TJANG SIU THU v. PROFIELD CONSTRUCTION ENGINEERING LTD AND ANOTHER

HCPI 149/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 149 OF 2011

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ASSESSMENT OF DAMAGES

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Background

1.  The plaintiff was employed by the 1^st defendant as a construction site general worker at the construction site of Ho Shek Tsing She, located at Wan Chan Road, Tsing Shan Tsuen, Tuen Mun, New Territories, Hong Kong (“the Site”), and her duties included transporting construction materials, removing rubbish and debris in the Site as well as other duties assigned by the 1^st and 2^nd defendants.  The 2^nd defendant was the principal contractor of the Site and the 1^st defendant was the sub-contractor of the 2^nd defendant.

2.  On 5 March 2008, at around 10 a.m., while the plaintiff was holding 6 long wooden planks by her hands in an attempt to transport them to another area, she tripped over the middle part of a metal pipe and fell into one of the hollow structures at the Site whereby she sustained injuries (“the Accident”). Nevertheless, she continued to work at the Site and only obtained sick leaves from 25 March 2008 onward.

3.  On 2 March 2011, the plaintiff commenced the present proceedings against the defendants for common law damages.  Interlocutory judgment was entered against the defendants on 25 July 2012.

4.  The hearing before me is for assessment of damages.  There is no dispute that the plaintiff has received a total of $637,510.67 as her employees’ compensation and this sum has to be deducted from the amount assessed in the present proceedings.

5.  On the first day of the hearing, the parties agreed on the following amounts:-

(1)   Pain, suffering and loss of amenities (“PSLA”) are in the sum of $220,000.00.

(2)   The plaintiff’s pre-accident basic monthly wages were in the sum of $7,600.00.

(3)   If there is an award for future loss of earnings, the multiplier is 11. (The parties have taken into account of the recent decision of Bharwaney J in Chan Pak Ting v Chan Chi Kuen & Another, HCPI 235/2011, applied a discount rate of 2.5% and assumed 60 as the retirement age.)

(4)   Special damages inclusive of medical expenses, tonic food, walking sticks, medicine and travelling expenses are in the sum of $50,000.00.

(5)    Future expenses inclusive of medical expenses and travelling expenses are in the sum of $1,000.00.

Issues in dispute

6.  As a result of the above agreement, the following are the outstanding issues for me to decide:-

(1)   Did the plaintiff have any overtime payment as she alleges?

(2)   What should be the appropriate sick leave period for the plaintiff?

(3)   Is the plaintiff able to return to her pre-accident occupation after the expiration of the sick leave period?

(4)   If the answer to question (3) is negative, what should be the appropriate multiplicand?

(5)   If the answer to question (3) is positive, is she entitled to an award for loss of earning capacity?

The plaintiff’s evidence

7.  The plaintiff, aged 42 at the time of the Accident and 47 now, is the only witness giving oral evidence at the hearing.  As she is claiming damages against the defendants, she owes the duty to prove on the balance of probabilities that she did suffer the damages as claimed.

8.  Before discussing the above issues, I must say that after considering the plaintiff’s demeanor at the hearing and the evidence as a whole, I do not find the plaintiff a reliable witness.  She was trying to represent that she needed a stick in walking outdoors.  She brought along a stick when she came to court to give evidence.  However, the surveillance video recordings of the plaintiff show that other than the day she went to attend the Medical Assessment Board on 8 March 2011, she did not need a stick for walking at all.

9.  Mr Lim, counsel for the plaintiff, submits that at some stages when the plaintiff was walking up the staircases of the MTR stations, as shown in the video recordings, she required the support of an umbrella.  I do not agree that the plaintiff required some support to walk up staircases.  Those video recordings were made when it was raining at that time.  It is not unusual for the plaintiff to bring an umbrella along.  It is also not unusual for anyone with an umbrella in hand to walk up staircases in the way the plaintiff did.

10.  Dr Johnson Lam, the plaintiff’s own orthopaedic expert, after considering the surveillance video recordings, opines that the plaintiff did not need any stick in day-to-day walking.  She could carry some weight either by hand-carry or using a backpack.  She is independent in ambulation, and in walking up and downstairs.  However, at the time of the joint examination by Dr Lam and Dr Lee Po Chin, the defendants’ expert, the plaintiff complained to the two doctors that she had persistent back pain and needed a stick in outdoor walking.  On the other hand, physical examination revealed only tenderness, tightness and mild muscle guarding over bilateral paraspinal muscle, with no muscle spasm.  The plaintiff was also tested positive in a number of Waddell’s Tests.  Considering the evidence reviewed, Dr Lam opines that it is likely that the plaintiff had some genuine pain in the low back, but this should not be as severe as she described and should be of a mild degree.

11.  Dr Lee also opines that the objective findings at the joint examination suggest a good recovery.  The absence of muscle spasm suggests back pain should be mild.  There was no radiculopathy.  The multiple positive Waddell’s signs (4 out of 5) raise the suspicion on the validity of the plaintiff’s complaints and reliability of signs that required subjective reporting.  Therefore, the likely residual pain, if any were present, should be mild and should not affect function.  Use of a stick for walking is not necessary.

12.  Dr Benjamin Lai, the defendants’ psychiatric expert, noted that the plaintiff’s behaviour as shown in the surveillance video recordings is inconsistent with the information from her about her physical problems in the joint examination.  This raises a caution that she has not made an appropriate representation of her condition to the doctors.  It is likely that she was trying to impress the doctors about the seriousness of her condition.  Dr Lai opines that the plaintiff was suffering from very mild residual psychiatric symptoms, which is agreed by Dr Wong Chung Kwong, the plaintiff’s own psychiatric expert.

13.  Despite the comments of the experts, the plaintiff presented to the court in her oral evidence that she was still very seriously affected by the alleged injuries.  She even took out a large packet of drugs to try to impress the court how serious her injuries and discomfort are.  However, I am not impressed by her evidence at all.  Her evidence is not supported by the surveillance video recordings or the evidence of the medical experts including her own experts. Thus, I find that she is exaggerating her evidence and her evidence is totally unreliable.

Did the plaintiff have overtime pay before the Accident?

14.  The plaintiff alleges that her daily wage was $400.00.  In January 2008, when she made enquiry from someone at the Site called “Lo Yu” (“老余” in Chinese) about overtime payment, Lo Yu promised to give her $100.00 per hour as overtime payment. Before the Accident, from November 2007 to March 2008, she worked overtime for 86 hours during the 94.5 days that she worked for the 1^st defendant, and on average she worked 19 days per month.  Thus, she alleges that her average overtime payment was $1,729.10 per month ($100.00 x 86/94.5 x 19). This gives her an average monthly income of $9,329.10 ($400 x 19 + $1,729.10).

15.  However, apart from her mere assertion, there is no evidence to support her allegations.  There is no employment contract showing the hourly rate or her entitlement of overtime payment.  There is no document showing the number of hours she worked.  There is no record to support any payment of overtime work. The plaintiff simply alleges that since November 2007, she had chased Lo Yu for the overtime payment, but she had not been paid any of the overtime payment by Lo Yu or the defendants.

16.  When the plaintiff applied for employees’ compensation arising from the Accident, it was stated in the application that her monthly income was $7,600.00.  The List of Earnings of the plaintiff filed by the defendants in the employees’ compensation proceedings confirmed that the plaintiff’s monthly income was around $7,600.00.  In a sheet of paper signed by Lo Yu dated 8 April 2010, the figures stated therein matched the figures in the said List of Earnings.  The plaintiff’s wage record also shows that she received $7,600.00 for March 2008. The plaintiff’s periodic payments for employees’ compensation were calculated on the basis of $7,600.00 being her pre-accident earnings.

17.  At the hearing, when the plaintiff was asked how she could remember that she worked overtime for 86 hours, she initially said that she recorded the overtime on a calendar which was at home.  However, when she was asked why the calendar was not brought to court, she said she had discarded the calendar.  When she was further cross-examined by Mr Wong, counsel for the defendants, on when she discarded the calendar, she said that she discarded it at the end of 2008.  She further said that she wrote about the 86 hours and the hourly rate of $100 on a piece of paper and passed it to her solicitors.  However, she claimed privilege on the alleged piece of paper and hence it was not produced.

18.  However, the plaintiff did not mention anything about the alleged overtime payment in the employees’ compensation proceedings in 2010 when she already had solicitors representing her at that time.  The alleged overtime payment is a significant amount.  It amounts to more than 20% of her basic wages.  It is stipulated in the Employees’ Compensation Ordinance that overtime payment should be included as part of the earnings for calculation of employees’ compensation.  It is hard to believe that her solicitors would omit overtime payment in the claim, if the plaintiff had indeed passed the alleged paper or given instructions on the overtime payment to them.

19.  The other evidence also shows that the plaintiff had never considered overtime payment as part of her income.  When she had the psychological assessment on 21 April 2010 (which is very close to the date of her employees’ compensation application), she told the interviewer that her monthly income was around $7,000.00 per month.  Mr Lim submits that it is unfair to say that this answer contradicts the plaintiff’s case, as it is unclear whether she was referring to her salary for the previous 9 years or when she worked for the 1^st defendant.  I think it is rather unlikely that the plaintiff would refer to her income for the previous 9 years and not her current income.

20.  In her application form for employment with the Hospital Authority, the plaintiff also stated her basic salary as $7,600.00 with no mentioning of any overtime payment.  Although it is true that the space she filled in the amount of $7,600.00 was for “Last Drawn Basic Salary”, there was also another space immediately below that space for her to fill in her “Regular Allowances”.   If she had indeed regular overtime payment as she alleges, she could have filled in that space with the amount of her overtime payment.

21.  The plaintiff denied in her evidence that she had ever been asked about her pre-accident earnings by any person at the hospitals, but it is inconceivable that the hospitals would have those information if she had not revealed them herself.  It is clear to me that she made the denial because she does not want to accept what she had told the staff of the hospitals.

22.  With all these evidence, I am not satisfied on the balance of probabilities that the plaintiff had an average monthly overtime payment of $1,729.10.

23.  However, Mr Lim criticises the defence for not calling Lo Yu as a factual witness for the defence.  Relying on the cases of Lai Cheong Ming v Cheng Chung Yu Eric and another, HCPI 504 of 2009, Wisniewski v Central Manchester Health Authority [1998] PIQR 324 and Li Sau Keung v Max Credit Engineering Limited, CACV 16 of 2003, Mr Lim submits that in certain circumstances the court may be entitled to draw adverse inference from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.  In the present case the court should draw an adverse inference that Lo Yu would have confirmed that there was overtime payment to the plaintiff.  When such inference is drawn, it may go to strengthen the evidence adduced on the issue of overtime payment by the plaintiff or to weaken the evidence, if any, adduced by the defendant who might reasonably have been expected to call Lo Yu.

24.  I think this criticism is totally without merit and the submissions are entirely on wrong footings.  The defence bears no burden of proof in this case.  It is for the plaintiff to prove that she had the alleged overtime payment.  She should in fact call Lo Yu to substantiate her case rather than asking the defence to call Lo Yu to rebut her case.  I do not accept that there should be any adverse inference drawn from the absence of Lo Yu.

25.  In the circumstances, I find that the plaintiff did not have any overtime payment before the Accident and hence the plaintiff’s pre-accident monthly earnings should only be based on the sum of $7,600.00.

What should be the appropriate sick leave period for the plaintiff?

26.  In the Revised Statement of Damages dated 18 April 2012, the plaintiff claimed that she was given sick leaves from 25 March 2008 to 5 April 2012 (1,388 days in total); whereas in her witness statement dated 16 May 2012, she stated that she was granted sick leaves from 25 March 2008 to 16 May 2012 (a total of 1,429 days).  However, she expected her sick leaves to continue.  During cross-examination, she revealed that she continued to go to the Accident and Emergency Department of various hospitals and obtained sick leaves up to March 2013.  The plaintiff also contends that the Accident has left her with residual symptoms in her low back such that she could not reasonably be expected to be able to return to her pre-accident work.  On the other hand, Dr Lam opined that the duration of sick leaves issued by the plaintiff’s treating doctors who assessed her from time to time was appropriate and should be endorsed.

27.  The defendants’ case is that the plaintiff had recovered by about November/December 2008, as Dr Lee opines that the plaintiff’s condition should have reached the stage of Maximal Medical Improvement (“MMI”) in November/December 2008.  Thus, sick leaves should be granted up to November/December 2008.

28.  For the plaintiff’s psychiatric symptoms, the plaintiff’s own expert, Dr Wong, opines that the adjustment disorder with depressed mood is in general a relatively mild psychiatric disorder and most patients should be able to return to work after a short period of sick leaves.  He recommends a period of sick leaves of six months on psychiatric grounds.  Dr Lai, on the other hand, thinks that sick leaves for a period of three months are reasonable.  In any event, the Employees’ Compensation (Ordinary Assessment) Board certified that the plaintiff’s sick leaves were up to 8 March 2011.

29.  Mr Wong, for the defendants, submits that the plaintiff exaggerates her injuries with a view to prolong her sick leave period.  After the Accident, the plaintiff went to seek treatment from Mr Chan Chun Ying, a registered Chinese Medicine Practitioner.  According to a certificate issued by Mr Chan dated 2 August 2011, the plaintiff attended 45 times with his clinic during the period from 12 July 2008 to 14 August 2008.  However, Mr Chan confirmed that the plaintiff’s condition had stabilized.

30.  In the consultation summary of Princess Margaret Hospital dated 5 March 2009, Dr Leung Ka Lok stated that:-

“Condition explained

Her condition reaches MMI – orth fit for MAB already (since Nov 2008)

Need to stop IOD sick leave (although she may not able to resume her previous work)

IOD sick leave is NOT given for waiting for date of MAB (even we don’t know her case is confirmed or not)

She understood.”

31.  The plaintiff was cross-examined on the above records.  She confirms that the treating doctor would not give her any more sick leaves.  Indeed, the Orthopaedic Department of Princess Margaret Hospital stopped giving her sick leave since 5 March 2009.

32.  From the evidence, it is clear to me that the plaintiff had reached the stage of MMI in November/December 2008, and thereafter she was granted sick leaves merely based on her subjective pain.  As admitted by the plaintiff during her cross-examination, the doctors would automatically grant her sick leaves when she attended the Accident and Emergency Department of various hospitals, and even the triage nurse had offered her sick leave before.

33.  In Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210, the plaintiff was allowed 30 months’ certified sick leave.  In a joint medical report, both experts noted non-organic signs, suggesting exaggeration or malingering.  However, they differed significantly on the sick leave period.  The plaintiff’s expert endorsed 913 days granted by the Medical Assessment Board whereas the defendant’s expert opined that since the plaintiff’s injury was minor, 90 days was reasonable.  The judge below found as a fact that the plaintiff had grossly exaggerated his injury and only 90 days’ sick leave was appropriate, but at the same time he held that he could not go behind the sick leave certificates as there was no evidence to suggest or imply that sick leave had been granted improperly.  On appeal, Le Pichon JA held the following:-

“First, it is the patient who makes the request for a certificate from the doctor. Second, a doctor treating his patient may, consistently with the code of practice, issue the certificate without carrying out any detailed examination since such an examination is not always practicable or necessary.

…

Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award of pre-trial loss of earnings and no other.  Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court.  As Rogers V-P observed in: Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd (unrep., CACV 172/2004, [2005] HKEC 1077) at para.9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

34.  The above case is very similar to the present case.  It is just too obvious that the plaintiff went to the Accident and Emergency Department of various hospitals in order to obtain sick leave certificates to prolong her sick leave period.  I accept the defendants’ submission that the doctors in the Accident and Emergency Department may have issued sick leave certificates to the plaintiff without detailed examinations because such examinations would not be practical or necessary as said by Le Pichon JA in the above case.  Thus, the comments concerning the plaintiff’s sick leave period given by the treating doctors of the Orthopaedic Department of Princess Margaret Hospital, who had detailed examinations of the plaintiff, are much more reliable. 

35.  As aforesaid, I find that the plaintiff has exaggerated her condition and even though she had been certified by the Employees’ Compensation (Ordinary Assessment) Board to have sick leaves up to 8 March 2011 and had sick leave certificates up to March 2013, I am not prepared to allow such a long period of sick leaves.  As it is clear that the plaintiff had reached MMI in November/December 2008, and giving some benefits of doubt to the plaintiff because of her complaint of residual pain as well as some time for her to find a job, I find that her sick leave period should not exceed 5 March 2009 when the Orthopaedic Department of Princess Margaret Hospital refused to give her any more sick leaves.

36.  Mr Lim submits that the plaintiff’s gait as can be seen from the surveillance video recordings was not normal in 2010 and 2011 and her appearance is very different from the plaintiff in the case of Tam Fu Yip Fip, supra, and hence her sick leave period should run up to at least July 2011, when she was jointly examined by Dr Lam and Dr Lee.  Another 6 months should be allowed for her to find a job.

37.  I do not accept that sick leave should be granted on the basis of the plaintiff’s gait.  As said, the plaintiff had already reached MMI.  She should either return to her previous job or find a new one.  In my consideration, I have already given her some time from November/December 2008 to March 2009 (about 4 to 5 months) to find a job.  I think that is already appropriate in the circumstances.

38.  Thus, during the sick leave period from 25 March 2008 to 5 March 2009 (a total of 11 month and 12 days), the plaintiff’s loss of earnings inclusive of 5 % of the Mandatory Provident Fund (“MPF”) are in the sum of $90,972.00 ($7,600.00 x 11  x 1.05).

Is the plaintiff able to return to her pre-accident occupation after the expiration of the sick leave?

39.  The plaintiff’s case is that she is unable to work due to her back injury or back pain up to the present moment.  The defendants’ case, on the other hand, is that she failed to mitigate her loss by returning to work as a construction site worker, a waitress, a security guard or in another job within her physical limitation, and in fact she made no real effort to return to work at all.

40.  On this issue, Dr Lam’s opinion is that the plaintiff’s low back pain should be of a mild degree, and that although the plaintiff would have difficulty in performing the full duties of her pre-accident job, if she could be exempted from the heavier duties, with better pain control and a gradual return to work program, she may be able to return to her pre-accident job with mild reduction in work capacity.  As an alternative, jobs requiring less physical demand on the back (eg watchman, gas station worker) would be more suitable.

41.  Dr Lee also opines that based on the findings of the joint examination, the plaintiff’s residual back pain should be minimal to mild, and that the plaintiff should be able to return to work in the construction sites.  There will be mild reduction in work efficiency when she is needed to lift heavy weights, but she can return to work in the construction site as a warehouse worker.

42.  Both psychiatric experts agree that on psychiatric grounds, the plaintiff is capable of returning to her pre-accident employment or any other work appropriate to her physical abilities, educational and occupational background. Therefore, the two psychiatric experts are of the view that the plaintiff is not affected by her psychiatric problem in returning to work.

43.  Although all the experts seem to suggest that the plaintiff could return to work at the Site or another construction site, their views are based on the assumption that she could be exempted from the heavy duties she was doing before the Accident or that she could work as a warehouse worker.  In my view, it is not reasonable to assume that the defendants or employers in other construction sites are prepared to accommodate the plaintiff by allowing her to work less and get the same pay.  According to the plaintiff’s evidence, she was required to carry heavy weights at the Site, including bags of cement weighing 45 kg each, and there is no challenge on this evidence.  Even though I accept that the plaintiff had exaggerated her condition, both Dr Lam and Dr Lee confirm that the plaintiff had mild residual back pain, which would not make her fit for lifting heavy objects.  Thus, it is difficult to assume that the plaintiff could do the same job again at a construction site without even any reduction in wages.

44.  As held by Reyes J in Khan Amar v Cheung Ying Construction Engineering Limited and another, HCPI 231 of 2005 (which was upheld by the Court of Appeal in CACV 153 of 2006), “Companies will prefer to hire the more able-bodied before considering someone with reduced efficiency”. I think Reyes J’s judgment in this regard is equally applicable to the present case.  Thus, the plaintiff’s reduced capacity or efficiency means that in real terms she cannot return to work at a construction site.

45.  In the circumstances, my answer to the issue of whether the plaintiff is able to return to her pre-accident occupation after the expiration of her sick leave is negative.

What should be the appropriate multiplicand?

46.  According to the plaintiff’s witness statement, she was born and educated in Indonesia, but she can speak Cantonese.  She helped her family to do farming work when she was in Indonesia.  In 1992, she came to Hong Kong to look for jobs, and since then she had worked as packaging worker in garment factory and waitress in restaurant before she worked in construction sites.  The plaintiff’s case is that by reason of her low education level, the impairment to her physical ability means that her choice of work is very limited.

47.  In Lau Wing Shing v Chung Fat Mechanical Works Company and another, CACV 50 of 1987, the Court of Appeal held that:-

“Mr. Litton suggests that the judge was entitled to adopt a commonsense approach to the situation, and by applying his own knowledge of the conditions of the labour market would necessarily have found that the Plaintiff could have obtained such a job. It is well known that positions are available.

With respect I do not think the judge is so entitled.  Where a matter of fact is "notorious" a judge is of course able to rely on it without further proof. But I am not willing to accept the conditions of the labour market into that category.  Evidence needs to be called. My Lord Hunter remarked during the course of argument, quoting from fairly recent experience, that officers from the Labour Department are commonly called in this regard, and in particular, from a special unit of that Department which deals with workmen who have been injured.”

48.  Thus, Mr Lim submits that whilst there were some suggestions as to alternative employment, there is no evidence that such employment would be available to the plaintiff.  In those circumstances she should be entitled to full loss of earnings.  If an award is made on this basis, the plaintiff will not pursue an award for loss of earning capacity.  If, however, the court finds that she has residual earning ability and should have found a job, then the question is how much she could reasonably have earned.

49.  Mr Lim disagrees with the defendants’ suggestion that the court should adopt the salary of a dishwasher which is $6,871.00 per month from government statistics, as it was held by the Court of Appeal in Leung Po Chun v Yat Lee Booth-Construction Co Limited, CACV 399 of 2007, that the trial judge was wrong to place total reliance on government statistics in holding that the plaintiff could have earned $7,500.00 per month.  Mr Lim submits that the plaintiff would not be able to earn more than $4,000.00 per month, and there is no evidence that if the plaintiff did the job suggested by the defendants, she would be able to do it full time or could have earned $6,871.00 per month.

50.  I do not accept Mr Lim’s submission that there is no evidence of what the plaintiff could work as alternative employment.  The plaintiff’s own evidence is that she had worked as packaging worker in garment factory and waitress in restaurant before.  In fact, she told Dr Sharon Wong of West Kowloon Psychiatric Centre that she had been a waitress for 2 years and a cleaner for 10 years.  Dr Sharon Wong stated in her case summary that the reason for the plaintiff quitting the job as waitress was to avoid being disturbed by her ex-husband.  Thus, with her past working experience, there is no reason why she cannot work or cannot be employed as packaging worker, waitress or cleaner again.

51.  These jobs are similar to those suggested by Dr Lam (watchman and gas station worker) and Dr Lee (warehouse worker) in that no lifting of heavy objects should be required, and her mild back pain should not prevent her from working in such jobs on full time basis.  Thus, even if there is no evidence that she can work as dishwasher, there is clear evidence that she can work in other similar jobs as aforesaid.

52.  According to the Statistics of the Census and Statistics Department, a waitress earned around $8,139.00, a security guard $7,200.00, a general worker $7,425.00 and a dishwasher $6,871.00 per month in March 2009.  There is no figure for a cleaner’s average monthly salary.  However, if the plaintiff was prepared to look for jobs as a cleaner, there is no reason why she could not work at least as a dishwasher.  The job nature of a dishwasher is not much different from that of a cleaner.  There is no reason for the plaintiff to earn less than what a dishwasher could earn by being a cleaner.  In fact, there is no evidence that a cleaner earned only $4,000.00 as suggested by Mr Lim.  The government statistics should be adopted as they are far more objective than the plaintiff’s own estimation.  Thus, I am of the view that the plaintiff should have an average monthly salary of not less than $6,871.00, whether she is working as a dishwasher or in some other similar jobs.

53.  Adopting the amount of $6,871.00, the multiplicand should be in the sum of $729.00 ($7,600.00 - $6,871.00).

Pre-Trial Loss of Earnings and MPF

54.  As aforesaid, the loss of earnings inclusive of MPF during the sick leave period is $90,972.00.

55.  The loss of earnings inclusive of MPF after the sick leave period from 6 March 2009 to the date of this judgment is $39,420.68 ($729 x 51.5 x 1.05).

56.  Thus, the plaintiff’s total pre-trial loss of earnings inclusive of MPF is $130,392.68 ($90,972.00 + $39,420.68).

Future loss of earnings and MPF

57.  The plaintiff claims that her future monthly earnings will be the same as at the time of the Accident, ie $9,329.00 per month and has not pleaded that there would be an increase.  According to the Statistics of the Census and Statistics Department, the average earnings for a general worker in March 2011 was $7,918.00 per month, whereas the average earnings for a dishwasher was $7,803.00 per month.  Thus, the difference in monthly earnings between a general worker and a dishwasher has been narrowed.  Taking a generous approach for the plaintiff, I accept that the multiplicand for future loss of earning should also be $729.00.

58.  As agreed by the parties, I adopt a multiplier of 11.  The future loss of earnings and MPF is $101,039.40 ($729 x 12 x 11 x 1.05).

Is the plaintiff entitled to an award for loss of earning capacity?

59.  According to the Revised Statement of Damages, the plaintiff claims damages for loss of earning capacity in the sum of $150,000.00 due to the residual and persistent pain in back and/or low back and psychiatric problem and it is alleged that the plaintiff will definitely suffer disadvantage in the open labour market.  However, in the plaintiff’s final submission, it seems that the plaintiff is only claiming the sum of $44,000.00 ($4,000.00 x 11) as the loss of earning capacity.

60.  The award for loss of earning capacity is to cover the risk that, at some future date during the plaintiff’s working life, she will lose her employment and will then suffer financial loss because of her disadvantage in the labour market (see Moeliker v A Reyrolle & Co Ltd [1997] 1 WLR 132). Evidence is required to show how far the plaintiff’s earning capacity would be adversely affected by her disability, and it depends largely on the nature of her employment (see Chan Wai Tong v Li Ping Sum [1985] HKLR 176).

61.  However, as said by Keith JA in Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, “If there was such a risk, the plaintiff was entitled to an award for loss of future earning capacity to the extent that that loss had not been reflected in the award for loss of future earnings.”  This happened in Tong Chun Chung v Pud Chi Keung, HCPI 183 of 2003, where the court refused to make any award for loss of earning capacity on the ground that “the loss of future earnings has effectively taken that into consideration”.

62.  In the present case, I find that the plaintiff is unable to return to her former occupation as a construction site general worker, but there is no evidence to suggest that her mild back pain would affect her in seeking such new jobs as discussed above.  Thus, I do not find it necessary to award any loss of earning capacity to the plaintiff as the award for loss of future earnings and MPF has already covered her future loss.

Interest

63.  The plaintiff claims interest on the award of general damages at 2% per annum from the date of the writ to the date of judgment, and interest on the award of pre-trial loss of earnings and special damages at half of the judgment rate from the date of the Accident to the date of judgment.

64.  The defendants agree with those rates and periods, except that interest on the award of general damages should accrue from the date of the service of the writ (ie 20 October 2011) and not the date of the writ (ie 2 March 2011).

65.  I accept that the interest on the award of general damages should be calculated from the date of the service of the writ, as that was the time when the defendants were first aware of the proceedings and could respond to the plaintiff’s claims.

Summary on quantum

66.  By reasons aforesaid, the plaintiff is entitled to the following damages:-

Conclusion

67.  Although my assessment of the plaintiff’s damages is in the sum of $502,432.08, as the plaintiff has to give credit for the amount of $637,510.67 received in her employees’ compensation claim, she will in effect receive no compensation in the present proceedings.

Costs

68.  Since the plaintiff cannot get what she has contended for, I make an order nisi that the plaintiff do pay the defendants’ costs of the assessment of damages with certificate for counsel to be taxed if not agreed, and the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.