Ali Mehboob v. Yun Kwan Construction Engineering Ltd and Another

HCPI 1370/2014

[2018] HKCFI 956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1370 OF 2014

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Before: Madam Recorder Winnie Tam SC in Court

Dates of Hearing: 1 – 3 and 8 June 2016

Date of Judgment: 3 May 2018

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J U D G M E N T

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THE ACCIDENT

1.The plaintiff Ali Mehboob was a construction site labourer.  The 1^st defendant is a sub-contractor of the 2^nd defendant, the principal contractor of the site.

2.In the early hours of 18 June 2012, the plaintiff was working under the employment of the 1^st defendant along Hung Hing Road in Causeway Bay outside the Central Cross Harbour Tunnel. He was instructed by Cheung Ming Chiu (“Ah Chiu”), a foreman of the 1^st defendant, to use a paper cutter to remove loosened plastic seals from the surface of a stretch of the outer wall of the exit of the tunnel.  For that purpose he was provided with a 5-step A-shaped aluminium ladder.  When reaching for the top of the tallest section of the wall, he fell off the ladder and fractured his right wrist and right arm as a result.

LIABILITY TO THE CLAIMS

3.It is not disputed that when the accident happened, the plaintiff was working at the location of the accident by himself and without assistance.  There was no eye-witness to the accident.  The plaintiff was provided with an aluminium ladder by the foreman Cheung Ming Chiu, whom the plaintiff addressed as “Ah Chiu”.  Shortly after giving the plaintiff instructions, Ah Chiu heard a loud noise of impact.  He looked and found the plaintiff sitting on the ground.

4.The plaintiff was later sent to hospital for treatment.  He suffered injuries to his right arm and wrist.  X-ray showed him to have sustained a fractured right distal radius.  Despite treatment and physiotherapy, the plaintiff claims to continue to suffer pain in the right wrist when carrying heavy objects.

5.The plaintiff claims under three causes of action, namely:

(1) breach of employer’s common duty of care;

(2) breach of occupier’s liability under section 3 of the Occupier’s Liability Ordinance Cap 314 (“OLO”); and

(3) breach of statutory duty under the Constructions Sites (Safety) Regulations, Cap 59I (“CSSR”).

6.The defendants do not dispute the accident took place but put the plaintiff to strict proof of how it happened.  They also take issue on whether the plaintiff should be liable for contributory negligence.

7.According to the photographs[1] in evidence, the top end of the surface of the relevant part of the wall the plaintiff was instructed to do work on slants upwards towards the end.  His job was to use the cutter to cut the seal adhered on that part of the surface.  The plaintiff testified that the top part of the wall that he had had to reach was about 12 feet high, and he had had to stand on his toes at the top of the ladder in order to reach it. He testified that he had told Ah Chiu that the ladder was not tall enough, but was informed that there was no taller ladder available.  The ladder became unsteady when he reached out for the top and he fell on his right side.   He tried to break the fall by stretching out his right hand, but ended up landing heavily on his right hand and arm.

8.Ah Chiu accepted in his testimony that the plaintiff did ask him for help when he had difficulties reaching at the higher areas of the wall with the ladder provided, but he was unable to provide any help.

9.In closing submissions, Counsel for the defendants, Mr Wong Chi-kwong, properly concedes that this Court should have no difficulty finding liability on the above causes of action.  No case has been advanced on any contributory negligence.  The remaining dispute between the parties relates to the quantum of damages to be awarded.

QUANTUM OF DAMAGES

(A)   Issues between the parties  

10.The parties disagree on the assessment of quantum in respect of PSLA, loss of earning capacity, past loss of earnings, and whether there should be an award for loss of future earnings.  Special damages in the sum of $5,240 is agreed.

11.The defence case is broadly that the plaintiff’s wrist injuries are relatively minor, and that he has suffered only minor loss of earning capacity after treatment and recovery, which loss did not affect his future earning capacity.  The plaintiff’s alleged level of earnings prior to the accident is also put in issue.

(B)   Medical evidence on the injury, treatment and recovery

12.After the accident on 18 June 2012, the plaintiff underwent x-ray at Ruttonjee Hospital and was found to have suffered a fractured right distal radius.  He was transferred to Pamela Youde Nethersole Eastern Hospital (“PYNEH”) and treated with closed reduction and short arm slab. He was discharged on the following day.

13.On 25 June 2012 the plaintiff attended follow-up treatment at the out-patient clinic of PYNEH and a short arm cast was completed.  Further serial x-rays showed fracture was healing but there was a step on the articular surface.  The case was removed on 1 August 2012.  Rehabilitation in physiotherapy and occupational therapy continued.  According to the medical report of Dr Law Yuk Ching, after 15 sessions of physiotherapy treatment, there was decrease in right wrist pain.  The active range of right wrist flexion was 60 degrees and extension was 50 degrees.  The right power grip was 18 kg.  The plaintiff defaulted in further physiotherapy treatment after 26 November 2012.

14.The plaintiff also received occupational therapy.  According to the medical report of Ms Florence Leung, Occupational Therapist of Princess Margaret Hospital, the plaintiff received occupational therapy between 30 November 2012 to 29 January 2013, including work capacity evaluation and work rehabilitation training.

15.On the last follow-up treatment on 8 May 2013, the plaintiff still had pain in the right wrist on carrying heavy objects.  Clinically, there was no tenderness over the site of fracture but there was pain on movement and exertion.

16.According to an MRI report of 18 November 2013, images of the right wrist shows the old fracture of the distal radius with mild contour irregularities.  On 11 December 2013, the pros and cons of conservative treatment versus wrist arthroscopy was explained, but was considered and declined by the plaintiff.

17.Thereafter, painkillers continued to be prescribed to the plaintiff.  In February 2014, painkillers and analgesic balm were prescribed to the plaintiff for 16 weeks.

18.The parties submitted in evidence a joint medical report dated 11 July 2014, Dr Lee Po Chin (for the plaintiff) and Dr Lau Hoi Kuen (for the defendants) pursuant to a joint examination of the defendant on 3 June 2014.  The plaintiff complained of constant mild aching of the right wrist even during sleep.  The degree of severity was between 12/10 in the Numeric Pain Rating Scale (NPRS).  The pain increased to 5/10 NPRS upon lifting objects between 2kg to 3kg, during change of weather especially cold environment, when clenching the fist, and when engaged in certain movement of the wrist.  More significantly, he had difficulty driving a loaded truck because of the heavy steering column, but he has no difficulty driving a private car.

19.X-ray of the right wrist taken on 5 June 2014 showed a healed fracture of the distal radius, with slight radial shortening and slight irregularity of the joint surface.  Slight dorsal tilting of the articular surface of the distal radius was observed in the lateral view, and slight deformity in the joint line.  The two doctors agreed on the above findings and characterized the injury as an intra-articular fracture of the right distal radius.

20.Dr Lee opined that the above X-ray findings provided the structural basis for the swelling, residual pain and the impaired range of movements in the plaintiff’s right wrist.  He found that the plaintiff was likely to have pain upon heavy exertion with his right hand, being his dominant hand.

21.On the other hand, Dr Lau commented that the fracture appeared from MR Arthrogram to have been well healed with minimal disruption of the normal anatomy of the joint.  He opined that “the function of [the plaintiff’s] right wrist and hand should have returned to satisfactory level”, and should have improved further with active use of the hand in the year running up to the joint examination.  He found that the good muscle bulk in the plaintiff’s right forearm would suggest that he has been actively using his right hand in activities of daily living.  In particular, Dr Lau queried the range of movement of the right wrist as presented by the patient at the joint examination.  By reference to the wrist joint motions (flexion and extension) recorded or achieved in the 4 examinations between 10 April 2013 to February 2014, he commented on the absence of identifiable reason for the regression at the joint examination in the level of active motions previously achieved. He therefore opined that the range of movement in the right wrist “should have been better than presented”.  He further observed that the right handgrip power pattern does not conform to a bell shape curve, which suggested to him submaximal effort when performing the test.  He pointed out that the Set V results in the handgrip power shows no difference between the left and right hand, suggesting to him an absence of weakness in the right hand.

22.On the basis of the above findings, Dr Lau regarded the plaintiff to have “recovered well”, that any residual pain should in his opinion be of a mild nature that would not prevent him from resuming his previous employment as truck driver cum labourer of construction work, with only “mild reduction in efficiency and capacity at work”.  On the other hand, Dr Lee opines that the plaintiff may not be able to return to his previous employment as a truck driver and construction site labourer, but will be able to manage lighter jobs such as driving a delivery van with handling of light items only, or security guard, or other jobs not requiring lifting heavy objects.

23.Dr Lau assessed the plaintiff’s permanent impairment at 2% whereas Dr Lee assessed the same at 4% for the mild residual pain and stiffness of the right wrist with slight articular deformity.

(C)   Pain, suffering and loss of amenities

24.The plaintiff was born in October 1975 and was 36 years and 8 months of age at the time of the accident on 18 June 2012.  He was 40 years and 8 months old at the date of trial and is 42 years and 7 months old today.  He came to Hong Kong when he was 15 years old, and has been working hard to support his family that has grown to one with seven children.  He had been a factory worker for a short time when he first arrived, and then a helper in loading and unloading goods.  Since 1994 after obtaining a heavy goods vehicle driving licence, he has worked as a driver, grocery store operator, delivery worker, security guard, and construction site labourer, often taking two jobs at once.

25.Under this head the plaintiff seeks $380,000.  The plaintiff relied on a number of precedents for comparison, none of which relates to any wrist injury on all fours with the injury suffered by the plaintiff.  These cases include Yip Mau Leung v University of Hong Kong [2000] 3 HKLRD 198, Cheng Yuk Chun v Winson Cleaning Service Company Ltd unreported, DCPI 629/2006, in both of which cases $300,000 was awarded for PSLA in respect of wrist injury falling below the category of serious injury, with psychiatric condition reported in the latter case, and Wong Man Kin v Golden Wheel (C & HK) Transportation Co Ltd [2015] 5 HKC 570, where an award of $500,000 was made for serious back injury.

26.The defendants argue that $220,000 should be the fair award under this head, as the injuries suffered by the plaintiff was of a nature and extent less serious than that in any of the above cases relied on.  They rely on a number of precedents including Yu Yixin v Leung Chi Tin Andy DCPI 1306/2007, Chan Shek v Milkway Image (Hong Kong) Ltd HCPI 295/2006, Mehmood Khalid v Million Harvest Wharves & Logistics Ltd and Others HCPI 401/2006, Li Kwok Kee v China HK Wah Lee Ltd HCPI 477/2013, and Liu Cairong v Parker Cleaning Services Co Ltd HCPI 189/2013.

27.The defendants argue that the PSLA award in Li Kwok Kee would be of particular reference value.  The plaintiff in that case suffered wrist fracture injuries.  After undergoing open reduction and internal fixation, he recovered with no deformity but with two minor scars of 2 cm and 1 cm.  There was some residual pain and stiffness in his left wrist.  The effect of the injury was assessed at between mild to moderate, for which an award of $240,000 was made in 2014.  The learned judge was of the view that the injury was similar to that suffered in Yu Yixin.

28.I consider the severity of the injury of the plaintiff falls below the serious injury category, and its impact upon the plaintiff is higher than that in Li Kwok Kee in view of the deformities detailed in §19 above, but significantly lower than that in Yip Mau Leung. Having considered the evidence of the plaintiff, the medical evidence, and all the cases relied on by the parties including the ones referred to above, I have come to the view that an award of $280,000 would be appropriate in the present case.

(D)   Loss of earnings

29.The plaintiff in the Re-Revised Statement of Damages evidence claims pre-accident earnings of $700 per shift for 23-24 days per month in his day job, making an average sum of $16,450 per month.  His gave oral evidence that he was employed by the 1^st defendant as one of two drivers of a 24-ton truck and he also functioned as a construction site labourer.  Between July to October 2011 he had a night time job as a night time security guard for a carpark.  From October 2011 up to end of April 2012 he worked on night shift as a security guard of a construction site in Taipo for Nam Tai Security Co Ltd with an average monthly earning of $10,400 per month.

30.The documentary evidence supports the assertion that the plaintiff’s average earning for the period of one year before the accident to be approximately $19,678 per month including night shift work.  Before February 2012 when he joined the 1^st defendant, he was working for another employer as a construction site labourer.  Between February to April 2012 when he joined the 1^st defendant as a day-time 24-ton vehicle driver cum construction site labourer, which led to an increase in his day-job income to around HK$19,868 per month.  During this 3-month period he was also retaining his night time security guard work at Nam Tai, he was earning from the 1^st defendant in addition to HK$10,400 from Nam Tai for night time work, making his monthly earning HK$30,268 in total for those 3 months.

31.This profitable spree was only interrupted by his having to return to Pakistan due to a death in the family between 30 April to 16 May 2012.   For the rest of the month of May, he only managed to work 9 days, and did not do any night shift work.

32.He claimed to have resigned from Nam Tai only when he was asked to do night shift work for the 1^st defendant and was promised at least 20 nights a month, which would have produced for him an income exceeding the HK$10,400 he was earning from Nam Tai.  According to the plaintiff the invitation came two to three weeks before he left for his trip to Pakistan, but he only agreed to take it on about a week before the accident, when he asked to start in a few days’ time so he could give some notice to his then night shift employer Nam Tai.  He was given to understand that the 1^st defendant had a shortage of labour for the night shift.  He was therefore expecting to earn $700 per shift for night shift work from the 1^st defendant for 20 nights per month.  If that happened, he was expecting to be earning around $30,000 per month in the days following the accident.  Upon agreeing to take on night shift work on a more permanent basis with the 1^st defendant, he tried it out for three or four times before he was injured on the night of the accident.

33.The 1^st defendant took issue with the plaintiff’s evidence on the 1^st defendant’s promise for night shift work.  Cheung Ming Chiu, witness for the 1^st defendant and the foreman of the plaintiff on the night of the accident, denied the accuracy of the report at pp 291 – 292 of the bundle showing that the plaintiff has worked on night shifts in the months of February and March 2012 on a number of occasions.  There was no reasonable explanation forthcoming as to how he could have been recorded as having worked 1.5 or 2 shifts on the same day on a number of days and was paid for those extra shifts if in fact he had not worked in any night shifts on top of the day shifts.  Chan Sek Kwan, another witness for the defence, did accept that the record would have accurately recorded the shifts worked by workers and would have differentiated between extra hours in a day shift from an additional shift.

34.Cheung gave evidence to the effect that there was no night shift work requiring the plaintiff’s service.  He was adamant that the plaintiff was only offered such work for the first time on the evening of 17 June as the plaintiff took the initiative to ask for work, saying that he needed money, and he was therefore given work when he turned up at the site.

35.While I am prepared to accept that the salary record at pp 291 – 292 of the trial bundle records “shifts” and “hours of overtime work” in different columns which are not to be confused one with the other, I am satisfied that wherever the February 2012 record shows 1.5 or 2 shifts, it does reflect that the plaintiff has worked shifts of half to one night.  In the April 2012 record, the plaintiff is indeed recorded to have performed “Hung Hom Tunnel Night Shift” on three occasions on 18, 21 and 23 of April, and has on other occasions in the same month worked overtime for up to 3 hours.  This evidence corroborates the plaintiff’s testimony that he has tried out night shift work a few times before the night of the accident.

36.On the conflict in evidence outlined above, I am inclined to accept the evidence of the plaintiff, who came across at trial to be a truthful witness.  He was calm and attentive.  He was cross-examined at length by counsel for the defendants but was able to answer questions succinctly and directly, and expressed himself clearly and without exaggeration or prevarication despite the necessary difficulty involved with interpretation.

37.I find that the plaintiff did give up his other night shift job in the expectation that he would be earning not any less if not more in night shift work he expected to be provided by the 1^st defendant.  However, I am not prepared to accept that the alleged promise of 20 nights a month could necessarily be used to compute the loss of earnings: as explained by the plaintiff under cross-examination, the plaintiff’s then existing night shift job as a construction site watchman would have afforded periods of interrupted rest between patrolling duties carried out once every 4 hours.  This is to be contrasted with the night shift work under the 1^st defendant as a labourer, which would have been an uninterrupted period of physical exertion between 12 midnight to 5 am.  I doubt very much if the plaintiff would be in a position to take on night shift 5 days a week and 20 days a month in full swing as soon as he started in June 2012, even if there were a sustained demand for overnight labour to the level promised by Cheung.

38.Defence counsel submits that there might not have been enough night shift work for the defendant to take during the pre-trial period, but there is no compelling evidence one way or the other.  I am unable to accept the evidence of Cheung that he did not invite the plaintiff to do night shift work because there was no such work available.  For the purpose of assessing pre-trial accrued loss of earnings, I would apply a 20% discount to the number of night shifts that the plaintiff could realistically expect to be able to take on from the date of the accident for a sustained period of time up to trial.  This discount would bring his pre-trial loss of income for night shift work to a monthly sum of $11,200 applying the then current rate of $700 per shift.

39.There is some dispute in pleadings and witness statements as to the rate of the plaintiff’s salary per shift at the time of the accident, but by the time of the trial, the parties are no longer disputing the rate of $700 as the rate that was actually received by the plaintiff from the 1^st defendant at the material time.   However, the plaintiff asserts that had he not been injured, he would have been able to obtain $800 per shift, day and night, for the type of work he was engaged in.  This higher rate is asserted by the plaintiff on the basis of hearsay from his fellow workers, none of whom was called to give evidence, but otherwise unsupported by evidence showing the remuneration of workers in comparable work.  Be that as it may, I am prepared to accept that the rate would in the time following 2014 go up to $800 latest by 2016, and I would apply a median to work out pre-trial loss of income.

40.The plaintiff testified that he commenced work as an office messenger on 11 June 2014 earning HK$10,000 per month.  This was after he tried to go back to the previous day job of driving a heavy truck on a construction site one day, but lasted only 2 hours.  Due to the pain in his right wrist and the weakness of grip in his right hand, he was no longer able to manoeuvre the steering wheel of a loaded truck nor lift any heavy objects as he was required to do so.  

41.While under cross-examination, he explained in greater detail what his duties were in his previous day job.  Apart from truck driving and some loading and unloading work, he has to assist the welder with welding work, which involves his lifting metal beams and plates.  His duties were mixed between helping in the welding workshop and driving the truck to deliver construction materials and other equipment.  There was no fixed rule as to how much of each type of work he had to do on any particular day.  Some trucks used for construction are equipped with cranes and others are not.  Drivers are expected to help with loading and unloading whenever it cannot be done with a crane.  He also explained why despite power steering function being available on the truck, it required considerable exertion when steering a loaded truck.  There is no evidence to contradict his explanation given in the witness box.

42.As for his night job, he testified that he could not return to the previous Nam Tai night job he used to hold because that would have required him to move a heavy metal gate that involved pushing of heavy weights.  He was offered a job as a day or night watchman only, but he could not take that either as it would have required some reading and writing, and he was illiterate.  His inability to read or write Chinese or English posed a significant obstacle to his post-accident job hunting efforts.

43.The plaintiff adduced surveillance evidence in the form of video recordings showing the plaintiff at work after March 2016, after he has left Tung’s Transportation as an office messenger, and started working with SK Recycling as a driver.  The plaintiff as shown in the video recordings did not appear to have been aware that he was under surveillance.  The recordings show the plaintiff driving a light goods vehicle, and making deliveries of apparently light parcels such as amah’s bags and paper cartons, none of which appear to be heavy.  He carried the bags or lifted the cartons, using mostly his uninjured left hand, assisting with the right hand where necessary.  It is fair to say that the surveillance evidence does more to confirm the plaintiff’s case on his resulting disability and its impact on his capacity for work than to contradict it.  In re-examination the plaintiff explains that he has no problem driving for a living, but all the driving jobs that he would be eligible for would require ability to do loading and unloading of goods.  Understandably, he considers a job as a domestic driver to be out of his reach.

44.On the other hand, the defendants argue that the plaintiff should have been able to return to the job market at least for a day job as early as May 2013.  It is further argued by the time his sick leave period expired on 10 April 2014 he should have been able to return to both his day job and night job.  In particular, the plaintiff should have had no difficulty going back to heavy truck driving, which was what he had do in his previous day job, relying on the case of Lee Kwok Kee v China HK Wah Lee LtdHCPI 477/2013, where on the evidence before him, Chow J rejected the evidence that the plaintiff could not resume driving a container truck after recovering from his wrist injuries.

45.Counsel for the plaintiff points out that the defendants have not pleaded failure to mitigate as a defence to any part of the damages claim, despite the plaintiff having been cross-examined extensively in relation to his efforts in finding work compatible with his pre-accident earning capacity.  I do not consider the lapse of 3 months following the expiry of the sick leave period to be an unreasonable period for him to find a job in the circumstances.

46.While bearing in mind the caution sounded by Rogers VP in §6 of his judgment in Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd CACV 172/2004, I shall fairly assess the plaintiff’s ability to return to work any earlier than July 2014 in the light of the medical evidence and in view of his personal ability and circumstances. I accept plaintiff’s counsel’s submission that due to the fact that the plaintiff is illiterate and has hitherto relied on exerting his physical strength to earn a living, the impact of a physical injury, particularly on his preferred hand, is greater on his earning capacity than on others who are not illiterate.  I do not consider fact-sensitive precedents to be helpful in this exercise.

47.The sick leave period was assessed by the Employees Compensation Assessment Board.  The plaintiff’s medical expert Dr Lee supported the assessment and considered it reasonable, while the defendant’s medical expert Dr Lau, upon examining the plaintiff’s medical consultation records, regarded the plaintiff’s condition to have become stable by end of January 2014, and that he should have been able to return to the job market by up to 2 months thereafter. Dr Lau considered that his judgment would align with the usual recovery period of a well-reduced fracture of the distal radius, which is 6 to 9 months.  In the medical consultation summary of Dr Chan Ka Chun Jonathan dated 8 May 2013, it was noted that MAB was pending, and the plaintiff was still looking for s security job on his ability to fin suitable work.

48.Be that as it may, even putting aside the pleading objection, I am not prepared to accept that there was any compelling evidence that showed a deliberate failure to mitigate loss on the part of the plaintiff.  Having considered his tested oral evidence, I am satisfied that the plaintiff did make reasonable efforts to obtain as good a job as he could get even before sick leave period expired in April 2014.  I do not consider that he has unduly exaggerated the impact of his injury.

49.The following is the computation I consider to be a fair assessment of pre-trial loss of earnings:

•   $19,678 (pre-accident average day shift income) +
$10,400 (pre-accident night shift income) = say $30,000

•   $800 (projected daily rate following the date of accident) ×
[23.5 days (day shift) + (20 days × 80%) (night shift)] = $31,600 at the date of trial.

Following the decision of Bharwaney J in Fung Suen Sim v Liu Chun Pong & Anor HCPI 896/2007, 23 December 2011, I take judicial notice of the Composite Consumer Price Indices of the Census and Statistics Department which show an inflationary increase of 3.1% from March 2016 to March 2018[2], being the latest available statistics.  Applying this percentage increase to $31,600 produces an amount of $32,580 ($31,600 × 103.1%, rounded off).

•   The median for pre-trial loss of earnings is therefore —
($30,000 + $32,580) ÷ 2 = $31,290

•   Full loss of earnings from 18 June 2012 to 10 June 2014 (23.7 months) —
$31,290 × 23.7 = $741,573

•   Partial loss of earnings from 11 June 2014 to 30.5.2018 (47.6 months) —
($31,290 – $10,000) × 47.6 = $1,013,404

•   Pre-trial loss of earnings (18 June 2012 to 30 May 2018)
including MPF —
$741,573 + $1,013,404 × 105%= $1,842,726

(E)   Loss of future earnings / loss of future earning capacity

50.The defendant contends that there should be no award for loss of future earnings.  Counsel for the defendants relies on the medical evidence outlined in section (B) above as indicating that there was really no significant impairment that would prevent the plaintiff from resuming employments of the same nature as he has held immediately before the accident.

51.However, the plaintiff’s tested oral evidence is that he continues to suffer a mild pain and weakness in his wrist, even without exerting his hand or arm, and even as he was testifying in the witness stand.  His evidence of his pain was unshaken, and is supported by the evidence of Dr Lee. While Dr Lau’s interpretation of the test results suggested to him sub-maximal effort on the part of the plaintiff when performing the test, no where did he state in his report that the plaintiff appeared to have exaggerated his constant pain.  On the other hand, the X-ray findings show a deformity in the bone structure upon the healing of the fracture, which Dr Lee considers would provide a structural basis for the residual pain and impaired range of movements of the wrist.  The two doctors hold different views on how the deformity and pain might impact upon the plaintiff’s efficiency and work capacity, as referred to in §22 above.

52.The plaintiff asserts that had he not been injured in the accident, he would have retired only at the age of 65.  The plaintiff therefore adopts a multiplier of 18.24 at the rate of return of 2.5% per annum for the plaintiff age 40 at the date of trial [3].

53.The assertion of the plaintiff’s intended retirement age of 65 is based on the plaintiff’s adoption of what he believes to be the retirement age prevalent in Hong Kong.  His belief was not tested in cross-examination.  However, that does not mean that the court is bound to accept this assertion of intention.  Indeed, quite apart from the fact that there is no evidence of any fixed requirement age for the type of employment relevant to the plaintiff, what is a reasonable retirement age must vary with the type of work involved.  While it is readily understandable why an illiterate, hard-working but unskilled non-Chinese speaking man with a family of seven children to support would strive to hold down two manual labour jobs throughout his prime if he could, it is hard to envisage how this regime could realistically be sustained till the age of 65, or that he would be able to secure the same work for at the same intensity through to the age of 65.

54.I am unable to ignore the fact that the work to be undertaken by the plaintiff in the future, had he not been injured, would likely have required constantphysical exertion.  There is no basis for the unrealistic presumption that the plaintiff would be able to maintain the same level of pre-accident income by holding down two physically demanding jobs as construction labourer through to the age 65, or indeed beyond the age of 50. To apply a single multiplicand to the end of the projected working life is bound to produce a quantum of damages that is unjust.

55.I am only prepared to accept that the plaintiff can realistically continue with a full time day job and up to 16 night shifts per month for another 10 years from trial to the age of 50.  Thereafter, between the age of 51 to 57, it would be reasonable to expect a 25% decrease in the number of night shifts he would be able to undertake.  Bearing in mind the nature of the work as he has described in evidence, I take the view that between the age of 58 to 62 he could only expect to be employed in a day job or night job for a further decrease of around 20% in the number of shifts in a month on account of natural decline in physical strength and employability.  I would apply the number of 20 to the day or night shifts he can be expected to undertake for the last 5 years.

56.Future loss of earnings including MPF is computed as follows.  In view of the reasoning laid out above, I do not consider it necessary to make any award for loss of future earning capacity.

57.From the age of 42 years and 7 months (i.e.  about 42.5 years) to 50 years, his partial loss, inclusive of MPF, is $23,709 per month ($32,580 − $10,000 × 105%). From the age of 51 to 57 years, his partial loss, inclusive of MPF, is $20,244 per month, calculated as follows: ($800 × 103.1% × [23.5 (day shift) + 12 (night shift)] − $10,000) × 105%, rounded off. From the age of 58 to 62 years, his partial loss, inclusive of MPF, is $6,821 per month, calculated as follows: ($800 × 103.1% × [20 day or night shift] − $10,000) × 105%, rounded off.

58.Five years have passed since the decisions of Bharwaney J in Chan Pak Ting v Chan Chi Kuen (No 1) [4] and Chan Pak Ting v Chan Chi Kuen (No 2) [5], which was approved by the Court of Appeal in Chan Wai Ming v Leung Shing Wah [6].  Since then, and with the passage of time, the courts are becoming more adept at using actuarial tables to assess future loss.  The plaintiff is 42 years and 7 months old today.  At the rate of return of 2.5% per annum, the multiplier for a term certain of 19 years to age 61 and 7 months is 15.17 and to for a term certain of 20 years to age 62 and 7 months is 15.78 [7].  The median of these two multipliers 15.47 (15.17 = 15.78 ÷ 2, rounded off).  At the rate of return of 2.5% per annum, the multiplier for loss of earnings to pension age 65 for a male aged 45 is 15.41 and the multiplier for loss of earnings to pension age 65 for a male aged 46 is 14.80 [8]. The median of these two multipliers is 15.10 (15.41 = 14.80 ÷ 2, rounded off). The latter multipliers have taken into account the risk of earlier death.  I would adopt a multiplier of 15.10 in this case and increase is slightly to 15.20 to reflect the fact that the plaintiff at the age of 42 years and 7 months is younger and has a slightly lower risk of earlier death.

59.This multiplier of 15.20 has to be apportioned between the respective periods of loss in this case in the manner suggested in The Personal Injuries Table Hong Kong 2016[9] which is based on the Ogden Tables[10]:

(a) In the present case the multiplicands are:

(i) For the 7.5 years from the age of 42.5 to 50 years, $23,709 per month or $284,508 per annum;

(ii) For the 7 years from the age of 51 to 57 years, $20,244 per month or $242,928 per annum;

(iii) For the 5 years from the age of 58 to 62 years, $6,821 per month or $81,852 per annum.

(b) The working life is about 19.5 years and the multiplier from Table 9 (taking into account mortality risks) is 15.20, and for term certain is 15.47, as set out above.

(c) The multiplier from Table 28 should be spilt so that each individual segment of the whole working life period (19.5 years) is represented by a figure:

(i) The first 7.5 years is represented by a multiplier for a term certain of 7.5 years, namely 6.85, being the median of the multipliers for 7 and 8 years;

(ii) The next 7 years is represented by a multiplier for a term certain of 14.5 years, namely, 12.19, being the median of the multipliers for 14 and 15 years, less the 7.5 year figure of 6.85, namely, 5.34;

(iii) The next 5 years is represented by a multiplier for a term certain of 19.5 years, namely 15.47, being the median of the multipliers for 19 and 20 years, less the 14.5 year figure of 12.19, namely, 3.28;

(iv)   The total of 6.85 + 5.34 + 3.28 is 15.47.

(d) Each of the smaller segmented multipliers can be shown as a percentage of the whole:

(i) For the first 7.5 years, the segmented multiplier of 6.85 is 44% (6.85 ÷ 15.47)

(ii) For the next 7 years, the segmented multiplier of 5.34 is 35% (5.34 ÷ 15.47)

(iii) For the next 5 years, the segmented multiplier of 3.28 is 21% (3.28 ÷ 15.47)

(iv) The total of 44 + 35 + 21 is 100.

(e) The working life multiplier from Table 9 can now be split up in identical proportions to the way in which the multipliers for term certain have been treated above:

(i) For the first 7.5 years, the segmented multiplier is 6.69 (15.20 × 44%)

(ii) For the next 7 years, the segmented multiplier is 5.32 (15.20 × 35%)

(iii) For the next 5 years, the segmented multiplier is 3.19 (15.20 × 21%)

(iv) The total of 6.69 + 5.32 + 3.19 is 15.20.

(f)   The multiplicand for each segment of working life is now multiplied by the appropriate segmented multiplier to calculate the loss for that period.  The sum total of the total loss of future earnings is as shown in the table below.

Ages	Period (years)	Table 28	% Split	Table 9	Net Annual Earnings ($)	Loss ($)
42.5 – 50	7.5	6.85	44%	6.69	284,508	1,903,359
51 – 57	7	5.34	35%	5.32	242,928	1,292,377
58 – 62	5	3.28	21%	3.19	81,852	261,108
Total :	19.5 years	15.47	100%	15.20		3,456,844

60.I award $3,456,844 as damages for future loss of earnings.

(F)   Special damages

61.The amount of $5,240 made up of medical expenses, travelling expenses and tonic food and ointment is agreed between the parties.

(G)   Interest

62.The plaintiff is entitled to interest on PSLA at 2% since the date of the Writ to judgment, and interest at half the current judgment rate for pre-trial loss of earnings and other items of special damages from the date of the accident to the date of payment.

SUMMARY OF QUANTUM OF DAMAGES

63.The heads of damages awarded are tabulated below:

(1)	Pain, suffering and loss of amenities	$ 280,000
(2)	Loss of accrued earnings including MPF	$ 1,842,726
(3)	Loss of future earnings including MPF	$ 3,456,844
(4)	Special damages	$ 5,240
Less :	Amount received under Employees’ Compensation Ordinance	( $ 422,918 )
	Total :	$ 5,161,892

64.Accordingly, judgment will be given in favour of the plaintiff against the defendants in the sum of $5,161,892 and interest as set out above.    

COSTS

65.There will be a costs order nisi that the defendant pays the plaintiff his costs of this action to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

66.It remains for me to thank counsel for both parties for their able assistance at the trial, and to thank parties for their patience in awaiting the delivery of this judgment.

Mr Ashok K Sakhrani, instructed by Lo Wong & Tsui, assigned by Director of Legal Aid, for the plaintiff

Mr Wong Chi Kwong, instructed by WMC Partners, for the defendants