Ding Kwok Keung v. Moretide Investments Ltd

DCPI 1447/2016

[2018] HKDC 605

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1447 OF 2016

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JUDGMENT

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Background

1.This action arises out of an accident which occurred on 9 September 2013 to the plaintiff whilst he was working under the employ of the defendant.

2.On the date of accident around 3 pm, the defendant instructed the plaintiff to drive a 9-ton lorry (“the Lorry”) to make delivery of pallets of stacked food products to Kai Bo Food Supermarket at Chuen Lung Street, Tsuen Wan operated by the defendant.

3.After parking the Lorry next to the pedestrian pavement at Chuen Lung Street, the plaintiff pressed the buttons of an electrical device installed at the Lorry to open the tail-lift platform at its rear (“the tail-lift platform”) in order to unload the goods[1]. After unloading a pallet of goods down to the pedestrian pavement with the help of a manual forklift (“the forklift”), he operated another electrical device to raise the tail-lift platform to the same floor level of the Lorry’s enclosed good-loading compartment (at a height of about 1.5 m above the ground) with the outer-end of the tail-lift platform slightly tilted upwards. 

4.Then he pulled another pallet of goods with the forklift out onto the tail-lift platform.  At that time, he was standing near the edge of the raised tail-lift platform. All of a sudden, the tail-lift platform dropped for about an inch and slightly tilted downwards, causing the forklift with the pallet of goods tilt and charge towards him.  In order to avoid being hit, he jumped backwards from the tail-lift platform onto the ground.  He landed on his heels and sprained his back and sustained injuries.

5.The defendant disputes both liability and quantum.  

Plaintiff’s case

6.As I see it, the plaintiff’s case is essentially that the occurrence of accident was owing to the defectiveness or malfunction of the electro-mechanical system[2] controlling the tail-lift platform (“the Tail-Lift System”).  The defendant was negligent, and in breach of its statutory duties under Occupational Health and Safety Ordinance (Cap.509) in failing to take reasonable care to provide or maintain a safe tail-lift platform for the plaintiff to work with at the material time.

Defendant’s case

7.On liability, defendant raised two main contentions for its defence:-

(1)   The plaintiff fails to prove the causation of the accident. (“Contention 1”)

(2)   The mere existence of defects does not prove negligence. (“Contention 2”)

8.The defendant also contends that the plaintiff was contributory negligent.

Analysis

9.To start with, it is notable that the plaintiff was working alone at the time of accident.  The defendant called no witness to counter the plaintiff’s account of how the accident happened.  I find the plaintiff’s evidence unshaken and intact after cross-examination.  I fully accept his evidence as deposed in his witness statement and his testimony given in court in relation to the occurrence of the accident and its surrounding circumstances.  I find the accident happened in such way as he described, which was summarized in paras 2 to 4 above.

10.Further, the defendant, being the plaintiff’s employer, owed a non-delegable duty to take reasonable care towards the plaintiff as its employee by providing him with safe equipment so as enable him to carry out his unloading work at the tail-lift platform safely. See Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371,per Bokhary PJ at para 1

11.The tail-lift platform was prima facie unsafe because it suddenly fell and tilt downwards given my above finding with no evidence of any third party interfering with the electrical device which controlled the movement of the tail-lift platform, or any external extra strain exerted on the tail-lift platform while the plaintiff was pulling a pallet of goods with a forklift out onto the same at the time of accident.  Also, tail-lift platform of the present kind would not normally fall in the way it did if the Tail-Lift System had been properly maintained for its proper functioning.

12.In my judgment, given the circumstances of the accident, it is incumbent on the defendant to show that they had taken proper and reasonable steps to maintain the Tail-Lift System so as to allow the plaintiff to safely work on the tail-lift platform. Common sense tells us that in the normal course of things, machinery and electrical devices upon prolonged use may fall into disrepair or break down. The defendant ought to have known that a routine and proper maintenance for the Tail-Lift System is essential to ensure a continuous safe working order of the tail-lift platform on the Lorry.  This is especially so in light of the plaintiff’s evidence given during his cross-examination that the tail-lift platform would be raised and lowered for about 60 to 80 times each day in average for the loading and unloading of pallets of heavy goods (which has to be manoeuvred by a manual forklift).  It also follows naturally that the three buttons on each of the two electrical devices (controlling the movement of the tail-lift platform) installed on the Lorry would be pressed by delivery workers for numerous times every month. 

13.It is therefore reasonably forseeable that the tail-lift platform (without the Tail-Lift System properly functioning to keep it firmly in an elevated position whilst the delivery worker was working on it) may drop and tilt downwards as in the present case. This would thus pose a real risk of work hazard on those workers using it in discharging the loading and unloading tasks on the Lorry daily.  In this light, the circumstances of the accident do indicate prima facie negligence of the defendant in failing to properly inspect and maintain the Tail-Lift System.

14.However, after scrutinizing the evidence as produced by the defendant, I find there is in truth no or no credible evidence coming from them to show that they had taken reasonable care to have the Tail-Lift System (including the tail-lift platform) properly inspected and maintained so as to see that it was in good order and condition and particularly to guard against the danger in question.

15.First, if the defendant had properly inspected and maintained the Tail-Lift System, they could have easily produced the corresponding record of inspection and maintenance to the court, and yet they failed to do so.  There is not an iota of pre-accident record of inspection or maintenance of the tail-lift platform produced by the defendant, let alone those for the Tail-Lift System.

16.Second, although the defendant’s sole witness Mr Felyx Tong said in his witness statement that the defendant arranged inspection on the Lorry including the tail-lift platform for the renewal of vehicle licence for the accident, I find such piece of evidence dubious and unreliable.

17.Mr. Tong is a manager of the defendant’s human resources department.  He frankly admitted in court that he was not responsible for overseeing the repair and maintenance of the Lorry. He also said he did not know which part of the Lorry would actually be covered by the annual inspection for the purpose of obtaining the renewal of licence.  The defendant can point to no statutory requirement (be it under Road Traffic Ordinance (Cap.374) / its subsidiary legislations or otherwise) that the annual inspection of the Lorry for its licence renewal would require inspection of the tail-lift platform as well.  

18.The defendant also failed to explain to this court how the annual inspection(s) carried out by the defendant on the Lorry before the accident would be reasonable and adequate in the circumstances for identifying defect(s) in the Tail-Lift System or otherwise shed light on the source of the subject mischief. 

19.Had the defendant actually carried out proper maintenance for the Lorry’s Tail-Lift System including the tail-lift platform, they could have and should have arranged their personnel in charge to give evidence in court to testify this was so, and explain what they had done for such maintenance.  But no such witness was called, and no reason was offered by the defendant as to why they did not do so.

20.In these circumstances, after carefully considered all the evidence before me, on balance, I do not find the annual inspection of the Lorry as mentioned by Mr Tong would actually cover the inspection of the tail-lift platform.  Even if it did, but without knowing what such inspection of the tail-lift platform actually entails, there remains no effective evidence coming from the defendant to show that they had taken reasonable care to properly maintain the Tail-Lift System to guard against the subject danger.

21.In Clerk & Lindsell on Torts (22^nd ed), para 13-16 provides that:-

“Maintenance of equipment

“The obligation to provide and maintain proper plant and appliances is a continuing obligation.” The duty is not absolute: there had to be fault in someone. So an employer is not liable for latent defect due to no one’s fault and which cannot be detected on reasonable examination …”

22.In footnote no.101 provided at the end of above quoted passage, the learned editors made reference to the importance of reasonable examination of equipment by citing Pearce v Round Oak Steel Works [1969] 1 WLR 595.

23.In Pearce, the plaintiff was injured at work in the defendant’s factory when a 15 lb weight on a machine at which he was working fell and injured his foot.  The weight was held by a bolt which broke because of the metal fatigue which routine inspection would not have disclosed.  In my view, the English Court of Appeal was holding to the effect that having produced no evidence for their proper maintenance of the machinery, the defendant failed to discharge their evidential burden of proof as shifted to them to show in the circumstances of the accident that notwithstanding the subject defect they could not have avoided the accident by the use of reasonable care in inspection and maintenance of the machine^[3].

24.At pp 597E to 598B, Edmund Davis LJ said:-

“… The circumstances of this accident, in which a heavy weight fell on to a workman who had in no way interfered with it, are such that there immediately arises a presumption of negligence against the employers which they must rebut if they can. They do not rebut it merely by saying that “weight fell because a bolt snapped due to a latent defect in that bolt of which we had no previous knowledge.” It is further not sufficient for the employers to show that they had properly maintained that machine if the ordinary maintenance of the machine would throw no light upon the source of the mischief. Nor is it sufficient to show that they bought that machine from someone else, because, as the Master of the Rolls has already reminded us, citing the observations of Lord Reid in Davie v. New Merton Board Mills Ltd. [1959] A.C. 604, 646, an employer “is not liable for the negligence of the manufacturer of an article which he has bought, provided”—and these are the important words in this context—“that he has been careful to deal with a seller of repute and has made any inspection which a reasonable employer would make.” In regard to the source of this machine, which was manufactured apparently in 1930, we know nothing at all. It is not to be rejected as unwarrantable conjecture that it might, for example, have been a machine bought in circumstances where proper care was not taken to check its condition at that time. As to such matters the defendants elected to call no evidence. It is true that it may possibly be said that the county court judge embarked upon a certain amount of speculation regarding what would be revealed by the drawings or the handbook appropriate to this machine which might in the ordinary course of events be expected to accompany it: but such speculation was in no sense necessary for the decision and does not impair the conclusion at which the county court judge arrived, namely, that the defendants had not discharged their duty of showing that they exercised, in the words of Lord Radcliffe in Barkway v. South Wales Transport [1950] 1 All E.R. 392 , 404, “… as much care as could reasonably be required of them in guarding against this particular danger.” I confess to my pleasure at being able to arrive at such a conclusion in conformity with the decided cases in circumstances where a workman is injured as this man was and the employers furnish no explanation at all of why that accident occurred or might have occurred.” (emphasis added)

25.Given the above proper legal perspective, I now turn to deal with the defendant’s two contentions as mentioned in para 7 above.   

Contention 1

26.As for Contention 1, Mr Leon Ho, counsel appearing for the defendant, submits that the plaintiff gave hearsay evidence that the technician of Delta Asia Tail Lift Limited[4] told him after inspection of an electrical device which controls the movement of the tail-lift platform (“the Controller”) that its circuit board was damaged and this caused the accident.  Such hearsay is also opinion evidence, and hence inadmissible. Moreover, if the Controller was damaged, it would not work, and this could not explain why the tail-lift platform would fall and tilt.  So, the plaintiff cannot prove the actual cause of the accident.

27.Taking a fair and objective view of all the evidence before me, the facts in this case do not appear to be sufficiently known for this court to come to any conclusive view that the mere damage of the circuit board of the Controller is the actual cause of the sudden falling and tilting downwards of the tail-lift platform, or that what other defects existed in the Tail-Lift System at the time that may account for such sudden falling and titling.   However, this is not the end of the matter.

Res ipsa loquitur

28.This is because even if the actual cause as to why the tail-lift platform suddenly fell and tilt downwards remains unknown (though the immediate cause of accident, viz its sudden falling and titling downwards is known), the plaintiff, who had in no way interfered with the tail-lift platform and Tail-Lift System controlling it, could still resort to res ipsa loquitur reasoning to infer the defendant’s negligence basing on the available evidence under the present factual matrix.  In particular, I am satisfied that the defendant had been in control of the tail-lift platform and its controlling system before the accident, and there was no evidence of any outside interference at the time of the accident. 

29.In my view, the way as to how English Court of Appeal found for the employer’s negligence in Pearce is also consistent with such mode of reasoning.

30.In Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207, Bokhary PJ expounded such mode of reasoning under the convenient rubric of res ipsa loquitur at para 3 of the judgment:-

“3. This mode of inferential reasoning applies only to accidents of unknown cause. But it matters not that the immediate cause of an accident (eg brake failure or a burst tyre) is known. As long as the cause on which the issue of liability actually turns (eg why the brakes failed or the tyre burst) is unknown, the accident is regarded as one of unknown cause. The res ipsa loquitur mode of inferential reasoning comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property. In such a situation the court is able to infer negligence on the defendant's part unless he offers an acceptable explanation consistent with his having taken reasonable care. The "essence" of this was identified by Lord Radcliffe in Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 at p.403G. It is, his Lordship said, that "an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence".” (emphasis added)

31.As pointed out above, common sense tells us that the tail-lift platform of the subject kind did not normally fall and tilt downwards in the way it did if it had been properly maintained by the defendant, who had been its owner and in control of the Lorry at all material times.  This indicated prima facie negligence of the defendant and deserves an acceptable explanation from them (consistent with them having taken reasonable care) just as much as from the relevant defendants in Sanfield to account for the toppling over of a scaffolding, and in Swan v Salisbury Construction Co Ltd [1964] 1 WLR 204 to account for the collapse of a crane.  Swan was quoted by Bokhary PJ at para 23 of his judgment and His Lordship observed that:-

“23. In Swan v Salisbury Construction Co Ltd [1966] 1 WLR 204, a crane collapsed. Delivering the advice of the Privy Council, Lord Morris of Borth-y-Gest said (at p.210H): "As cranes ought not to collapse it was essential for [the defendants] to explain why the collapse occurred … if they were to absolve themselves from those indications of negligence which could arise from the very fact of the occurrence itself". In the result, the Privy Council affirmed the decision of the trial judge in that case that the defendants were not to blame. This was because he had found, justifiably on the strength of evidence led by the defendants, as follows. The crane had collapsed because the ground had given way under it. But the precautions which the defendants had taken against the ground giving way under the crane were all the precautions which they could reasonably be expected to take.” (emphasis added)

32.In fact, the Court of Final Appeal at para 24 of the judgment also considered the case of Pearce and endorsed what Lord Denning MR said (at p.596G-H) that it was not enough for the employer to point to metal fatigue, and that he had to show that “in acquiring the machine and his dealings with it he took all reasonable care to see that it was in good order and condition.’ 

33.As explained above, evidence of such reasonable care as expected to be exercised by the defendant is missing in this case.  The defendant had in particular failed to demonstrate it had taken any precautionary measure to properly inspect and maintain the Tail-Lift System (including the tail-lift platform) to guard against the subject danger.   Inference of negligence can therefore be legitimately drawn in the circumstances against the defendant in line with the above authorities or through the res ipsa loquitur mode of reasoning.

34.Mr. Ho refers to a Victorian Supreme Court’s decision in Jones v Multiple Sclerosis Society [1996] 1 VR 499, and submits that if a plaintiff chose not to adduce evidence to demonstrate the cause of accident, then the occurrence of accident was reasonably open to an interpretation which was consistent with there having been no negligence on the defendant.  In my view, that proposition is too general to be helpful here.  Each case has to be decided on its own merits.  The quality of evidence as available to show how the defendant in Jones maintained the equipment in question is also very different from the present case.

35.In Jones, the plaintiff was a nurse working in a nursing home, and she suffered injury when a wheel suddenly come off from a shower chair while she was manoeuvring a patient in it.  The plaintiff called no evidence to explain how and why the wheel had come off.  The defendant however called the person in charge who said the maintenance did conduct weekly check of the shower chair, and the maintenance man also gave evidence at trial that there was no such problem with wheels coming off the type of shower chair used at the time of accident.  In other words, the defence did lead evidence that no defect was found, and it was in such a context that a case of failure to maintain safe equipment is not made out.  It was on that basis that the Victorian Supreme Court upheld the jury’s verdict by saying that the occurrence of accident could have been due to a latent defect during manufacture not detectable by reasonable examination by the defendant, and such interpretation of evidence is open to the jury.

36.In Sanfield, the Court of Final Appeal made it clear that if the defendant wants to raise a defence of latent defect (which by definition means a defect which had not been discovered and was not discoverable even by the exercise of reasonable care), it would bear the burden to prove this.[5] However, this was not how the defendant ran its defence here.  No defence of latent defect was pleaded and they have failed to adduce any evidence to make out such defence in any event.   As pointed out above, the defendant produced no inspection or maintenance record of the Tail-Lift System (including the tail-lift platform).  As per my above finding, they chose not to lead any evidence as to how the Tail-Lift System (including the tail-lift platform) was actually inspected or maintained for the purpose of identifying and repairing any potential defects in it, not to mention by a properly qualified technician to guard against the subject danger.

Contention 2

37.To support Contention 2, Mr Ho cited Lam Ka Lok Louis v Swire Properties Management Ltd (HCPI 914 of 2003, 30 April 2005) by resorting to a proposition put by Suffiad J in that decision that ‘machinery do become defective from time to time, and negligence arises from the use of or permitting the use of machinery with knowledge of its defect on the part of the employer’.  

38.The short answer is that, in my respectful view, the learned Judge did not go so far to say that proof of the employer’s actual knowledge of the defects of the machinery is a pre-requisite for establishing its negligence in all circumstances. See also: Edmund Davis LJ’s observation made in Pearce as quoted at para 24 above. The proposition as put in Lam Ka Lok was also discussed in para 13-16 of Clerk & Lindsell on Torts (supra).  But the learned editors in the same commentary also cited Pearce which represents another line of authorities that found negligence established against employers who fail to properly maintain machinery with reasonable care even they had no prior knowledge of its defects that account for the accidents.

39.For completeness sake, with respect, I should also mention that neither can the decision in Bastable v Eastern Electricity Board [1956] 1 Lloyd's Rep 586 cited by Mr Ho advance the defendant’s case any further.  In that decision, the court held that it was reasonable for the employer to leave to the employee the task of selecting equipment, which was just a simple hand tool (viz a chisel of wasting character) that turned out to be defective.  It was given such simple nature of the equipment in question that the court held that it was up to the skilled workman using it to decide when to change a spent tool to a reconditioned one, or when to ask his foreman for a substitute.

40.In contrast, first, the plaintiff did not have a choice here, he must use the tail-platform for the purpose of unloading from the Lorry the pallet of goods with the forklift at the time of accident.  Second and most importantly, it is inconceivable to this court as to how the defendant could reasonably delegate the task of inspection of the sophisticated Tail-Lift System to the plaintiff with a view to identify any potential defect therein that may give rise to the subject hazard. The plaintiff was just an ordinary driver and delivery worker, rather than a trained technician for the above purpose.  In any event, I do not find him to be a properly qualified person, to whom the defendant could properly delegate the aforesaid task of inspection.

41.Mr Ho also seeks to argue that the plaintiff did not notice any problem when operating the Lorry in the morning of the accident, and also in the weeks or the month before that.  As such, since no report of any defect of the tail-lift platform and the controller was reported to his supervisor Mr. Cheng Siu Hung (transliteration), there was nothing that put the defendant on inquiry that the Controller should be checked or repaired.   Moreover, there was also a repair system for the Lorry in place, whereby the defendant would promptly arrange repair to fix any defects as reported by the plaintiff in the past.

42.First, the presence of the aforesaid notification and repair system cannot obviate the need of proper maintenance of the Tail-Lift System (including the tail-lift platform) that ought to be carried out by the defendant itself.  The proper maintenance as required from the defendant here would not be confined to the Controller only, but should extend to cover the entire electro-mechanical system that controls that tail-lift platform for the purpose of guarding the subject mischief.  However, as illustrated above, there is in a complete lacuna as to what the defendant had actually done to properly maintain the Tail-Lift System before the happening of the accident. 

43.Second, nothing that would put the defendant on inquiry to check the Controller is neither here nor there in light of my above reason in rejecting Mr. Ho’s argument made out of Lam Ka Lok case. 

44.I have borne in mind the legal burden rests throughout the case upon the plaintiff to prove the defendant was negligent.  For the above reasons, it is however my clear view that such burden is properly discharged by the plaintiff in this case after carefully considering the totality of evidence before me.  I hold that the defendant was negligent in causing the accident, in particular, by failing to take reasonable care to provide and maintain a safe tail-lift platform for the plaintiff to work with at the material time.

Contributory Negligence

45.After considering both parties’ counsel submission and the evidence on this issue, I am satisfied there is no contributory negligence on the plaintiff’s part.

46.At the time of the accident, the forklift charged towards the plaintiff in an oblique direction when he was standing near the edge of the tail-lift platform.  The main thrust of the defendant’s contention is that the plaintiff made a negligent decision to jump down, whereas it was physically possible for him to avoid the forklift by walking perpendicularly away from its path, and there was sufficient time for him to make such a decision.  Mr Ho submits that the plaintiff’s contributory negligence should be around 20%.

47.In light of the sudden fall of the tail-lift platform for about an inch at the material time with a forklift carrying a heavy pallet of goods charging towards him, the plaintiff was in my view facing with a dangerous and emergency situation.  I find nothing unreasonable for him to make an initial instinctive attempt to set his right foot at the back adopting a posture to block the forklift and steer its handlebar in zigzag manner trying to slow it down.  

48.When such attempts failed to stop the forklift from continuing to charge towards him, neither should the plaintiff be faulted for his next reaction to jump backwards and off the tail-lift platform onto the ground, instead of moving towards its inner side as the defendant contends.  In particular, his reaction should be considered against the circumstance that he was effectively forced into the corner of the tail-lift platform (near the pedestrian pavement) at the material time. 

49.Most importantly, I accept Miss Loh’s submission and find that he made a spontaneous decision to jump off at the time to protect himself from being hit in an emergency situation. The plaintiff being put in such a position of peril must not be judged too critical a standard when he acts on the spurs of moment to avoid the accident. And the plaintiff’s reaction and judgment had to be looked at, not with hindsight, but in the agony of danger he was facing with at the time.  See Ng Chun Pui & Anor v Lee Chuen Tat & Anor [1988] RTR 298, at 302D-K; Chan Wai Ling & Anor v Tang Chi Ho (HCPI 428 of 2003, 13 May 2004).

50.For completeness sake, I should mention that Mr Ho also sought to argue in his opening submission two more alleged aspects of contributory negligence by saying that the plaintiff failed to identify and report the defects of the tail-lift platform to the defendant, and also that he failed to handle the forklift appropriately. 

51.These two points are no longer pursued (which in my view was a fair move of Mr Ho) in his closing submission.  The first has no substance in light of my above analysis on the defendant’s liability.  Neither do I find evidence of any signs suggesting abnormality or malfunctioning of the tail-lift platform to the plaintiff (qua an ordinary driver and deliveryman) before the happening of the accident.   As to the second point, I do not find the plaintiff has failed to handle the forklift appropriately on the evidence before me.  For avoidance of doubts, I also make it clear that I would likewise reject all the other allegations of contributory negligence as pleaded in the Amended Defence (which were not touched upon with by Mr. Ho in his submissions) after considering all the evidence before me.

52.However, even if I am wrong and the plaintiff should be held liable for contributory negligence for whatever reason, the standard by which he should be judge for his negligence should be less exacting than that used for ordinary negligence as I also find that the defendant was in breach of its statutory duties under sections 6(1) and 6(2)(a) of OSHO by failing, so far as reasonably practicable, to provide and maintain a safe tail-lift platform for the plaintiff to work with. Otherwise, the very purpose of those statutory provisions enacted to ensure the employees’ safety at work would be defeated or their effectiveness seriously impeded.  See Mak Woon Kin & Anor v Wong Chiu [2000] 2 HKLRD 295, per Ribeiro JA (as His Lordship then was) at p 302E-I.

Quantum

Nature and extent of injuries and treatment received

53.It is the unchallenged evidence of the plaintiff that upon jumping from the tail-lift platform onto the ground, he heard a ‘click’ sound in his low back and felt excruciating pain.   He managed to finish the work that day, but the pain gradually increased and he attended the A&E Department of Princess Margaret Hospital (“PMH”) for treatment of his back pain after work^[6].  Physical examination at the A&E Department revealed that his pain was located at the lower lumbar region without local swelling.  But there was marked decrease in lumbar flexion movement.^[7] X-ray taken of his lumbar spine and both ankles showed no bony injury.  He was discharged with sick leave granted up to 12 September 2013.  

54.However, he suffered persistent back pain thereafter, and re-attended the PMH’s A&E Department 3 more times in September 2013.  He was then referred to physiotherapy for treatment, which he attended from 9 October 2013 to 26 February 2014 for a total of 11 sessions.^[8]

55.The plaintiff continued to consult the General Practice Clinic of Caritas Medical Centre (“CMC”) for his persistent back pain.  On 28 March 2014, he was also referred from PMH’s A&E Dept of PMH to the Orthopaedic SOPD of CMC, which he first attended on 12 August 2014.^[9]

56.The plaintiff was assessed by the occupational therapist at CMC on 24 March 2014.  An intensive course of training started on 26 March 2014 at frequency of 3 sessions per week.  During the period between 24 March 2014 to 31 October 2014, the plaintiff attended a total of 90 sessions of occupational therapy. ^[10]

57.MRI of the lumbar spine was performed on 10 December 2014 which showed mild posterior disc bulging at L4/5 level, with mild compression at the anterior thecal sac.  The clinical impression was PID at L4/5.^[11]

58.Apart from the aforesaid, he also attended outpatient physiotherapy at CMC for treatment of his persistent back pain from 28 August 2014 to 28 October 2014 for a total of 9 sessions.  He still complained of mild to moderate low back pain after completion of physiotherapy treatment.^[12]

59.Intermittent sick leaves were granted to P from the date of accident up to 15 April 2015^[13], which were fully endorsed by the Medical Assessment Board (“the MAB”)^[14].

60.It is also the unchallenged evidence of the plaintiff that prior to the accident, he was healthy and active, and did not have any back injury or symptoms.   According to the plaintiff, despite the treatment, he continues to suffer from the following problems of persistent pain in his low back, usually with a sense of tightness requiring stretching; limited tolerance (about an hour) in walking, standing and sitting.  He now only has impaired capacity in handling heavy weight.  He experienced some shaking of the lower limbs on climbing stairs at the time close to the joint medical examination conducted on 28 July 2015^[15].

61.On 28 July 2015, the plaintiff was jointly examined by both parties’ orthopaedic experts Dr Fu Wai Kee (P’s expert) and Dr. David H.F. Cheng (D’s expert).

62.Both experts agreed that the plaintiff suffered a mild sprain back without neurological complication.  The accident should be the cause of his injury according to the plaintiff’s description how the accident happened, and there is no evidence of pre-existing pathology.  The two experts are in consensus that the effect of the injury on the plaintiff was mild to moderate.  Though, it seems that both of them did not consider that numbness at the plaintiff’s upper limbs which first appeared in early 2014  was related to the accident ^[16].  According to the two experts, the duration of sick leaves granted to the plaintiff since the accident up to 15 April 2015 is appropriate. ^[17]  

63.In light of these medical evidence, I find that the plaintiff’s sprain back injury and the subsequent pain and impairment experienced are solely caused by the accident, but the numbness he experienced at his upper limbs was unrelated to the accident.

64.Although Mr. Ho did not quarrel with the appropriate length of sick leave period, he submits that the plaintiff’s injuries appeared to be more serious than the symptoms as recorded in the earlier medical records of PMH’s A&E Department because the subsequent medical records are products of the plaintiff’s exaggeration of his symptoms.

65.I have carefully gone through Mr. Ho’s submission on the alleged incredibility of some aspects of the plaintiff’s evidence as set out in paras 27 to 37 of the defendant’s closing submission.  However, if one steps back and looks at entire clinical picture of the plaintiff’s back injury, I find no such exaggeration of symptoms as contended.

66.To begin with, it is important to note that not only both medical experts had not expressed any opinion that the plaintiff was malingering or otherwise exaggerating his symptoms, they even acknowledged at page 7 of the joint medical report that they agreed with the history and complaints as described by the plaintiff, and the information as discovered on the review of the medical documents.[18]

67.Further, the extensive physiotherapy and occupational therapy he received also tend to show that his persistent back pain is genuine.  He also frankly admitted to the medical professionals treating him and the two experts that his pain has substantially improved after treatment.^[19] Further, Dr. Fu opined that the plaintiff would still have on and off back pain that requires symptomatic treatment on a need to basis, which I accept. 

68.Against the aforesaid medical background, I now turn to deal with Mr Ho’s individual criticisms of the plaintiff’s evidence. 

69.Mr Ho submits that the A&E note of 9 September 2013 revealed that the hospital prescribed no medication to the plaintiff whereas he said in his witness statement he was prescribed with analgesic drug on that day.  I think such discrepancy is only peripheral, and would pale into insignificance when one looks at the subsequent development of his medical conditions as described above rather than merely focusing on his A&E attendance on 9 September 2013.  Putting it shortly, although his back pain appeared to be relatively mild at the outset, it did worsen and persist but with a fluctuating pattern, insomuch as to necessitate him undergoing substantial treatments afterwards.

70.Mr. Ho criticized the plaintiff of concealing his employment in October 2013.  I have given due consideration to the fact that the plaintiff had not mentioned about this incident in his witness statements.  On the other hand, it is notable that the plaintiff did frankly admit under cross-examination that he worked for 5 to 6 days in a construction site in October 2013.  However, he could not cope with such work due to his back pain, and he had to stop working eventually.  The plaintiff’s solicitors also revealed this matter to the defendant’s solicitors in their letter dated 23 May 2017.  In fact, the plaintiff informed the physiotherapist back on 9 October 2013 that he started to resume work since 2 October 2013[20], and repeated this information to the occupational therapist on the initial assessment of 24 March 2014 by saying that tried to resume work in mid-October 2013 for about 1-2 days for three times but could not tolerate[21].

71.Mr. Ho also submits that the plaintiff made a fake report of his increase of pain on 28 March 2014 leading to the cancellation of the scheduled assessment by the MAB.

72.The court will not lightly find an allegation of fraud proved and there has to be cogent evidence to substantiate such allegation before it can conclusively say so.  I have carefully considered Mr. Ho’s submission on this matter against the contemporaneous medical evidence, I do not find the plaintiff had feigned an increase of pain at this back when he attended the appointment for assessment by the MAB on 28 March 2014.  The medical notes of the MAB doctor (stating in his own words of what he had actually been told by the plaintiff on that day) are not available before this court.   Although the plaintiff did not appear to recall telling the MAB doctor on 28 March 2014 about the increase in his back pain, on balance, I think that that would more likely be owing to his lapse of memory in Court in not recalling about the details of his full conversation with the MAB doctor after long passage of time, rather than telling lie to the doctor about his physical symptoms at that time.

73.Normally, apart from considering what was told by the patient, the doctor in charge of the MAB would also conduct physical examination of the patient and consider the medical notes and records at the time before he exercised his own professional judgment as to whether to cancel the MAB assessment.  As per CMC General Practice Clinic’s Consultation Summary of 25 March 2014[22], it was recorded that the case of physiotherapy had just been closed on 26 February 2014, and the patient proceeded to be treated by occupational therapist on 24 March 2014, and there would still be follow up treatment by the occupational therapist.  Although the back pain was static and had about 70% – 80% overall improvement by that time, there was consistent record of ‘increase in back pain when in cold weather’ in CMC consultation summaries between 14 February 2014 and 7 March 2014[23], and there was still pain over his lumbar region.  Consistent with that, it was also put on record in the same consultation summary of 25 March 2014 that the plaintiff had told the Labour Department that his condition was fluctuating with more pain in cold weather.  PMH medical note for 26 February 2014 also records, among other things, that ‘palpation : tense back muscle’.

74.Given such a condition of the plaintiff as revealed from the medical notes and records, I would not be surprised to find the MAB doctor decided to cancel the assessment on 28 March 2014, especially when his back pain was still fluctuating at the time, and required further treatment by occupational therapist.  In fact, according to the MAB doctor’s referral letter to CMC O&T and OPD dated 28 March 2018, the plaintiff was noted to have persistent low back pain, and the physical examination revealed tenderness on lower back and decrease in flexion[24].  And according the CMC’s consultation summary of 31 March 2014[25], there is also a record of an increase of his back pain, with 2 weeks’ sick leave granted and 4 weeks of analgesic medication prescribed on that day.

75.Much has also been said by Mr Ho on the Functional Capacity Evaluation (“FCE”) conducted by the physiotherapist of CMC Physiotherapy Department on 9 December 2014.[26]  Mr Ho pointed out the physiotherapist’s observation of the relevant handgrip tests showed invalid result in his report, and this may be indication of submaximal effort during the FCE.  However, the physiotherapist also said in the summary of the same report that ‘symptom exaggeration and inappropriate illness behavior absent’, ‘overreaction behavior absent’ and no Waddell’s sign demonstrated. The physiotherapist concluded at the end of the report that the assessment showed the plaintiff’s functional capacity did not match with his previous job level, and suggested him ‘to change job nature [to] light level of job demand’. 

76.Mr. Ho also submitted that the plaintiff has a better lifting performance in one prior assessment conducted on 1 August 2014, and the back pain he reported to the physiotherapist on 9 December 2014 would appear to be more diffuse than the case back in 25 September 2013.  With respect, I think one cannot be too pedantic about the plaintiff’s lifting performance or report of pain to the relevant medical professionals on one or two individual occasions while losing sight of the broader clinical picture.[27]  Needless to say, different patients would show different clinical patterns of symptoms.  A patient’s back pain can be relatively mild at the outset, but get worsened and fluctuate, and I find this is also the case here.

77.Having given due regard to the medical conditions of the plaintiff as pointed out by Mr Ho at various points of time as well as the invalid handgrip test results in the FCE, I think these matters are inconclusive to show that the plaintiff has exaggerated his symptoms or understated his ability at the material times against the totality of medical evidence before me.  In particular, the subsequent CMC Occupational Therapy Report dated 18 March 2015[28] also made reference to another assessment done by occupational therapist on 29 October 2014 after 90 sessions of therapies and lengthy course of observation of the plaintiff’s physical conditions and behavior by different occupational therapists during March and October of 2014.  The same conclusion was made that the plaintiff’s work capacity did not match with his (previous) job demand without any mention of exaggeration or submaximal effort on the plaintiff’s part. 

78.To put it in a nutshell, in my view, if the plaintiff had really deliberately or consciously exaggerated his symptoms or understated his ability, this should not have escaped the eyes of so many medical professionals who attended his treatments and assessments including his treating doctors, physiotherapists, occupational therapists as well as the two medical experts engaged by the parties in this case.

79.Apart from the aforesaid, I have considered both parties’ counsel submission made with respect to the surveillance videos footage of the plaintiff.  They have also been viewed by both medical experts, who commented, inter alia, that the plaintiff’s waist and lower limb movement did not exceed that as shown in the joint medical examination.  I also find nothing peculiar in the video footage to suggest that the plaintiff has exaggerated his symptoms. 

80.By looking at all the medical evidence in the round, I am satisfied that the plaintiff has indeed suffered persistent (though fluctuating) low back pain, which was eventually much improved through an intensive course of occupational therapy, and other treatments.

81.In light of my analysis of the medical evidence, I also prefer Dr. Fu’s assessment of the plaintiff’s impairment of whole person at 3% to Dr. Cheng’s assessment at 1%.

PSLA

82.It is unnecessary for me to discuss each and every authority cited by counsel on each side.  I have considered them all, and suffices it to say that having considered the nature and extent of the plaintiff’s back injury, the treatments he received and his residual disabilities, I considered that the figure of HK$220,000 as proposed by Ms Loh for PSLA is on the high side.  The injuries and residual disabilities as suffered by the plaintiffs in those cases cited by Ms Loh are more serious than the plaintiff here.  One should bear in mind that the plaintiff has no bony injuries, and his sprained back is without neurological complication.  Both experts agreed that at the time of joint examination he was in a satisfactory state, and there was full range of back movement, and good muscle power.^[29]

83.The authorities for PSLA as cited by Mr. Ho are not appropriate comparables either, and his proposed award of HK$60,000 goes to another extreme.  Those cases included Fu Chuen Sing v Ryan (HK) Ltd (DCPI 2135 of 2009, 5 August 2010); Yip Kwok Shing v Fung Chau Tim (DCPI  2627 of 2015, 26 June 2017); Mohammad Ashaq v Royal Honour Industrial Limited (DCPI 586 of 2007, 27 November 2007). In my view, the injuries sustained by the plaintiffs in those authorities are much less serious than those of the plaintiff in the present case in the particular light of the significant number of sessions of physiotherapy and occupational therapy he received for treating his persistent low back pain and other related back problem such as back stiffness[30] and weakness[31].   The plaintiff’s sick leave period in this case would also appear to be lengthier as compared with those authorities.

84.Having duly considered the relevant circumstances of the plaintiff, I think a sum of HK$150,000 would appropriate to compensate him under this head.   See also: Yeung Sze v Win Art Design & Decoration Co Ltd (HCPI 6 of 2000, 27 June 2001); Mahmood Tariq v Kinway Engineering Ltd (HCPI 149 of 2006, 17 May 2007), and Luo Xiao Rong v Full Trend Development Ltd t/a Banquet Delicious (DCPI 2418 of 2014, 21 December 2016)[32].

Loss of earnings

85.The plaintiff’s pre-accident averaged monthly earnings are agreed at HK$15,663.   The plaintiff tendered his resignation letter about a week before the accident, i.e. on 1 September 2013.  According to that letter, he would resign with effect from 30 September 2013.  However, before he tendered his resignation letter, he had already lined up with a new job for a higher income by driving heavy trucks at construction site cum transportation work (搬運工作). 

86.In his examination in chief, the plaintiff elaborated what he said in his supplemental witness statement by testifying that coupling the higher allowances with his daily wage of $500 under the new job, it is expected that he could have earned about HK$16,000 to HK17,000 each month.  His evidence remains intact after cross-examination. I also find such evidence plausible in the circumstances of this case. 

87.Of course nobody has a crystal ball to tell whether the plaintiff would stick to his new job permanently but for the accident, or what income he would have exactly earned. However, the award of tortious compensation in principle is to restore the plaintiff to a position he would have been in but for the accident, and the court should neither overcompensate nor undercompensate him, but should do its best basing on the available evidence to arrive at a just and reasonable assessment of his relevant loss.

88.Bearing that in mind, I think, but for the accident, the plaintiff should continue to have such physical skill and capability enabling him to take up a new job of similar nature as his pre-accident one earning an income in the magnitude of about HK$16,000 per month even after he left the defendant’s employment.   As said, it is not necessarily the case that he must stick to the new job in the construction site driver cum transporting work indefinitely, he is always free to return to his previous type of jobs for driving cum delivery work for supermarket companies or other logistic companies.  Viewed thus, his pre-accident income can also serve as some kind of indicator of the level of income he would have been capable of earning but for the accident under the circumstances of this case. 

89.In light of the aforesaid and after carefully considering the evidence before me, I find that but for the accident the plaintiff would have been able to earn about HK$16,000 per month in average after 30 September 2013.  Though, this observation is subject to matters as regard to his post sick leave period’s employment income to be discussed in para 104 below.

Sick leave

90.As said, both medical experts considered that the sick leave period from 9 September 2013 up to 15 April 2015 (about 19.23 months) to be appropriate.  I also accept that to be the reasonable period of sick leave for the plaintiff in this case.

91.Although the sick leaves were granted intermittently in the aforesaid period, it is more realistic to quantify his loss of earnings on a continuous basis during such period though giving credit to the salaries he earned while he was working discontinuously at construction site for about 5 to 6 days at daily wages of $600 to $650 in October 2013.  I accept the plaintiff’s evidence that he could not tolerate the back pain and stopped working afterwards during the remaining period of sick leave.

92.On that basis, the plaintiff’s loss of earnings during such sick leave period is quantified thus:-

HK$15,663 per month x 21 days[33] / 30 days +

HK$16,000 per month x 18.5 months[34] - HK$3900[35]

= HK$10,964 + 296,000 – HK$3,900

= HK$303,064

The plaintiff is unfit to resume his pre-accident job

93.Dr Fu opined that in view of the plaintiff’s current condition, he will have difficulty in heavy manual lifting.  He agrees with the occupational therapist that the plaintiff’s working capacity does not meet his pre-accident work demand as lorry driver cum delivery worker.^[36] It is notable that Dr Cheng only said that the plaintiff should be capable to resume to his pre-injury job of lorry driver.  It is unclear whether such comment of Dr Cheng also extends to cover the plaintiff’s pre-accident job duties as delivery worker.  Upon a fair reading of the joint medical report as a whole, I find Dr. Cheng did not actually quarrel with Dr. Fu’s view that the plaintiff is unfit for heaving manual lifting. 

94.In any event, I agree with Dr. Fu’s view, which is supported by the earlier occupational therapist’s assessment.  It is also Dr Fu’s expert evidence (which I accept) that the plaintiff’s residual on and off back pain will persist. Given such a history of sprained back with persistent though fluctuating pain necessitating an extensive course of occupational therapy for treatment, it would in my view be highly undesirable for the plaintiff to resume to his pre-accident job which would require him to discharge delivery worker’s duties as well.  Neither would he be fit for lifting heavy materials at construction site.  I however find the plaintiff should be able to work as a driver without being required to carry out heavy weight lifting tasks. 

Reasonable period for locating new job

95.Prima facie, it would be unrealistic to expect the plaintiff to be able to secure a new job as he wishes immediately upon the expiry of sick leave under the circumstances of this case.  I would allow 3 months for him to look for a new job after the expiry of sick leave period.  See Iau Kau Ih v Wan Kei Geotechnical Engineering Co Ltd & Ors [2002] 4 HKC 76，para 39; Wong Yun San v Cheng Yue Yiu t/a Radio Engineering Co (DCPI 1909 of 2007), para 26(1); Chong Yiu Ta v Fong Man Chi & Ors (HCPI 742 of 2001), para 94. 

96.Mr Ho submits that no additional period should be allowed as the plaintiff voluntarily resigned from the defendant’s employment in September 2013, and he would need time to search for a new job anyway even without the accident.  With respect, I think Mr Ho’s argument does not hold water on the evidence before this court.  For, the plaintiff had already lined with his intended new job before he tendered his resignation letter on 1 September 2013.[37]

97.In these circumstances, the plaintiff’s loss of earning during the job locating period as allowed (i.e. from about 16 April 2015 to 15 July 2015) would be quantified thus:-

HK$16,000 x 3 months = HK$48,000         

Loss of earnings during the remaining pre-trial period

98.It is also the unchallenged evidence of the plaintiff that he managed to secure a new driver job (which does not require heavy manual duties) with Hong Kong International Airport and Kwai Chung Container Terminal since the end of November 2016. Initially, he earned about HK$12,000 each month from this job and his income was eventually increased to HK$14,000 per month.  However, in early July 2017, the contractor in charge wanted him to take up transportation work duties as well, he quitted that job for fear that this may worsen his back condition.

99.Although the plaintiff only resumed working since November 2016 despite earlier attempts to find job but failed, a period of reasonable time has already been catered for him to look for his new job.  As such, in my view, it is reasonable for the plaintiff to take up driving job (without the need of lifting heavy weight) much earlier, ie since about 16 July 2015. 

100.In these circumstances, his loss of earnings during the period from 16 July 2015 up to 30 June 2017 (about 23.5 months) should be quantified as follows:-

HK$(16,000 – 13,000[38]) per month x 23.5 months = HK$70,500        

101.The plaintiff testified that from July 2017 onwards up to the date of trial, he had been working as a construction site driver on a casual basis for about 14 to 15 days a month in average.   During the period between July and October 2017, the daily wage was about HK$800 to HK$900.  By the time of trial, such daily wage was increased to HK$1,000.  Such evidence of his daily wage for construction site driver remains intact after his cross-examination, and they also appear credible in the circumstances.  I accept all these income data as testified by the plaintiff.   On a fair and convenient basis, I adopt a figure of HK$900 as his averaged daily wage for this period, i.e. from 1 July 2017 up to the date of trial.

102.In light of the aforesaid, I also find that, but for the accident, he would have been able to take up the job of construction site driver with transportation work. However, given my earlier observations about the plaintiff’s residual disabilities, I accept Dr. Fu’s expert opinion that as a result of his back injury, the plaintiff should avoid heavy manual lifting work, and his working efficiency will also be deceased as he needs to take rest after one to two hours of driving.[39]

103.Normally speaking, one may expect that working as a construction site driver cum transportation work duties may earn a higher income than those without such additional duties.   However, the plaintiff has adduced no admissible evidence of monthly income of such kind of construction site driver at trial to serve as multiplicand for the court to quantify the relevant plaintiff’s loss of earnings on that basis. 

104.Ms Loh nonetheless invited this court to quantify his pre-trial and post-trial partial loss of earnings by reference to Mr Tong’s evidence given in court that the current basic monthly salary of a driver newly employed by the defendant is about $19,000 to $20,000, and there should be an additional $1,000 to $2,000 per month for other allowances and bonuses, thereby yielding a monthly averaged income of about $20,000 to $22,000. 

105.Although the court can make reference to the plaintiff’s pre-accident job income to quantify his post-accident loss of earnings for reason as explained above, I think it would be more appropriate to adopt the monthly income for construction site driver than a lorry driver’s income paid by his ex-employer when the income data for the former kind of job (which the plaintiff had opted for before the accident) is available for quantifying his relevant loss of earnings. 

106.In this case, Mr Ho also agreed that the monthly working days for ordinary construction site drivers is about 22 days in average by citing the observation made by Hartmann J (as His Lordship then was) in Lo Wai Shing v Lik Sang Engineering Co Ltd (HCPI 15 of 2012, 5 November 2013), at paras 97 to 101.  As such, I find that from 1 July 2017 onwards until trial, the plaintiff but for the accident would likely have been able to earn at least about $19,800 per month (i.e. $900 x 22) in average by working as a construction site driver (even without the need of taking up transportation work). 

107.After considering the evidence as a whole, and in particular taking into account Dr Fu’s expert opinion of the plaintiff’s decreased working efficiency as a driver[40], I am satisfied that the plaintiff’s back injury would indeed cause an adverse impact on him engaging in construction site driver job by virtue of his reduction of working capacity and efficiency, and by effectively forcing him to work less than a normal and ordinary construction site driver in average. 

108.On the other hand, although I accept the plaintiff’s evidence (which is not challenged) that he worked about 14 to 15 days each month in average as construction site driver since July 2017 till the date of trial, after looking the plaintiff’s overall condition and the whole medical evidence, I contemplate that this was partly due to the then market and/or employment conditions he was facing with and partly owing to his residual back condition.  Doing the best I can in the circumstances, I assess that speaking in terms of average the plaintiff’s current back condition would likely render him to work about 2 days less each month than a normal and ordinary construction site driver.  This would translate into a monthly loss of about HK$1,800 (i.e. HK$900 x 2).

109.On that basis, I think it is fair and reasonable to quantify the plaintiff’s loss of earnings from 1 July 2017 to 10 January 2018[41] (6.3 months approx.) as follows:-

HK$1,800 per x 6.3 months = HK$11,340

Total pre-trial loss of earning

110.As such, the plaintiff’s total pre-trial loss of earnings would then be:-

HK$(303,586 + 48,000 + 70,500 + 11,340) ^[42]= HK$433,426

Pre-trial loss of MPF benefit

111.The corresponding loss of MPF benefit would be:-

HK$433,426 x 5% = HK$21,671

A pleading point

112.Mr Ho took a pleading point by submitting that the plaintiff cannot quantify his pre-trial loss of earnings by using his pre-accident income figure as the multiplicand in the formula of quantification pleaded in the Re-revised Statement of Damages since the plaintiff would have quitted his employment with the defendant on 30 September 2013.  Mr Ho therefore submitted that the quantification of the plaintiff’s pre-trial loss is fundamentally defective and should be rejected.

113.With respect, I think it would neither be just nor right for the court to take such a rigid approach as suggested by Mr Ho when considering the quantification of the plaintiff’s loss of earnings.

114.In my view, the pre-accident averaged income was adopted in the Re-revised Statement of Damages to give the court a general idea of the pleader’s estimate of such level of income that the plaintiff would likely have been capable of earning (not must have been earning) but for the accident.  Ultimately, this court has to ask itself that but for the accident whether there would likely be employer(s) in the market willing to pay the plaintiff at such or similar level of income as so estimated in the Re-revised Statement of Damages on the evidence before it.  The plaintiff in his supplemental witness statement already mentioned that he would change to a new job of construction site driver (cum transportation work), and that he expected to earn more with such new job than his pre-accident one.  In this light, I agree with Ms Loh’s submission that the defendant should have no difficulty in meeting the plaintiff’s case that but for the accident he would likely have earned no less than his pre-accident job’s income as estimated in his Re-revised Statement of Damages.

115.Viewed thus, although in hindsight the pleadings may have room for improvement by stating the plaintiff’s case clearer therein, but that does not necessarily mean that the plaintiff should be precluded from claiming such estimated loss by making reference to his pre-accident income in the context of this case.

116.Having said that, I would not allow a notional annual incremental adjustment of 2% till the date of trial in the quantification of the plaintiff’s pre-trial loss of earnings as pleaded at para 20 of the Re-Revised Statement of Damages since this is not supported by evidence.  With respect, neither would it be appropriate to make an incremental adjustment of 7% per annum since the accident as submitted by Ms Loh by referring to Mr Tong’s testimony of the defendant’s drivers’ current monthly earnings for reasons as explained in paras 103 to 105 above.

Post-trial loss of earnings

117.In light of the aforesaid and particularly as per my findings and observations made in paras 93, 94, and 102 to 109 above, I also find that the plaintiff would suffer future loss of earnings of about HK$2,000 per month in average[43] in a similar vein.

118.At the time of trial, the plaintiff was 57 years old.  He gave evidence that but for the accident, he would have worked till the normal retirement age of 65, and that was not challenged.  On balance, I am satisfied that but for the accident the plaintiff’s remaining working life span for the construction site driver job would be about 8 years.  As such, a multiplier of 7.52 adopted for quantifying his future loss of earnings would appear to be appropriate^[44].  See Chan Pak Ting v Chan Chi Kuen (No.2) [2013] 2 HKLRD 1

119.On that basis, the plaintiff’s future loss of earnings is quantified thus:-

HK$2,000 per month x 12 months x 7.52 = HK$180,480

Post-trial loss of MPF benefit

120.The plaintiff’s future loss of MPF benefit would then be:-

HK$180,480 x 5% = HK$9,024

Loss of earning capacity

121.In the Re-revised Statement of Damages, the plaintiff claimed $50,000 under this head.  The defendant disputed that.

122.Given his residual disability of on and off back pain, and the need to take intermittent rests in the course of driving[45], I find the plaintiff would be less competitive and suffer a disadvantage in the labour market in discharging his current construction site driver job.  Having considered all the relevant circumstances before me, I think that the risk of unemployment in such kind of job would still be significant for the plaintiff.  I fully allow the sum of HK$50,000 as claimed under this head.

Special Damages

123.Special damages are agreed at HK$15,000.

Previous EC compensation

124.The plaintiff agreed to give credit to the employees’ compensation totaling HK$213,590.86 as received by him earlier. 

Summary of Quantum

125.The quantum of plaintiff’s claim as allowed is summarized below:-

Head of Damage	Amount (HK$)
PSLA	150,000
Pre-trial loss of earnings	433,426
Pre-trial loss of MPF	21,671
Post-trial loss of earnings	180,480
Post-trial loss of MPF	9,024
Loss of earning capacity	50,000
Special Damages	15,000
Sub-total:	859,601
Less : previous employees’ compensation	(213,590.86)
Balance:	646,010.14

Interest

126.Interest should accrue on the damages for PSLA in the sum of HK$150,000 at 2% per annum from the date of service of writ until the date of judgment.

127.After considering both parties’ submission on the appropriate amount of interest on the plaintiff’s pre-trial loss and special damages, I think it would be just and fair under the circumstances of this case to allow interest only on the balance of the pre-trial loss of earnings and MPF benefit and agreed special damages totaling HK$470,097 (after deducting the earlier EC compensation of HK$213,590.86) at half judgment rate from the date of the accident until the date of judgment.

Disposition

128.In the premises, judgment was entered in favour of the plaintiff in the sum of HK$646,010.14 together with interest (as mentioned in paras 126 and 127 above).  

Costs

129.Costs should normally follow the event.  I make a costs order nisi that the defendant shall pay the plaintiff’s costs of this action (including all previous reserved costs, if any), with certificate for counsel, to be taxed if not agreed.  Such costs order nisi shall become absolute in the absence of any application within 14 days to vary the same. 

130.The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

131.Lastly, it remains for me to thank counsel on both sides for their assistance rendered to the court.

Miss Phillis Loh, instructed by Liu, Chan & Lam, for the plaintiff

Mr Leon Ho, instructed by Deacons, for the defendant