Siu Tin Yan v. Cs Ixpress.Com Ltd t/a Golden Delivery Co
Read the full judgment text of HCPI 359/2013 on BabelCite. This High Court CFI judgment was delivered on 24 August 2018.
1. In this action, the plaintiff (“ P ”) claimed damages for personal injuries allegedly sustained on 26 November 2008 in the course of his employment with the defendant that carried on business of delivery services under the name of Golden Delivery Co (“ D ”) (“ Accident ”).
Cited by 2 cases · Cites 3 cases
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HCPI 359/2013 [2018] HKCFI 1950 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 359 OF 2013 ________________________
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________________________ J U D G M E N T ________________________ I. BACKGROUND 1.In this action, the plaintiff (“P”) claimed damages for personal injuries allegedly sustained on 26 November 2008 in the course of his employment with the defendant that carried on business of delivery services under the name of Golden Delivery Co (“D”) (“Accident”). 2.There was no dispute (a) D employed P on 24 November 2008 (ie 2 days before the Accident) as a delivery worker at daily wage of $250 to make deliveries from D’s office at Shing Yip Street in Kwun Tong, Kowloon (“Office”) to various destinations in Hong Kong, (b) P was at work for D on 24-26 November 2008, and (c) the destinations for P’s delivery work on 26 November 2008 were in the Hong Kong district. 3.D’s delivery workers usually leave the Office to take the mass transit railway (“MTR”) to deliver magazines (“Magazines”) and documents/letters to destinations in Hong Kong. Their usual route (“Route”) was to (a) walk from the Office at Shing Yip Street to Kwun Tong Plaza (“KT Plaza”) at Hoi Yuen Road in Kwun Tong, Kowloon,[1] (b) take the lift at KT Plaza from the ground floor to the 2nd floor (“2nd Floor”), and (c) walk to the KT Entrance on the 2nd Floor to go onto the Footbridge towards B2 Entrance of KT Station (see paragraph 4 below). 4.The locations in paragraph 3(c) above were as follows: [2]
5.P claimed the Accident happened in the morning on 26 November 2008 as follows:
6.Although there was disagreement as to whether P was instructed to deliver 60 or 80 sets of Magazines, there was no dispute P left the Office with the Loaded Handcart that carried 3 Baskets loaded with Magazines:
7.It was put to Chan under cross-examination that the Magazines were heavy as each set comprised several Magazines placed in a “公文袋” (but P did not give such evidence in contra-distinction to submissions), and on balance I prefer Chan’s explanation that “…… [P]講嗰個公文袋, 嗰隻[Chan]係唔會畀[P]派嘅, 因為 …… 嗰張相[7] …… 就係 …… 嗰期要佢哋[ie delivery workers]派嘅雜誌嚟嘅, …… 所以[P]講嘅公文袋, [Chan]係冇畀過[P]嘅 ……”. 8.P claimed the Accident was caused by (a) negligence on the part of D and/or its servants/agents for which it was vicariously liable,[8] (b) breach by D of implied terms of the contract of employment,[9] and (c) breach by D of statutory duty under the Occupational Safety and Health Ordinance Cap 509 (“OSHO”) and Occupational Safety and Health Regulations Cap 509A (“OSHR”).[10] P also relied on the maxim of res ipsa loquitur. 9.D denied liability, and claimed (a) P was taught by experienced co-worker on how to carry out his work when he was first employed by D, (b) P was provided with Baskets and Handcart to carry out his work, and (c) prior to the alleged Accident P never complained of or expressed any difficulty/inability in carrying out his job. It was said that on 26 November 2008 P was assigned to deliver 3 Baskets of about 60 sets of Magazines[11] from the Office to destinations in the Hong Kong district. Each loaded Basket contained about 20 Magazines[12] and weighed about 15kgs.[13] 10.D averred the alleged Accident was caused solely or contributed to by P’s breach of contractual duties,[14] negligence[15] and/or breach of statutory duties.[16] D also relied on the doctrine of volenti non fit injuria. II. WITNESSES 11.P was self-represented and gave evidence at trial. He adopted certain parts of his witness statement dated 10 March 2014 (ie when he was still legally aided). He claimed certain parts of his witness statement were incorrect, and blamed such errors on his then assigned solicitors Cheung & Liu (“C&L”) who allegedly kept telling him “咁寫得喇” and “得喇, 你喺度等消息” whilst ignoring the full account he gave them for preparation of his witness statement:
P claimed he did not pay careful attention even though C&L (whom he then trusted) explained the contents of his witness statement to him. Although the psychiatric report dated 17 June 2014 by Dr Pang Pui Fai of the department of psychiatry (“DOP”) of United Christian Hospital (“UCH”) recorded P’s father passed away when he was 10 years old and he had to quit school and work to support his family, P told the Experts he “was educated in Hong Kong up to Form 3”. P also admitted under cross-examination he could read Chinese and understand the meaning of the statement of truth in his witness statement when he signed the same. In all the circumstances (including P’s overall lack of credibility as discussed below), I am not satisfied P did not understand or was unaware of the contents of his witness statement when he signed the same. 12.P called 林昌盛 (“Lam”) as his witness, and Lam adopted his witness statement dated 28 February 2014 in its entirety. Lam was the accountant of Force Way Engineering Ltd (“宏立工程有限公司”, “Force Way”), which was P’s employer since 1 January 2006, and Lam had been with Force Way for about 15 years when he gave evidence. 13.Chan gave evidence for D. He joined D in/about 2000. He was previously employed by D as delivery worker, and later became supervisor or “區長” responsible for supervising D’s delivery workers assigned to carry out delivery services to destinations in the Hong Kong district, including distributing delivery work to such delivery workers. 14.In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the pleadings, the chronology of events, the documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.[17] 15.I am unimpressed by both P and/or Lam. In my view, P was argumentative, suspicious and unreliable. He was also prone to exaggeration, especially as to the extent/severity of his injuries, and he was not above making up his case as he went along. Many core aspects of his case, eg about employment as “樓宇維修發展部經理” with Force Way, self-employment as contractor, and circumstances of the alleged Accident were first elicited under cross-examination, and there were inherent inconsistencies within his own oral and statement evidence, and when his evidence was viewed against other objective evidence. His account of his alleged injuries did not sit well with the medical records/reports, and despite his suggestion otherwise, there was no reason for Chan and various treatment doctors to commit similar alleged “errors” in their account/records that were inconsistent with P’s current stance. P’s explanations on various significant matters were unconvincing, and there were clear attempts to embroider his case. I am not persuaded these matters could be explained away by imperfect recollections or faded memory, and on balance I find P was not a credible/reliable witness. 16.Lam claimed to be P’s “意外前的上司”, but he was not Force Way’s “老闆”.[18] Lam was an accountant, and there was no suggestion/evidence that he was involved in “樓宇維修發展” aspects of Force Way’s business and/or that he had requisite knowledge/experience to support his bare assertions about P’s work duties at Force Way, P’s skills/abilities in relation to “樓宇維修發展” at Force Way, and nature of work and retirement age of “判頭” in building/construction industry generally. In the circumstances, I find it unsafe to rely on P’s and Lam’s evidence in many respects, and except for matters that I accept in the discussions below, I reject their evidence on the core matters. 17.On balance, I find there was a truthful/reliable core to Chan’s testimony evidenced by his consistency under cross-examination. I also note he was not dogmatic in denying all challenges that were put to him, and he was careful about what he could recall and what he could not. He struck me as a practical person, and his testimony was well-reasoned. I do not find any moment of unease that his working for D affected the reliability of his evidence. 18.P’s and D’s orthopaedic experts were respectively Dr Fu Wai Kee (“Dr Fu”) and Dr Chun Siu Yeung (“Dr Chun”) (collectively “Experts”). They jointly examined P on 24 November 2011 (“Examination”), and compiled their joint orthopaedic expert report on 27 January 2012 (“Joint Report”). On 29 July 2013, Master M Wong directed the Joint Report to be adduced at trial without calling the makers thereof. III. LIABILITY 19.Employment with Force Way Since (a) it was suggested P’s employment with Force Way did not terminate until after the alleged Accident when P was employed by D as full-time delivery worker, and (b) credibility loomed large in this case, it is necessary to start with P’s account of his employment with Force Way. 20.According to the written employment contract between Force Way and P dated 30 December 2005, P’s employment by D as “樓宇維修發展部經理” was to commence on 1 January 2006. Under such employment contract, P was required to work 5½ days/week for 9 hours/day[19] at a monthly salary of $38,000 and “另加每單工程花紅百份之五(5%)” (which Lam said were mostly paid in cash). Although P’s Revised Statement of Damages (prepared by P’s assigned solicitors Tam, Pun & Yipp (“TPY”) who succeeded C&L and verified by P’s statement of truth) (“RSOD”) averred the 5% commission was for “every contract project”, Lam clarified it was only for “[P]帶來生意總生意額的佣金5%”. P claimed (a) at Force Way he mainly performed “維修和保養建築的工作”, (b) he had 10 years’ experience in this area of work, and (c) when he “執行合同工程上的職責” he frequently had to lift heavy objects and to climb scaffold. 21.The MPF Member Financial Benefit Statement as regards P stated P’s employment with Force Way commenced on 1 January 2006 and terminated on 2 December 2008. Contribution statements signed by Force Way showed P’s monthly salary for February to March 2006 was $38,000 and for April to November 2006 was $38,500 with monthly MPF contribution of $1,000 by each of P and Force Way. Under cross-examination, P claimed Force Way last paid wages to him in June 2006 and not November 2006, but he did not disclose his tax return, employer’s return and/or tax assessment by the Inland Revenue Department (“IRD”)[20] to support such assertion. On balance, I reject such contention which flied against the contribution statements that showed Force Way paid P salary and made MPF contribution up to November 2006. There was no evidence of any commission paid by D to P. 22.Work as contractor In the RSOD, P averred that “[before] the Accident, [P] had been working as a subcontractor, experienced in building repair and maintenance, with an average monthly income of $50,000 (his wage was $38,000 per month plus a commission of 5% of the total contract sum of every contract project …… During November 2008, when [P] took up employment with [D], he was still employed by [Force Way], and was still being paid his basic salary wage of $38,000 per month” (my emphasis). But P’s witness statement stated that in January 2007 P “…… 將工程性質轉為獨立工程判頭”, but “[P]的薪酬仍是保持不變” and his average income increased to $55,000/month before the Accident. Lam’s witness statement also stated “每月平均[Force Way]支付約$55,000左右給[P], 但出糧時間並不固定”. 23.Even though Lam adopted his witness statement, P in his evidence-in-chief disagreed with his statement evidence in the above respects. P testified it was C&L’s mistake/misunderstanding and claimed he was misled by them:
But this could not and did not explain the averments in the RSOD (see above paragraph) that were prepared for P by TPY against whom P raised no complaint of mistake or misunderstanding. As to the matter of “判頭”, P testified as follows:
P added under cross-examination that since the end of 2006 or early 2007 he “…… 唔係做[Force Way]嘅判頭 ……” and became a contractor who took up jobs[21] for different customers. P claimed he liked the freedom of such work which he could not have as an employed worker. He said he would perform contractor work himself, and would charge for his own labour cost. P was not sure whether he should describe himself as “判頭”, “…… [P]覺得[P]自己係做自己工, 人哋請[P]做嘢, [P]就去做, 係人工幾錢嘅啫 ……”. 24.Notwithstanding P’s subjective views as to the nature of his alleged work and also as to the label of “判頭”, his testimony plainly asserted he was an independent contractor since end of 2006 or early 2007:
Thus, even on P’s oral testimony, it was not incorrect to say that in January 2007 P changed to become “獨立工程判頭”, and in my view C&L was not to be blamed for such description. Indeed, P described himself as “裝修判頭” when he was interviewed by Mr Law (D’s manager, “Law”)[22] for a position as full-time delivery worker (see paragraph 38(c) below). 25.But P alleged the assertion in his witness statement (and presumably also in (a) the RSOD that was prepared by TPY and verified by P with statement of truth and (b) Lam’s witness statement that Lam adopted as part of his testimony) that he was still paid “salary” about $38,000/month with commission or $55,000/$50,000 per month before the Accident was incorrect. I also do not accept such assertion:
26.Work in Mainland China Upon further cross-examination, P claimed that in 2007/2008 he worked in both Hong Kong and Mainland China, but actually did less work in Hong Kong (and yet he claimed he did not have to spend a lot of time in Mainland China). P claimed he sometimes went to Mainland China via Macau where he would engage in gambling at casinos, a habit he maintained even after the alleged Accident. 27.P alleged “[P]就係同[C&L]話中港兩地跑”, but his pleadings and witness statement were totally silent on this. Even though P knew to disclose MPF records to prove his employment/income at Force Way in 2006, he never disclosed his immigration records even though he agreed they would show his travels to Mainland China. P again blamed C&L in not asking him to obtain such records, but I reject such contention. In the course of trial, P came across as an astute litigant despite being self-represented, and I find on balance he made up the allegation of working in Mainland China as he went along to bolster his case that he had substantial pre-Accident work/income as contractor now that he conceded he was no longer paid “salary” by Force Way. 28.October/November 2008 P’s witness statement stated that in/about October 2008 “…… [P]在[Force Way]的工程剛做完, 新的還未開始”. P agreed under cross-examination that at that time he had not started on any new job, but testified in-chief that his witness statement was incorrect in stating that in/about October 2008 “…… [P]在[Force Way]的工程剛做完 ……” (which error he allegedly discovered when he gave evidence) because at that time “[P]係清拆九龍城嗰個僭建物嘅 …… 獅子石道同個福老村道嗰個清拆工程, 即係清拆還原工程呀呢度係” (“Demolition Job”) being full-time contractor work that he performed alone almost every day for several months (ie from June to November 2008) at his own pace/time and that had nothing to do with Force Way. P accepted the Demolition Job required physical labour, but claimed the customer for such job separately engaged general labourers to handle and transport materials/waste. P claimed this was his last contractor job before he went to D for interview for the position of a delivery worker. 29.But P’s pleadings and witness statement were again totally silent on the Demolition Job. P again tried to blame C&L for such “error”. But on balance I reject P’s assertion as to the existence and/or circumstances of the Demolition Job:
30.Income as contractor P claimed that even though he worked as a contractor, his average income was still $38,000/month (ie the same as his basic monthly salary at Force Way). This did not sit well with his assertions in the RSOD and witness statement, and Lam’s assertions in his witness statement (see paragraph 22 above). Given Lam’s testimony under cross-examination that P worked for Force Way until end of 2006 when “…… [P]係 …… 停薪留職咋喎” (see paragraph 35 below) and that P did not tell Lam what work he would take up afterwards, there was simply no basis for Lam to say what P’s income as contractor was after the end of 2006. In all the circumstances and in light of the discussion in paragraphs 31-33 below in respect of the Demolition Job, I am unable to accept that on average P still earned $50,000 or $55,000 just before the Accident. Indeed, I am not even satisfied on balance that on average P made $38,000/month as contractor. 31.P claimed the price for the Demolition Job was $190,000, which he received by various payments on monthly basis, and he separately quoted the cost for necessary tools/equipment for the Demolition Job for which the customer placed him in funds for purchase of the same. For his pay, P claimed the customer would pay him cash of $50,000/month for the 1st 2 months and $30,000/month for the last 3 months, but he was a big spender[23] so he would not deposit such cash into his bank account, and hence his bank passbook could not evidence his income as contractor. As for his alleged work in Mainland China, P claimed he was paid in cash as he did not trust (and would not accept) cheque payments. He agreed his income from the alleged contractor work in Mainland China was not evidenced by any available document. 32.To put it bluntly, other than the alleged Demolition Job (which allegation I have rejected), there was no evidence as to how many jobs (whether in Hong Kong and/or Mainland China) that P secured each month as contractor, what was the time lapse between such jobs and/or what was the price P charged for different types of jobs so secured, and there was no factual basis to justify why his monthly income as contractor would coincidentally equate that of his basic monthly salary at Force Way. Further, even though the alleged price of $190,000 for the alleged Demolition Job was not a paltry sum, there was no document or witness to verify/ corroborate the same. In any event, such alleged price for the alleged Demolition Job did not make out to any average income of $50,000 or $55,000 a month. 33.P claimed he understood he did not have to file tax return for income from work done in Mainland China. But then he also did not submit any tax return or pay any tax to the IRD and/or make any MPF contribution even though he claimed (a) his average income as contractor was at least $38,000 being the same as his basic salary at Force Way for which he had to pay tax, and (b) he received $190,000 for the Demolition Job within a tax year. P blamed C&L for this:
On balance, I reject such allegations. Submitting tax return and paying tax to the IRD were P’s personal obligations which he had to comply irrespective of C&L’s role as solicitors for the present litigation, and P confessed he knew he had to pay tax and to make MPF contribution when he was employed by Force Way with basic salary of $38,000/month. This echoed my observation in paragraph 32 above that P failed to adduce credible/reliable of his pre-Accident earnings as contractor. 34.Position with Force Way Under cross-examination, P claimed that in mid- or end of 2006 (but probably in June to August 2006 but P could not be sure due to lapse of time) when he was minded to become a contractor, Force Way’s boss urged him not to resign and asked him to “「停薪留職喇, 你--即係你幾時出面做完嘢, 做完返嚟幫我手喇」”. P claimed Force Way’s boss made such request because it was not easy to find an employee who was capable, responsible and willing to work, and his status remained as “停薪留職” until he was unable to work anymore due to injury as a result of the Accident whereupon he and Force Way mutually agreed to terminate the employment contract. 35.Lam also said under cross-examination that P worked for Force Way until end of 2006 when “…… [P]係停--停薪留職咋喎”, but P did not tell Lam what work he would do afterwards. Lam confirmed Force Way did not employ any worker to replace P, “即係唔係話--公司唔係冇咗[P]就唔得, 即係老闆會搵其他人[ie existing workers of Force Way]去做”. 36.On balance, I do not accept the allegation of “停薪留職” which P and Lam only raised when they gave evidence at trial. It did not feature in their witness statements. I find on balance (a) P simply preferred the freedom of being a contractor without the restrictions of an employed position so he changed to become a contractor by end of 2006 or early 2007 after which time Force Way no longer paid him any salary/commission but (b) P sometimes took on jobs for Force Way (as well as for other customers), so his employment contract with Force Way was simply left in abeyance until it was formally terminated when P went on sick leave after the alleged Accident (which termination would obviate any possible misunderstanding he was still “employed” by Force Way who was not the relevant “employer” vis-à-vis the alleged Accident). I further find on balance P so favoured his freedom from restrictions as an employee that he was slack in work as a contractor (indeed P claimed he would go look for a job after he finished the existing one and he also spent time in horse-racing and in gambling in Macau) such that he did not secure substantial work and/or did not earn much as contractor prior to the alleged Accident as he claimed. In my view, had P been earning $40,000-$50,000 a month just before the alleged Accident as he claimed (see paragraph 38(c) below), he would not have gone for an interview with D for a position as full-time delivery worker at a monthly salary of about $6,500. 37.Further, as Lam (a) accepted P’s position at Force Way was not irreplaceable and P’s work at Force Way could be and was in fact taken up by other workers at Force Way, and (b) had no idea what work P did after he allegedly “停薪留職”, Lam’s claims in his witness statement that but for the Accident (i) P “在這行非常有經驗及熟手, 工作水準很高” and “行內像[P]一樣有經驗的判頭並不多, 所以有很多像[P]一樣有經驗的判頭亦可以工作至七十多歲才退休”, and (ii) Force Way “亦願意繼續聘用[P]為公司服務” and “會願意支付港幣$60,000元左右繼續聘請他” were, in my view, nothing more than bare partisan assertions without any or any reliable factual foundation. There was nothing to show Lam could speak for Force Way’s “東主”, ie 黃耀華 (also known as 黃榮), on this. Lam (who was an accountant) admitted under cross-examination these were just his personal opinion, and I find I am unable to place any weight on the same. As regards Lam’s further opinion that P could not return to his pre-Accident work with Force Way because of his injury as a result of the alleged Accident, I am unable to place weight on the assertion too as there was nothing to show Lam had any actual experience in “維修和保養建築工作” apart from his accountancy work, and his knowledge about P’s alleged injuries/disabilities must be hearsay with P as his source (but as seen below I am not satisfied P’s evidence in these respects were credible/reliable). 38.Interview by D P’s witness statement stated as follows:
39.But P gave a different account under cross-examination:
40.Interestingly, P’s RSOD pleaded that when P took up employment with D in November 2008 he was “still employed by [Force Way] …… The delivery job was undertaken so as to fill in the time between projects with [Force Way]. If new construction projects were to be assigned to him by [Force Way], [P] would resign from his delivery job and resume his duties as a subcontractor”. Although P verified such averments by statement of truth and had no complaint against TPY being assigned solicitors who succeeded C&L, it appeared such averments did not sit well with P’s oral testimony that he did work for different customers and not just Force Way, so Force Way could hardly be assigning construction projects to him. 41.I find on balance P actually sought to work as full-time delivery worker for D when he went for the interview, and he was not looking for a time filler in between jobs as contractor:
42.On balance, I prefer Chan’s evidence that Law interviewed/ employed all D’s delivery workers (including P), and Law notified Chan after P was employed since P was assigned to work for Chan to carry out delivery work in the Hong Kong district. I also accept Chan did not receive instructions from D/Law that P would only deliver documents and/or letters (not Magazines or other heavy load) and/or P he was employed on such basis. In my view, P was familiar with physical/manual labour, and he went for the interview because he considered himself suitable to be a delivery worker that required physical/manual labour to deliver/transport load of materials for distribution at various destinations. I find on balance that when P was employed he was told and he knew he was to distribute Magazines. Further, although P told the Experts he studied up to Form 3, under cross-examination he downplayed his ability to read Chinese and even claimed to know only a few Chinese characters (see paragraph 62 below). If that were the case, then he could hardly have applied for the job of a delivery worker at D on the basis of doing or learning to do clerical work (“簡單嘅文書”). Further, if he planned to learn clerical work, it did not sit well with his suggestion he also planned to leave D’s employ after 1-2 or 2-3 days. On balance I reject P’s allegations set out in paragraph 39 above and in paragraph 38 above (save and except (a), (f) and (g) therein). 43.24 November 2008 Chan said in 2008 D employed more than 100 delivery workers, and each of D’s supervisors or “區長” was responsible for a particular delivery district with 2-3 delivery workers handling delivery work for a particular area within a delivery district. Chan was the supervisor or “區長” responsible for inter alia distributing delivery work to the 40-45 delivery workers for his assigned area being the Hong Kong district, and on every workday morning these delivery workers would collect documents/letters and Magazines at the Office for delivery to various destinations in the Hong Kong district. Further, Chan as supervisor or “區長” would give training to the more experienced delivery workers (ie those who had worked as such for at least 4-5 years) who worked for him, and these trained delivery workers would “…… 講解一次要做啲乜嘢畀啲新入職嘅速遞員聽”, and they might sometimes help Chan distribute delivery work to other delivery workers. Chan agreed there was no dedicated training room at the Office which was essentially a warehouse. 44.Chan said P was to report for duty at the Office at 8:30am each workday, and P so reported for duty on 24 November 2008 (Monday). Chan claimed (and on balance I accept) (a) he arranged for an experienced co-worker to tell P where the Baskets and Handcart were, to teach P how to carry out the delivery work (including how to pull a loaded Handcart and how to lift a load – see paragraphs 45-46 below) and to show P the Route, (b) he told P to seek help from other delivery workers if and when necessary and he should leave the Office with other delivery workers so they could help one another, and (c) P never said he was unable to carry out such delivery work. 45.Chan explained (and on balance I accept) D required its delivery workers to use 2-wheeled Handcarts to transport heavier loads because 4-wheeled trolleys were not allowed to go on the MTR. The modus operandi was to place the Magazines flat at the bottom of each Basket (which itself was a delivery aid/tool), place a loaded Basket on the Bottom, stack the loaded Baskets one on top of another, and then strap/secure the loaded Baskets to the Handcart. Chan also explained that to move any load a delivery worker must pay attention to his waist, and must squat down and then rise from the squat to pick up and lift any load. 46.Chan said (and on balance I accept) a delivery worker could then pull the loaded Handcart along the Route to KT Station to take the MTR to the Hong Kong district. From Chan’s years of experience as a delivery worker before he became a supervisor or “區長”, the safest and most comfortable way for a delivery worker to pull a loaded Handcart (which method he himself regularly used when he was a delivery worker) would be to: (a) use his foot to step on the Bottom Bar and “ …… 架車[ie Handcart]係會反後嘅”, and (b) place both hands on the Upper Handlebar to balance and pull the loaded Handcart behind him (which “一定係斜 -- around大概三十度至四十度喥喇, 係斜少少嘅”) to “卸緊啲力吖嘛 ……”. Chan said the height/size of the Handcart was suitable for any normal-sized male delivery worker with height of 165cm or above (including Chan himself and P who were similar in height), but he agreed a smaller-sized delivery worker would have to pull the loaded Handcart by single hand rather than both hands, so “…… 高少少嘅男士拉, 係會著數啲嘅”. 47.Chan explained (and on balance I accept) that if a lightweight handcart (ie “類似嗰啲兩個轆, …… 銀銀哋色嗰隻, 好似出去買餸嗰啲車嘅”) was used instead of the blue metal frame Handcart which was mainly used for transporting heavier load, then “擺架車仔喺後面, 以一個矮細嘅人去拉會比較一個好似[P]咁嘅高度去拉更好”. But Chan said it was more comfortable for a male of normal height to pull the loaded Handcart in the manner described in the above paragraph because:
48.Chan said (and I agree) as a loaded Handcart was 2-wheeled it could not be pulled in an upright position, and even though some delivery workers would push loaded Handcart positioned in front of them, Chan would not recommend this method as the Handcart only had 2 wheels and “…… 架車會左右喐嚟喐去嘅”, “…… 佢哋都會好辛苦, …… 你喺後面拉, …… 佢搖嘅機會就微啲嘅, 即係佢會順住咁行嘅”. 49.On balance, I accept Chan’s evidence that (a) he did ask an experienced worker to explain to P how the delivery work was done (see paragraphs 44-46 above), (b) P was suitable for using the Handcart (which was what P used on 26 November 2008) and pulling the loaded Handcart behind him (which was the manner P adopted on 26 November 2008), and (c) a loaded Handcart could be pulled by 1 hand or both hands although it was comfortable with both hands. I find on balance that P had ample opportunity on 24-25 November 2008 to observe how other delivery workers transported Magazines when he was shown the Route and delivery destinations by other delivery workers, and he must have known delivery work done by D’s delivery workers included (i) delivery of Magazines and (ii) transport of delivery materials by shoulder bags and/or the Baskets/Handcarts. 50.On a separate matter, Chan explained delivery workers had to use a timecard to clock time for getting on and off work. But time was required to prepare such timecard (ie “工卡同埋手指模”) for a new delivery worker, so for the first few days “由我哋區長以上” “…… 即係阿頭去簽名證明你有返工同放工嘅 …… 嗰張卡愛嚟計完糧之後就冇㗎喇, 同埋事隔咗咁多年, 真係唔會 …… keep㗎”. If a delivery worker forgot to clock time or was late, D and its supervisors would ask the reason for default and then exercise discretion whether or not to make deduction from wages. 51.25 November 2008 P claimed that on 25 November 2008 he followed an experienced delivery worker to learn the delivery route for delivery to shops at Causeway Bay. On that day, P claimed he carried a shoulder bag of documents/letters. 52.26 November 2008 at the Office: P’s case P reported for duty at the Office at 8:45am on 26 November 2008. P claimed he was assigned to deliver 80 sets of Magazines (each weighing 3 lbs so totalling about 240 lbs when he himself weighed about 220 lbs), but D did not give him any 4-wheeled trolley, other handcart and/or other delivery tool/ equipment, and did not explain to him how to handle/transport a heavy load (which I disagree as seen in paragraph 49 above). But P admitted D provided the Baskets for holding Magazines, which Baskets were readily available around the Office. It was said in P’s witness statement P complained to Chan that 80 sets of Magazines were too heavy (but there was no mention of any protest to the effect that he was employed to deliver documents/letters only and not Magazines – which in my view lent further weight to my conclusion in paragraph 42 above that there was no such restriction), but Chan merely responded “係咁架啦喇” without asking other co-workers to help P. 53.But P testified under cross-examination (a) there were many delivery workers at the Office in the morning and a girl (“Girl”) gave instructions to them about their delivery destinations, (b) the Girl distributed a lot of heavy Magazines to him but did not provide any 4-wheeled trolley or other handcart, (c) the only time he saw Chan (whom P did not know at that time was his supervisor but who appeared to be quite busy) was when he asked for a trolley/handcart, but Chan just walked away after telling him “「你自己搵人借架車仔喇」”, “「係咁㗎喇」”, “「你做唔做呢？」” and “「唔做就冇糧出㗎喇, 連頭一日都冇糧出㗎喇, 頭兩日都冇糧出㗎喇」”, and (d) the Girl told P “「咁你想辦法喇」” and “「你同邊個邊個借架車仔先喇」”. P claimed he then borrowed a 2-wheeled Handcart from a co-worker whose name he had forgotten, but such Handcart did not belong to D “因為啲同事叫「你問邊個邊個借吖, 架車仔佢嘅」, [P]話「公司冇車仔㗎」, 佢話「公司冇㗎, 一係你自己買」, [P]梗係唔買喇, [P]梗係同人借喇”. 54.P agreed the Magazines must be placed in Baskets otherwise they could not be stacked/secured on the Handcart, and D did make available Baskets for use by delivery workers (including P). But P disagreed his witness statement exaggerated the situation by alleging D did not provide him “安全的四輪手提車或任何搬運工具” (my emphasis) because the Baskets were just for holding the Magazines and were not transportation tool/equipment. P claimed he then loaded about 80 sets of Magazines into 3 Baskets, which loaded Baskets then placed on the Bottom and stacked one on top of another, and then secured to the Handcart by 2-3 Straps. 55.26 November 2008: discussion Chan agreed that delivery work involved both documents/letters and Magazines, but his main responsibility was assigning delivery work for Magazines. Chan further agreed that on 26 November 2008 some delivery workers were assigned to deliver Magazines and some were assigned to deliver documents/ letters and Magazines, but due to lapse of time he could not remember how many workers were assigned to distribute what. 56.Chan claimed on that morning P’s assigned delivery work was to distribute about 60 sets of Magazines to various destinations in the Hong Kong district, but he could no longer remember the precise destinations. I find on balance P was assigned to deliver 60 and not 80 sets of Magazines:
57.Chan said (and on balance I accept) for giving instructions to a delivery worker, “如果係雜誌, 通常[Chan]之前嗰晚, [Chan]好晒啲籃嘅話, 大概五至十分鐘可以 …… 搞掂一個速遞員，係囉”, and it would be even quicker (eg just a few minutes) for Chan to distribute work to a delivery worker who only needed to carry a shoulder bag for making deliveries. Under cross-examination, Chan agreed at that time he had a female subordinate whose name he had forgotten (presumably the Girl) “就負責幫[Chan]去分畀啲速遞員, 教佢哋點做嘢, 但係所有嘢都係[Chan]安排 ……” Chan could not remember whether it was him or the Girl who directly distributed delivery work to P, but Chan had overall responsibility in assigning delivery work and the Girl merely helped him in his work. 58.Chan said that on 26 November 2008 P was given a Handcart with 60 sets of Magazines for delivery in 3 Baskets, and was told to stack the 3 loaded Baskets onto the Handcart and then take the MTR to deliver the Magazines to various destinations in the Hong Kong district. I find it inherently improbable for D not to even provide any handcart to its delivery workers (including P) when their everyday assigned duties (like P’s) required them to transport quite a number of Magazines in several Baskets such that each of them had to find his own way to make deliveries, and this was especially so when:
But quite irrespective whether or not P had to borrow the Handcart from a delivery co-worker (which I disagree), the alleged Accident was not caused by any alleged need to borrow the Handcart because P was actually using such Handcart at the time when the alleged Accident occurred. 59.Chan said (and on balance I accept) P stacked the loaded Baskets and strapped them securely to the Handcart, and he saw P left the Office with the Loaded Handcart together with other delivery workers. Chan explained that delivery workers with delivery destinations in the same district/area often set out together for one another’s company and to help one another, “譬如抽個膠袋咁樣, 佢又重嘅, 我有架車仔嘅, 咁大家都係去嗰頭附近, 譬如去灣仔、銅鑼灣, 咁就「你放上我架車度喇, 我拉--幫你拉埋囉」咁樣囉, …… 即係佢哋大家互相幫忙嘅, 會”. 60.On way to KT Plaza P left the Office with 2 co-workers, one who was more experienced and had a shoulder bag (“E/Worker”) and another who was new with nothing to carry but who went along to learn the delivery route as P did on his 1st day at work (“N/Worker”). They told P they would go ahead and wait for him at the Pillars as they knew he would be slow with the loaded Handcart. The E/Worker told P the Loaded Handcart had to go past the Pillars, but P claimed he did not know how they would help him achieve this. In my view, it was obvious even on P’s own case that he was not expected to transfer the Loaded Handcart past the Pillars on his own, and the E/Worker would be there to help him. This, I find, was standard practice and consistent with Chan’s evidence (see paragraph 59 above). 61.P claimed he took the Route towards KT Plaza. He said the Magazines were heavy so “在運送途中感到非常吃力” (but I have found the loaded Baskets weighed about 45 kgs / 99 lbs rather than 240 lbs as P alleged – see paragraph 56 above). P used his right hand to pull the Loaded Handcart that was positioned behind him. P’s witness statement claimed that shortly after he left the Office he sprained his right hand but gave no particulars as to how the sprain occurred. Indeed, P’s witness statement did not even verify the averment in P’s Statement of Claim that he sprained his right hand because the Loaded Handcart “collided with an obstacle standing in the way”. Under cross-examination, P claimed he walked slowly along the Route due to heavy load on the Loaded Handcart, but felt he had to hurry as his co-workers had walked ahead and were waiting for him at the Pillars. P went on to say that the Route to KT Plaza:
When pressed on what the “obstacle standing in the way” as averred in P’s pleadings was, P reiterated that the pavement was made of “長方形嗰啲磚吖嘛, 佢有凹凸吖嘛, 咁[P]如果睇到有障礙物, [P]就唔會𠽤到佢喇, [P]就係唔知咩嘢障礙物, 因為[P]就咁畀佢剒一剒, [P]估計就因為嗰啲路面就係凹凸喇”. P confessed he “凈係睇到路面凹凹凸凸” and not any “obstacle standing in the way”, so he suspected it was the uneven surface of the pavement bricks that tripped the Loaded Handcart. P claimed “嗰下剒親係緊要”, “即係佢一拉嗰時呢, 你一拉動畀佢搣起, 嗰下剒力就比較大, 隻手好似觸電咁樣, 即刻扯到上嚟喇, 痺喇” (ie shooting pain up his right arm and numbness), so he lost his grip on the Loaded Handcart which toppled to the ground and the Magazines in the loaded Baskets tumbled out. P claimed that even though his right hand was injured, his left hand did not have sufficient strength, so he had to use both hands to slowly pick up the Handcart and Magazines, re-stack the Baskets/Magazines, and pull the Loaded Handcart (but stopping several times) to KT Plaza. P in his opening submissions claimed that “就因為 …… [KT Plaza]嗰度佢有兩條[Pillars]嘅, 咁[P]就 …… 拉到過去喇, 因為[P’s]兩隻手一齊拉, 因為[P’s]右手傷咗, 就左手主力拉喇, 右手輔助拉嗰架車, [P]諗住一陣冇事嘅 ……”. 62.When it was pointed out to P that prior to trial he never stated in his pleadings and/or witness statement that his right hand was injured when pulled by the Loaded Handcart that toppled to the ground such that he had to pick up the Handcart/Magazines and re-stack the loaded Baskets with both hands, P again blamed C&L and said it could not be helped if C&L (whom he then trusted) merely said “「咁得㗎喇」” without recording in his witness statement what he told them. Despite having told the Experts he studied up to Form 3, P claimed to have little education, knew only a few Chinese characters and not know how to write Chinese. 63.When P was pressed under cross-examination that his witness statement stated “…… 在離開[D’s Office]沒多久接近成業街時” he injured his right hand so he switched to use his left hand (not both hands) to pull the Loaded Handcart to KT Plaza, (a) P at first tried to distract attention by saying he did not understand what “接近成業街” meant and reiterated he did not know many Chinese characters and had to depend on C&L (but his trust was misplaced as explained in the above paragraph), (b) he later gave evidence that after he picked up the Loaded Handcart that toppled to the ground he used his left hand to pull the Loaded Handcart, and (c) still later he testified that he claimed he was used to physical labour, so he bore the pain and mainly used his left hand (with help from his injured right hand) to pull the Loaded Handcart to KT Station with a view to complete the delivery task without realising at the time he was so severely injured. But the alleged use of the injured right hand to help the left hand was a new detail not featured in P’s witness statement. In my view, if (as P claimed) he could immediately use his injured right hand to aid his uninjured left hand in pulling the Loaded Handcart, it meant (i) the right forearm/elbow could not have been seriously injured or too painful, and (ii) he adopted the correct method of using both hands to pull the Loaded Handcart positioned behind him. 64.On balance, I do not accept P’s account of how he injured his right hand. Bearing in mind P was not a credible/reliable witness, I do not believe the Loaded Handcart toppled with spillage of the Magazines which I find to be unreliable embellishment to bolster P’s claim of serious injury to his right hand with pulling pain up his right arm with numbness. Such serious complaints did not sit well with the medical records which I will turn to below. I find on balance the Loaded Handcart probably wobbled or tottered as it moved over the uneven pavement surface without toppling over, and P suffered mild sprain to his right wrist/forearm/elbow, which was what he told the doctor at UCH’s accident and emergency department (“AED”). 65.KT Entrance / Pillars P claimed when he reached the KT Entrance, his 2 co-workers were waiting for him at the Pillars. P had to transfer the Loaded Handcart from the top to bottom of the Steps past the Pillars. P claimed he stood at the passageway at the top of the Steps behind the Loaded Handcart that was balanced on its 2 wheels at the edge of the top Step with the Bottom sticking out over the 2nd Step below, and he held the Upper Handlebar with his left hand. The E/Worker stood at the bottom of the Steps to help with transfer of the Loaded Handcart past the Pillars onto the Footbridge. “就係因為要預備過, [E/Worker]就响前面抽住嗰架車仔前面[using both hands], 即係嗰個膠箱前面都有揸手嗰度㗎嘛[ie Lower Handlebar], …… 即係一齊話「一、二、三, 咁就過喇」, [P]話得, 咁一、二、三, 咁咪過囉, ……” P said both he and the E/Worker exerted power at the same time to lift the Loaded Handcart from the top Step to slide past the Right Gap (which was widest of the gaps) down towards the ground at the bottom Step. P claimed when the Loaded Handcart was about to reach the ground, the E/Worker loosened his grip and “…… 一抽出嚟, 咁[P]咪扯住, 即係可能衝力大, [P]唔知[E/Worker]早放定係冇力, [P]而家諗諗下”, so the Loaded Handcart landed abruptly on the ground at the right side of the bottom Step with no spillage of the Magazines. P claimed “都唔使向前行嘅, 直情佢扯咗[P]落去嘅, 因為[E/Worker]好快, [P]都未行 …… 已經扯咗[P]落去喇, 向前仆, 咁[N/Worker]就攬住[P]” otherwise P would have fallen flat on the ground. P claimed his left hand, which held the Upper Handlebar, was pulled forcefully by the Loaded Handcart’s downward motion, so he suffered sprain injury to his left hand/arm and had to let go. P claimed even though it was very painful, he did not think it was a serious matter at that time. 66.Under cross-examination, P gave further explanation as follows:
67.On balance, I reject P’s account of the alleged injury to his left hand/arm and do not accept there was any injury to P’s left hand/arm:
68.According to the Joint Report, P told the Experts “2 years ago, while pulling a cart with wheel, 200-300 lbs in weight, there was whole right upper limb pain. He stopped working with his right upper limb and used the left upper limb to pull then there was whole left upper limb pain. He was unable to work and then he attended the [AED] of [UCH]”. There was no mention of passing the Loaded Handcart past the Pillars and injury to left hand/arm caused by the E/Worker dropping the Loaded Handcart. P claimed he told the Experts his both hands suffered “拉傷” injury (“…… [P]有講過話拉傷咗兩隻手嘅”), but he could not recall whether the Experts asked him about the detailed circumstances. He claimed he would explain if the doctors asked, but would not if he was not asked. In my view, the Experts being forensic experts would have probed the circumstances of the Accident with P as they would have to give opinion on whether the injuries/disabilities were consistent with the alleged Accident. The fact the Experts had asked P about the circumstances of the alleged Accident was borne out by the fact Dr Chun stated in the Joint Report “no specific form of injury was described”. I agree with Mr Lim, D’s counsel, that this cast doubt on the veracity of P’s claim of injury to his left hand/arm. 69.Report to D P claimed both hands were injured otherwise “…… 如果一隻手受傷, …… [P]一隻手都會盡量去做咗呢個任務嘅, [P]係完全係做唔到”, but he pulled the Loaded Handcart (presumably along the Footbridge) to KT Station to telephone and inform D about the Accident (whilst the E/Worker and N/Worker left him to go on their way), and Law asked him to return to the Office. In his opening submissions, P claimed “咁就係咁樣就傷埋隻左手, …… [E/Worker]拉咗落嚟[E/Worker]就即刻走喇, 咁[P]自己咪慢慢用兩隻手, 又痛, 但係 …… 因為[P]做慣嘢, 頂得到, 咁就繼續拉, 拉到去入去地鐵站入閘嗰度即係痛到頂唔順喇, 咁打電話返公司囉, ……. 公司派人就攞番晒啲嘢走喇, 咁[P]就去[UCH]睇醫生喇” (my emphasis). 70.Under cross-examination, P claimed he did not telephone to ask D to collect the Loaded Handcart, but he returned to the Office to report his injury before going to seek medical treatment, and D arranged for a staff to follow P to collect the Loaded Handcart. Upon further cross-examination and in re-examination, P said because the Loaded Handcart had gone past the Pillars, he could not move it back, so D sent someone to collect it and P followed his co-worker back to the Office and did not go directly to UCH. In my view, the metamorphosis of P’s case suggested it was made up as P went along in his submissions/evidence. On balance I reject P’s accounts, especially as I do not accept he suffered any sprained injury to his left hand/arm. I disagree D sent anyone to collect the Loaded Handcart, and prefer Chan’s evidence that at about 9:00am he received P’s telephone call via landline at the Office (as P did not have his mobile telephone number) saying he sprained his hand, so Chan asked P to return to the Office to let him understand the details,[26] and at about 9:30am Chan saw P returned to the Office with the Loaded Handcart and 3 Baskets of Magazines. In my view, since P could make his way back to the Office, the injury to P’s right wrist/forearm/elbow could not have been serious. 71.P added under re-examination that “[P]一定要返咗公司先, 同[Law]講晒經過, [P]先去[UCH]嘅, …… 因為點解要返去, 係我哋需要打卡嘅” to clock off before he could seek medical treatment. I disagree and prefer Chan’s evidence that if “你真係受咗傷, 你可以唔返嚟嘅, …… 你去睇咗醫生先, 你只要同我哋講聲得㗎喇, 呢個係可以嘅，即係我唔係話一定要你返嚟打完卡, 你先去睇醫生, 我就唔會嘅”, which in my view accorded with practical common sense. 72.P claimed that when he returned to the Office, he told Law he injured both hands and gave him a detailed account of how the Accident happened, and then P went to UCH’s AED for medical treatment. On balance, I reject such allegation which did not sit well with Form 2 dated 1 December 2008 signed by Law on behalf of D that gave the circumstances of the alleged Accident as “當日負責派送客人雜誌時, 意外扭傷右手” and further stated the injured part of P’s body was “右手手腕”, which information necessarily came from P (see paragraph 77 below). On balance, I prefer Chan’s evidence that P (a) told him he sprained his hand without explaining how the Accident happened, (b) parked the Loaded Handcart, and (c) left the Office to seek medical treatment. 73.UCH’s AED P’s statement evidence claimed the medical examination at UCH’s AED revealed his “雙手邊肘肌部有骨骼壓痛情況出現, 雙手嚴重則痛, 不能提取一份報紙, [P]甚至揸筆寫字也不能, 並於當天出院”. P believed he was seen by a triage nurse and then by a male doctor, and claimed to have told such doctor both of his hands were injured such that the doctor examined both hands. He said he felt very painful, but trusted the doctor who told him there was no fracture and the injury was not serious. He claimed not to know whether the doctor recorded what he said, and he had not seen the relevant medical records. 74.In the medical records of UCH’s AED for P’s attendance on 26 November 2008, the triage nurse wrote down right elbow injury under “past or current history”. Further, according to the medical report by Dr Lam Chi Sing of UCH’s AED dated 23 September 2009, P was seen on 26 November 2008 complaining of “injury to right fore-arm at work. On examination: - fine and stable – mild pain and superficial edema at forearm. He was treated as right fore-arm sprain and discharged”. Dr Lam Chi Sing also signed the sick leave certificate giving 10 days’ sick leave up to 5 December 2008 for “right forearm pain”. In short, there was no record of any left upper limb injury. 75.Even when apprised of the above record/report, P insisted both of his hands were injured, and “……如果 …… 醫院嗰方面, 因為佢哋就即係可能係求其寫一隻手算數嘅, …… 咁同埋呢度, 關於醫院嗰度, 點解成日講一隻手呢, 我亦都去信問過[UCH], [UCH]都覺得係手民之誤, 就向[P]道歉咗嘅, [P]亦都有信件喺度嘅, [UCH]都更正番係兩隻手嘅”. In my view, it was inherently improbable for Dr Lam Chi Sing to fail to record left upper limb injury if P had complained of injury to both forearms and the doctor had examined both forearms/elbows. Further, the findings in relation to the right elbow/forearm showed the injury to the right wrist/elbow/forearm was minor/mild and not of the severity that P alleged. 76.5 December 2008 When P’s sick leave expired on 5 December 2008, P attended Ngau Tau Kok Jockey Club Clinic (“NTKJCC”) ,“即係嗰個病假紙到期, [P]一定要去續㗎嘛, 如果唔係嗰五分四係冇㗎嘛”. The consultation summary for such attendance was the 1st documented complaint of history of bilateral elbow sprain. But physical examination by the doctor showed right elbow with limited range of movement (“ROM”) due to pain with tenderness over the lateral region of the elbow, but normal ROM of the left elbow and mild decrease in muscle power of both hand grips. So despite P’s complaint of bilateral elbow sprain, there was no objective evidence of anything wrong with his left arm/elbow. Indeed, the sick leave certificate issued by NTKJCC on 5 December 2008 until 8 December 2008 was for “right forearm pain” with no mention of any problem with the left forearm/elbow. Actually, the diagnosis given on sick leave certificates issued by NTKJCC and KTJCHC for the period up to 20 January 2009 was for “right elbow pain”, “right forearm pain” or “right forearm and elbow pain”. 77.Form 2 dated 1 December 2008 Chan said (and on balance I accept) he later made a report to his then superior Law about what P told him, ie he had sprained his hand. After making enquiries with P, Law completed and signed the Form 2 dated 1 December 2008 on behalf of D (see paragraph 72 above), which P accepted would be based on what he told Law. This must be correct because the Form 2 was completed and signed 5 days after the Accident (ie when P was still on sick leave under the 1st sick leave certificate). The coincidence of Law and Dr Lam Chi Sing of UCH’s AED both stating right and not left arm injury was telling against P’s case, and P could not offer any sensible explanation. His observation that “即係點解人哋中六合彩中兩次呢, 有咩咁出奇呢?” and his suggestion that “…… 如果[Law] …… 嗰方面, 因為佢哋就即係可能係求其寫一隻手算數嘅 ……” only served to highlight his desperation and unreliability. P in his closing submissions made a feeble attempt to challenge the authenticity of the Form 2,[27] but no notice of dispute as to authenticity was filed pursuant to Order 27 rule 4 of the Rules of the High Court. In my view, such assertion was nothing more than a poor attempt to shy away from contradictory objective evidence. I find on balance P merely suffered minor/mild injury to his right wrist/elbow/forearm on 26 November 2008. In my view, P exaggerated his injuries/disabilities. 78.P’s declaration Mr Lim cross-examined P on what appeared to be P’s declaration dated 18 December 2009 to the Labour Department (“Declaration”):
The Declaration referred to a “工傷意外通知書” dated 15 December 2008, which P claimed (a) stated both of his hands were injured, (b) should have been submitted to the Labour Department, but (c) was not disclosed in the present action. P said “即係呢個左右手問題, [P]就已經係去勞工處, 因為[P]報嗰陣時係報兩隻手嘅, [P]唔知佢哋點解成日咁刻意寫一隻手, …… 咁[P]就係自己去勞工處係確實寫咗兩隻手, [P]有文件喺度證明嘅”. 79.P at first said he was not sure whether the signature on the Declaration was his, and he later said he had not seen and did not sign the Declaration and the handwriting thereon was not his. He was not even sure whether the Labour Department received such declaration, but C&L or TPY did obtain a copy from the Labour Department. P also testified:
Given P’s uncertainty and concerns about the Declaration, I do not propose to rely on or place any weight on the Declaration. 80.Termination of Force Way’s employment P’s witness statement claimed “意外後, [P]於[Force Way]的僱主依然有支付給[P]的每月薪金港幣55,000元, 直至[P]因雙手喪失工作能力 ……”, but P testified in-chief this was incorrect as Force Way did not pay him monthly salary of about $55,000 after the Accident. 81.P claimed “…… [P]因意外受傷令到雙手喪失工作能力, 於是[P]在2008年12月1日與[Force Way] 結束僱傭合約”. When queried as to why his employment contract was terminated 5 days after the Accident, P shied away from such question by saying he had no information to hand and had no time to read the file, “廖廣志[C&L’s solicitor]佢點樣做, [P] …… 唔係好清晰嘅 ……”, and he even alleged C&L was not to be trusted. P was even unwilling to say whether 1 December 2008 was the date of termination. But as explained in paragraph 36 above, I am not persuaded the formal termination of the employment contract with Force Way had anything to do with P’s injury as a result of the alleged Accident. Rather, I have found it was for the reason set out in paragraph 36(b) above. On balance, I do not accept P’s assertion in his witness statement that “…… 若非是次意外, [Force Way]亦願意繼續聘用[P]為[Force Way]服務”. As Lam said, P was not irreplaceable and his work had been taken up by other workers of Force Way. 82.Liability Based on the aforesaid findings, the next question is whether D was liable for P’s minor/mild injury to his right wrist/forearm/elbow for negligence, breach of contract of employment and/or breach of statutory duty. 83.In my view, the starting point was that P was used to physical/manual labour (having had 10 years’ experience in the building repair/maintenance industry), and who on his own case had to carry heavy objects and to climb scaffold in his work. In my view, he would have strength, power and dexterity in his arms/hands. The work in question (ie pulling the Loaded Handcart with a load of about 99 lbs which, in my view, was not excessively heavy) was a straightforward and/or non-complicated manual task. 84.I have also found D had arranged for an experienced delivery worker to explain the job to P and took him along the Route, so P would have known the condition of the pavement/road surface. Such experienced delivery worker had also told P how to carry out delivery work including how to lift and pull loads (see paragraph 44 above), and D had made available Baskets and Handcart for P. In all the circumstances, I find D had discharged its common law and statutory duties (including those under OHSO and OHSR). The slight tripping of the Loaded Handcart such that it wobbled and tottered a bit without toppling over was plainly an isolated incident, and I am unable to see what more D could have done to prevent the Accident (as I have found) since any training/aid must be proportional to the complexity and risk of the operation involved.[28] I find that in all the circumstances it was reasonable to leave the task of pulling of the Loaded Handcart to P who was better positioned on the spot to avoid any obviously uneven road/pavement surface. I can do no better than to adopt mutatis mutandis the words of Leong J (as he then was) in Cheung Suk Wai v Attorney General sued on behalf of the Director of Regional Services:[29]
85.I am satisfied there was no negligence or liability on the part of D in respect of the Accident (as I have found). Consequently, there would be no need for me to consider the issue of contributory negligence. However, in case I am wrong on the issue of liability, I proceed to consider the issue of quantum of damages on the assumption (which I disagree) that liability on the part of D had been proved. IV. QUANTUM 86.Personal history P was born on 12 February 1959, and was 49 years old at the time of the Accident. According to the psychiatric report by Dr Pang Pui Fai of UCH’s DOP dated 17 June 2014 (“Psy Report”), P’s father passed away when he was 10 years old, so he had to quit school and work to support his family. But P gave personal history to the Experts that he “was educated in Hong Kong up to Form 3”. P ranked 7th among 10 siblings, but had lost contact with them. P claimed he used to be optimistic and even-tempered. 87.According to the Psy Report, P used to own a restaurant and a fur factory in the 1980s, but his businesses came to an end when the Kowloon Old City was demolished. In 1987 to 1994 he lodged protests against the government and business tycoon for causing his businesses to fail and for cheating him of his money. His marriage did not work out, and he lost contact with his ex-wife and grown child. He lived alone. Since 1997, he worked as a construction site worker. 88.P claimed his sporting activities included diving 2-3 times/week in the summer, horseback riding once a month in Mainland China, hiking 2-3 times/month and swimming each morning in the summer. In his witness statement, P claimed he used to play tennis and badminton, but this was not mentioned to the Experts. As noted in the Psy Report, P told Dr Pang Pui Fai of UCH’s DOP that he enjoyed gambling in casinos. 89.Past medical history P had lymphoma in 1993/1994 and was treated with chemotherapy and radiotherapy. Such disease was in remission although he still had follow-ups. Apart from this, P claimed to enjoy good health prior to the Accident (as I have found). There was no family history of mental illness. P was right-hand dominant, and was a non-smoker and non-drinker. 90.Present complaints P claimed he did not realise his injury was so serious. At first P said his both hands were persistently painful and numb with no real improvement, and jerky movements caused pain, so he had to travel by taxi as he could not firmly hold onto bus handrails. There was an occasion when he dropped a chopstick as he was eating, and his fingers could not move when he tried to pick it up, so he had to rub his fingers for a long time before recovering sensation. P claimed “…… 而家因為隻手成日扯得痛呢, 甚至乎如果揦住一份厚啲嘅報紙揸住行呢隻手都會扯得好痛嘅, 都要放嘅, 所以[P]經常而家啲褲頭整個鉤係掛啲報紙呀, 掛得雜物嘅, 因為攞唔到重嘢, ……”. (my emphasis) 91.According to the Joint Report, P’s complaints were as follows:
92.But in view of the surveillance recordings which showed P could use chopsticks to eat and he could carry a plastic bag holding newspaper (see paragraphs 137-146 below), he sought to emphasise sometimes the pain was more serious (in which case it would be too painful to hold newspaper and/or to hold/use chopsticks or bowl) but sometimes it was less serious. P said under cross-examination “…… 受傷初期係揸唔到筷子同碗, 即係好易跌, 即係攞張紙都困難, 係好痛, 有一段時期係非常痛。…… 慢慢[P]就揸到筷子、揸到碗, 褸屘--即係咁耐嚟呢, 就嗰個痛慢慢[P]就會適應, 同埋[P]而家自己都有鍛鍊下嘅, 即係而家可以揸到筷子、揸到碗、揸到筆，開頭筆都揸唔到嘅, 即係咁多年嚟, 而家喺度慢慢就即係可以揸到, 但係都係痛”. P added “…… 咁如果你伸直呢, 就會--揸碗筷有時咁就住冇問題, 因為[P]食碗飯都好快啫, 唔會好耐”, and if he “…… 專心去睇報紙刨馬或者去賭錢呀, 咁係會減輕[P]嘅痛楚, 但係個痛楚即係都會--仲會有嘅, 但係唔會話消失嘅”. The tenor of such evidence was the pain/symptoms were more severe in the initial stage (ie even up to November 2011 when he was examined by the Experts), but there was gradual improvement over time. But P in his opening submissions claimed “因為呢--就係因為呢個傷勢呢, 佢唔係話當時發生意外立即顯然出嚟嘅, 係咁多年慢慢就發覺佢就愈嚟愈嚴重咁樣, 因為隻手係長期地痛㗎, [P]又去精神科食嗰個止痛藥呀, 甚至乎安眠藥嘅, 因為骨科嗰度就係唔--即係佢嘅痛呢就轉介咗去痛症科, 咁痛症科就即係精神科, [P]而家仲去覆診食緊呢啲藥嘅, 呢隻手[P]都唔知點解會咁嚴重, 痛到而家都仲未好 ……”. 93.P in his opening submissions also claimed “…… 因為就係呢次受傷呢, [P]都唔知道係咁嚴重嘅, 即係可能係傷到神經線嘅，…… [P]諗起應該係拉到傷咗神經線, 所以成日都痛同埋隻手唔聽話 ……”. 94.In relation to use of mobile telephone, P at first said “同埋而家即係隻手即係有時揸電話呢, 都唔知點解會成日跌咗個電話, 即係隻手係唔知係控制佢唔到定咩嘢事情, 自己都唔知。同埋揸電話, 揸住個電話聽, 如果聽得耐呢隻手都會好痛, 要垂番直隻手, 因為揸住屈住呢就會好痛. 痛到要放手”. But when shown the surveillance recordings that showed him holding/using and playing games on his mobile telephone (see paragraphs 137-146 below), P in re-examination complained that the surveillance recording was only a snapshot and claimed “…… 因為[P’s]隻手聽得耐, [P]隻手就會好痛嘅, 除非[P]即係嗰日係狀態好好, 佢就會耐啲, 狀態唔好呢, …… 聽手機耐, [P’s]隻手就會好痺痛㗎喇, 幾分鐘, [P]諗佢就會痛, [P]就要轉手㗎喇, ……” said “而家都係, 揸得耐咪會囉, 但 …… [P]唔明白點解咁樣揸呢, 就唔得喇, [P]到而家都唔明, 即係咁樣都屈起住, 但係揸呢, 就好易痺痛, 就揸唔到㗎喇, ……” and “即係揸住呢--即係佢幾時跌唔知, 佢唔係--即係[P]控制佢揸, 但係佢幾時有事鬆手[P]都唔知, 所以個電話呢, 成日都崩晒角嘅”. But despite such complaint P never used a strap to hang his mobile telephone on his neck because he claimed he would not spend a long time on his mobile telephone, and when he had a painful attack “[P]就直情叫人收線,「我手痛,你唔好傾。」都冇需要同人傾咁耐電話”. 95.P also claimed he had neck pain which caused insomnia. P said under cross-examination “…… 而家呢都成日總要倚賴藥物,食止痛藥或者食精神科畀我哋嘅藥去瞓覺, 因為如果痛呢, 有時呢瞓下覺會痛醒嘅, 到而家都係仲係痛同埋扯住, ……”, and the painkillers he consumed caused stomach discomfort (see paragraph 92 above). 96.P said after the Accident, he stopped diving, swimming and hiking because of upper limbs pain. He had no confidence and was afraid of fall. He also claimed he could not play tennis or badminton. Instead, he went to Macau to gamble. 97.In my view, P exaggerated his claims of injury and disability. I have concluded that P failed to prove injury to his left hand/arm as a result of the Accident (as I have found). His allegations of bilateral upper limbs pain were plainly exaggerated and did not sit well with my finding that he only suffered minor/mild injury to right wrist/forearm/elbow or with the objective medical evidence (see paragraphs 98-130 below). As seen below, P’s neck and psychiatric conditions could not be attributed to the Accident (as I have found). Even in relation to his right hand/arm, I find P crafted his evidence that changed from initial complaints of serious continuous non-stop pain such that he could not hold/use chopsticks and bowl or even hold newspaper to subsequent allegations of “即係你話痛得犀唔犀利, [P]可以話畀你聽有時犀利, 有時唔犀利吖” in poor attempt to sidestep the objective surveillance evidence that he could move both upper limbs easily. But then he backtracked again in re-examination by saying the pain had become serious in recent years due to neuropathy (but as seen below I do not accept there was any neuropathy):
In my view, P’s allegations were tailored and unreliable. 98.Injuries and treatment As explained in paragraphs 73-75 above, P attended UCH’s AED on 26 November 2008 complaining of injury to his right forearm at work. According to the medical reports by Dr Lam Chi Sing of UCH’s AED dated 23 September 2009 and 9 April 2014, examination showed P’s condition was fine/stable with mild pain and superficial edema / tenderness at the right forearm. No external wound was seen and there was good ROM of the right arm. No x-ray was taken. The AED records gave diagnosis of musculoskeletal pain.[30] P was treated as right forearm sprain or soft tissue injury with analgesics, and was discharged for home rest. 99.P was given sick leave for 10 days until 5 December 2008 for “right forearm pain”, but the sick leave certificate did not specify any follow-up appointment or any avoidance of heavy physical duty as evident from the “N/A” notations for such matters. But P insisted UCH’s AED gave him a follow-up appointment slip, and “[the doctor]係有講[P]需要返去覆診, …… 但如果[P]急就可以去睇賽馬會先, 因為骨科排期需要時間嘅”. P in re-examination said that in respect of the aforesaid notations of “N/A” in the sick leave certificates issued by UCH, NTKJCC and/or KTJCHC, “…… 其實係任何假紙, 一般人[hospital/clinic]都係會咁樣寫嘅, 就唔關[P]呢單case係有冇咩嘢事嘅, 即係唔係--應該都會睇到嘅, 即係呢啲假紙, 你十張, 九張[hospital/clinic]都係寫咩嘢NA咁樣嘅”. I disagree. I note when P attended UCH’s DOP for medical consultations, the sick leave certificates dated, say, 24 June, 22 July and 28 October 2013 all specified follow-ups on 22 July, 12 August and 9 December 2013 respectively. As further example, the department of orthopaedics and traumatology (“DOT”) of UCH issued sick leave certificates on 11 February 2011, 15 August 2012, 3 April 2013 and 25 July 2013 that specified follow-ups on 22 March 2011, 5 December 2012, 29 May 2013 and 24 July 2013 respectively. 100.When pressed, P said “…… [P]係不停係要痛呢, [doctor]就叫[P]「你有事就返去睇醫生」, 咁你話係咪要覆診, 你嘅定義係點[P]就唔識, …… 因為[P]有需要就去睇醫生, 唔係醫生指定要我幾時去睇醫生, 睇醫生, 唔係咁嘅”. In my view, there was in fact no scheduled follow-up appointment, and P merely sought medical consultation when he perceived a need. Clearly, the doctors at UCH’s AED and at NTKJCC and KTJCHC who issued sick leave certificates in the initial period after the Accident (as I have found) did not consider the right wrist/forearm/elbow injury to be sufficiently serious to merit scheduled follow-up. 101.P claimed that by early December 2008 he already knew he was seriously injured because he never felt such pain before even though he had worked for many years. He claimed that by such time he could not even hold a teapot or anything, and he had spoken with fellow workers in the industry who told him there was no cure for such condition, which he believed as he had seen others who were unable to work after injury. 102.Dr Lo Kwok Tai noted P first attended NTKJCC on 5 December 2008 (ie upon expiry of sick leave granted by Dr Lam Chi Sing of UCH’s AED) complaining of bilateral elbow sprain at work. P complained of “severe pain with [right] hand numbness”. Examination showed right elbow had limited ROM due to pain with tenderness over the lateral region of the elbow, but left elbow had normal ROM. There was mild decrease in muscle power of both hand grips. P was treated with analgesics. In light of such record in NTKJCC’s consultation summary and Dr Lo Kwok Tai’s medical report dated 1 September 2009, I reject P’s assertion in his witness statement that the examination on 5 December 2008 revealed “[P]雙手邊肘肌肉都有骨骼壓痛情況出現”. The physical examination did not reveal any problem with the left arm, which did not sit well with P’s assertions in the above paragraph as to his condition in early December 2008. 103.NTKJCC’s consultation summary for 5 December 2008 recorded P “come for [sick leave]”. According to the sick leave certificate issued on 5 December 2008, sick leave was granted for 4 days up to 8 December 2008 for “right forearm pain”, but again by the “N/A” notations there was no requirement for follow-up and/or avoidance of heavy physical duty. 104.By a medical report dated 3 August 2009, KTJCHC’s Dr Lo Ling reported P first consulted such clinic on 9 December 2008 (ie on expiry of sick leave granted by NTKJCC) complaining of bilateral elbow pain. P complained of “severe pain with [right] hand numbness”. Examination revealed active ROM (“AROM”) of the right elbow to be grossly limited because of pain but passive ROM (“PROM”) was normal with mild tenderness at the right lateral elbow. The left elbow demonstrated full AROM and PROM. Functionally, the right and left hand grip power was 4/5 and 4+/5 respectively. X-rays of both elbows showed normal alignment with no fracture, dislocation or specific soft tissue abnormality. P was offered medication and sick leave to 12 December 2008. 105.KTJCHC’s consultation summary for 9 December 2008 recorded P “come for [sick leave] and [right] elbow pain”. P disagreed and claimed it was impossible for him to require the doctor to give him sick leave, but he agreed he learned from the Labour Department and knew sick leave certificates were required for obtaining periodical payments (commonly called “4/5 pay”) in respect of injury on duty, and he further admitted “[P]睇醫生係攞病假紙係同意, [P]睇醫生一定係要攞病假”. 106.A number of matters were of note. First, P’s allegation of right elbow pain to the doctor at KTJCHC was subjective, but plainly it was not as serious as P claimed. This was borne out by the fact that although AROM of the right elbow was limited, its PROM was normal with only mild tenderness over lateral elbow region. This was consistent with the finding that P only suffered minor/mild injury to his right wrist/forearm/elbow. I note there was no finding of any specific soft tissue abnormality. Secondly, there was nothing objectively wrong with P’s left arm as its AROM was full. Indeed, the doctor’s diagnosis was right forearm pain without any diagnosis for the left arm even though he noted P’s complaint of bilateral elbow pain, and examined and took x-ray of both elbows. Thirdly, it was obvious that apart from seeking consultation for the minor/mild injury to his right wrist/forearm/elbow, P’s essential purpose for attending NTKJCC and KTJCHC on 5 and 9 December 2008 was to continue his sick leave. After all, doctors at different clinics made record that P came for sick leave, and P also admitted as much in his evidence. Fourthly, no follow-up was scheduled because the consultation summary recorded “Advised + FU PRN” which meant follow-up was pro re nata, ie when necessary. 107.On 13 December 2008, P again attended NTKJCC. Dr Lo Kwok Tai of NTKJCC noted x-rays taken on 9 December 2008 at KTJCHC showed normal alignment, no fracture, no dislocation and no fat pad elevation. P re-attended NTKJCC 4 times during 13-27 December 2008 complaining of bilateral elbow pain and “come for sick leave (2 times)” (ie on 20 and 23 December 2008). Examination on 13, 27 and 30 December 2008 revealed no swelling, redness, increased temperature or tenderness of bilateral elbows. Left elbow had “full AROM” and right elbow had “decreased flexion? due to pain”. The consultation summaries for 20 and 23 December 2008 also recorded P had seen private doctor who made referral for DOT. P was treated with medication. 108.According to KTJCHC’s consultation summary for 15 January 2009, sick leave was given “as requested”. According to KTJCHC’s consultation summary for 30 January 2009, P “come in consultation room, request at least 8 to 10 days sick leave, otherwise will not leave consultation room, letter given to advance O&T apt already …… [sick leave] 7 days, explained sick leave issue, [P] said he will complain ……”. Physical examination revealed P’s general condition was good and “both elbow ROM full, nontender, no deformity”. P claimed under cross-examination that he would not be so unreasonable as to threaten to remain in the consultation room unless he was given 8-10 days’ sick leave because he knew he had no right to dictate the length of his sick leave, and he did not lodge complaint against the doctor. P said “[P]唔知點解醫生咁寫, [P]唔明白, 因為而家啲人好本事嘅”. In my view, it could not have been fortuitous coincidence or concerted conspiracy for different doctors at NTKJCC or KTJCHC on different days to record P attended the clinics to request sick leave. On balance, I find P did request for sick leave and was upset when the doctor was reluctant to grant sick leave as he wished. 109.When cross-examined as to why P intermittently attended NTKJCC and KTJCHC over an extended period, P said he had to make advance booking of medical appointments and he would approach any clinic that offered available booking slot. I find on balance (as reflected in the consultation summaries) P actually attended medical consultations at such clinics to request sick leave for the purpose of obtaining periodical payments. Whilst I accept (as the initial records showed) there was minor/mild right wrist/forearm/elbow pain, there was nothing wrong with P’s left arm which had full AROM despite P’s assertion of bilateral upper limbs pain. This was also reflected by the fact that initial sick leave certificates for the period from the Accident (as I have found) to 29 January 2009 gave sick leave for “right elbow pain”, “right forearm pain” and/or “right forearm and elbow pain”. 110.Dr Lo Ling confirmed P re-attended KTJCHC 19 times from 30 December 2008 to 28 July 2009. P complained of bilateral elbow pain, on and off dyspepsia after NSAIDs, numbness of the right hand, feeling weak on right elbow flexion, “services at NTK GOPC”, disturbed sleep, on and off pain at the elbow, tingling pain (but more on right side), more pain on holding object, right forearm pain, numbness of the right hand, on and off right elbow pain and tingling on movement, left elbow pain also on movement, some urinary frequency (but refused further test for urine) “and ask for sick leave extension (3 times)”. 111.On 6 February 2009, Dr Kwan of KTJCHC recorded that “in view of muscle bulk over forearms, - with/circumference more than 15 cm, and without obvious atrophy over forearm there is estimated lifting max load 3 kg at this moment* this judgment is subject to further assessment/modification by occupational therapist, after physiotherapist”. The consultation summary noted “[sick leave] 5 days (for lack of signs of inflammation)”. P said “因為[P]係拉傷咗乜嘢[P]都唔知，表面冇發炎，一直以來表面都係冇乜發炎嘅”, but as seen in paragraph 114 below and also in his opening submissions (see paragraphs 92-93 above), P alleged there was neuropathy. Examination on 28 July 2009 revealed tenderness over both lateral epicondyles, but AROM was full. These examinations revealed gradual improvement over the period from 30 December 2008 to 28 July 2009. P was offered oral and topical pain control and sick leave, and had been referred to DOT of Queen Elizabeth Hospital (“QEH”) and for physiotherapy. The Experts noted from the available receipts P had physiotherapy for 5 sessions from 18 March to 17 April 2009. I also note KTJCHC’s consultation summaries for 5 and 10 March and 6 June 2009 all recorded P “come alone for [sick leave] extension”. 112.Dr H K Kong of Kwun Tong Occupational Health Clinic (“KTOHC”) noted P first came to the clinic on 6 April 2009 claiming he had sprain injury at work on 26 November 2008. P’s main concern was both upper limbs pain which he attributed to the alleged Accident. Examination revealed weakened power over the upper limbs, but muscle tone was normal and reflexes of the upper limb were mildly decreased. P expressed severe pain on palpation of both upper arms with pain persistent even at rest. X-ray cervical spine was offered, but declined by P who claimed he had taken x-ray for neck in March 2009 with normal result. Dr H K Kong noted P came back for follow-up on 20 April 2009 with similar clinical conditions, but refused referral to physiotherapy again and requested referral to QEH’s DOT for further management. Sick leave was given for the periods during 6-9 and 20-23 April 2009 for “upper limbs pain”. 113.In my view, it is significant to note the objective medical evidence for the period from February to April 2009 (or indeed to July 2009) was that P’s condition was improving, and the absence of muscle atrophy and the normal muscle tone as well as the lack of inflammation suggested P’s condition was better than the subjective complaints of severe pain and restricted mobility of upper limbs that he presented. More importantly, “there is estimated lifting max load 3 kg” which flied against complaints that he could not carry newspaper, hold/use mobile telephone and/or hold/use bowl and chopsticks. The medical records also indicated P sought sick leave extension, which P used for obtaining periodical payments. 114.According to P’s witness statement, he first consulted private doctor Dr Lau Wing Fong (whose professional qualifications of MB, BS (HK) suggested he was a general practitioner, “Dr Lau”) on 13, 23 and 30 March 2009 when he was respectively given sick leave for 10, 7 and 10 days. P consulted Dr Lau again on 14 and 24 April 2009 and was given 10 days’ sick leave on each occasion up to 23 April and 3 May 2009 respectively. P’s witness statement also stated he attended KTJCHC on 20 April 2009 and was given 4 days’ sick leave up to 23 April 2009, which apparently overlapped with the sick leave granted by Dr Lau. P said although it was more expensive to seek private medical treatment, did so because:
However, despite P’s suspicion and complaint, there was no medical evidence of any neuropathy in relation to P’s upper limbs in any treatment medical report, treatment medical records and/or the Joint Report. More importantly, there was no medical report from Dr Lau to such effect. The relevant diagnosis was soft tissue injury. It was apparent from the chronology in P’s witness statement that the public hospitals/clinics gave P almost continuous sick leave from 26 November 2008 to July 2009, but since March 2009 P regularly consulted Dr Lau and obtained sick leave. Given the contextual background of P’s minor injury/condition (as I have found) and the improving state of his right arm, the situation in 2009 to 2013 smacked of gradual reluctance by public doctors to grant sick leave despite P’s requests/demands, and P turning to Dr Lau who was more willing to accommodate such requests/demands. 115.P agreed he attended general outpatient clinics for half a year, and was referred to occupational therapy several times (but he could not remember whether he stopped going for such therapy himself or whether the doctors terminated such therapy). He also agreed he had left side neck pain for which he had physiotherapy at Yung Fung Shee Memorial Centre for 2-3 weeks, but claimed he defaulted due to weakness of upper limbs. Since the appointment at QEH’s DOT was a long time away, he consulted private doctor Dr Kwok Kin Wa in November 2009 for sprain neck and sprain both/right shoulder(s). Dr Kwok took x-ray and prescribed medication. Dr Chun considered P’s neck pain complaint that developed later was part and parcel of his expansion/magnification of symptoms. Even Dr Fu agreed (and I accept) that from the available documents neck pain and upper limbs numbness were not documented in the first few weeks after the alleged Accident, and “should not be related to the accident”. 116.The Joint Report summarised P’s treatment during this period as follows:
117.In 2010-11, P went to see a bonesetter 5 times and was treated with herbal application. He told the Experts he had temporary relief, but it was too expensive. The Joint Report noted P had “bonesetter sick leave 5 days”. P claimed he went to Mainland China for “chi gong” 2-3 times for half a year with psychological improvement, and for massage for 2-3 times/week more than a year before he was interviewed by the Experts. 118.The Joint Report noted “[from] 11/2/2011 to 11/7/2011 [P] attended DOT clinic 4 times with sick leave to 5/9/2011. Then he attended [Dr Lau] on 6/9/2011 and had sick leave to 15/9/2011. He then attended DOT clinic on 9/9/2011 and on 25/10/2011 with sick leave given to 7/12/2011”. 119.According to the medical report dated 3 April 2014 by Dr Lau Sun Wing of UCH’s DOT, P first attended the outpatient clinic of UCH’s DOT on 30 November 2010 pursuant to referral by private doctor. On that day, P complained about neck pain and bilateral limb weakness/clumsiness. He said the pain improved after massage. Examination showed bilateral limb power was 4/5 and private x-ray of cervical spine showed spondylosis. According to the Joint Report, P attended UCH’s DOT clinic on 11 February 2011 for bilateral elbow pain, and later for neck pain and elbow pain, and bilateral upper limb numbness and weakness. 120.I have found P’s complaints in relation to his neck and left arm were not caused by the Accident (as I have found). Indeed, the medical report recorded “[P] did not mention about any injury during the first three outpatient visits to our clinic”, and it was only during subsequent follow-up that P mentioned history of sprain injury to bilateral upper limbs when at work as delivery worker on 26 November 2008. On balance, I find this to be unreliable afterthought. 121.According to Dr Lau Sun Wing’s medical report, P refused MRI scan as he feared radiation although UCH’s DOT assured him there was no radiation during MRI scan. P defaulted MRI appointments on 30 April 2012 and 22 August 2013, and was given analgesics. Thus, “[repeated] examination of [P’s] upper limb was difficult and was of doubtful accuracy. There was no objective myelopathic hand signs detected. Clinically there was no definite evidence of cervical myelopathy”. When P was followed up at UCH’s DOT clinic on 24 October 2013, he complained about vague neck pain and bilateral upper limb numbness and weakness, but bilateral upper limb power was almost full and he could walk unaided with a stable gait. But P refused MRI scan to rule out problems in his cervical spine. In my view, the above medical findings by UCH’s DOT (a) supported my conclusion that there was no neuropathy, and in any event the Experts and I had found P’s neck condition was not caused by the Accident (as I have found), and (b) demonstrated P’s upper limbs power was almost full despite his vague complaints, which did not sit well with P’s complaints of inability to carry, hold and/or use newspaper, mobile telephone and bowl/chopsticks whether on continuous or on on-and-off basis. 122.P also informed the Experts that QEH’s DOT told him he had no problem for which he had a quarrel with QEH’s Dr Chin, gave foul language to Dr Chin and complained to the Hospital Authority (but no action was taken). When cross-examined about this incident, P said he could not remember clearly, but it seemed (a) his appointment with QEH’s DOT had already been expedited,[31] (b) the doctor at QEH’s DOT “…… 佢睇都唔睇[P]就話「你冇事, 你走得。」……, 咁[P]咪話「嘩, 你睇都唔使睇就話冇事,走喇?」佢話「得喇,我叫你走就走。」咁[P]同佢嘈過交嘅, …… 咁[P]好唔接納呢樣嘢”, and (c) he complained against such doctor to the Hospital Authority but it was ineffective as there was no reply. 123.According to Dr Lau Sun Wing’s medical report dated 3 April 2014, P also complained about depression and was referred to UCH’s DOP for assessment. According to the Psy Report, P was first seen by UCH’s DOP in February 2013 for assessment of low mood and poor sleep due to pain. On further probing, he recalled having been persecuted by business tycoon who failed to properly compensate him for closures of his businesses in Kowloon City despite his protests. He believed the business tycoon had arranged to monitor him for over 20 years with sophisticated electronic devices installed in his home, so he had to cut off connections with his mother and siblings to protect them. He further believed the business tycoon poured poison into the sea to make him suffer from lymphoma. He denied any plan to take revenge, and mentioned Jesus Christ had appeared before him and talked to him to cheer him up and to save his life so he could spread the word of God. He told UCH’s DOP that whilst he was at first skeptical, he finally agreed to attend psychiatric consultations because he thought God made him do so, but he was once paranoid about clinic staff having delayed him from seeing the doctor. As at March 2014, P (a) boasted of his winnings at casinos in Macau due to special gambling skills blessed by Chinese god of wealth and Jesus Christ, (b) complained of physical discomforts such as numbness and weakness, (c) volunteered to talk to the police/gangs who wanted to target him, and (d) promised good adherence to psychotrophic drug. Dr Pang Pui Fai of UCH’s DOP concluded P’s psychiatric symptoms were compatible to “psychotic disorder”, and he needed continuous psychological and drug treatment. P claimed he felt dizzy/tired because of psychiatric medication, but if he did not take such medication he would become “暴躁不安”. The available sick leave certificates showed he was given sick leave for “psychosis” in 2013-2014. 124.On balance, I am not persuaded P’s psychiatric condition was caused or contributed to by the Accident (as I have found). It was clear from the Psy Report that P’s psychotic disorder and/or schizophrenia originated from his previous altercation with the government and business tycoon over what he perceived as unfair treatment in relation to closure of his businesses, and not from the Accident as I have found. 125.According to P’s witness statement, he consulted Dr Lau many times from 13 March 2009 to 6 January 2014, and every time he was given 7-22 days (but mostly 10 days) of sick leave. P said medication prescribed by doctors at UCH caused him to have high blood pressure, so they stopped prescribing medication for him and he was forced to consult Dr Lau. P further said doctors in the public sector were unwilling to prescribe medication given by Dr Lau, eg Dr Lau gave him a night drug for better sleep for a year. P claimed “[Dr Lau]就有精神隻藥畀[P]食呢, 就令到[P]舒緩咗, 隻手冇咁痺、冇咁痛, 但係就愈嚟愈貴喇, …… 所以[P]而家都經濟能力冇, [P]而家都冇去睇喇, …… [P]覺得[Dr Lau]okay, 畀藥[P]食, [P]食到冇咁痛, 同埋啲神經線冇咁痺, 咁[P]就繼續睇[Dr Lau]”. 126.I note there were only sick leave certificates but no medical report from Dr Lau to support P’s above assertions. Further, both Experts accepted P’s neck condition and alleged numbness were not attributable to the alleged Accident. There were no myelopathy hand signs and no record of neuropathy despite P’s allegation of “神經線 …… 痺”. Also, I have found P’s psychiatric condition was not caused by the Accident (as I have found). In any event, Dr Lau did not appear to be a specialist in psychiatry, and his prescription for “精神隻藥” for P’s psychosis was not attributable to the Accident (as I have found). 127.According to the medical report dated 27 April 2014 by Dr Tang Chik Hei Geoffrey of UCH’s department of ophthalmology, P attended the eye clinic once on 21 April 2009 but defaulted follow-up appointment. He complained of occasional transient C-shaped photopsia associated with headache. Occular examination was normal, so his symptoms might be migraine or amaurosis fugax related. He was referred to the department of medicine for further workup. On 11 March 2013, Dr Lau gave a referral letter to UCH for P’s retinal arterial occlusion. 128.According to the medical report dated 17 May 2014 by Dr Chan Hoi Kei of UCH’s department of medicine, P had history of retinal arterial occlusion, lymphoma, schizophrenia and lower urinary tract symptoms. According to the medical report dated 13 May 2004 by Dr Cheung Man Hung of UCH’s department of surgery, P was seen at the urology clinic on 11 February 2009 for left loin pain and claimed to have passed small stone in urine. Ultrasound of the urinary system done on 25 March 2009 was normal, and P thereafter defaulted urology follow-up. At the follow-up at UCH’s department of medicine on 22 January 2014, P had abnormal lipid profile. It appeared he often dined outside so dietary advice was given, but P declined dietician referral. P complained of lower urinary tract symptoms with incomplete emptying, and was referred to urology clinic. 129.According to the Joint Report, P told the Experts “[he] went to see Dr Lau for venereal disease”. He told the Experts he had difficulty in having sex (see paragraph 91(d) above), and said under cross-examination he bought Viagra from Dr Lau. P in his witness statement claimed “[P]的性生活亦因為雙手的痛楚而受影響, 為此[P]感覺心情低落和壓力大”. But under cross-examination, P admitted Dr Lau did not tell him and he did not know whether his sexual problem had anything to do with his injury even though such problem surfaced after the Accident. 130.In my view, none of P’s conditions in paragraphs 127-129 above were related or attributable to the Accident (as I have found). There was simply no medical evidence to establish any or any reliable causative connection between these conditions and the Accident (as I have found). I cannot see how P’s eye problem, urinary tract problem and/or loss of libido had anything to do with the Accident (as I have found). 131.Sick leave The Certificate of Assessment dated 25 August 2011 (Form 7) described P’s injury as “sprain injury resulting in right forearm pain and weakness”, and the Certificate of Review of Assessment dated 20 October 2011 (Form 9) described P’s injury as “sprain injury resulting in both upper limbs (forearm and arm) weakness, pain and numbness”, but remarked that “the board does not arbitrate on the liability of the parties concerned ……” This is consistent with P’s claim that he subsequently wrote to UCH and the Labour Department to “correct” their records of right forearm/elbow injury to bilateral upper limbs injury (see paragraphs 75 and 79 above), so the description in Form 9 was merely premised on P’s assertions, but could not be supported in light of my findings. It was obvious from Form 7 that P’s initial complaints to the treatment doctors were focused on his right forearm/elbow. 132.The “period of absence from duty necessary as a result of the injury” under Form 9 covered the periods from 26 November 2008 to 3 January 2009, 5 January to 12 April 2009, 14 April to 27 July 2009 and 24 July 2010 to 6 October 2011. According to the Joint Report, the sick leave certificates revealed P was granted on-and-off sick leave from 26 November 2008 to 7 December 2011 after which there was no other treatment. But according to P’s witness statement, P (a) consulted Dr Lau 10 times between December 2012 and January 2014 and was given total sick leave of 100 days from 19 December 2012 to 15 January 2014, (b) attended follow-up 11 times at UCH between February 2012 to December 2013 and was granted total sick leave for 651 days, and (c) was given a total of 1,712 days of sick leave during the period from 26 November 2008 to 9 December 2013. But as explained in paragraph 123 above, sick leave from 3 June 2013 onwards was for psychosis. 133.Joint Report Given my findings in relation to the Accident and the minor/mild injury to P’s right wrist/forearm/elbow, Dr Fu’s opinion that rested on soft tissue injury to bilateral elbows and residual pain in both upper limbs could not be supported. Thus, I do not accept Dr Fu’s view that the condition of P’s bilateral upper limbs was static, that his bilateral upper limbs’ pain and weakness would likely persist, and that P would require symptomatic treatment on a need to basis. I am not satisfied P had 4% whole person impairment as Dr Fu opined. 134.On physical examination by the Experts, P was able to remove his shirt and T-shirt without problem (which, in my view, indicated reasonable ROM of both upper limbs). There was no swelling of neck, no deformity and no muscle spasm. Mild tenderness was reported at the left trapezius. There was no swelling, asymmetry or muscle wasting of the shoulders. Tenderness was reported at bilateral AC joint, left trapezius, right trapezius scapula and right clavicle. Upper limbs circulation was good and normal with no swelling. Wrists/elbows were normal with full ROM of hands. Tenderness was reported at the finger joints and bilateral arms with 30% decrease in sensation of upper limbs, but arm girth of arms/forearms were equal on both sides. 135.Dr Chun opined (and on balance I accept) that (a) P’s allegation of prolonged pain “first on the right and then on left and then had neck pain and bilateral upper limb numbness is not compatible with a sprain injury which would have recovered within a short period of time. …… There was no structural and no pathological diagnosis”, (b) P’s complaint of “continuous nonstop pain on whole upper limbs bilaterally was inappropriate and his disability much exaggerated out of proportion to the initial symptom if indeed there”, and (c) with no objective abnormal findings, “30% reduction of sensation of whole upper limbs bilaterally was non-anatomical and not related to the initial symptom occurrence if indeed occurred”. The Experts agreed P was independent with his activities of daily living (and this was borne out by the surveillance evidence discussed below). Dr Chun opined (and on balance I accept) P could continue with his sports without limitation or restriction, and Dr Fu did not suggest otherwise. 136.I also prefer Dr Chun’s opinion that prognosis was good from objective perimeters. In my view, the minor/mild injury to the right wrist/forearm/elbow was nothing more than soft tissue injury which had healed within reasonable time. I do not accept P suffered and continued to suffer from such serious pain as he alleged whether on continuous or on-and-off basis. As pointed out by Mr Lim, the lack of muscle wasting and muscle spasm and equal are girth of bilateral arms/forearms were objective indicators of recovery and use of the relevant limbs.[32] Further, physical examination revealed that upper limbs circulation were good with no swelling, and wrists/elbows were normal with full ROM of hands. As seen in the surveillance recordings over various days in 2010 and 2013, P showed dexterity of hands/fingers, and appeared to be at ease with movements of the upper limbs without facial grimaces or other signs to indicate he was in pain/discomfort. 137.Surveillance evidence The surveillance recordings were made on 30 November and 1 December 2010, and also on 7 and 10 January 2013. P complained that the surveillance recordings were snapshots that would not truly reflect his condition. Whilst I accept surveillance recordings were necessarily snapshots, what was depicted in such recordings was consistent with my findings. All these recordings showed P had natural swing of upper limbs as he walked, and the movements of bilateral upper limbs were smooth and at ease. There were no signs P was in pain/discomfort. He was seen time and again lifting his right arm/hand to rub his face or scratch his head. 138.According to the surveillance recording on 30 November 2010, as P walked out of UCH in the afternoon, he was seen using his right hand to take out his mobile telephone from his bag, operate it and put it back in his bag (4:32pm). At Tsui Ping Estate, P went up an escalator holding the handrails with both hands. He was then seen at a “dai pai dong” having a meal using chopsticks. Under cross-examination, P tried to explain this away by saying “[P]都話你聽係有時冇問題, 係有時先至有問題之嘛, 佢唔係成日有問題吖嘛”. In re-examination, P said “至於你影嗰啲影帶, 就係話[P]可以食麵咁樣, 因為你 …… 得嗰一秒, 你冇全--睇晒[P]食麵, 因為嗰日隻手有少少痛, 我係一隻手食麵, 一隻手係冇攞個碗嘅, 係咁樣𢱕喺度食嘅, 因為隻手係有時好痛, 係唔想喐嘅, 有時正常冇咁痛, 食咗藥, 好啲喇, …… [P]就可以食牛肉、攞水壺咁樣, 即係你呢啲帶, 就[P]覺得係有少少唔公平, 因為可以影埋[P]食晒嗰碗麵”. In his closing submissions, P claimed “因為影[P]食麵嗰時, [P]係凈係右手𠌥低揦麵食, 即係攞筷子夾麵, 嗰一、兩秒佢唔繼續影落去, 因為嗰日—[P]因為隻手痛去睇醫生, 個右手就係揸筷子, 隻左手攞碗嗰時, 其實[P]應該係好--隻手係好唔穩定, 一揦起個碗應該係跌咗個碗, 佢冇影低嘅, 所以佢呢餅帶就唔係事實嘅全部嚟嘅” (my emphasis). 139.In my view, despite P’s complaint that the surveillance recording was a snapshot view of his having a meal with chopsticks, taking into account my findings and the treatment and expert medical evidence, I find on balance the recording reflected P’s condition at the time, ie his right hand had no problem in using chopsticks at all. P was plainly making up his case as he went along. I note he did not give evidence that he attempted to pick up the bowl of noodles and he could not hold the bowl due to unsteadiness of his left hand. In my view, this was nothing more than evidential embellishment to suggest his condition was worse than objectively presented. 140.The surveillance recording on 1 December 2010 showed P walked up a footbridge at Tsui Ping Road to the MTR entrance. Inside the MTR train, P was seen taking out a piece of folded paper from his bag, opening up the folded paper to read it and then putting it in his shirt pocket (10:04am). When P alighted at Sheung Wan station and walked to the exit for Shun Tak Centre, he was seen using left hand to hold his mobile telephone and talk on the mobile telephone. P gave evidence that “[P]同你講冇困難㗎, 耐先有困難㗎嘛”. P was later seen sitting at Maxim’s fast food shop reading newspaper and using both hands to turn pages, so he agreed he had no difficulty in using his hands to turn pages of a newspaper. P was also seen using his left hand to take out his mobile telephone, talk via the mobile telephone and putting it back in his pocket. Then P and a man bought tickets for the ferry to Macau, and they entered customs control to exit Hong Kong. In my view, the surveillance recording showed P was comfortable with dexterous use of both hands, and there was no indication of discomfort/pain or stiffness of the fingers. 141.For the surveillance recording on 7 January 2013, P was seen using his right hand to take out and use his mobile telephone (9:09am). He took a minibus and went up a staircase to KT Station. He took the MTR train to Yaumatei station when he was seen using both hands to operate his mobile telephone (9:45am). He went to a restaurant at In’s Point Shopping Arcade where he sat at a table to have tea. He was seen reading from his mobile telephone, and talking on his mobile telephone (that was held by his left hand). He was also seen using his right hand to hold and lift both teapot and chopsticks and pour from the teapot, hold and lift both chopsticks and dim sum basket, and use chopsticks to pick up dim sum to place in his mouth (10:38). Under cross-examination, P agreed he had no problem with such motions. 142.The surveillance went on to show P later left the restaurant and was found talking to a woman at the entrance of In’s Point Shopping Arcade. At that time he was holding a bundle of papers as well as a plastic bag containing newspaper in his left hand (1:12pm). He said his female friend “因為有啲紙唔識睇，叫[P]幫佢睇吖嘛” (even though P claimed he knew few Chinese characters) as she had injury on duty and her son (who had since passed away) had cancer at the time. P could not remember what documents he had in his left hand, but the recording showed some documents with a logo similar to that of the Hospital Authority. Afterwards, P and his female friend walked along Nathan Road, and P was seen using his right hand to pull a small trolley behind him (1:19am). Under cross-examination, P claimed he asked his female friend “…… 點解攞架車仔, 擺晒落嗰個車仔度拖, …… 佢話因為隻手痛, 仲要買餸, 所以攞呢架車仔出嚟, 咁若果係隻手痛呢, 佢話叫[P]幫佢拉一下, 咁我同佢拉, 好輕嘅啫, ……” In re-examination, P said “…… 拉個車仔係好輕便嘅, 根本就係唔重嘅, 同埋佢講嗰個[P]食嘢嗰啲日常生活, 嗰啲係只不過好短暫時間, 係--我冇攞重嘢，係睇唔到[P]個傷勢, …… 因為呢一個係嗰啲日常生活係咪有少少影響, 即係唔係話太大嘅”. 143.Then P parted ways with his female friend, and walked to Dundas Street where he met a man. P said he intended to visit Dr Lau’s clinic there, so when his friend had some problem with injury on duty and wanted to talk to him, he asked his friend to meet him outside Dr Lau’s clinic. P was seen holding a bundle of documents (the recording showed that some of them had a logo similar to that of the Hospital Authority), but he could not remember what they were. Then P and his friend entered Dr Lau’s clinic. But it transpired there was no record that P had medical consultation with Dr Lau on 7 January 2013. In fact, after his visit to Dr Lau on 19 December 2012, he next attended Dr Lau on 23 January 2013. P then said under cross-examination that “…… [P]係嗰日睇過, [P]唔清楚, 因為有時爆棚[P]會走嘅, 因為[Dr Lau]嗰度好--好爆棚嘅, 即係唔係你話去睇就有得睇嘅”. I am not persuaded P went to Dr Lau’s clinic on 7 January 2013 because of upper limbs pain or numbness, and there was no need for me to speculate whether he was there to help his friend seek medical help for his injury on duty. 144.In my view, the surveillance recording on 7 January 2013 showed P was comfortable in using both hands to operate his mobile phone, to use chopsticks, to pick up teapot and pour, to pull a trolley from behind, and to hold/handle bundle of papers. He was also able to turn his neck freely, and the motions of his upper limbs were smooth and his hand/finger movements were dexterous. The objective recording contradicted P’s claim of serious pain/discomfort whether on continuous or on-and-off basis. 145.The surveillance recording on 10 January 2013 showed P going to KT Station, and he was seen leaning at a corner using both hands to hold his Apple iphone (11:32am) “…… [P]一係就打訊息、一係就喺度玩遊戲機，就撳嗰個寶石[electronic game called “Jewels”]”. He confirmed there was no problem for him to do so continuously for, say, 3 minutes, which did not sit well with P’s allegations that holding and using his mobile telephone for a few minutes would cause severe pain and numbness (see paragraph 94 above). P was later seen having tea with a woman at a restaurant. He could easily use right hand to pick up his teacup to drink, pour from the teapot for the woman and for himself, and use chopsticks to pick up dim sum to put in his bowl and to eat. P admitted under cross-examination he had no problem with such motions. After P and the woman left the restaurant, they walked up a staircase to KT Station during which time P held newspaper in his right hand. Inside the MTR train P was seen holding newspaper with both hands. He alighted at Sheung Wan station and held newspaper in either hand as he walked towards Shun Tak Centre to enter a restaurant. 146.P claimed he might have told the Experts in November 2011 it was painful to hold newspaper to read for 2-3 minutes, but the situation was different about a year later in January 2013 because by that time he had no problem in holding newspaper to read. P claimed in re-examination that “事實上就冇問題, 因為[P]不停要揸嘢練習㗎嘛, 唔通[P]隻手痛, [P]唔揸, 由得佢痛唔揸嘢, 由得佢愈嚟愈咩嘢咩, 萎縮咩? [P]而家都萎縮咗好多㗎喇, 咁[P]一定要不停運動, 醫生都鼓勵[P]成日揸住嘢練習, 痛你就先至放手, 再大力遞起佢, [P]不停要做--做嘢, 運動佢㗎嘛,直至到忍受唔住為止”. Such assertion did not feature in P’s witness statement or did not sit well with findings by the doctors in early 2009 that there was no muscle atrophy, muscle tone was normal and he could lift load up to 3 kgs (see paragraphs 111-113 above). I find on balance that all along P had no problem with holding and reading newspaper, and at the time of the recording in 2013 he had dexterous use of his hands and fingers without pain. 147.Pain, suffering and loss of amenities (“PSLA”) In the RSOD, P claimed $300,000 for PSLA in respect of his “constant pain and discomfort”. I have reviewed the cases cited by Mr Lim.[33] No two cases are the same in respect of the factual circumstances and relevant injuries/disabilities, but taking into account P’s minor/mild right wrist/forearm/elbow injury, his good rehabilitation, his exaggeration of symptoms/disabilities, his treatment history and presentation under surveillance recording as analysed above, I find the appropriate award for PSLA is $100,000. 148.Pre-Accident earnings I refer to paragraphs 30-33 above and find P’s pre-Accident earnings were $6,500/month as full-time delivery worker. I have found there was no reliable evidence as to the scope/extent of his work and earnings as contractor. In any event, I have found he would not be making much otherwise he would have sought full-time employment as a delivery worker. 149.Pre-trial loss of earnings and MFP contribution In the RSOD, P claimed for pre-trial loss of earnings and MPF contribution in the sum of $3,360,000 being $50,000 (alleged monthly earnings as contractor) x 64 months (notional date of trial in March 2015) x 1.05. P did not work after the Accident (as I have found). He claimed that due to injury to both hands, if he lifted any heavy object, it would cause persistent and continuous pain and numbness from his fingertips to his shoulders, so he could not perform any work that required manual lifting or perform his pre-Accident work as contractor and/or delivery worker. 150.I note P was given sick leave at most medical consultations, and accumulated about 1,712 days of sick leave from the date of the Accident to 9 December 2013 with further sick leave thereafter for “psychosis”. Dr Chun opined “[the] persistence of pain without objective findings and [P’s] multiple medical attendances with two GOPCs, various GPs many times strongly suggested sick leave shopping for the issue of compensation” and reasonable sick leave would be 2 weeks. Dr Fu endorsed sick leave stated on Form 9 (ie up to 6 October 2011), but gave no explanation why such sick leave was justified. 151.I refer to Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[34] in which Le Pichon JA said medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge could not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff. 152.In his closing submissions, P said it was the Labour Department that required him to obtain sick leave, “我哋有時睇醫生都會提一提醫生, 因為有時醫生太忙喇, 佢就冇出到畀我睇, 佢都會畀番我哋嘅, 咁我哋唔係故意去攞病假嘅, …… 我哋睇醫生係醫病, 就唔係攞病假紙, 病假紙係頭兩年勞工處需要呢, 我哋先會去攞, 過咗兩年後, 我哋醫生--佢畀就畀, 唔畀都算, ……” In my view, P plainly sought sick leave for the purpose of obtaining periodical payments. This was also borne out by the consultation summaries that recorded multiple requests by P for sick leave, which hinted at sick leave shopping for employees’ compensation. Further, some sick leave was for conditions irrelevant to the Accident (as I have found). The mildness of the right wrist/forearm/elbow injury and the good rehabilitation evidenced by objective medical evidence as well as surveillance recordings clearly suggested that several years of sick leave were not justified. I consider 3 months’ sick leave would be adequate and reasonable. 153.Dr Chun opined P would be able to return to work as before without limitation/restriction, and without loss of earning capacity. On the other hand, Dr Fu opined P should be able to return to work as contractor doing management or other sedentary duty as he would have difficulty in performing heavy manual duties, but he would have difficulty in returning to work as delivery worker which required manual lifting. I am unable to accept Dr Fu’s opinion which was premised on bilateral upper limbs injury which I have rejected. In my view, with good rehabilitation from the injury suffered as a result of the Accident (as I have found), P would have recovered and returned to work as delivery worker after 3 months’ sick leave, and I allow a further month for P to find work. Thus, his pre-trial loss of earnings would have been $6,500 x 4 months x 1.05 = $27,300. In my view, there was no further loss of earnings after 4 months. 154.Post-trial loss of earnings and loss of earning capacity P claimed that since he only had experience in work that required manual/ physical labour, he would suffer future loss of earnings[35] and loss of earning capacity[36] with shortened working life. But in view of my findings as to P’s recovery and my conclusion in paragraph 153 above, there would be no future loss of earnings or loss of earning capacity. 155.Future medical expenses In the RSOD, P claimed a sum of $180,000 for continued medication at $5,000/month for 3 years. Given the good recovery of P’s right wrist/elbow/forearm injury, there is no basis for such claim. 156.Special damages P claimed for special loss in the sum of $40,000 being tonic food expenses ($6,000), medical expenses ($26,000), travelling expenses ($8,000). I find such claims excessive given the relatively minor injury and good recovery. There was also no evidence that P consumed any tonic food. I find D’s concession of $6,000 for special damages reasonable and allow such sum. 157.Summary I summarise the above awards as follows:
V. CONCLUSION 158.In the circumstances, P’s claim against D is dismissed. There is no reason why costs should not follow event. I grant a costs order nisi that P shall pay D costs of the present action (including all costs reserved, if any) to be taxed if not agreed on High Court scale, and that P’s own costs up to 22 October 2015 (ie date of discharge of P’s legal aid certificate) be taxed in accordance with Legal Aid Regulations. 159.Since all pleadings, medical evidence and expert evidence were in the English language, this judgment is also handed down in such language. Should P require translation of this judgment into punti language, he can contact my clerk to arrange an appointment for a court interpreter to verbally translate this judgment to him at the High Court Building at a mutually convenient time.
The plaintiff acting in person and present Mr Patrick Lim, instructed by Lau, Chan & Ko, for the defendant [1] which was level road/pavement without any need to go upslope or downslope [2] see bottom left and right photographs at T/172 [3] similar to the blue metal frame handcart shown in the top left photograph at T/170 [4] similar to the red or blue plastic baskets with metal handles shown in the top right and bottom left and right photographs at T/170, top left and right and bottom right photographs at T/171, and top right photograph at T/172 [5] in the manner shown in the top right photograph at T/170 [6] see bottom left and right photographs at T/170, and top left and right photographs at T/171 [7] ie bottom left photograph at T/179 showed “…… 有本公仔書，有啲order紙咁樣釘住嘅 ……” [8] P claimed D (a) caused, permitted, required or suffered P to (i) transport a load of Magazines of about 200-300 lbs and/or (ii) handle, pull, lift, carry, convey and deliver excessive load of Magazines without sufficient manpower/equipment, (b) failed to provide (i) proper supervision/training to P on how to load, handle, pull, lift, carry and deliver bulky Magazines in a safe manner and/or (ii) suitable equipment (eg handcart or delivery tool) to aid delivery of bulky Magazines, (c) failed to take any or any adequate precautions for P’s safety when loading/handling bulky Magazines, (d) exposed P to risk of damage/injury which D knew or ought to have known, (e) failed to give its employees (including P) any or appropriate (i) instructions/training/supervision on safety methods/procedures for carrying out their work/duties and/or (ii) warning regarding inherent risk involved in delivery of Magazines, (f) failed to take appropriate steps to reduce risk of injury arising out of delivery of Magazines, and (g) failed to provide/maintain (i) safe system of work, (ii) competent co-worker to assist P and/or (iii) safe place of work [9] P claimed it was an implied term that D was to provide safe place/system of work, and in particular (a) to take all reasonable precautions for P’s safety when P was engaged in his work of delivery of Magazines, (b) not to expose P to risk of damage/injury which D knew or ought to have known, (c) to take all reasonable measures to ensure the place where P carried out his work was safe, (d) to provide proper training and other necessary protective measures for P to carry out his works/duties, (e) to provide sufficient/competent co-workers to assist P in the delivery of Magazines, and (f) to provide suitable/sufficient instructions/ supervision to P [10] P claimed D was an “employer” and “person responsible for a workplace”, and the Office was a “workplace” under OSHO and OSHR, and P’s manual handling of the Loaded Handcart to deliver Magazines was a “manual handling operation” under regulation 22 of the OSHR, and D failed (a) to provide/maintain system of loading/ handling Magazines that was (so far as reasonably practicable) safe and without risk to P’s health (section 6(2)(a) of OHSO), (b) to make arrangements for ensuring (as far as reasonably practicable) P’s safety and health in connection with handling the Magazines, (c) to provide information, instructions, training and supervision to P as might be necessary to ensure, so far as reasonably practicable, P’s safety and health at work (section 6(2)(c) of OHSO), (d) to ensure preliminary assessment was made of the risk to P’s safety and health before P first undertook to deliver the Magazines (regulation 23(1) of the OHSR), (e) to ensure appropriate steps were taken to reduce risk to P’s safety and health in the delivery of Magazines to the lowest level that was reasonably practicable (regulation 27(1)(a) of the OHSR), (f) to provide relevant information as to the weight of the Magazines and mechanical aid / protective equipment to secure P’s safety and health (regulation 27(1)(b)(c) of the OHSR), (g) to ensure the delivery of Magazines from the Office to Central, Hong Kong was carried out by a team of employees rather than by P himself (regulation 27(1)(d) of the OHSR), (h) to provide such training as necessary for avoiding or minimising risks to P’s safety and health for the delivery of Magazines (regulation 31(1) of the PHSR), and (i) to assess P’s capabilities in performing delivery work before requiring him to deliver Magazines (regulation 30(2) of OHSR) [11] similar to the Magazine in a transparent sleeve shown at bottom left photograph at T/171 [12] similar to the loaded Basket shown in bottom left photograph at T/171 [13] see top left and right photographs at T/172 [14] D claimed the implied terms of the contract of employment required P to (a) follow instructions given by D, (b) exercise such skill, competency and expertise as commensurate with a competent delivery worker in performing the job for which he was employed, (c) handle simple/uncomplicated work on his own and make his own decision as to how it should be done safely, (d) take reasonable care of his own safety, (e) check the safety of all equipment before using the same, and (f) report to D and ask for assistance whenever he considered he was incapable of performing his assigned task and/or there was danger in performing such task [15] D claimed P failed to (a) dismantle the 3 loaded Baskets from the Handcart and pass 1 Basket at a time past the Pillars (ie the Basket (width 35cm) could pass through the Gaps (width 45cm)), (b) properly communicate/co-operate with the 2 co-workers in transferring 1 Basket at a time past the Pillars, (c) report any difficulty he faced during his work for D, (d) seek D’s instructions when he found himself unable to carry out his work, (e) deal with any danger upon awareness of the same before embarking on his work, (f) carry out simple and non-complicated job in a safe manner, (g) exercise such skill, competency and expertise as commensurate with a competent delivery worker in performing his job, (h) guard against ordinary/normal risk of his work, and (i) take reasonable care of his own safety [16] D claimed P failed to take care of his own safety and health (section 8(1) of the OHSO) [17] see Star Glory Investment Ltd v Kai Tua (HK) Technology Ltd & ors HCA2523/2002, Chung J (unreported, 13 August 2005) para 12 (see also Four Seas Fishballs Co Ltd v Yeung Hung Sin & anor HCA4159/2003, Chung J (unreported, 25 August 2006) para 20, and Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, 494) [18] P produced a declaration dated 29 September 2016 by a 黃耀華 (also known as 黃榮) who claimed to be Force Way’s “東主” [19] P claimed the workhours were from 9:00am to 6:00pm [20] P confirmed under cross-examination Force Way did file return to IRD in respect of P as employee [21] such as installation of air-conditioner, change of pipe, change of water tap [22] Chan said Law had since left D’s employ [23] eg he would spend a few thousand dollars on horse-racing, he gambled at casinos in Macau and he made regular donations to, say, Tung Wah Hospital and UCH [24] although there was some mention there might be work on Saturday and/or Sunday [25] see bottom right photograph at T/171 [26] P put to Chan in cross-examination that he telephoned the Girl and not Chan, but P did not give evidence to such effect [27] P submitted that “因為喺呢個表格二, [D]係五日後係冇可能, 因為[P]自己去報就係都係12月17號, 係有勞工處蓋章作實嘅, 而[D’s]嘅表格二係冇勞工處蓋章作實嘅, 所以[P]就明白到點解會有咁蹺嘅事發生喇, 因為最重要我哋報工傷, 包括係東主都好, 即係勞工處確實嘅, 佢嗰份表格就冇嘅, [P]係講呢樣喇” [28] see Wong Tai Wai David v Hong Kong Cable Television Limited formerly known as Wharf Cable Limited HCPI541/2001, DHCJ Fung (as he then was) (unreported, 13 August 2002) at paras 20 and 27-32, Cheung Suk Wai v Attorney General sued on behalf of Director of Financial Services HCPI536/1996, Leong J (as he then was) (unreported, 1 November 1996) at p 11, Cheng Lung Fong v Mitoyo Hong Kong Limited HCPI63/2007, A Cheung J (as he then was) (unreported, 6 May 2010) and 雲淑莉 v 力根有限公司HCPI1142/1996, Lam J (as he then was) (unreported, 22 February 2002) [29] HCPI536/1996, Leong J (as he then was) (unreported, 1 November 1996) at p 11 [30] see also medical report dated 1 September 2009 by Dr Lo Kwok Tai of NTKJCC [31] as the appointment with UCH’s DOT was a long time away [32] see Hung Sau Fung v Lai Ping Wai and Wu Kwai Ming, Danny (formerly trading in partnership under the style or firm name of Elegant Motors Service Company) HCPI204/2009, Bharwaney J (unreported, 7 October 2011) para 14 [33] see Law Yau Keung v Chu Sai Chuen HCPI846/2011, Master Roy Yu (unreported, 1 August 2013) – alleged pain over neck and upper limb numbness with psychiatric sequelae but the plaintiff was found to have exaggerated the deficit when he merely suffered mild soft tissue injury and mild post-traumatic stress disorder ($150,000), Ho Wan Yung v A S Watson & Company, Limited HCPI264/2008, Fok J (as he then was) (unreported, 3 June 2010) – neck and right shoulder muscle strain/sprain but no psychiatric disorder ($200,000), Leung See Ning Clara v Shun Tak Property Management Ltd DCPI625/2003, HHJ Wong (unreported, 24 January 2005) – fracture of left distal fibula requiring surgery but resulting in mild pain at fracture site ($230,000), Hau Kit Ho v Starway International Development Limited trading as Tao Heung Super 88 DCPI329/2002, HHJ L Chan (as he then was) (unreported, 22 September 2003) – fracture of left lateral malleolus requiring operation and knee pain with extended time for rehabilitation ($200,000), Chan Chung Kuen v MTR Corporation Limited DCPI764/2009, HHJ Leung (unreported, 27 July 2010) – fracture of distal third of left tibia and left fibula neck requiring long leg plaster cast requiring physiotherapy and with residual pain and numbness ($180,000), Ng Ka Chuk v Welcome Construction Co Ltd & ors DCPI865/2007, DDJ A Yuen (unreported, 16 August 2007) – tenderness, swelling and bruising of lateral malleolus of left ankle with joint movement limited by pain ($150,000), Ho Kin Keung v Tong Kin Wa DCPI2620/2008, HHJ Mimmie Chan (as she then was) (unreported, 24 November 2009) – right hand and right knee abrasions, right wrist pain and sprain back with mild low back pain ($80,000), Chan Shui Fong v The Executive Committee of the Alice Ho Miu Ling Nethersole Hospital & anor DCPI874/2007, HHJ Mimmie Chan (as she then was) (unreported, 31 January 2008) – minor soft tissue injury of lower back with exaggeration of symptoms/pain ($70,000), So Cho Yin v MTR Corporation Limited DCPI1069/2006, HHJ Leung (unreported, 7 April 2008) – minor contusion injury to low back, neck, left wrist and right ankle with minor degree of disability ($100,000), and Wong Kin Hung v Chan Wai Ming DCPI1223/2006, DDJ A B bin Wahab (unreported, 16 February 2007) – tenderness over right side of head, neck and right neck, haematoma over right side of head, neck sprain and simple contusion near right knee, but neck pain and related headache ceased after 2 months ($70,000) [34] [2008] 5 HKLRD 210, 214-216 [35] P’s RSOD claimed a sum of $3,931,200 being ($60,000 [increased monthly earnings as contractor] - $8,000 [monthly earnings as security guard, carpark attendant etc]) x 12 months x 6 (multiplier) x 1.05 [36] RSOD claimed a sum of $250,000 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Further hearings and rulings under HCPI 359/2013