CHAN YUEN FUK v. VERNALTEX CO LTD

DCPI 1374/2022

[2026] HKDC 1593

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1374 OF 2022

--------------------

BETWEEN

--------------------

--------------------

JUDGMENT

--------------------

1.  This is a 3-day trial of a personal injuries action commenced by the Plaintiff (“P”) against the Defendant (“D”) on 5 May 2022.

2.  The instant accident happened in the early morning on 26 October 2019 when P was riding his bicycle on the way to a minibus stop for transportation to Shatin where he would start his daily work as a Kowloon Motor Bus (“KMB”) driver. The locus in quo was inside the famous seafood market/street of Lei Yue Mun Village[1]. On the way to the minibus stop, P’s bicycle skidded at the location where D had covered the excavated areas by metal plates[2] (the “Metal Plates”). The bicycle crashed and P fell off the bicycle (the “Accident”). As a result, P suffered personal injuries to his right shoulder.

3.  The trial was scheduled to commence on 24 February 2026. On 30 January 2026, D took out a summons for leave to file and serve a witness statement of Ho Kwok Poon[3] (“Mr Ho”) dated 29 January 2026 to replace the 2 witness statements of Yuen Kwan Ying[4] (“Mr Yuen”). I heard the parties on 11 February 2026 and gave my reasoned decision extempore (my “Extempore Decision”), giving leave to D to file and serve Mr Ho’s witness statement.

4.  The trial took place on 24, 25 and 27 February 2026. P was represented by Mr Eric Shum (“Mr Shum”) together with Ms Michelle Wong (“Ms Wong”) of Counsel and D represented by Mr Victor Gidwani (“Mr Gidwani”) and Ms Daisy Yeung (“Ms Yeung”) of Counsel.

5.  On the 1^st day of the trial, I granted leave by way of consent to P to file and serve his 3^rd Supplemental Witness Statement (“P’s 3^rd SWS”).

6.  At trial, P[5] elected to testify and called a total of 3 witnesses, 張耀忠[6] (“Mr Cheung”), a Lei Yue Mun Village council member, 羅惠娟[7] (“Madam Law”), a villager of Lei Yue Mun Village, and 黎炳光 [8] (“Mr Lai”), a KMB driver, to testify. As aforesaid, D called Mr Ho[9] to give evidence in place of Mr Yuen.

7.  According to the Order of Master Anny Chak dated 14 June 2024, the Joint Orthopaedic Report prepared by Dr Lam Chi Keung, Johnson (“Dr Lam”) and Dr Ngai Wai Kee (“Dr Ngai”) dated 4 December 2023 (the “Joint Report”) was to be adduced without oral evidence at trial.[10]

8.  Parties have helpfully filed their respective written submissions. After I heard their oral closing on 27 February 2026, I have reserved my judgment to be handed down on or before 27 August 2026.

BACKGROUND

9.  P is and was at the material time a resident of Lei Yue Mun Village.

10.  In 2018, D was contracted by the Drainage Services Department of the Hong Kong SAR Government to carry out sewerage facilities installation works at Lei Yue Mun and Sam Ka Tsun area under Contract No DC/2018/04 – Provision of sewerage to the unsewered areas of Lei Yue Mun near Sam Ka Tsuen Typhoon Shelter, Yau Tong (the “Drainage Contract”). Part of the works was to lay underground sewer conduits underneath the intersection of the alleyways inside the seafood market/street area of Lei Yue Mun Village, including the section in the vicinity of the shop front of Lai Kui Kee Seafood (黎鉅記海鮮酒家) and Hoi Lung Seafood (海龍海鮮酒家).

Topography of Lei Yue Mun Village

11.  The seafood market/street area of Lei Yue Mun Village comprises of some densely erected low-rise buildings. The ground floors of the buildings are almost wholly occupied by seafood stalls, traditional groceries and seafood restaurants connected by a network of narrow alleyways of varying width. The main route of the network of alleyways is a thoroughfare running in a generally north-south direction known as “Lei Yue Mun Praya Road West” (鯉魚門海傍道西).

12.  To the north, “Lei Yue Mun Praya Road West” connects with the cul-de-sac end of Lei Yue Mun Praya Road, an adopted short vehicular public highway. To the south, it connects with Lei Yue Mun Praya Road East, a widened village road which serves the residential part of Lei Yue Mun Village and 3 other smaller villages[11]. [12]

13.  At the roundabout of the cul-de-sac end of Lei Yun Mun Praya Road, 2 road signs were erected prohibiting entry of all motorized traffic unless those with special permit (有許可證者不在此限).[13]

The Network of Alleyways

14.  The network of alleyways is narrow in width and is a non-carriageway[14], prohibiting the use of motor vehicles. The alleyways run through the famous seafood market/street in Lei Yu Mun Village and are lined, in the main, with live seafood stores and seafood restaurants with protruding shop displaying facilities.

15.  The shopfronts along the alleyways are misaligned, resulting in alleyways having a varying width.

16.  The alleyways not only provide the route for delivery of stocks and live seafood to the stores and seafood restaurants there, but they also provide the access route to public transportation for the residents of the 4 villages. During weekends and holidays, the alleyways are teeming with visitors and tourists.

17.  There are people passing the alleyways by bicycle.

The Drainage Contract

18.  In or about November 2018, D began to carry out the initial phase of the sewerage facilities installation works. The initial phase of the sewerage facilities installation works involved the opening up of the alleyways’ concrete surface at various designated locations to ascertain the precise position of the pre-existing underground utility conduits so that the precise routing of the sewage pipes could be planned and mapped out.

19.  After completing the excavation work, the opened surfaces would be covered by metal plates for resumption of the pedestrian traffic. The metal plates were screwed into the surrounding concrete surface.

20.  The excavation of the alleyway’s concrete surface in the vicinity of Lai Kui Kee Seafood and Hoi Lung Seafood was commenced on or about 10 October 2019 and completed on 14 October 2019. Upon completion of the excavation work and the opened surface was covered by Metal Plates.

21.  Before the Accident, D had not received any complaints regarding the Metal Plates.

The Locus In Quo at the time of the Accident

22.  On 26 October 2019, the weather of Hong Kong was dry, with yellow fire warning signal raised between 0600 hour and 1800 hour.

23.  According to P, the Accident happened at around 5:30 am on the alleyway outside Lai Kui Kee Seafood and Hoi Lung Seafood.

24.  At the spot of the Accident, the alleyway was initially running south to north, and then at Lai Kui Kee Seafood and Hoi Lung Seafood turning east/right at 90^o leading to the location where P could board minibus or turning west/left at 90^o leading to the pier.[15]

25.  Before the alleyway reached the junction at Lai Kui Kee Seafood and Hoi Lung Seafood, there was a shop known as “杯莫停” on the left side of the alleyway.

26.  At the time of the Accident, the restaurants and shops were closed and there was no pedestrian at the location of the Accident.

LIABILITY

The Parties’ Respective Cases

27.  In a nutshell, P’s pleaded case is as follows: -

(a) P at the material time was and still is living in Lei Yue Mun Village where it is common knowledge that residents ride bicycles to and from their homes in Lei Yue Mun Village.

(b) On 26 October 2019, while P was riding his bicycle in Lei Yue Mun Village to commute to work and when reaching the vicinity of Lai Kui Kee Seafood (the “Site”), his bicycle skidded on the wet and slippery Metal Plates laid thereat by D and crashed. P fell off the bicycle onto the ground[16].

(c) At the material time, the Metal Plates laid by D were wet and slippery without any anti-slippery coating.

(d) As a result, P sustained injuries to his right shoulder and right upper limb.

(e) In negligence, D owed P the following duties of care: -

(i) D was under a duty to oversee and ensure that the Site was maintained in a safe condition and free of any risk and safety hazard, and not to cause any harm to any persons including the residents of Lei Yue Mun Village who would use and pass by the Site by cycling or walking;

(ii) D was under a duty of care to oversee, monitor, ensure and maintain the works were conducted at the Site in a safe manner and free of any risks or hazards, and to prevent any harm that might cause to any persons, including the residents of Lei Yue Mun Village passing by the Site by cycling or on foot; and

(iii) D was under a duty of care to take all safety measures in carrying out the drainage works at the Site to prevent any persons including the residents of Lei Yue Mun Village passing by the Site by cycling or on foot, from being endangered by the conditions of the Site.

(f) D was in control of the Site and was the occupier of the Site to which P was a lawful visitor within the meaning of the Occupiers’ Liability Ordinance, Cap 314 (“OLO”). D owed P the common duty of care to take such care as in all the circumstances of the case reasonable to see that P would be reasonably safe in using the Site

(g) D was liable to P in negligence and for breach of common duty of care as follows: -

(i) Failure to ensure that the Site was maintained in a safe condition and free of any risk and safety hazard;

(ii) Causing and permitting the Site to remain in unsafe and hazardous conditions, well knowing that residents of Lei Yue Mun Village would visit and pass by the Site by cycling or on foot;

(iii) Causing and permitting the Metal Plates laid at the Site in unsafe, hazardous, wet and slippery conditions;

(iv) In the premises, causing, permitting and allowing the Metal Plates laid at the Site to become a safety hazard to persons passing by the Site, whether by way of cycling or on foot;

(v) Failing to lay anti-slip and/or anti-skid coating onto the surface of the Metal Plates;

(vi) Failing to construct and maintain the Metal Plates so laid at the Site in safe and non-slip and/or non-skid conditions;

(vii) Causing, allowing and permitting the Metal Plates in hazardous conditions, thereby exposing P to unnecessary risk of injury of which D knew or ought to have known;

(viii) Failing to take all safety measures in laying Metal Plates at the Site to prevent any users and passers-by from being endangered by the slippery conditions of the Metal Plates

(h) P prays aid of res ipsa loquitur at trial.

28.  In essence, D’s pleaded case is as follows: -

(a) The alleyways were wet most of the time and were unevenly worn out. Along the alleyways was the presence of protruding shop displaying facilities, randomly parked cargo trolleys, slow moving pedestrians and stationary shoppers. Narrow alleyways to sharp junctions afforded a very limited line of sight of the opposite traffic ahead.

(b) The traffic of pedestrians and non-motor category was intense in the alleyways.

(c) The stability of riding a bicycle requires the maintenance of a reasonable speed. This renders the riding of bicycle in the alleyways unsuitable and dangerous. The riders of bicycles are required to dismount from the bicycles and push them by hand to reduce the risk of personal injury to themselves and the pedestrians nearby.

(d) The metal plates had anti-slip checkered patterns and intermittent anti-slips. The top surface of the metal plates was of contrasting reflective colour for ease of observation from the surrounding concrete surface. The metal plates were screwed to the surrounding concrete surface to ensure safety and stability.

(e) The general cleaning of the metal plates was carried out by the relevant government department and the owners/operators of the stalls/restaurants in the vicinity.

(f) The daily inspection of all the metal plates was carried out by D’s staff.

(g) At about 9:00 am on 26 October 2019, when Mr Yuen, the site foreman of D, was working at the northern end of the alleyways at or near 鯉魚門牌坊, P confronted him, complaining that he slipped and fell at one of the metal plates inside the seafood market area at about 0600 hour. They then visited the scene and at the scene, P told Mr Yuen that when he was riding his bicycle at the material time, he fell off whilst negotiating a sharp corner. Mr Yuen found no abnormality with the metal plate which was still securely anchored on the alleyway’s concrete surface.

(h) D put P to strict proof of the Accident and the applicability of the OLO. D specifically denied that it was under a duty of care to ensure that the Site was free of any risk and safety hazard to cyclers passing over the Site[17], that it was the occupier of the Site and res ipsa loquitur. D further averred contributory negligence on the part of P, as particularised in para 4 of the Defence.[18]

Issues

29.  On liability, the issues can be briefly summarised as follows: -

(a) Whether the Accident happened in the manner as alleged by P (“Issue (1)”);

(b) Whether D owed P a duty of care in negligence as particularised in para 27(e) above (“Issue (2)”);

(c) Whether D owed P a common duty of care under s.3(2) of OLO (“Issue (3)”);

(d) Whether D was in breach of the duty of care and/or common duty of care and liable to P (“Issue (4)”);

(e) If in the affirmative, whether the Accident was caused solely or contributed to by the negligence of P (“Issue (5)”); and

(f) If in the affirmative, the degree of contributory negligence (“Issue (6)”).

30.  In para 15 of D’s Opening Submission, Mr Gidwani has set out a myriad of core factual issues. They are relevant for my consideration and I bear them in mind. But answers to some core factual issues raised are quite obvious after the evidence has transpired at trial.

Assessment of Witnesses’ Credibility

31.  The approach to assessing the credibility of the testimony of witnesses is trite. There are many previous judgments in the High Court and District Court which adumbrated the correct approach to assessing the credibility of witnesses.

32.  Suffice for me to refer to the legal principles enunciated by Deputy High Court Judge H. Au-Yeung (as he then was) in Hu Lan v David Golden [2023] HKCFI 873 at [36]: -

“36. When I consider the credibility of various witnesses who had given evidence in court, I shall take the following matters into account:

(a) Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(b) Importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(c) The court will also attach importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The later type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement;

(d) The court should consider a witness’ motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interests, or a just determination of the litigation may affect his interest;

(e) It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his evidence. Likewise, a witness may lie. However, lies themselves do not mean necessarily that the entirety of that witness’ evidence is to be rejected. A witness may lie in a stupid attempt to bolster his case, but the actual case nevertheless remains good irrespective of the lie;

(f) On the other hand, where it is shown that a witness has been discredited over one or more matters to which he has testified, this fact is relevant to the assessment of his overall credibility;

(g) While the court is entitled to take demeanour into account when assessing testimony, it should be borne in mind that demeanour can be deceptive and is therefore to be approached with care.”

Witnesses Relevant to Liability

33.  Relevant to liability is the evidence of P, Mr Cheung, Madam Law and Mr Ho. Except P, none of the aforesaid witnesses witnessed and has any direct knowledge of the Accident. In my view, the evidence of Mr Cheung, Madam Law and Mr Ho is only of peripheral relevance and I don’t think there is much controversy as to their credibility. I understand the criticisms made by Mr Shum at Mr Ho’s evidence.[19] The criticisms hover over the manner in which Mr Ho prepared Ho’s WS and the Court, as Mr Shum’s argument goes, should reject the entirety of Mr Ho’s evidence as the Court is in no position to determine which part of Mr Ho’s evidence came from his own knowledge and Mr Yuen on whose witness statements Mr Ho has adopted is not a person of any credibility and reliability. In my view, this is not a question of credibility of Mr Ho’s evidence, but whether this Court should attach any weight to Mr Ho’s evidence. In fact, Mr Shum, in cross examination, had not gone to the length of putting to Mr Ho that he was not a credible witness.

34.  As the evidence of Mr Cheung, Madam Law and Mr Ho is of peripheral relevance, I do not think it is necessary to make a specific finding as to their credibility in this case. If need be, I shall find their evidence credible.

35.  As to P’s evidence, I shall come to my view as to his credibility in the course of my analysis and resolution of the Issues in this judgment.

Mr Ho’s Evidence

36.  As to Mr Ho’s evidence, I have explained in my Extempore Decision on 11 February 2026 that D was faced with a totally unforeseeable situation where Mr Yuen who had shown his willingness to give evidence for D by making 2 witness statements held his attendance to trial to give evidence for ransom. D’s refusal to succumb to Mr Yuen’s demand is totally justified. Because of this predicament and the imminence of the trial, Mr Ho made his witness statement by adopting and confirming the truth of the content of Yuen’s WS and Yuen’s SWS except paras 20-22 of Yuen’s WS of which Mr Ho admittedly had no personal knowledge. But, according to Mr Ho, what Mr Yuen stated in the aforesaid paras 20-22 tallied with what Mr Yuen had reported to him in the afternoon of 26 October 2019.

37.  Yuen’s WS is to elaborate on the government drainage works undertaken by D at the material time, the scope of the drainage works, the environment surrounding the spot of the Accident, the traffic control thereat, how the drainage works were carried out at the Site (with emphasis on excavation/opening, inspection and covering the excavated areas with metal plates after work), P’s complaints to Mr Yuen, their interaction and Mr Yuen’s observation of the spot of the Accident[20]. Yuen’s WS also annexed maps and photos to assist in his elaboration on the foregoing matters. Yuen’s SWS was to explain the 31 photos discovered by D[21] and to comment on the photos annexed to P’s WS[22] and finally to comment that P was late in making his right turn and that the speed of the bicycle was high[23].

38.  Mr Ho is a director of D and was responsible for the overall planning of the sewerage facilities installation works under the Drainage Contract. He was required to plan the aforesaid works and to inspect the site when the aforesaid works were underway. He had attended the site for inspection many times. Construction workers also from time to time reported to him the progress of, the complaints arising from and other matters pertinent to the aforesaid works. Mr Ho confirmed his practical understanding of the matters stated in Yuen’s WS.

39.  In cross examination, Mr Ho did not shy away from telling the Court that it was his common sense that he should prepare his evidence independently. But Mr Ho went on to explain that when he knew that Mr Yuen would not attend Court to testify, he told solicitors that he could give evidence as he knew the details of the case. He asked solicitors for copy of Yuen’s WS and Yuen’s SWS to read so that he could confirm whether what Mr Yuen had stated in Yuen’s WS and Yuen’s SWS was true. In actual fact, Mr Ho was the one who signed for and on behalf of D the statement of truth verifying the content of the Defence.

40.  As I have said in my Extempore Decision, in view of the unforeseeable predicament encountered by D very close to the trial, I do not insist on Mr Ho making his witness statement in a narrative form and his ipsissima verba. By his role in the sewerage facilities installation works under the Drainage Contract, I find that Mr Ho has personal knowledge of the matters stated in Yuen’s WS (except paras 20-22). Furthermore, some of the matters stated in Yuen’s WS are supported by photos and documents appended thereto. There is no reason why I should not place any weight on those matters.

41.  The same however cannot be said of the content of Yuen’s SWS. The content of Yuen’s SWS is predominantly argumentative and for a forensic purpose. I do not think I shall place weight to Mr Ho’s evidence which adopted Yuen’s SWS. I can do my own assessment by looking at the photos myself.

Issue (1) – The Accident

42.  The following is the gist of P’s evidence relevant to the Accident: -

(a) Lei Yue Mun Village was a village which preserved the traditional culture.

(b) A lot of villagers used to commute by bicycle to and from the village.

(c) P was a villager of Lei Yue Mun Village and had cycled within, to and from the village for 40 odd years.

(d) He worked as a bus driver. He slept very early at night and woke up around 5:00 am every day. He used to leave home at 5:20 am every day and cycled for 10 minutes through Lei Yue Mun Seafood Street and Lei Yue Mun Praya Road to a minibus stop to board a minibus to Kwun Tong Law Courts Building for onward transportation to the bus depot in Shatin. On the way to the minibus stop, the street lighting was still on and there were no pedestrians. Most of the shops along Lei Yue Mun Seafood Street were closed. Although P could steer his bicycle smoothly in the early hours, he nevertheless maintained a safe speed and rode his bicycle carefully.

(e) In July and August 2019, P began to discover that the alleyways starting at “杯莫停” had metal plates placed on the whole surface thereof and that stretch of alleyways was still open for the use of the pedestrians and cyclists.

(f) At about 5:20 am on 26 October 2019, P checked his bicycle was in order and left home by cycling to the minibus stop. In the morning, the weather was a bit cool, and on the way, there was street lighting but the environment was dusky. P saw no pedestrians and all the shops were still closed. As usual, P was cycling carefully along the way.

(g) When P reached “杯莫停”, he slowed down the speed of the bicycle and cycled close to the right preparing for the right turn. When the bicycle was turning right, it skidded on the Metal Plates. P and his bicycle fell and crashed against the wooden planks enclosing the entrance to Lai Kui Kee Seafood, resulting in P “tumbling” (飛跌) to the right and landing onto the ground at the front of Hoi Lung Seafood. He heard a loud “pang” (嘭) sound from his right shoulder and could only move slowly 1 to 2 minutes later. The bicycle was lying flat 3 meters ahead of P.

(h) After P stood up slowly in pain, he noticed that there were stains on his upper garment and trousers and that there was a puddle of unknown liquid on the ground. Since he had to get back to work at the bus depot, he didn’t investigate the stains and liquid further and left in pain.

(i) Since P felt very painful to his right shoulder and numbness to his right hand, he was not able to ride the bicycle but walked to the minibus stop using his left hand to push the bicycle.

(j) After P returned to the bus depot that day, he was unable to steer the wheel of the bus because of escalating pain. He notified his supervisor and took a taxi to Prince of Wales Hospital (“PWH”) for medical treatment.

(k) In about late November 2019, P noticed that the Metal Plates starting at the entrance of Lai Kui Kee Seafood was covered with anti-slip sand.

(l) At the time of the Accident, the Metal Plates were not covered with anti-slip sand and did not have anti-slip checkered patterns and intermittent anti-slips. Neither was there any warning signs warning pedestrians and cyclists to be careful whilst using the stretch of alleyways outside the entrance of Lai Kui Kee Seafood and Hoi Lung Seafood. The fact that the Metal Plates had no anti-slip device caused his bicycle to skid. The presence of the puddle of unknown liquid on the Metal Plates had caused the slippery Metal Plates to become more slippery and wet.

43.  In cross examination, P testified the following: -

(a) The bicycle skidded when it was turning right. The bicycle had already skidded when it reached Hoi Lung Seafood. The Metal Plates were wet and slippery.

(b) P was not clear whether the unknown liquid was water. He did not know whether it was water which caused the skidding.

(c) After crashing the wooden planks, he was separated from the bicycle and bounced back to the position of the person sign on the Rough Sketch[24].

(d) P denied that he cycled at excessive speed and turned to the right too fast causing him to lose balance and fall.

(e) P cycled slowly and applied brake from time to time.

(f) The male in the photo at [TB1/B/303-25] is him in KMB uniform and he was pointing at the position where he landed on the ground. The photo was taken by a safety officer surnamed Wong of D at 10:16 am on the same day of the Accident.

(g) In the same photo, P wore the same clothing he wore when he came by the Accident. In the photo, the stains on the shoulder part of his upper garment and trousers had already dried up. So, the stains were not visible from the photo.

(h) P agreed that the Metal Plates had anti-slip checkered patterns and intermittent anti-slips.

(i) The front wheel of the bicycle skidded. At that time, the front wheel was in a straight direction towards the wooden planks at the entrance of Lai Kui Kee Seafood. It was only after the front wheel skidded that the bicycle turned right.

(j) P denied that the position he pointed at in the photo showing where the bicycle skidded was different from that he identified in the Rough Sketch.

(k) P also denied the suggestion that the bicycle did not skid but rammed into the wooden planks whilst turning right.

(l) P confirmed the truthfulness of the content of his letter sent to his employer KMB on 14 December 2019[25] (the “14/12/2019 Letter”). In the 14/12/2019 Letter, P wrote that the Metal Plates were covered with grease. He was not clear whether the liquid was grease. He only guessed that it was grease. He also did not know whether it was water.

(m) P denied that the Metal Plates did not cause the bicycle to skid. But he agreed that since he did not know how the bicycle skidded, he could not put the blame on the Metal Plates.

(n) When referred to the lower photo at [TB1/B/146], P initially said it was the position he landed on after the bicycle crashed against the wooden planks. Later, he corrected himself and said that it was the position where the bicycle skidded.

(o) Before the Accident, he already knew the existence of the Metal Plates and had not experienced any incident of his bicycle skidding thereon. Before the Accident, he did not know that the Metal Plates were slippery and unsafe.

(p) P denied that he should not ride bicycle along the stretch of alleyways outside Lai Kui Kee Seafood. P said that it was not difficult for him to steer the bicycle to the right.

44.  On the whole, I accept P as an honest and credible witness. The Accident however happened within a fleeting period of time at a dusky environment. I reckon how difficult it would be for P to recollect what actually happened within that fleeting period of “skid and fall”. This was particularly so after the Accident, he left the scene of the Accident and continued his journey to the bus depot in Shatin. P has done his best to recollect in detail what had happened in that morning. Although P was inconsistent in his testimony concerning the spot where his bicycle skidded, the inconsistencies do not dent his credibility. When P described how he fell off the bicycle, he used the Chinese words “飛跌”. I find that P might have exaggerated in his description of how he fell off the bicycle to bolster his case. This has no bearing on my view as to his overall credibility. In the 14/12/2019 Letter, P described that the Metal Plates were covered with grease. The common theme and centerpiece in P’s WS and viva voce evidence is that after the Accident, he noticed that there were stains on his upper garment and trousers and that there was a puddle of unknown liquid on the ground. He further said in cross examination that he was not clear whether the liquid was grease and neither did he know whether the liquid was water. If P was fabricating evidence for his case, it would have been better for him to maintain in P’s WS that the puddle of liquid was grease. P was also criticised that if there were stains on his upper garment and trousers, why P could not identify the stains in the photo at [TB1/B/303-25]. Although P in that photo[26] wore the same clothing as that he wore at the time of the Accident, the stains might not be visible from the photo because of the colour of the trousers and the position of the stains on his clothing.

Finding of Facts

45.  In the premises, I find as facts the following: -

(a) P was a villager of Lei Yue Mun Village and had cycled within, to and from the village for 40 odd years.

(b) A lot of villagers used to commute by bicycle along the alleyways to and from the village.

(c) P used to leave home at 5:20 am every day and cycled for 10 minutes through Lei Yue Mun Seafood Street and Lei Yue Mun Praya Road to a minibus stop for his transportation to the KMB depot in Shatin.

(d) The network of alleyways is narrow in width and is a non-carriageway, prohibiting the use of motor vehicles. The alleyways run through the famous Seafood Street in Lei Yu Mun and are lined, in the main, with live seafood stores and seafood restaurants with protruding shop displaying facilities.

(e) In or about November 2018, D began to carry out the initial phase of the sewerage facilities installation works involving the opening up of the alleyways’ concrete surface at various designated locations to ascertain the precise position of the pre-existing underground utility conduits.

(f) After completing the excavation work, the opened surfaces were covered by metal plates for the public right of way. The metal plates were screwed to the surrounding concrete surface.

(g) The excavation of the alleyway’s concrete surface in the vicinity of Lai Kui Kee Seafood and Hoi Lung Seafood was commenced on or about 10 October 2019 and completed on 14 October 2019.

(h) At about 5:20 am on 26 October 2019, P checked his bicycle and left home by cycling to the minibus stop. In the morning, the weather was a bit cool, and on the way, there was street lighting, but the environment was dusky. There were no pedestrians and all the shops were still closed.

(i) When P reached “杯莫停”, he slowed down the speed of the bicycle and cycled close to the right preparing for the right turn. When the bicycle was turning right, it skidded on the Metal Plates and crashed against the wooden planks enclosing the entrance to Lai Kui Kee Seafood, resulting in P falling to the right and landing onto the ground at the front of Hoi Lung Seafood. He heard a loud “pang” (嘭) sound from his right shoulder and could only move slowly 1 to 2 minutes later.

(j) After P stood up slowly in pain, he noticed that there were stains on his upper garment and trousers and that there was a puddle of unknown liquid on the ground. He didn’t investigate the stains and liquid further and left in pain for his workplace.

(k) Since P felt very painful to his right shoulder and numbness to his right hand, he was not able to ride the bicycle but walked to the minibus stop using his left hand to push the bicycle.

(l) In the morning of the same day, P returned to the spot of the Accident and complained to D’s staff about the Accident and photos were taken.

(m) On 26 October 2019, the weather of Hong Kong was dry, with yellow fire warning signal raised between 0600 hour and 1800 hour.

(n) Before the Accident,

(i) D had not received any complaints regarding the metal plates installed along the alleyways including the Metal Plates; and

(ii) P already knew the existence of the Metal Plates and had not experienced any incident of his bicycle skidding thereon.

(o) At the time of the Accident, the Metal Plates had anti-slip checkered patterns and intermittent anti-slips and each was of the size of 0.6 m x 0.6 m and 6 mm.

Issue (2) – Negligence

46.  This is not a case where res ipsa loquitur applies. It cannot be argued that in the absence of explanation, the occurrence of the Accident was more consistent with fault on the part of D who was the contractor covering the excavated alleyways with the Metal Plates with anti-slip checkered patterns and intermittent anti-slips.[27]

47.  It is plain that the present case is not about the drainage works carried out by D at the Site at the material time. At the time of the Accident, D had already finished the initial phase of its sewerage facilities installation works under the Drainage Contract (ie the excavation of the alleyway’s concrete surface and ascertainment of the precise position of the pre-existing underground utility conduits at the Site), covered the excavated areas with the Metal Plates with anti-slip patterns pending commencement of the subsequent phase of the sewerage facilities installation works.

48.  It is not the case of D that pending commencement of the subsequent phase of the sewerage facilities installation works, the Site would be returned to the relevant department of the Hong Kong SAR Government. There is no clear evidence, such as the Drainage Contract, informing the Court as to who was in control of the Metal Plates at the material time. Naturally, until the sewerage facilities installation works were completed, the Site remained in D’s control. This is particularly so where the Accident happened on the Metal Plates covered by D and, according to D, its staff would carry out daily inspection when it commenced and finished their work every day.

49.  The present case brings into question whether D was under a duty to oversee and ensure that the Site was maintained in a safe condition and free of any risk and safety hazard, and not to cause any harm to any persons including the residents of Lei Yue Mun Village who would use and pass by the Site by cycling or on foot.

50.  I accept that cycling was not legally prohibited along the alleyways including the Site.[28] In fact, a lot of villagers were used to commute by bicycle along the alleyways to and from their villages. No doubt, the features of the locality, the nature of human activities along the alleyways and the narrowness and windingness of the alleyways all demand the cyclists to exercise more care in steering their bicycles along the alleyways. However, it does not mean that there should be a blanket prohibition against the use of bicycles along the alleyways.

51.  Against this backdrop, it must be reasonably foreseeable that the Site would be accessed, passed and repassed by cyclists.

52.  Viewed in this light, D owed a duty of care to P to ensure that the Metal Plates were maintained in a safe condition and free of any unnecessary risk and safety hazard. It is not an absolute duty on D and neither does it require D to guarantee an accident-free environment. The standard is only a reasonable standard having regard to the circumstances of the case.

Issue (3) – Common Duty of Care

53.  Section 3(1) and (2) of OLO provides the following: -

“(1) An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

54.  It is trite that an occupier is a person who has a sufficient degree of control over the premises as to put him under a duty of care towards those who came lawfully onto the premises. The test is one of control. It is however not necessary for a person to have entire control over the premises. He needs not have exclusive occupation. Suffice it that he has some degree of control. He may also share the control with others.[29]

55.  It is clear from Wheat’s case that occupation may be temporary.

56.  Mr Gidwani relied on Creed v McGeoch & Sons LD. [1955] 1 W.L.R. 1005 to argue that D could not be regarded as occupiers of the location of the Accident at the material time as it had no power to control access to, nor any continuing possession of the alleyways at which the Metal Plates were covered. The location of the Accident, as Mr Gidwani argued, was not fenced off or marked as a worksite because no work was in progress. It was an open public thoroughfare.

57.  I reject the foregoing argument. First of all, Creed’s case is pre-Occupiers’ Liability Act 1957 and pre-Wheat’s case. The defendants there sought to establish that they were in occupation and owed no higher duty to the plaintiff (a girl of five) than such as imposed on occupiers in respect of infant trespassers. Secondly, the answer in each case, as held by Ashworth J, depended on the particular facts of the case and especially upon the nature and extent of the occupation or control in fact enjoyed or exercised by the defendants over the premises.[30] In Creed’s case, the towing bar of the trailer came down suddenly causing injuries to the infant plaintiff and the trailer was parked on a waste land which was freely used by members of the public and on which children played. The defendants’ operation to level a strip of waste land on each side of the road (already completed by them) had not been commenced on the date of the accident. It was held that the defendants were not in occupation of the strip of waste land which had not been fenced or otherwise marked off from the remainder of the waste land.

58.  In the present case, D had already started the sewerage facilities installation works at the Site. As I have said in paras 47 and 48 above, D had only finished the initial phase of its sewerage facilities installation works under the Drainage Contract and covered the excavated areas with the Metal Plates with anti-slip patterns pending planning and the subsequent phase of the sewerage facilities installation works (ie the installation work). At the time of the Accident, D had not yet completed the aforesaid works and had some degree of control over the Metal Plates and the excavated areas below. In my view, D at the material time was the occupier for the purpose of OLO.

59.  At common law, an occupier owed no duty of care, in that capacity, to users of the highway. The Court of Appeal in Greenhalgh v British Railways Board [1969] 2 QB 286 decided that a person who crossed land (ie the railway bridge) in pursuance of a public right of way was not, at common law, to be treated as an invitee or licensee and that such a person did not, therefore, fall within the ambit of section 1(2) of the Occupiers’ Liability Act 1957[31].[32]

60.  In this case, when P was cycling on the Metal Plates, he was exercising his right of way over the alleyways covered by the Metal Plates. On the principled authority, P was not the visitor of D.

61.  If I am wrong on my finding that P was not the visitor of D, D would be under the common duty of care, ie a duty to take such care as in all the circumstances of the case reasonable to see that the visitor (ie P) would be reasonably safe in using the premises (ie the Metal Plates).

Issue (4) – Breach of Duty

62.  The following are undisputed: -

(a) that P had cycled on the Metal Plates for many days since the excavation work commenced on 10 October 2019;

(b) that nothing untoward happened to P on those previous occasions;

(c) that the weather was cool and dry;

(d) that the Metal Plates had anti-slip patterns;

(e) that before the Accident, D had not received any complaints regarding the metal plates installed along the alleyways including the Metal Plates; and

(f) that at the time of the Accident, there were no pedestrians and neither were there any stores nor restaurants open for business in the vicinity of the location of the Accident.

63.  I do not accept that the Metal Plates per se were slippery.

64.  According to P’s evidence which I have accepted, he cycled slowly when he turned the bicycle to the right, but his bicycle skidded, crashed against the wooden planks at Lai Kui Kee Seafood, causing him to fall off and land on the ground injured. After the Accident, he saw a puddle of unknown liquid on the Metal Plates. The cause of the Accident must be the puddle of unknown liquid. However, there is no evidence as to when the unknown liquid began to exist on the Metal Plates and how it was related to D. It seems unlikely that the unknown liquid was water since the weather on the day of Accident was dry and the Accident happened at around 5:30 am. Any water left on the alleyways would have been vaporized long before the Accident.

65.  The important question to answer here is whether D should be liable for the presence of unknown liquid on the Metal Plates brought thereon by some third parties.

66.  According to Mr Ho, its workers would inspect and check all the metal plates to see whether any metal plates were unusual when they commenced and finished their works every day. This part of D’s evidence was not specifically challenged in cross examination. On balance, I accept that it was the case.

67.  The Accident happened in early morning and at the location where members of the public have a public right of way. Absent evidence showing how long the unknown liquid had remained on the Metal Plates, it cannot be said that against the present set of circumstances, D was liable to P in negligence for his injuries caused by the presence of the unknown liquid. Otherwise, it would be tantamount to requiring D to station personnel round-the-clock at every stretch of alleyways covered by D’s metal plates to clean up any unknown liquid once it occurs. This cannot be right.

68.  Accordingly, I find : -

(a) that D was not liable to P in negligence; and

(b) that, if I am wrong on my finding that P was not the visitor of D, D would not be liable to P for breach of common duty of care.

69.  I now come back to the evidence of Mr Cheung and Madam Law. Their evidence is of peripheral value: -

(a) Mr Cheung’s evidence principally focuses on that the metal plates installed by D were unsafe, that some villagers of Lei Yue Mun Village had accidentally slipped on the metal plates and that after the Accident, D had carried out remedial measures on the alleyway outside Lai Kui Kee Seafood by installing anti-slip sand and posting up signs reminding villagers to be careful with the slipperiness of the ground. In cross examination, Mr Cheung said that the metal plates on which an old lady fell were at different location from the spot of the Accident. His evidence is of marginal relevance. Furthermore, it is established law that post-accident remedial measures are not evidence of negligence and that the relevance of the precautions taken since the accident is that they demonstrate that it would have been practicable to take those measures before the accident.[33] I do not accept Mr Cheung’s evidence that the metal plates were unsafe because they were very slippery and without anti-slip installations. At least, P agreed that the Metal Plates had anti-slip checkered patterns and intermittent anti-slips.

(b) Madam Law’s evidence was that her trolley (買餸車) was tripped by the metal plates placed on the ground outside Kui Kee Seafood. The incident of Madam Law did not arise from the “wet and slippery” condition of the Metal Plates and the incident did not occur at the location of the Accident but meters away from the location.

Issues (5) & (6) – Contributory Negligence

70.  In the light of my foregoing findings, it is not necessary for me to analyse the issue of contributory negligence. In the event that I need to do so, on my findings in paras 45 and 50 above, P was not contributorily negligent in the manner as pleaded in para 4 of the Defence.

71.  I now turn to the issue of quantum. For the above reasons, it is unnecessary for me to delve into this issue. But, in deference to counsel’s diligence in assisting this Court on the matter, I shall give a summary of my views on the quantum issue.

QUANTUM

72.  P was born on 29 July 1960. He was 59 years old at the time of the Accident and is now 66 years old. He is a big guy.[34] Prior to the Accident,

(a) P had never suffered any injury at his shoulders; and

(b) P had been working as a bus driver for KMB for 22.5 years.

73.  In para 52 of P’s Closing Submissions, P has abandoned his claim for future loss of earnings and loss of earning capacity.

Injuries and Treatment

74.  On the day of the Accident (ie 26 October 2019), P attended the Accident and Emergency Department of PWH. He was found to have right shoulder tenderness and reduced range of movement. X-ray revealed no fracture/dislocation. P was treated and discharged with referral to Orthopaedics and Traumatology Department (“O&T”).[35]

75.  P received his first outpatient treatment at the O&T out-patient clinic on 5 November 2019. Physical examination showed weakness of right shoulder power with no neurological deficit. P had a private MRI on 5 November 2019 which revealed tear of rotator cuff tendons. His right shoulder pain and weakness persisted after physiotherapy.[36]

76.  On 6 April 2020, P received right shoulder arthroscopic rotator cuff repair surgery at O&T of PWH. Thereafter, he was referred for post-operative physiotherapy.[37]

77.  P was last followed up by O&T on 8 December 2020. P had satisfactory internal and external rotation of right shoulder with active forward flexion up to 130 degrees.[38]

78.  According to P[39], he still suffers from: -

(a) Intermittent pain over the anterolateral aspect of right shoulder;

(b) Gripping pain of right shoulder provoked by lying on his right side during sleep which occasionally awakened him;

(c) Pain of right shoulder provoked by a large degree of shoulder movement and with exertion;

(d) Weakness in right shoulder; and

(e) Mild stiffness in right shoulder.

The Joint Report [40]

79.  Dr Lam and Dr Ngai agreed the following: -

(a) On diagnosis,

(i) Dr Lam opined that P was suffering from soft issue injury to right shoulder with traumatic rotator cuff tear resulting in complete tear of the supraspinatus and infraspinatus, upper 1/3 partial tear of subscapularis and medially dislocated biceps tendon at bicipital groove and that these injuries were compatible with the circumstances of the Accident;

(ii) Dr Ngai opined that P was suffering from right shoulder soft tissue contusion with complete right rotator cuff tear and that it was related to the Accident.

(b) On treatment and prognosis,

(i) Dr Lam opined the following: -

(aa) The treatment received by P was appropriate. No further surgery was required.

(bb) P’s right shoulder injury had reached maximal medical improvement.

(cc) P’s complaints of present condition were consistent with examination findings and X-ray findings. P had considerable improvement with various treatments. P still had some genuine pain and impairment and the degree of residual pain and impairment was estimated to be mild-to-moderate.

(ii) Dr Ngai opined the following: -

(aa) The treatment received by P was reasonable and acceptable.

(bb) P had reached maximal medical improvement. No further investigation, treatment or surgery was needed.

(cc) P had residual muscle wasting of his right shoulder girdle and mild residual sign of right shoulder impingement. Overall, P had achieved functional recovery after the Accident and the surgery.

(c) On activities of daily living, P should be independent and not require continuous attention.

(d) On working capacity,

(i) Dr Lam opined that P should be able to return to his pre-accident job as a bus driver with mild reduction in work capacity (with mild stiffness/weakness/reduced endurance and should only work normal working hours) and that P’s present job as a minibus driver was also suitable.

(ii) Dr Ngai opined that P was able to resume his pre-accident occupation as a bus driver with mildly reduced working efficiency.

80.  Dr Lam and Dr Ngai differed on the following: -

(a) On pre-existing condition,

(i) Dr Lam opined that clinically, P had no pre-existing condition in the right shoulder; however, it was possible that the degenerative changes in acromion-clavicular joint (“ACJ”) might cause some impingement at some time in P’s life. For apportionment purpose, as Dr Lam further opined, the pre-existing degenerative changes should account for less than 10%.

(ii) Dr Ngai opined that P suffered from pre-existing right shoulder degeneration with ACJ degeneration and tendinosis unrelated to the Accident and that an apportionment of 20% was related to P’s pre-existing condition.

(b) On causation,

(i) Dr Lam opined the following: -

(aa) The multiple tendon tear on MRI scan was consistent with a massive tear to the rotator cuff involving the cuff tendons/muscles.

(bb) The finding of degenerative changes in the ACJ was very common in adults and would certainly not cause such a massive tear which P suffered from after the Accident.

(ii) Dr Ngai opined the following: -

(aa) The injury diagnosis as right shoulder soft tissue contusion with complete right rotator cuff tear was related to the Accident.

(bb) The degenerative changes in ACJ, tendinosis (degenerative) changes of rotator cuff and biceps tendon revealed in MRI scan were not related to the Accident. As to P’s pre-existing condition, there was a strong possibility that some other event, or natural progression of the condition, would have brought about P’s present stage.

(cc) It was estimated that the Accident advanced P’s right shoulder pain by 5 to 7 years.

(c) On permanent disability,

(i) Dr Lam opined that P suffered from whole person impairment at 5% for right shoulder rotator cuff injury with full thickness tear with residual loss but functional with normal motion and loss of earning capacity at 6.7% for P was right-hand dominant.

(ii) Dr Ngai opined that P suffered from whole person impairment at 4% after taking into account his pre-accident condition and loss of earning capacity also at 4%.

(d) On sick leave,

(i) Dr Lam opined that sick leave from 26 October 2019 to 4 May 2021 with a break from 4 August 2020 to 22 February 2021 probably due to retirement was appropriate.

(ii) Dr Ngai opined that reasonable sick leave granted should not be more than 12 months from 26 October 2019.

Pain, Suffering and Loss of Amenities (“PSLA”)

81.  P seeks an award of HK$400,000 whilst D concedes an award of HK$150,000 under this head.

82.  As a result of the Accident, P suffered from right shoulder soft tissue injury with complete right rotator tear. P had considerable improvement with various treatments. But he will continue to have mild-to-moderate degree of shoulder pain. It was common ground that P suffered from pre-existing right shoulder degeneration with ACJ degeneration and tendinosis. Between Dr Lam and Dr Ngai, the apportionment was less than 10% and 20% of P’s permanent impairment and disability of right shoulder attributable to P’s pre-existing condition. I accept Dr Ngai’s view that P’s pre-existing condition falls within the second category as defined in Chan Kam Hoi v Dragages Et Travaux Publics [1998] 2 HKLRD 958 at p 963E-G: there was a strong possibility that some other event, or natural progression of the condition, would have brought about P’s present stage.

83.  I have considered all the authorities cited by Mr Shum and Mr Gidwani on this aspect of the case. I find that the comparable cases are Lo Chui Yuk v Gold Win Engineering Limited & others [2023] HKCFI 2352 and Yiu Yuen Yee v Johnson Cleaning Services Company Limited [2019] HKDC 1110 although both cases concerned soft tissue injury to left shoulder and the plaintiff in Yiu Yuen Yee’s case also suffered from adjustment disorder.

84.  After taking into account the element of inflation and P’s pre-existing condition, the appropriate award should be HK$200,000.00 under this head of claim.

Pre-Trial Loss of Earnings

85.  It is not in dispute the following: -

(a) Prior to the Accident, P worked as a KMB driver and earned HK$36,365.93 per month;

(b) At KMB, the normal retirement age was 60; and

(c) P should be able to return to work as a bus driver however with mild reduction in work capacity.

86.  In cross examination, P admitted that he was able to work as a bus driver after his recovery despite his residual impairment.

87.  P pleaded a sick leave period of 557 days from 26 October 2019 to 3 August 2020 and from 23 February 2021 to 4 May 2021. Dr Lam opined that sick leave from 26 October 2019 to 4 May 2021 was appropriate, whereas Dr Ngai opined that reasonable sick leave granted should not be more than 12 months from 26 October 2019. I prefer the view of Dr Lam to that of Dr Ngai in that on 3 August 2020, P had yet attained maximum recovery and was still undergoing physiotherapy which was required until at least 24 November 2020 and that when P was given the second leg of sick leave on 23 February 2021, P only had 60-70% improvement of range and power and still suffered from residual and persistent right shoulder pain and weakness.

88.  No doubt, but for the Accident, P would have continued to work as a KMB bus driver with an average monthly income of HK$36,365.93 for four more months until he reached the company’s retirement age of 60, i.e. 26 July 2020.

89.  From the Accident to 29 July 2020, P received various payments from KMB including sick leave allowances in a total sum of HK$194,200.35

90.  On 8 April 2021, P started working as a minibus driver earning an average monthly income of HK$11,800.

91.  In October 2024, P felt increasing pain to his right shoulder. So, he changed to work as a 7-seater private vehicle driver for Pioneer Asphalts (Hong Kong) Limited in November 2024, earning an average monthly salary of HK$11,670. He has remained in that job since then.

Re-employment of P by KMB

92.  P avers that he could have been re-employed by his previous employer, KMB, after normal retirement age of 60.

93.  Mr Shum predicated P’s “re-employment” case on “loss of chance” legal principles. Mr Shum relied on Attorney General v Chun Yat Nam [1995] HKC 218 at p 240G-I and argued that the test was “a real prospect” which was not high.

94.  On this issue, the questions required to be answered would be: -

(a) Whether there was a real prospect of re-employment of P by KMB as bus driver; and

(b) If so, when that might eventuate.

95.  On evidence, P called his former colleague, Mr Lai, to testify. P himself has also testified on this issue.

96.  P testified the following: -

(a) Colleagues of his age who joined KMB at the same time as himself were recruited by KMB after their retirement.

(b) KMB employed 8,700 to 8,900 bus drivers. He did not know how many of them were of his age. He also did not know how many of them were not re-hired by KMB.

(c) He wished and vied for a continuation of his employment as KMB driver.

(d) He had applied for but was refused re-employment by KMB as bus driver and KMB had not given any reason for its refusal.

(e) In the KMB contract with P, there were no contractual terms regarding re-employment after retirement.

(f) He possessed no knowledge as to the KMB recruitment of bus drivers after their retirement.

(g) KMB did not tell him the exact reason why KMB did not retain him after his retirement.

(h) The wheel of the minibus was heavier than that of the bus. Driving minibus required more strength. As he could drive minibus, he should not have any problem with driving a bus.

97.  Mr Lai’s evidence regarding the chance of re-employment by KMB is as follows: -

(a) He joined KMB as a bus driver in June 1981.

(b) Because KMB lacked experienced bus driver, KMB very much liked to re-employ bus drivers who had reached retirement age of 60 and wanted to continue the job provided that the retired bus drivers did not suffer any physical disability.

(c) Those retired bus drivers were required to go through a body check in September and KMB would issue a notice for re-employment in November every year.

(d) Bus drivers would be re-employed on contract terms for 1 year. His salary was HK$25,000 per month.

(e) He retired on 6 April 2017. After 8 months break, he had been re-employed until 28 November 2024. Thereafter, he did not apply for re-employment because KMB wanted to pay him on hourly salary basis (about HK$90 per hour) with no annual leave and sick leave.

(f) After November 2024, most of the retired bus drivers were re-employed on hourly salary basis.

(g) He did not know whether other colleagues accepted and/or rejected KMB’s offer to change their employment from monthly salary basis to hourly salary basis.

(h) It was the decision of KMB to renew its employment contracts with bus drivers upon the bus drivers reaching their retirement age.

98.  There is no reason why I should not accept Mr Lai’s evidence. I give full weight to his evidence. Equally, I accept P’s evidence on this aspect.

99.  I have heard Mr Gidwani’s arguments against the chance of re-employment of P with KMB. Those arguments, however, do not undermine my view on the evidence of Mr Lai and P. The evidence of Mr Lai has tilted the balance in P’s favour. I am satisfied on balance that P has a real prospect of being offered a renewed contract by KMB after reaching his retirement age at 60.

Calculation

100.  After the sick leave period, P should be able to return to his pre-accident job. Therefore, I would assess his accrued loss of earnings up to 4 May 2021. Thereafter, he no longer suffered any salary loss due to the Accident.

101.  Hence, P’s pre-trial loss of earnings is calculated as follows: -

Age	Period	(HK$)
<60	26 October 2019 – 29 July 2020	36,365.93 / 30 days x 278 days - 194,200.35[41]	142,790.60
=/>60	30 July 2020 – 7 April 2021	25,000 / 30 days x 252 days	210,000.00
	8 April 2021 – 4 May 2021	(25,000 – 11,800) / 30 days x 27 days	11,880.00
	Total		364,670.60

Loss of MPF

102.  P’s loss of MPF is calculated as 364,670.60 x 5% = HK$18,233,50.

Special Damages

103.  The difference between the parties is HK$1,000 on tonic food. Having regard to the nature of injuries sustained by P, a claim for HK$1,000 on tonic food, though without supporting documentation, is not unreasonable.

104.  Therefore, I shall award a full sum of HK$13,000.00 under this head.

Summary of Damages

105.  P’s claim shall be tabulated as follows: -

	Head of Damages	(HK$)
(1)	PSLA	200,000.00
(2)	Pre-Trial Loss of Earnings	364,670.60
(3)	Loss of MPF	18,233,50
(4)	Special Damages	13,000.00
	Damages	595,904.10

106.  If I am wrong on my decision on liability,

(a) P shall be entitled to damages in a total sum of HK$595,904.10; and

(b) P is also entitled to interest for PSLA at 2% per annum from the date of the Writ to the date of this judgment and interest for pre-trial loss of earnings and special damages at half of the judgment rate from the date of Accident to the date of this judgment.

DISPOSITION

107.  I order that P’s claim against D in this action be dismissed.

108.  I make a costs order nisi that P shall pay D’s costs in the proceedings under this Action, to be taxed if not agreed, with certificate for Counsel. P’s own costs shall be taxed in accordance with the Legal Aid Regulations.

111.  The above order nisi shall become absolute in the absence of application to vary within 14 days hereof.

112.  Lastly, I would like to thank Mr Shum, Mr Gidwani and their teams for their able assistance.