherapist. The dorsum of hands has healed well. The minimal webbing between the fingers is not causing functional disability. The bilateral anterior axilla tight scar is not causing significant limitation of shoulder movement, and Wong is also not interested in surgical revision of them. No further scar treatment was recommenced.

82.  Dr King opined that Wong has a permanent deformity of his right thumb, which resulted in a reduction of flexion strength of the right thumb. He has itchy, unsightly scars and reduction in strength in his upper limbs. In view of his reluctance to resume his pre-accident job due to reduced arm and hand strength following his burn injury to his upper limbs, Dr King recommended him to seek alternative job that requires light duty work, and he could take any of those up whenever they are available. In terms of the whole person impairment and loss of earning capacity, Dr King opined that they are both approximately 45%.

Pain, suffering and loss of amenities (“PSLA”)

83.  Wong was born on 26 February 1971. At the time of the accident, he was 45 years old and single. There is no evidence to contradict his claim of past good health. The joint orthopaedic expert report recorded that he was not active in sports. He had been working as demolition worker since 2008, which entailed handling weight of about 30kg and frequent climbing of scaffold and ladder. He did not resume working after the accident until, as discussed below, 2023.

84.  In terms of categorisation, the 4 categories explained by the court in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 as updated in Cheung Ka Man v Wong Yu Huen [2023] 2 HKLRD 418 would be compensated as follows:

(1)  “serious injury” between HK$585,000 and HK$789,000;

(2)  “substantial injury” between HK$789,000 and HK$966,000;

(3)  “gross disability” between HK$966,000 and HK$1,463,000; and

(4)  “disaster” from HK$1,463,000.

85.  Counsel for Wong suggested an award of HK$1,000,000 under this head. She referred as comparables to Leung Hing Sum v Yau Lee Construction Co. Ltd. & Ors HCPI 422/2000 (12 October 2001); Chu Tik Kwan v Liu Tik For t/a Wing Kwong Metal Spraying Workshop HCA 2623/1988 (22 June 1989); Chui Wing Lai v. Chung Dok Restaurant Ltd. And Pang Heung Lin (Third Party) HCA 3177/1989 (2 March 1995); Tang Ho Hei v. Chan Po Mei [2020] HKCFI 342; and Fung Wai Han v. Hui Chik Keung & Anor [2006] 4 HKLRD 549.

86.  All the evidence considered, I find that this case falls within serious injury straddling across to substantial injury category. In terms of quantification, I am of the view that an award of HK$800,000 would be reasonable.

Pre-accident income

87.  According to Wong, he was mainly employed by D1 at the daily wage rate of about HK$1,200 at the material times. This aligns with the finding in this respect in DCEC 227/2019 mentioned above, which binds him. Wong claimed to have worked for about 23 to 24 days per month. Counsel proposed to adopt the pleaded monthly rate of HK$27,000 for the assessment, which I accept.

Pre-trial loss of earnings

88.  Sick leave was given until 11 January 2019. This in Dr Tio’s opinion was reasonable whereas Dr Miu considered that sick leave until the end of treatment by November 2017, as mentioned above, should be reasonable.

89.  I find a lack of medical support for sick leave since the end of medical treatment for mere rest purpose in excess of a year. It is trite that the court is not bound by the sick leave which is prima facie evidence of period of incapacity to work. I find reasonable sick leave should last until mid-2018. Factoring in a reasonable period for searching for alternative employment opportunity discussed below, the reasonable period for Wong to be out of work since the accident would last until the third quarter of 2018.

90.  The medical experts primarily opined that Wong should be able to resume his pre-accident job with reduced capacity or efficiency due to compromised physical strength and handgrip. In his line of pre-accident job, the circumstances must be taken into account realistically. So is his prospect of successfully coping with the work. There is the added concern about his skin condition, which according to him as well as Drs Tio and King would give rise to discomfort in hot and humid working environment. Hence their recommendation for alternative jobs with lighter duties. On balance, I am prepared to adopt the reservation expressed by Drs Tio and King.

91.  According to Wong in court, he did not resume working until early 2023. From February 2023 to May 2024, he had worked as a part time/substitute food delivery worker for a friend. He worked for about 4 to 5 days per month, 7 hours per day. His income was around HK$1,680 per month. On 1 June 2024, he was officially employed as a food delivery worker at an hourly wage of HK$60. He worked for about 25 to 26 days per month, 5 hours per day, earning about HK$7,800 per month. Starting from October 2024, he worked for 7 hours per day, earning around HK$10,920 per month.

92.  Notwithstanding the above, counsel for Wong accepts that it would be more reasonable to stick to his pleaded case, according to the revised statement of damages, that he should have been able to commence alternative employment in light duties at the salary level of HK$10,000 after the expiry of reasonable sick leave. The approach of reasonable mitigation and confining to the pleaded case are commended.

93.  Therefore, the pre-trial loss of earnings inclusive of MPF benefit was:

Date of the accident (mid-February 2017) to say mid-September 2018: HK$27,000 x 1.05 x 19 months = HK$538,650

Mid-September 2018 until end of September 2024: HK$(27,000 – 10,000) x 1.05 x 72.5 months = HK$1,294,125

October 2024 until now: HK$(27,000 – 10,920) x 1.05 x 20.5 months = HK$346,122

Hence total sum of HK$(538,650 + 1,294,125 + 346,122) = HK$2,178,897

Future loss of earnings

94.  Wong is 55 years old. Assessment is proposed on the basis of the retirement age of 65, and, at 1% discount rate, a multiplier of 9.28: see Table 9 of Personal Injury Tables Hong Kong 2019.

95.  As such, Wong’s future loss of earnings would be: HK$(27,000 – 10,920) x 1.05 x 12 x 9.28 = say HK$1,880,202.

Loss of earning capacity

96.  An award for loss of earning capacity would be made if the plaintiff would be exposed to the risk of not being able to stay employed due to his disabilities. Wong did not return to his pre-accident job and, as mentioned, had no intention of doing so. He has been doing his delivery work, and there is no evidence in support of the risk of staying employed in this alternative line of lighter duties. I therefore see insufficient basis for making this award in the circumstances.

Miscellaneous special damages

97.  A total sum HK$16,000 was claimed, including HK$5,000 for travelling expenses, HK$10,000 for tonic foods and HK$1,000 for medical lotion or oil and medicated plaster. Not all expenses were supported by documents. I make a nominal award of HK$10,000.

Future medical expenses

98.  As mentioned, the medical experts did not recommend further treatment. According to Wong in court, what he now claims is the cost of medical ointment for his skin condition. The amount claimed is HK$3,000, which I find is reasonable. This is allowed.

Summary

99.  In summary, the award will be as follows:

Items	Amount (HK$)
PSLA	800,000
Pre-trial loss of earnings & MPF	2,178,897
Future loss of earnings & MPF	1,880,202
Loss of earning capacity	Nil
Miscellaneous special damages	10,000
Future medical supplies	3,000
Total:	4,872,099

100.  Net of the employees’ compensation actually received by Wong which, as found in DCEC 227/2019, was HK$30,000, the award becomes HK$4,842,099. This is yet to give credit to the balance of the agreed employees’ compensation sum of HK$1,470,000.

Interest

101.  Interest on general damages ie PSLA shall run from the date of writ to today at 2% per annum. Interest on pre-trial loss of earnings and special damages shall run from the date of the accident until today at half judgment rate. Interest from today shall run at the judgment rate.

ORDER

102.  Judgment is entered against the defendants, jointly and severally, in the sum of HK$4,842,099 (credit to be given to unpaid employees’ compensation in the sum of HK$1,470,000) with interest as aforesaid.

103.  Following the event, I make a nisi order that the defendants shall jointly and severally pay Wong’s costs of action, including any costs reserved, to be taxed if not agreed. Wong’s own costs shall be taxed in accordance with legal aid regulations. In the absence of any application to vary in 14 days from the date hereof, the nisi costs order shall become absolute without further order.