LEE KAI YU v. Hong Kong Kwong Tai Builders Ltd

HCPI 1184/2016

[2020] HKCFI 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1184 OF 2016

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JUDGMENT

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A. INTRODUCTION

1.  This is the trial of a personal injuries action commenced by the plaintiff (“P”), a formwork worker employed by the defendant (“D”) who sustained injuries in a construction site at Wah Fung House, Lek Yuen Estate, Shatin (“Site”) in the course of his employment on 21 December 2013 at about 2 pm (“Accident”).  P alleged that the Accident was caused by the negligence, breach of implied terms under his employment contract and breach of statutory duties on the part of D.  D disputes both liability and quantum.

B.  BACKGROUND

2.  By way of background, the matters set out in this section are not in dispute.

3.  P is now 55 years of age.  He was born in mainland China and came to Hong Kong in 1978.  P started working at the Site on 20 December 2013. He was a formwork worker but was also employed as a general labourer in construction sites from time to time prior to the Accident.

4.  At around 2 pm on the following day, he had to use an electric drill and started searching for it on the top of a pile of bricks that was around 4.5 feet high and 8 feet wide. The drill was covered by some black plastic bags at the time.

5.  When he was trying to locate the drill, it was suddenly switched on drawing in the plastic bags and P’s left hand.  He was wearing a labour glove but his left middle finger was twisted together with the plastic bags and the glove.

6.  The injuries sustained by P were limited to his left middle finger.  He was sent to the Accident and Emergency Department of Yan Chai Hospital for treatment.      

7.  P gave evidence on how the injuries were sustained and his condition before and after the incident.  He was also cross-examined on, inter alia, the details of his employment and his income before and after the incident.  D called two factual witnesses: (i) Mr Kwan Yuk Lam (director of D); and (ii) Mr Chan Cha Fai (D’s foreman).  Their statements were very short as they did not witness the Accident and had no direct knowledge of how the injuries were sustained.  P is therefore put to strict proof of the Accident.  

8.  Two medical doctors were called as experts and gave evidence for the parties.  The experts conducted a joint assessment of P on 27 June 2017 (some 42 months after the incident) and the disagreement between them was not significant.  In short, both Dr Tio Man Kwun Peter (“Dr Tio”) for P and Dr Tsoi Chi Wah Danny (“Dr Tsoi”) for D agreed that P sustained left middle finger injury with ruptured extensor tendon at the distal interphalangeal joint (“DIPJ”).  Examination revealed mallet deformity associated with tenderness over dorsum of the DIPJ and X-ray of middle finger showed minimal mallet deformity with no other bony lesion.  The two doctors also agreed that P has reached maximum medical improvement and should be able to resume his pre-injury work as formwork worker.

C.  POSITIONS OF THE PARTIES

9.  The crux of P’s case is that the condition of the Site was such that it was very packed and covered by construction materials such as bags of cement, wooden planks, tensile bars and a pile of bricks.  Electric appliances could only be randomly placed given the condition.  The drill was placed on the top of a pile of bricks by his co-workers and the injuries sustained were the result of the negligence of D and breach of implied terms under P’s employment contract.  In addition, it is also said that D was in breach of duties under: (i)sections 6 and 7 of the Occupational Safety and Health Ordinance (Cap 509) (“OSHO”) and sections 23 to 25, 27 and 29 of the Occupational Safety and Health Regulation (Cap 509A) (“OSHR”); (ii) section 6A of the Factories and Industrial Undertakings Ordinance (Cap 59) (“FIUO”); and (iii) section 3 of the Occupiers Liability Ordinance (Cap 314) (“OLO”).

10.  In particular, it is said that P had failed to provide adequate, proper, safe and sufficient instructions, training and precautions and to provide a storage place for the tools.  The supervision was inadequate, the working environment was unsafe and there was no safe or proper system of work.  Further, D had also failed to warn P of the danger in carrying out his work in an unsafe working environment.

11.  D’s position is that it could not have been negligent and there was no breach of duties given that as P was an experienced formwork worker, he should have lifted and cleared the plastic bags/sheets before he picked up the drill.  It is suggested that this was just common sense because P knew that the drill was under the black plastic bags.  The task involved was “simple everyday act” which did not require D to prescribe a safe system of work or offer any warning or training.

D.  ISSUES

12.  Based on the contentions of P, the following broad issues arise which will be discussed in turn:

(1)  Did the Accident take place as alleged by P?

(2)  Was D negligent or did D breach its own duty to P?

(3)  Was P contributorily negligent?

(4)  What is the quantum of damages payable to P?

E.  DISCUSSION

E1.   Liability

13.  It is trite that employers owe a duty to take reasonable care of their employees’ safety and that such duty includes provision of a safe system of work and a safe workplace.  The duty is personal and non-delegable and an employee cannot be expected to discharge the employer’s duty of care on its behalf.  Further, the duty is not lessened simply because the employee is experienced: see General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 189 – 190 per Lord Oaksey.

14.  Given that D’s witnesses did not have first-hand knowledge of how the injuries were sustained, the dispute of facts in respect of the Accident is limited.  Mr Chong for D had to attack the credibility of P based on his own statement and his testimony.  He referred to the Statement of Claim before it was amended where P pleaded that it was him who placed the electric drill on the top of the pile of bricks which was then covered by the black plastic bags placed on top by his co-workers.  In any event, the main point advanced by Mr Chong is that P ought to have lifted and cleared the black plastic bags before he picked up the drill.  It is said that this was just common sense which did not require D to prescribe a safe system of work.  Mr Chong also attacked P’s credibility and criticized him for changing his case. In P’s witness statement, it was simply suggested that he was searching for the drill on top of the bricks covered by the plastic bags when it was suddenly switched on.  When cross-examined, he suggested that the drill suddenly turned on when he attempted to lift the plastic bags.

15.  Despite the detailed cross-examination conducted by Mr Chong, I find P to be a reliable witness insofar as how the Accident occurred is concerned.  Whilst there are some inconsistences between his statement and his testimony on the precise steps taken by him when the Accident took place, it is understandable given the lapse of time and the details involved. 

16.  In other words, I accept P’s evidence that the drill was placed on the top of the bricks by his co-workers before lunch.  Plastic bags were placed on top of the drill to cover it up and the drill remained plugged in.  He needed to use the drill after lunch and knew that it was covered by the plastic bags and he was injured when he tried to remove the bags to locate the drill. 

17.  I am also of the view that the Accident was caused by the negligence on D’s part as there was simply no safe system of work and the environment was unsafe.  There was clearly no instruction or supervision despite the obvious risks involved in handling electrical appliances.

18.  In particular, it is accepted by Mr Chan of D that workers would sometimes cover electrical appliances (including drills and chainsaws) with black plastic bags during lunch hours to prevent them from being stolen.  He also claimed that “generally speaking”, workers would unplug the appliances before they leave the sites (for lunch or at the end of the day). 

19.  Leaving electrical appliances plugged in whilst they were not being used is obviously dangerous.  There does not appear to be any system in place and what D was counting on was simply the common sense of its workers to protect themselves.  The lack of any system, training or even warnings to the workers is clearly unacceptable.

20.  Mr Chong referred to relevant authorities supporting a number of propositions which are not really in dispute.  For example, the occurrence of the accident is not sufficient to give rise to a presumption of negligence; that the law does not require the employer to treat its workers as though they were kindergarten pupils when dealing with the kind of common everyday risks and that the duty of an employer does not extend to guarding against every conceivable risk however remote or fanciful. See for example Wat Kwing Lok v Kowloon Motor Bus Co (1933) Ltd [2008] 1 HKC 168 at paragraph 17 per Sakhrani J; Lam Ka Lok Louis v Swire Properties Management Ltd (HCPI 914/2003, unreported, 30 April 2005) at paragraph 39 per Suffiad J and Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 at 183.

21.  In his opening submissions, Mr Chong placed specific reliance on Fong Yuet Ha v Success Employment Services Ltd (CACV 100/2012, unreported, 28 December 2012) to make good the point that no particular system of work is required when dealing with a “simple everyday act”.  Numerous examples can be found in cases referred to in paragraph 20 of the judgment of Kwan JA (as she then was) where it was held that no prescribed system of work or specific advice was needed when the act could reasonably be trusted to the common sense of the employee to carry out the task safely. 

22.  However, it is also trite that it is a question of fact whether or not there is a need for a system of work to be prescribed in the given circumstances.  Unlike the situation in Fong Yuet Ha which involved the performance of an act that one would be performing outside the work context or cases involving tasks that could be carried out safely without specific instructions that were not inherently dangerous, the situation at the Site was very different.  Given the limited space, the use of electrical appliances (drills and chainsaws) by a number of different workers throughout the day, and the lack of specific storage space for the tools, the fact that the drill was plugged in over lunch hours and covered by the black plastic bags was inherently dangerous.  The lack of any system or warning is simply inexcusable.

23.  Mr Chong sought to argue that it has never been pleaded by P that the purported safe system of work required D or its employees to unplug the drill before leaving for lunch and submitted that P is not entitled to rely on this point.  However, this is a point that was made by Mr Chan in his witness statement and more importantly Mr Chong also accepted that there is no duty to plead what precisely is a safe system in the context of this case.  This must be correct given the straightforward facts and there is no suggestion that a complex or elaborate system is called for.  On the basis of the aforesaid, I find D’s injuries were sustained as a result of the negligence on D’s part.

24.  As to the claim on breach of statutory duties, given the finding on negligence, there is no need to analyse the provisions cited in detail save as to say that:

(1)  Given the aforesaid finding that there was no safe system of work in place, D was also in breach of section 6 of OSHO.

(2)  Section 6A of FIUO provides for the duty of every proprietor of an industrial undertaking to ensure health and safety at work of all persons employed by him at the industrial undertaking.  However, section 19 expressly provides that the Ordinance does not confer a right of action in civil proceedings in respect of a failure to comply with section 6A and affect the extent to which breach of any other provision is actionable.

(3)  Reliance on OLO is misplaced as it is trite that the common duty of care under the OLO is limited in application to dangers to the state of premises and not dangers arising from activities on land.  See Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14 per Bokhary PJ at §19.

E2.  Contributory negligence

25.  D invites the Court to find P to be 75% contributorily negligent.  It is said his blameworthiness should be high as he was an experienced formwork worker and the point that P ought to have lifted the black plastic bags before picking up the drill is repeated.  A number of English authorities concerning experienced workers who were aware of the dangers in the jobs in question were referred to in support of D’s position.  See for example McCreesh v Courtaulds plc [1997] PIQR P421 at P424; Gunter v John Nicholas & Sons (Port Talbot) Ltd [1993] PIQR P67 at P72 – P73 and Ellis v William Cook Leeds Ltd [2007] EWCA Civ 1232.  Further, reliance is also placed on section 8 of OSHO and section 6B of FIUO suggesting that P was also under statutory duties to take reasonable care of his own safety.

26.  The issue is clearly fact sensitive and the authorities are of limited assistance.  Given the finding of facts set out above, I am unable to accept Mr Chong’s submissions.

27.  It is common ground that the burden of establishing contributory negligence is on D.  Given my finding that he did in fact attempt to remove the black plastic bags when the drill was suddenly switched on, it is difficult to conclude that he could have been more careful.  Further, given Mr Chan’s evidence, P also cannot be criticized for assuming that the drill was unplugged when he was searching for it.

28.  In light of my finding that there was no safe system of work, it would be highly unfair to find any contributory negligence.  As explained by Recorder H Wong SC in Gurung Krishna Jang v Precious Swine Ltd (HCPI 486/2009, unreported, 16 November 2010) at §43:

“ In this regard, it is important to emphasize that the duty on the part of the employer is personal to him and it does not lie in his mouth to say that the employee could equally have foreseen the risks associated with the unsafe system of work, and could have designed for themselves a safe system of work.”

29.  As explained by Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 179:

“ The rules of contributory negligence have been mainly developed in connection with road accidents, but at least since Davies v. Mann, the law in discussing contributory negligence in such cases has disregarded as not materially contributing causes some acts of the plaintiff which might be regarded as negligence in a sense, and treated them as of subsidiary moment in ascertaining the causation of the injury and has fixed attention on what was judged to be the proximate or effective cause. Hence the question was stated as it was in Swadling v. Cooper to be what was the substantial cause. Contributory negligence involves two elements, negligence and contributing negligence. The policy of the statutory protection would be nullified if a workman were held debarred from recovering because he was guilty of some carelessness or inattention to his own safety, which though trivial in itself threw him into the danger consequent on the breach by his employer of the statutory duty.”

30.  The proximate cause of the Accident in this matter is the negligence of D.  As illustrated by the passage cited above, not every carelessness or inattention to his own safety amounts to contributory negligence on P’s part.  Even if P was somehow careless in not removing the plastic bags first, this was not the proximate cause of the accident and ought to be ignored.

31.  It is also well established that once a material breach of statutory duty is found in addition to the liability for negligence, the standard by which the plaintiff’s contributory negligence is judged is less exacting than that used for ordinary negligence.  Given my finding of breach of OSHO, this reinforces the conclusion I reached.

32.  I find that D did not make out a case that P is liable for any contributory negligence.

F. QUANTUM

33.  The parties have reached agreement on pain, suffering and loss of amenities (“PSLA”) in the sum of HK$180,000 and special damages in the total sum of HK$10,835 comprising medical expenses (HK$5,035), traveling expenses (HK$800) and tonic food (HK$5,000).  The main issues in dispute are therefore (i) pre-trial loss of income; (ii) future loss of earnings; and (iii) loss of earning capacity.

F1.  Injuries, treatments and assessment by the experts

34.  P consulted the Accident and Emergency Department of Yan Chai Hospital (“YCH”) on 21 December 2013 immediately after the Accident.  X-ray examination revealed no fracture, and he was diagnosed with tendon injury and abrasion, treated, and discharged.  Continuous sick leave from 21 December 2013 to 30 May 2014 (except 29 December 2013) was recommended and given in various follow-up consultations.

35.  P subsequently received occupational therapy in YCH for mallet finger splint from 30 December 2013 to 24 April 2014 and from 26 June 2014 to 8 September 2014.

36.  He also received a total of 13 sessions of physiotherapy treatment in YCH from 7 April 2014 to 21 July 2014.  On his first visit on 7 April 2014, it was found that his left hand grip (10 kg) was significantly weaker than that of his right hand (30 kg) and the active movement for proximal interphalangeal joint (“PIPJ”) and DIPJ of his left middle finger were 0-100 degree and 30-50 degree respectively.  On 21 July 2014 his right hand grip was 30 kg and left hand grip was 13 kg.  The active range of movement of his left middle finger PIPJ and DIPJ were 0-80 degree and 25-50 degree respectively.

37.  Another assessment on 1 September 2014 by an occupational therapist of YCH found that the plaintiff still had resting pain at his left middle finger; the range of movement at DIPJ of that finger was 15-65 degree; and his right hand grip and left hand grip were 34 kg and 26 kg respectively.

38.  He received further occupational therapy from Princess Margaret Hospital from 10 March 2015 to 10 April 2015.  The last assessment was done on 10 April 2015, which confirmed that the plaintiff’s lifting and carrying abilities were slightly decreased and his work capacity marginally matched the previous job demands as a formwork worker.

39.  On 18 June 2015, P was examined by Dr Tsoi.  Dr Tsoi confirmed mallet deformity of his left middle finger and assessed the degree of whole person impairment and loss of earning capacity at 1%.  Dr Tsoi found that the plaintiff could resume his pre-injury job in very good capacity and his future employability was basically unaffected.

40.  A joint medical report dated 11 July 2017 (the “Joint Medical Report”) was prepared by the two experts after their examination of P on 27 June 2017.  The doctors opined that he likely sustained left middle finger injury with ruptured extensor tendon at DIPJ and there was no bony improvement.  They agreed that P has reached maximal medical improvement and no further treatment was required.  P was also independent with activities of daily living, and was able to handle most chores in a manner comparable to people of his age group.  Importantly, both doctors agreed that P should be able to resume his pre-accident occupation as a formwork worker.  However, whilst Dr Tsoi opined that P can resume in full capacity, Dr Tio opined that he would experience a reduction in work capacity and efficiency especially on exertions like heavy lifting and carrying as well as actions that require repeated left middle finger movements.  Under cross-examination, Dr Tsoi agreed that if P suffered genuine pain, stiffness and weakness in his left middle finger, then that would indeed cause inconvenience and a decrease in efficiency.  Yet, Dr Tsoi maintained that mallet middle finger will not cause any hand grip weakness and pain is not expected.  Dr Tio, on the other hand, under cross-examination disagreed that there must be no soft tissue injury if there is no swelling and many patients with tendon injuries may have residual resting pain even after a long time.  However, he admitted that pain should not be significant or continuous but should be intermittent, and that such pain does not disrupt sleeping most of the time.

41.  In terms of gripping power, in his evidence-in-chief Dr Tio said that the tests were conducted by different teams of professionals.  Although the device used to measure it was the same, the device offered five positions for measurement.  To be accurate, all five positions should be used to give a better understanding and an overall picture.  But in the two reports, only one measurement was reported.  It was impossible to compare the two reports as a result, not least because there was no mention as to which position had been used.  According to Dr Tio, what could be compared were the findings of the professionals individually, which showed that the left hand gripping power was not as strong as the right hand one.  However, Dr Tio admitted that right-handed persons usually have a stronger gripping power in their right hand.  Under cross-examination Mr Chong suggested to Dr Tio that P had underperformed.  This was consistent with Dr Tsoi’s view that mallet middle finger will not cause any hand grip weakness and the data above was mainly due to voluntary underperformance.  In reply, Dr Tio said that he could not be sure whether P had underperformed; however, since the distribution was normal and not erratic or static, which was usually the case when a patient deliberately underperformed upon assessment, Dr Tio was of the opinion that P did not.

42.  Another relevant major difference relates to the bearing of P’s left middle finger injury about 20 years ago to the present condition.  According to P, he attended the Medical Assessment Board and was granted 2 – 3% loss of earning capacity.  But there was no documentary evidence.  Dr Tio maintained that the old injury bears no relationship to his present condition, whereas Dr Tsoi opined otherwise.

43.  This difference of views gave rise to another difference.  Dr Tsoi assessed the permanent impairment of the whole person and also the loss of earning capacity at 1%, while Dr Tio assessed the same at 4%.  During cross-examination, Mr Chong suggested to Dr Tio that his assessment at 4% should be reduced by 2 – 3% because of the previous injury, resulting in 1 – 2%.  In response, Dr Tio said that theoretically when assessments are carried out, the current state is considered, but the percentage will be reduced accordingly if any known pre-existing condition/injury is directly relevant.  Despite his knowledge of the previous injury and grant of 2 – 3% loss of earning capacity, he still believed that 4% loss of earning capacity was appropriate.  Dr Tio said that his assessment was based on the whole picture.  In this connection, I also note that P had been assessed and re-assessed by the Employees’ Compensation (Ordinary Assessment) Board of the Labour Department on 10 March 2016 and 21 July 2016 respectively and he was confirmed to have suffered a 3% loss of earning capacity.

44.  One final relevant divergence between the doctors is in relation to sick leave.  In essence, Dr Tio opines that orthopaedically and in view of P’s pre-injury work nature, the sick leave given (around 29.5 months in total) was reasonable and appropriate.  On the other hand, Dr Tsoi opined that for mallet finger injury, sick leave up to 6 months should be the maximum.  I will deal with this further below.

45.  As is apparent from the rest of this judgment, save as otherwise stated, the difference between the two experts do not have any significant impact on the main issues in dispute.

F2.  Pre-trial loss of earnings

46.  P relied on the Form 2 filed by him where it is said that he earned a daily wage of HK$1,300 as a formwork worker prior to the Accident and that he was able to work 26 days per month.  Mr Poon (counsel for P) suggested that P may not be able to work 26 days a month based on the records available and suggested 20 days instead.  He therefore invited me to adopt the figure of HK$26,000 per month and to use 29.5 months as sick leave period.  After taking MPF into account, the total payment during sick leave period is said to be HK$26,000 × 29.5 months × 1.05 (MPF) = HK$805,350.

47.  As to his income after the sick leave period, the Court is asked to deduct the income generated from the various employment undertaken by him from 14 March 2016 to 15 July 2019.  Taking the HK$805,350 into account, the total amount claimed is HK$1,287,979.02.

48.  I am unable to accept the figures proposed by Mr Poon.  In my view, what P was earning at the time of the Accident was significantly lower than what was suggested.  A period of 29.5 months is also excessive given the injury and P’s condition.

Sick leave period

49.  It is trite that medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the Court could not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff.  See for example Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210.

50.  Mr Poon in his closing submissions referred to Zheng Biao v Kwok Wai Lung (HCPI 115/2001, unreported, 25 June 2004) and Li Wan Kei v Hyundai Engineering & Construction Co Ltd(HCPI 577/2004, unreported, 6 March 2006) and suggested that in the absence of any evidence that the sick leave certificates were not properly granted, I should not rely on a statement by one doctor that a shorter period should be given.  I believe he is overstating the position.  As explained by Au-Yeung J in Pak Siu Hin Simon v JV Fitness Ltd (HCPI 574/2014, unreported, 15 May 2017) at paragraph 74, the Court can certainly place weight on the views of the treating doctors but the expert’s views of the overall picture are equally important.  

51.  Under cross-examination Dr Tio gave evidence that soft tissue injuries would become static within 6 to 18 months depending on factors such as the rehabilitation and diligence of the patient.  The range of movement for P also became static 1 to 2 years after the accident.

52.  Mr Chong suggested that after the grant of continuous sick leave, P visited hospitals for numerous times only to get more sick leave rather than for treatment/medication.  P also claimed that he decided to stop visiting doctors after the assessment and re-assessment by the Employees’ Compensation (Ordinary Assessment) Board because they were in his favour.  This explanation from P is difficult to understand as one would have thought the predominant purpose of the visits were to receive treatment.

53.  I accept the submissions of Mr Chong that a period of 29.5 months is excessive.  The views of Dr Tsoi in this regard is to be preferred.  As pointed out by Mr Chong, by 2 May 2014 (ie about five months after the Accident), P had been told that his condition had been static and follow up appointments at the A&E Department were no longer necessary.  Further, by 9 September 2014 (ie nine months after the Accident), P had completed both physiotherapy and occupational therapy treatments.  Although he received further occupational therapy from Princess Margaret Hospital from 10 March 2015 to 10 April 2015, P’s condition was not significantly improved by the treatments.

54.  Mr Chong accepted that more latitude should be given to P and suggested that nine months is reasonable.  Taking the totality of the medical evidence into account and to give P time to seek employment following his injury and treatments, I am prepared to give P three more months.  A total period of one year should be adequate.  His condition should have been stable by then and he ought not have had any difficulty in performing duties as a formwork or general worker.

Pre-Accident income

55.  What is clear from the evidence presented are twofold: (i) P did not always work as a formwork worker prior to the Accident.  Although the income of a formwork worker is higher, he was often employed as a general labourer prior to the Accident and the daily income is significantly lower; (ii) he was never continuously employed throughout the year and had to switch from job to job depending on what came his way and his income was very unstable.

56.  The main evidence adduced by P is a statement from the Inland Revenue Department (“IRD Statement”) setting out his income from 2011 as declared by his employers.  In addition, he also produced a letter from Sum Wing Engineering Limited (“Sum Wing”) dated 15 December 2014 suggesting that his income during the period from December 2012 to April 2013 was HK$153,549.  The income from Sum Wing is not reflected in the IRD Statement. However, even if one is to accept that the income from Sum Wing was genuine, the annual income for the relevant years from 2011 were as follows:

Period	Total income	Source
April 2011 – March 2012	HK$  15,533	IRD Statement
April 2012 – March 2013	HK$  36,593	IRD Statement
Dec 2012 – April 2013	HK$ 153,549	Sum Wing
April 2013 – 21 Dec 2013	HK$ 109,435	IRD Statement

57.  According to the calculation provided by Mr Chong, P only earned around HK$14,266 per month in the relevant periods identified by him and he submitted that the Court should adopt this figure as P’s pre-trial income.

58.  Mr Poon asked me to place more weight on the period covered by Sum Wing evidencing an average monthly income of HK$30,709.80.  He said that this is closer to the date of the Accident and should carry more weight compared to the income as reported in the tax returns in 2011 – 2013.  He also submitted that this supports the monthly earning of HK$31,200 as pleaded in the Statement of Damages.

59.  I am unable to accept Mr Poon’s submissions.  There is no explanation as to why the income from Sum Wing was not reported.  In any event, even if one is to accept all the evidence submitted by P, his average income is much lower than the figure claimed.  Further, the employment by Sum Wing was also for a short period of time and the pattern revealed is that his employment was unstable and his average income over the three years prior to the Accident was substantially lower than the amount claimed. 

60.  Taking all the evidence into account, I will adopt a monthly figure of HK$15,000 as P’s pre-trial income.  His pre-trial loss of income for the period from 21 December 2013 to 21 December 2014 should therefore be HK$189,000 (ie HK$15,000 × 12 months × 1.05 (MPF)).

61.  In the present case, the experts disagreed as to whether the plaintiff could return to his pre-injury job as a formwork worker with full efficiency.  I have found that the plaintiff did not always work as a formwork worker before the Accident.  Moreover, I find Dr Tsoi’s assessment more believable in this regard.  Although this has nothing to do with his loss of earnings, as will be seen below, it could have a bearing on the plaintiff’s loss of earning capacity.

62.  P took up various employments from time to time from March 2016.  His employer and the income earned are set out by him in a handwritten summary.  Apart from general labourer in construction sites, he did other odd jobs such as a plasterer earning some HK$800 to HK$1,100 per day.

63.  From 21 December 2014, P should have returned to gainful employment.  As will be seen below, from the evidence adduced by P, I find that P should have earned HK$11,855.56 per month.  Therefore, his pre-trial loss from this date to trial is calculated as follows:

(HK$15,000 − HK$11,855.56) × 55 × 1.05 (MPF)
= HK$181,591.41.

64.  P’s total pre-trial loss of earnings is therefore: HK$189,000 + HK$181,591.41 = HK$370,591.41.

F3.  Future loss of earnings

65.  Mr Poon invited the Court to adopt HK$900 per day for the calculation of his future loss of earnings.  With reduced efficiency, the loss is said to be HK$8,000 per month, ie HK$26,000 (being pre-trial monthly income claimed by P) − HK$18,000 (being HK$900 × 20 days).  He drew my attention to Chan Pak Ting v Chan Chi Kuen (No 2) [2013] 2 HKLRD 1 and submitted that given P was 55 years of age at time of trial and assuming a retirement age of 65 years, a discount of 1% should be applied according to Table 9 of Personal Injury Tables Hong Kong 2019.  He urged me to adopt a multiplier of 9.28 and his calculation of the post-trial loss of earnings and MPF are as follows: HK$8,000 × 12 × 9.28 × 1.05 (MPF) = HK$935,424.

66.  On the other hand, Mr Chong submitted that without prejudice to his primary position that D should not be liable, even if one is to accept the figures in P’s Revised Statement of Damages, his average monthly income between August 2016 and 24 August 2017 was HK$11,855.56 only.  He asked the Court to adopt his figure of HK$14,266 as monthly salary prior to the Accident and even accepting the figure as per P’s Revised Statement of Damages and also the multiplier and formulation proposed, the figure should only be (HK$14,266 − HK$11,855.56) × 12 × 9.28 × 1.05 (MPF) = HK$281,847.92. 

67.  Given my finding that P’s pre-trial income was HK$15,000 per month and accepting the average income of P after he resumed employment was HK$11,855.56 per month, adopting the calculation which is otherwise not in dispute, I find that the total loss of post-trial earnings and MPF are: (HK$15,000 − HK$11,855.56) × 12 × 9.28 × 1.05 (MPF) = HK$367,673.08.

F4.  Loss of earning capacity

68.  As to the relevant figures, Mr Chong accepts that 12 months’ lost wages is an appropriate award without prejudice to his primary position.  Mr Poon asked me to adopt HK$18,000 per month (ie daily wage of HK$900 × 20 days).  Mr Chong submitted that it should be only HK$2,410.44 per month (ie HK$14,266 − HK$11,855.56). 

69.  Looking at the facts in the round especially given his recovery, his age and the nature of his employment, I am of the view that a sum of HK$45,000 would be reasonable.  This would be the equivalent of about three months’ salary.    

F5.  Summary of quantum

70.  In summary, I assess damages for the personal injury claim as follows:

	Special damages
(1)	Pre-trial loss of earnings and MPF		HK$ 370,591.41
(2)	Medical expenses		HK$    5,035.00
(3)	Traveling expenses		HK$       800.00
(4)	Tonic food		HK$    5,000.00
	General damages
(5)	PSLA		HK$ 180,000.00
(6)	Future loss of earnings and MPF		HK$ 367,673.08
(7)	Loss of earning capacity		HK$  45,000.00
	Subtotal:		HK$ 974,099.49
Less	EC payment received	(	HK$ 880,994.85)
			____________
	Total:		HK$  93,104.64
			===========

71.  There will be an award of interest on damages for PSLA at 2% from date of the writ to date of judgment.  As for damages for pre- trial loss of earnings and other special damages, interest will be awarded at half judgment rate from date of accident until date of judgment.

G.CONCLUSION

72.  Given the above, I order that D do pay P the sum of HK$93,104.64 by way of damages.

73.  I also make a costs order nisi that D is to pay P’s costs to be taxed on the District Court scale if not agreed.  Given the conclusion on quantum reached by me, it is readily apparent that the amount claimed by P is unrealistic and there was no reasonable prospect of an award in excess of the District Court jurisdiction.

74.  The costs order nisi shall become absolute in the absence of any application within 14 days unless an application is made to vary the same.