Chan Ho Kan v. Mo Man Ho and Another

HCPI 777/2014

[2018] HKCFI 2174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 777 OF 2014

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Coram: Master KW WONG (in Court)

Date of Trial: 12 & 13 June 2018

Date of Submission: 9 August 2018

Date of Judgment: 28 September 2018

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J U D G M E N T

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1.This is the assessment of the Plaintiff’s (“P”) damages against his employer, the 1^st Defendant herein (“D1”), for injury sustained while at work pursuant to an interlocutory judgment dated 20 November 2014 upon the latter’s default in filing a notice of intention to defend.

2.The Employees Compensation Assistance Fund Board (“D2” or “Fund Board”) was permitted to join in as a defendant to contest quantum pursuant to an order of this Court dated 4 February 2015 because D1 did not take out any insurance policy under the Employees Compensation Ordinance, Cap 282 (“ECO”).

3.D1 was unrepresented. Though he did not file any evidence, he did participate at the trial, which was, for his benefit, conducted in Punti. Ms Loh has also very helpfully prepared her opening submission in Chinese. There is no dispute that all papers have been served on him, and he was allowed to cross-examine witnesses and made his submission. He filed no closing submission.

Brief Background

4.At all the material times, P was D1’s employee engaged to replace sewage pipes for certain village-typed houses in the New Territories. On 28 May 2012, while he was working on the top of a glass house cutting metal using an electric angle grinder, he fell from a height of about 10 feet when the glass panel he was stepping on broke.

5.It is most unfortunate of P that when he fell onto ground, apart from the fall injuries to his ribs, back, legs, etc., the cutting blade of the operating grinder fell on his face, cutting open his left face, causing serious injuries to his left eye, face, lips, jaw and mouth. He was immediately sent to the Price of Wales Hospital (“PWH”) and was hospitalized for 13 days. During his hospitalization, he underwent multiple surgeries. Prolonged sick leave of almost 3 years had been granted[1]. He received many follow-up operations for his eye, brain, face and oral maxillofacial injuries. He also received intensive and regular treatment from various departments of the PWH as well as the Princes Margaret Hospital (“PMH”). They are set out below in order to show the medical expertise that is required to manage his injuries:

i)   Department of Ophthalmology & Visual Science    (“OVS”);

ii)   Department of Ear, Nose and Throat (“ENT”);

iii)   Oral-Maxillofacial Surgery and Dental Unit (“OMS”);

iv)   Department of Orthopaedics & Traumatology    (“O&T”);

v)   Department of Neurosurgery (“DNS”);

vi)   Orbital & Oculoplastic Department (“O&O”); and

vii)   Department of Psychiatry (“DP”) of PMH at West Kowloon Psychiatric Centre.

6.P claimed employees’ compensation (“EC”) under the ECO by Application DCEC 1064/2013 in the District Court in 2013. The same D1 and D2 were respondents in the said Application. The matter was concluded after trial before Deputy District Judge SH Lee who handed down his decision on 8 February 2017 (“the said EC decision”).

7.By the said EC decision, P was assessed to have suffered from 67.5% permanent loss of earning capacity. His monthly earning for D1 as at the time of accident was found to be $15,480. His employees’ compensation was assessed at $1,158,774, comprising $752,328 being compensation for permanent loss of earning capacity under s.9; $403,999 being periodical payment under s.10; and $2,447 being medical expenses under s.10A.

8.So far, P only received $44,000 from R1. This is not in dispute.

9.Due to the nature of his injuries, opinions from 12 medical experts on 6 different specialties covering P’s injuries were sought for disposal of his EC claims. Similar directions were made in the present proceedings[2]. The same set of reports were relied at the assessment without calling the experts testifying at the trial.

The Present Action

10.The following facts about P are not controversial:

i)   sex    M

ii)   Date of birth:    15 August 1960

iii)   Date of Accident:   28 May 2012

iv)   Pre-accident occupation: construction plumbing worker

v)   Education level:   Primary 4 in PRC

vi)   Pre-accident earning:   $16,880/month[3]

11.Ms Loh summarized the P’s claims in [3] of her closing submission as follows:

i)	pain, suffering & loss of amenities	$800,000
ii)	pre-trial loss of income and MPF	$1,670,487
iii)	post-trial loss of income and MPF [4]	$2,559,062
iv)	loss of earning capacity	nil or $100,000[5]
v)	miscellaneous/medical expenses	$39,247
vi)	bone-setter expenses	$2,160
vi)	future medical expenses	$50,000
		$5,120,956
	Less money already received from R1	($44,000)
		$5,076,956
		(plus interest)

12.P’s case is premised on the bases that he will be unable to resume any gainful employment for the rest of his life; and his PSLA should fall within the “substantial injury” category instead of “serious injury”. It is not in dispute that P has been a recipient of Comprehensive Social Security Assistance (“CSSA”) since end of 2012. P’s case is that but for the accident, he would have continued to work as a construction plumbing worker.

13.D1 made no submission on any figure as expected because he is unrepresented.

14.It is D2’s case that P can resume his pre-accident work, or at least light duties such as dishwasher, earning $11,536 (pre-trial) and $12,361 (future)[6] or as car-park attendant[7]. D2’s case is that, according to medical opinions, P had not been rendered totally unemployable. Further, P’s PSLA falls only within the category of “serious injury” and should be assessed at $480,000[8]. It was further revised to $550,000 at the assessment hearing by Mr Lim[9]. In the event P can resume work, D2 agrees that due to P’s residual disabilities, P should be given $50,000 for his loss of earning capacity [10].

15.D2 also disputed P’s other minor claims. They are:

i)   tonic food: it should be allowed at $5,000[11] instead of    $15,000[12];

ii)   costs of care: as P can be independent of his daily   living activities, D2 proposed a sum of $8,000, being    the notional monthly costs of foreign domestic helper    of $4,000 for 2 months[13] instead of $15,000 as    claimed[14]; and

iii)   future medical expenses: as the P has all along been    receiving treatment in the public sector, they should be $8,000[15] instead of $50,000[16].

16.P and D2 also disagree on costs. P asked for costs of the proceedings from D1. He also asked D2 to shoulder jointly and severally such costs as from the date of joinder of D2. D2 contends that the Court has no jurisdiction to award such costs. Alternatively, if the Court has jurisdiction, the discretion should be exercised in favour of a no costs order between P and D2.

The Issues for this Assessment

17.The following are the key issues to be disposed of at this assessment hearing:

i)   PSLA;

ii)   whether or not P can resume work as before or in any    other gainful employment, and if so, when and what    sort of work he can resume; and

iii)   the cost between P and D2.

18.In my judgment, issues (i) and (ii) hinge on the true extent of P’s injuries and whether he has malingered. As regards (iii), it is quite obvious that D2 actively participated in contesting P’s claim. Substantial costs have been incurred in meeting D2’s grounds of opposition. If the Court finds in P’s favour, the question of whether D2’s stance may have any bearing on costs must necessarily arise.

Extent of P’s Injuries and Disabilities

19.Both counsel confirmed they would rely on the aforementioned 6 joint reports without calling the experts attending Court for examination.

20.These experts had reviewed most of the contemporaneous medical records and jointly interviewed P before writing their reports.  They gave detailed account of the injuries and the post-accident treatments. This Court believes what has been recited in these reports reflected accurately the extent of injuries and P’s conditions some 3 years after the accident. It is useful information for the present assessment.

Dental & Maxillofacial Experts’ Report Dated 17 December    2015

21.Joint examination was conducted on 10 July 2015 by Dr Richie Yeung and Dr TK Chow appointed by P and D2 respectively.

22.It was recorded that when P was in PWH, he was alert and conscious[17]. Regarding the dental and maxillofacial aspects, a 10 cm long through and through facial laceration was noted extending from the left infra-orbital region to left upper lip. P was confirmed to have suffered from fractured maxillary bone and orbit, Le Fort I and II fractures. They were comminuted and displaced fractures. Upper teeth were exposed through the laceration. Open reduction and internal fixation were performed by surgeons for such fractures. Metallic foreign bodies were found in the nasal cavity. Doctors from ENT and Eye teams were involved to remove them. According to the Oral Maxillofacial Surgery Dental Unit of PWH, it was noted after the examination in November 2014, multiple post-traumatic complications including facial scarring, left facial numbness, diplopia were noted. Subsequent test in January 2015 showed that tiny metallic particles remained and/or dystrophic calcification developed in the fracture sites and left lower eye lids[18].

23.It was the opinion of both experts that as at the date of joint examination, no further treatment and investigation would be suggested in the field of maxillofacial surgery[19]. Subject to what have been set out in the sub-paragraphs, they considered the treatment by PWH maxillofacial surgeons appropriate and successful, leading to a satisfactory chewing[20] and mouth opening. The jaw joint[21] was functionally normal. Apart from eye, lacrimal and post traumatic psychiatric problems, both expert agreed, inter alia, that[22]:

i)   although panfacial fracture was fixed, the sequelae and complications arising is significant and long    lasting;

ii)   the long facial scarring in particular the left face and    orbital region with decreased in sensation    (hypoaesthesia), post-operative pain and facial    disfigurement really bordered P; and

iii)   the anterior front Fixed Bridge is slightly mobile and    the mild pain and discomfort when chewing adding to    the deficiency of the post traumatic masticatory force.

24.In term of percentage, both experts attached the same 6-10% to P no matter in respect of permanent disability in the maxillofacial surgery aspect (arising from the facial scarring pain and facial disfigurement), permanent impairment to the whole person, or to loss of earning capacity attributable to the Maxillofacial aspect[23].

Ophthalmologists’ Report Dated 16 March 2016

25.It appears P’s injury to his left eye impacted him most.

26.Joint examination was conducted on 2 December 2015, and the joint report written by Dr WH Ng and Dr SH Hong appointed by respectively P and D2. Both of them confirmed that they would only deal with P’s eye problems only[24].

27.It was recorded P was rendered unconscious during the accident but regained consciousness in hospital. Extent of injuries and post-accident treatment/operation given to P similar to that recorded by the Maxillofacial experts were recorded in this joint report. It was also recorded that blood was found oozing from the left nostril upon arrival at hospital.

28.Ophthalmologist was called on the next day. Visual acuity was impaired for both eyes. Subconjunctival haemorrhage and hyphaema (collection of blood in anterior chamber) were found in the left eye. When P was operated on for fixing of the pan-facial fracture, the ENT surgeon conducted endoscopic removal of multiple metallic foreign bodies while the ophthalmologist removal of foreign body in the medial orbital area.

29.P’s eye problem was followed up in PMH. His left eye deteriorated, for examples, decreased visual acuity, failure of closure, obstruction of nasolacrimal duct, left vertical and divergent squint. He developed diplopia in all direction of gaze and elevated intraocular pressure. 2 surgical processes were performed to restore the flow of tear and removal of post-operative granulation tissue. Corrective spectacles needed be worn to reduce diplopia[25].

30.At the time of examination[26], it was recorded P had the following complaints:

i)   diplopia in all direction and most significantly in left    lateral gaze;

ii)   decrease in vision of left eye;

iii)   frequent tearing in the left eye; and

iv)   frequent redness in the left eye.

31.It was the experts’ joint view that the current ophthalmic condition and symptoms are all attributable to the accident[27]. Among others, they have the following opinions[28]:

i)   The medical prognosis of his ophthalmic condition is    fair;

ii)   the best visual acuity of P’s left eye was reduced to    0.2 (20/100). He could only read 5 out of 24 test plates in the Ishihara Chart with left eye while he could read    all with his right eye. No evidence of malingering was    revealed after administering the Polaroid Test;

iii)   since P was suffering from diplopia in various    direction of gaze, including primary gaze, he should not take up jobs involving climbing height and    working at high altitude due to possible visual    confusion associated with diplopia. He therefore    would be unfit to resume his pre-accident job;

iv)   he would be able to take up alternative employment as    a janitor, car-park attendant, waiter and cashier;

v)   he should be able to carry out most of his activities of    daily living with no difficulty, except to avoiding    climbing up. He should walk down stairs with caution.    It is noted that his pastimes are watching television    and walking[29];

vi)   P’s diplopia was equivalent to 100% loss of ocular motility to his left eye. He also suffered from 35%    visual acuity impairment to the left eye. These    ophthalmic disabilities resulted in 21% impairment of    the whole person. From an ophthalmological point of    view, the loss of earning capacity is 52.5%;

vii)   surgery to eliminate P’s diplopia in the primary and    down gaze could be performed, but it would be    extremely difficult to eliminate his diplopia    completely in all directions of gaze. It would cost   $30,000 to $40,000 if done in private sector and $100 if in Government hospital; and

viii)   P required regular monitoring of his left eye glaucoma    every 3 to 4 months. It would be around $600 to    $1,000 per visit in private sector with anti-glaucoma    medication around $300 to $600 per month.

Orthopaedist’s Report Dated 16 April 2016

32.Joint examination was conducted on 4 August 2015 by Dr Eric Chien and Dr PC Lee appointed respectively by P and D2. Both of them dealt with P’s orthopaedic aspect only, leaving his other aspect of injuries to be dealt with by other experts[30].

33.It was reported that before the accident, P used to cycle and swim on Sunday. However, he stopped these activities after the accident because of back pain[31]. He claimed to have no back problem before[32].

34.On the orthopaedic side, when admitted to PWH, he reported to have right flank pain around the lower costal rib and associated back pain[33]. Apparently, P was operated on for his maxillofacial problems but not his orthopaedic problems before discharge[34]. P was then followed up by the orthopaedic surgeon at PWH for query back problem. CT scan revealed that P had suffered from mildly displaced fracture of right 12^th rib and displaced fractured of right-sided transverse processes of L1-4 associated with markedly swollen psoas muscle[35]. He was treated conservatively[36], and physiotherapy was apparently not given[37]. He was followed up at the out-patient clinic for once or twice[38].

35.It is fair to say P complained about his back pain even long after the accident. At the joint orthopaedic examination, it was recorded that P sought treatment from traditional Chinese medicine[39] practitioner for his back pain for 4 days some time before the joint examination. P said the pain was related to rainy days[40]. The complaints were recorded in details as follows:

i)   located at right lumbar paraspinal area and right    subcostal area;

ii)   of on and off nature;

iii)   worse with weather change. Recent exacerbation for    about 10 days;

iv)   pain increases after lifting weight for about 2-3 kg;

v)   early morning pain on waking up. Stiffness on change    of posture;

vi)   he needed painkiller about 2-3 times in a week. The    painkiller was prescribed by the eye unit for both facial scar and back pain.

36.In the general examination by the joint experts, P was found to be[41]:

i)   in good general condition;

ii)   sitting normally;

iii)   not requiring any aid;

iv)   with normal walking gait;

v)   able to stand on tiptoes and heels in a steady gait;

vi)   squatting with mild pain over the back during the   squatting movement; and

vii)   with face laceration at the junction between the left    eye and the nose along the nasolabial fold to the upper lip, with healed scar.

37.As regards his back at the time of joint examination, it was found there was tenderness over the LS (lumbosacral) area and also right lower costal margin. There was no spasm, no swelling nor inflammation. Compression of vertex and passive rotation of pelvis did not induce back pain. The range of back motion for right and left side flexion was 20 degrees with pain at the end range. From review of P’s medical history, they agreed, from an orthopaedic perspective putting aside fracture of the oral-maxillofacial parts, P had suffered from:

i)   right 12^th rib fracture; and

ii)   displaced fracture of right-sided transverse process of    L1-4.

38.Both considered P should be independent in his activities of daily living, though he might have some difficulty in carrying heavy weight[42]. However, they had not assessed what would be regarded as heavy to P. Although both experts said P should be able to resume his pre-accident occupation as a manual worker at the construction site with slightly reduced capacity, they appeared to realize P’s major injury was related to his facial injuries. Therefore, the experts added a caveat by stating that P’s condition should be subject to assessment by other experts as well[43].

39.Both experts recorded P was still suffering from, inter alia, right-sided lumbar pain[44]. Dr Chein opined that some residual pain was likely related to the fall with fracture of right transverse process L1-4 and soft tissue injury to the back. Dr Lee took a view that since all fractures (on the rib and transverse process) had healed, the residual pain should not affect function and was likely to be minimal, as the back movements were full and there was no muscle spasm[45].

40.Dr Chien estimated P to have suffered from 2-3% whole person impairment as well as loss of earning capacity. Dr Lee assessed the impairment brought about by the residual pain to be 1-2%, and the loss of earning capacity should not be more than that percentage.

Psychiatrists’ Report dated 28 October 2015

41.Dr Gabriel Hung was appointed on behalf of P while Dr Benjamin Lai the D2. P was jointly interviewed on 20 August 2015, and both expressed their opinion on P limited to the his psychiatric aspect[46].

42.Dr Hung found P reliable in that the subjective symptoms reported were found consistent with the medical records[47]. He found P to have suffered from Moderate Depression Episode and Post-Traumatic Stress Disorder after the accident[48]. He, however, said P no longer met the diagnosis of Moderate Depressive Episode as it was in partial remission. However, P currently still met the diagnosis for Post-Traumatic Stress Disorder though his condition is mild[49].

43.Dr Lai differed a bit. He considered the current mood of P neutral[50]. It is fair to say he opined although P had suffered from Mild Depressive Episode and had features of Post-Traumatic Stress Disorder (without meeting the diagnostic criteria), P was currently no longer suffering from any of them as P did not fulfil their respective diagnostic criteria now[51]. He was of the opinion, from a psychiatric perspective, P has no problem in self-care and can travel around by himself. There is also no limitation of his daily activities. P has the appropriate attention and concentration and is functioning in the normal range of cognitive functioning[52]. He was able to return to his pre-accident work[53].

44.Dr Hung took the view P was likely to have mild symptoms of post-Traumatic Stress Disorder in the long term. P therefore required treatment by a psychiatric and clinical psychologist every 2 months for a period of 2 years following his joint examination with Dr Lai [54]. Dr Lai said P required treatment once every 4 to 6 weeks for another year, or within 6 months after conclusion of the present litigation (that will be more than 3 years from the joint examination).

45.Reading the joint report as a whole, despite the apparent difference of views on P’s condition stressed by the 2 experts, it is fair to say that they do not differ much in terms of conclusion. Both considered P’s psychiatric problems attributable to the injury[55]; P is now in remission but is still required to undergo psychiatric and clinical psychologist follow-up. More importantly, both experts come to the view that P had suffered from 5% permanent impairment as well as loss of earning capacity attributable to the psychiatric problem brought about by the injury[56].

Otorhinolaryngologists Report Dated 19 November 2015

46.Joint examination was conducted and the joint report written by Dr Martin Pak and Lo Siu Sing appointed by respectively P and D2.

47.P complained a hearing loss and pulsatile tinnitus in his left ear[57] after the accident. A test known as Pure Tone Audiogram (“PTA”) was conducted. It confirmed a mild conductive hearing loss in the left ear[58]. They took the view that since the symptoms persisted for over 3 years, the disability would remain permanent[59]. They opined direct concussion of his head could cause a permanent hearing loss on his left ear[60] and agreed it was caused by the injury. In their joint report, they did not differ on any respect. They assessed P to have suffered from 1.6% binaural hearing impairment but 0% impairment of the whole body [61].

48.They noted a long obvious lateral-reversed L-shaped scar on his face extending across his lower lip, ascended up his left maxilla and stopped below his left lower eyelid[62]. There was a permanent depression of left malar bone. The said long scar and the depression lead to a 10% impairment of the whole person. They both took it to be equivalent to 10% loss of earning capacity[63]. They were of the view that although the mild hearing loss does not affect him to work as a construction site worker, they both cautioned P’s visual problem might deter his ability to resume his pre-injury occupation[64].

Neurologists’ Report Dated 28 January 2016

49.P complained of, inter alia, headache and was therefore jointly examined by neurologists. The said examination was conducted on 31 July 2015, and the joint report written by Dr Brian Choa and Dr Edmund Woo appointed respectively by P and D2.

50.Both experts recited similar events leading to the injuries, the post-accident problems of and the treatment given to P. They recorded a more detailed description of how P fell when the glass he stepped on shattered. They were told that P was taken aback, tumbled backwards and fell, landing on his buttocks and hitting his right rib cage against a pole. He only lost consciousness some 10 to 15 minutes later, and regained memory in PWH ward where his facial wounds had been cleaned up. From a review of medical records both experts considered P was alert and responsive on arrival at PWH, and there was no neurosensory deficit [65]. P did not sustained injury to his brain in the fall because there was no intracranial bleeding and the loss of consciousness was delayed[66].

51.About 9 months later P complained of hearing a noise in his left occiput that was synchronous with his pulse, a pulsating tinnitus. CT scan was performed. It was shown a left dural arteriovenous fistula supplied by the left middle meningeal artery. This was compared with the CT scan taken of his head on the date of accident. It was confirmed the fistula was already there at the time of the accident. It was successfully managed later.

52.Both experts took the view that this short-circuit from artery to vein, i.e. dural arteriovenous fistula was a pre-existing condition and was not accident related. It was usually congenital in origin but could be acquired. However, fistula takes time to establish. It was unlikely to be an acquired one in the present case. Both considered that there is no impairment, i.e. 0% attributable to the nervous system, as there was no brain injury. They also took the views that:

i)   there is no restriction on his activities of daily living[67];

ii)   from a neurological perspective, P should be able to    resume his pre-injury occupation as a drainage-pipe   worker with no loss of earning capacity[68].

53.It is also useful to note the following complaints made to the neurologists when P attended the joint examination:

i)   headache: affected once a week but could be    removed by analgesic such as paracetamol;

ii)   vision: the vision of his left eye was blurred, and    with both eyes opened, he had double vision in most    directions of gaze. He has excessive lacrimation;

iii)   Pain: the right rib pain bothered him slightly, but it    has never remitted since the accident. However, he    had intermittent low back pain. It could be severe    when weather changed. It was aggravated by    prolonged sitting. He had to stand still and straighten    his spine before he could commence walking. It was    said the pain prevented him from doing heavy lifting    but could manage stairs. He relied on herbal treatment for its relief;

iv)   Daily living: he could be fully independent;

v)   Employment: P said he could not work because of diplopia and his back pain as limiting factors.

54.During the joint examination, P’s back was also examined. It was recorded that there was no paravertebral muscle spasm although complained of pain in the lumbar region. Straight leg raising test was shown to be normal at 90^º bilaterally. P could also fully flex and extend his trunk in a standing position.

Overall

55.The percentage impairment and the loss of earning capacity as assessed by the respective experts can be summarized as follows:

		Experts	Permeant Disability/Impairment	Loss of Earning Capacity
	i)	Oral and Maxillofacial	6-10%	6-10%
	ii)	Eye	21%	52.5%
	iii)	Orthopaedic	Dr Chien: 2-3% Dr Lee: 1-2% say, 2%	2-3% 1-2% say, 2%
	iv)	Psychiatry	5%	5%
	v)	ENT	0% (10%)[69]	0% (10%)[70]
		Total:	34 – 38%	65.5 – 69.5 %

56.It is noted that the assessment by the ENT experts is similar to that by the oral maxillofacial experts. They were therefore taken as referring to the same disability. In the said EC decision, the learned deputy district judge adopted 67.5% as the percentage of permanent loss of earning capacity.

57.It is essential to note that a medical expert can express a view on the nature of the P’s injuries. The question of whether P is fit to resume his pre-accident work or to what extent he is incapacitated in the employment market is not a question for them but for this Court: see Roger JA (as the VP then was) in Tang Shau Tsan v Wealthy Construction Co Ltd[71]. It is because P’s employability in the job market depends on a host of factual matters which are to be assessed by the Court, not by medical experts. It is particularly so in the present case because experts on a particular area only expressed the impact of the injuries on P from only the view point of their respective specialties. It is interesting to note that no specialist has ever attempted to express any overview of P’s overall problem. Yet many of them saw fit to express their views on P’s post-accident work which, necessarily, must be assessed with P’s overall injuries in mind. Their views must therefore be inherently unreliable. It also leads to absurdity. This can be demonstrated by the following example. The ophthalmologists considered P unfit to resume his pre-accident work as a construction worker[72]. However, the orthopaedists said P should be able to resume his pre-accident work, though with slightly reduced capacity (my emphasis)[73]. It is essential to note that the orthopaedists appeared to express such opinion with reference to P’s problem in lifting heavy weight only, not his eye. However, as orthopaedists, they did not even mention how heavy would be regarded as heavy to P such that P might have problem coping with. On the other hand, the 2 neurologists, while only confirming the dural arteriovenous fistula not accident-related, said P can resume his pre-injury work of a plumber with no loss of earning capacity (my emphasis).

58.As correctly observed by Roger JA in [11] of Tang Shau Tsan (supra),

“Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worse.”

59.This Court considers the opinions on P’s post-injury work expressed by the above medical experts neither helpful nor binding on this Court, if not confusing. Whether P is fit to work, and if so, the nature of such work has to be assessed taking into account of P’s current medical condition and all other circumstances such as the market reality in Hong Kong.

P’s Evidence

60.Subject to minor amendments to paragraph 9 of P’s 2^nd statement, P confirmed his 2 witness statements respectively dated 4 March 2015 and 26 May 2017 (respectively his “1^st statement” and “2^nd statement”). He supplemented his evidence at the assessment hearing. His present conditions can be summarized as follows:

i)   eye & face:  his over-all left eye condition has    worsened since his 1^st statement. The diplopia and    blurred vision of his left eye persisted and deteriorated.    These caused dizziness and headache. The tear duct    was blocked, causing tear overflow in his left eye.    This in turn caused frequent inflammation of his eyes and itchy facial scar. Because of metal implant in his    face, he could not wear correctional glasses for long as    it would cause severe pain. He had to take pain killing    medication (4 - 6 pills daily) and apply eye-drops    every day. He had to attend follow-ups in different specialties of the eye clinic once every 2-3 months. He might be required to undergo operation 2 years in    future. Because of his poor eye sight, he had to take    extra care in walking steps as they appeared distorted    to him. He had difficulties in judging precise position    of object. He always accidentally bumped into objects    and caused spill-over when pouring water. He would    easily cut himself when chopping with knife and break    utensils while preparing food.

ii)    back:    He was observed walking to the witness    box slowly and with the aid of a walking stick. He said his back pain persisted. He said it very often worsened when there was a change of weather. He now could not stand or walk for long. Neither could    he bent his back nor handle heavy weight. He relied on his 17-year son to help attend to heavy chores, e.g.    buying rice. He testified that he sought bone-setters’   treatment on 10 odd occasions in the past year, at    $180 per consultation. At the date of the trial, he had    just consulted treatment from such bone-setter with    herbal medication applied externally to his back;

iii)   Nose:   A long scar was observed on P’s face.    According to expert it was about 10 cm long. He said    his upper lip near the nose had been cut open up to    bone and was now fixed with metal bridges. There was still residual pain, blocked nose and slight blood stains found in secretion. He has to wash his nostrils    using a syringe 3 times a day in order to alleviate the    blockage and pain and to remove blood clots.

iv)   Ear:   the hearing of his left ear deteriorated and he    now could not hear well using his left ear. He had to use his right ear when picking up calls;

v)   Head:   The fistula was unrelated to his injury.    However, he continued to have unresolved dizziness    and headache. He had to continue attending follow-up    at Department of Neurology of PWH. An MRI would    soon be arranged;

vi)   Dental and Oral Maxillofacial:  the metal bridges   installed to fix the cut bones caused pain when chewing. He had to attend dental follow up about once    a year. The facial scar is itchy and painful;

vii)   Psychiatric: He did not sleep well and had depressed    mood. Very often he had nightmares and flash-backs    of operating cutter/grinder and glass shattering which    haunted him. He had to take sleeping pills, anti-   depressants and tranquilizers. He is required to attend    follow-up twice a year.

61.He said he had not been working since the accident and was living on CSSA. He also said he had obtained a 3-year security guard licence in or around 2013 but was rejected on 3 occasions for the job of security guard and car park attendant after interviews. For relief worker of this sort the monthly salary would be around $8,000. The licence had already expired, and he did not renew it.

62.P was heavily cross-examined by Mr Lim. Mr Lim challenged P having malingered his problem with a view to obtaining a higher compensation. Mr Lim suggested P could resume work at least as a dish-washer or carpark attendant. He also suggested in his closing submission that P could work as a toilet cleaning worker, floor cleaning worker, messenger, car-washer and refuelling worker in a service station.

63.P explained that for car park attendant, the job required him to check and jot down vehicles registration numbers which he was unable to do so because of his poor eye sight. As for security guard, the job required him to patrol the building by walking up and down stairs which he simply could not manage. Stairs appeared to him flat, not three-dimensional, and he would easily trip over and fell, not to mention his back would become painful in the patrol. He considered himself unsuitable to work as a construction worker now as he would be very vulnerable to further injury. He could not lift any weights or bent his back because of his back pain; operate machine because of phobia of operating machine; climbing steps nor judging distance because of his severely impaired vision and diplopia. As for dish washing, he said his back pain would prevent him from standing for long. He could not clean thoroughly and efficiently because of his poor eye-sight. He also said he would be unfit as a cleaner as he was unable to swept-clean the floor in a satisfactory manner using a bloom. 

64.Mr Lim criticized P for deliberately bringing with him a walking stick to attend interview. It amounted to an invitation of refusal from employers. P explained that if he did not bring his walking stick, he might trip over on his way to interview.

65.At the hearing, his stick was physically examined. Mr Lim then suggested that walking with a stick was a dress-up. It was because the stopper at tip of stick was new. Both the stopper and the shaft of the stick were without scratches and much wear and tear. All suggested that the stick not frequently used.

66.P explained the stopper detached when the stick was stuck in a drain cover about 3 months ago. The one examined by Mr Lim was a replaced one. It was new.

67.Mr Lim suggested P had exaggerated his back condition. It was because as recorded in the joint experts’ report, he could perform or maintain certain posture without problem, or at least without any complaint of back pain. Neither did he have muscle spasm. Further, it was not recorded by the orthopaedists that he attended the joint examination with a walking stick. P denied and said it was painful when he stretched and maintained the requested posture. He said he attended the joint examination with his stick.

68.Further, Mr Lim submitted that unlike psychiatric, ENT or eye problem, there was no follow-up in the orthopaedic department since about 2015. P’s explanation was that the doctor attending him was a junior/houseman, as he was supervised when he saw him. That junior/houseman said the fracture would heal naturally on its own and follow-up would be unnecessary. He had lost confidence in the PWH orthopaedic unit. He said when the back pain became serious, he would see bone-setters. After application of external medication, he felt better. The swelling subsided, and pain relieved. When queried why he did not mention bone-setter treatment before, he explained he did consult them even before assessment. Since he did not know such expenses were claimable, he did not tell anyone about such consultations.  

69.After going through the joint reports and the medical reports from hospitals, I do not find Mr Lim’s criticism fair. Neither do I find it consistent with medical evidence. P did complain he had back pain. He said it to the orthopaedists at the joint examination, though he was able to do what the orthopaedists had asked him to do, see: [33], [35], [36], [37] and [39] above. In fact, he also told the orthopaedists that he had consulted bone-setters, and the pain intensified when there was weather change, see: [35] above. He said the same at trial. P required pain-killers, see: [35(vi)] above. He even pulled up his clothes to show the Chinese herbal medication patch applied to his body.

70.In the joint orthopaedists report, Dr Chein acknowledged the likelihood of residual pain over his back, and it is fair to say that even Dr Lee did not rule out such possibility, though he said it should be minimal, see: [39] above. He also mentioned it to the neurologists, see: [53(iii)] above. Presumably he also mentioned it to the eye experts, and that may explain why he got painkiller from the eye unit for his back, see: [35(vi)] above.

71.The question is whether P has malingered his back problem. One of the criticism of Mr Lim was that the orthopaedists did not record P walked with any aid. Instead, it was recorded P did not require any aid.  It is true. After reviewing the joint report of the orthopaedists, there was no record that P attended the interview with a walking stick. I believe this an important piece of evidence which should never escape the attention any reasonable orthopaedist. They definitely would have recorded it and no doubt a series of questions would have been raised had they seen P coming with a walking stick. I accept that it is more likely than not that P did not attend the examination with a walking stick. On the question of whether P attended the orthopaedists interview with a walking stick and to this limited extent, P’s version is not accepted. P had complained of being absent-minded, and I accept this may be attributable to such problem. However, I do not find him dishonest. On the other hand, I find him an honest and truthful witness generally.

72.In Court, he was found to be frank and straight forward in his answer. He did not say he had suffered the same degree of pain as he did at time of accident. His evidence in Court is that his back pain had worsened recently. It had become particularly bad when there was weather change. At the time of the joint examination in August 2015, he said there was a mild residual pain[74]. Had he intended to malinger, one may ask is it not a better opportunity for him to exaggerate at the joint examination than at trial. After a survey of all the joint reports, I agree with Miss Loh’s submission that there is not a single clue that P had exaggerated or malingered. Psychiatrist Dr Hung considered P’s subjective complaints consistent with medical record, see: [42] above. In fact, in the ophthalmologists’ joint report, they both stated that the clinical finding of small left exotropia and hypertropia (i.e. mis-alignment of the visual axis of the eyes) during the joint assessment was consistent with his subjective complaints of diplopia[75]. The same experts had administered an objective polaroid test with a view to eliminating malingering (in respect of his eye complaints) and came to a view[76]:

“The visual acuity of [P] was assessed with the Polaroid Test, which did not reveal any evidence of malingering.”

73.This Court accepts P’s explanation that he had lost confidence in the Orthopaedic Department of PWH and not doing much follow-up there, though he had residual back pain. Otherwise it would not had been necessary for him to obtain painkillers from the eye unit, see: [35(vi)] above. He could have got them direct from the Orthopaedic Unit. His lack of confidence in the Orthopaedists of PWH explained why he only had one or two follow-ups from the Orthopaedic unit even up to the time of the joint examination despite it was then 3 years after the accident, see: [34] above. This Court therefore accepts P’s back pain has worsened since the joint examination, he now requires to take pain killers, and his condition would deteriorate when there is change of whether, and he requires to use a walking aid now, in order to avoid trip over.

74.Mr Lim’s challenged P’s evidence of continuous dizziness and headache by pointing to P that he did not complain of such problems to the eye experts. Again, his criticism is not entirely correct and not sitting well with medical reports. P did complain of his headache to the Orthopaedists[77], and headache and occipital-frontal discomfort and dizziness to the Neurologists[78]. The latter were of the view that, since it only onset in April 2015, the headache and discomfort were associated with the endovascular procedure then to fix the fistula. It was a pre-existing defect and had nothing to do with the injury. An MRI would be arranged to investigate into his unresolved headache and dizziness.

75.The fistula problem has caused headache and dizziness. These symptoms therefore may not be entirely attributable to the injury. However, it is not the only cause. I also accept to a certain extent, his diplopia and difficulty of wearing correctional glasses have also given rise to such symptoms. However, putting these 2 symptoms aside, I am of the view that the totality of all his other injuries taken together, and his eye problem and back pain in particular, prevents P from finding any gainful employment in the reality situation of Hong Kong.

76.On a balance, I accept P a honest witness. Save as what has been stated in [71] above, I accept his evidence in its entirety. He has back pain, dizziness and headache which are associated with his injures.

77.I accept P was seriously impaired in his overall eye sight. He was suffering from double vision and serious visual acuity in his left eye. I accept his left eye has somehow dragged down his right eye, resulting in an overall visual impairment more serious than the total loss of his left eye. That may perhaps explain why, while the total loss of eye sight in one eye amounts to 50% loss of earning capacity according to Schedule 1 of the ECO, P was given 52.5% loss when his left eye was found to have suffered from only 35% visual acuity impairment[79]. The metal bridge inside and the scar on his face made it difficult for him to put on corrective glasses for long, which even if on, can only make correction of vision to a limited extent. His condition was supported by opinion of eye experts.

78.I also accept P physically unable to lift any weight, and is suffering from back pain so much so that he cannot stand nor walk for long. Coupled with his eye problem discussed in the preceding paragraphs, it would be better for him to equip himself with a walking stick. Because of poor eye-sight and phobia of operating machine, he will be unfit to operate any machine. Obviously, given his problems he will be unfit to work in any construction site, which is always with added risks, even to ordinary unimpaired person. No doubt, P would be unfit to go back to his pre-accident work. The opinion of the neurologists that he could resume his pre-accident work is totally absurd.

79.For reasons explained by P and set out in the preceding paragraphs, I do not believe employers in Hong Kong are willing to engage P to work as watchman, caretaker or attendant in any car park. Because of his poor eye-sight, he will be unable to see clearly and jot down vehicle registration numbers, operate cash register, or identify vehicles for the purpose of raising or lowering the drop-bar. Because of his back pain and poor eye sight, it would be quite impossible for P to patrol up and down a building, or around a carpark which are the usual duties of a typical caretaker of a building and carpark in Hong Kong. Neither would any employer in Hong Kong, in my judgment, be willing to engage someone like P who is with poor eye-sight to work as a janitor in any premises for any purpose. Because of his poor eye-sight, I believe P cannot discharge his cleaning duty in a manner satisfactory to any employer in a highly commercialized and competitive community like Hong Kong.

80.Given P’s education background, his back problem and poor eye-sight, it would be unrealistic to expect anyone willing to engage P as a messenger. Hong Kong is a busy and highly competitive society. It would be highly unlikely that P, who is mobility impaired, walking with a stick, and can neither carry any weight nor see properly, will be engaged as a messenger or to discharge delivery duty.

81.No doubt the duties of car-washer and refuelling worker require prolonged standing which P cannot cope with, not to mention at time he will be required to work under pressure when there is a long queue. All Mr Lim’s suggestion of P’s post-accident jobs is, with respect, unrealistic, unreasonable and is really harsh on P.

82.It is my conclusion that realistically, P could not and will never be able to resume any gainful employment. I do not believe employers in a highly commercialized society liked Hong Kong, would be willing to consider P whose capacity and efficiency had been substantially compromised. I accept Ms Loh’s submission that P has suffered and will continue to suffer 100% loss of earning. The damage should be computed accordingly.

83.It is P’s evidence that he came to Hong Kong from the mainland in 1980, and started to work as a construction worker in 1999[80]. It has been agreed that his earning at the time of the accident is $16,880. Miss Loh submitted according to Government statistic, the average daily wages of a plumber as at March 2018 was $1,442.1. Accordingly, she submitted, there had been a notional increase of P’s earning by 60%[81] as at the date of trial. This would bring P’s monthly earning to $27,008 as at date of trial[82]. Ms Loh proposed to adopt this figure.

84.In P’s Re-revised Statement of Damages dated 14 June 2017, P proposed (without resorting to Government statistics) an increase of 55% in salary in the past 5 years[83]. D2 responded by saying P could work as a dishwasher, and computed its counter-proposed loss of earning by adopting P’s proposed salary based on an increased rate of 55%. Ms Loh therefore submitted D2 had therefore admitted a 55% increase for P’s notional wage as at time of trial, i.e. $26,164. At trial, Mr Lim contended there was no admission, as it was pleaded that it was “the P’s pleaded notional salary”.

85.As regards whether there was an admission, I disagree with Mr Lim. We are here not playing with semantics. No doubt D2 is adopting P’s figure to compute P’s loss of earning from D2’s view. Had D2 disagreed with the percentage increase, and thus the notional salary, instead of adopting P’s figure, D2 should have adopted a figure of its choice to come up with its proposed loss of earning.

86.P’s ex-colleague Ng Wai Ming (“Ng”), a construction plumber like P and worked for D1, testified at this assessment on his wages. As at the time of P’s accident, his daily wage was $650, inclusive of $50 being worth of lunch paid by D1. Since 2017, he had worked for his current employer Kin Tao (建圖) and was earning $1,050 per day. His average take-home pay from this employer ranged from $23,000 to $26,000 per month. He said his current employer also provided free lunch and afternoon tea to him, and therefore his total earning should be more.

87.He produced his earning record for the period from June to December 2017, showing a total of $174,300, or an average of $24,900 a month. He said he also worked for other employer(s) doing indoor plumbing work when the weather was bad. He had been working for his present employer for about 2 years, and said those with lengthier service doing the same plumbing work would be paid up to $1,300 to $1,400 a day.

88.In cross-examination he agreed he worked an average of 23.83 days per month from June to December 2017 for her current employer. He also agreed he took a number of days off during Lunar New Year month, and only worked about 10 days that month.

89.Mr Lim proposed to adopt 23.85 days for 11 months of a year and then 23.86 days less 14 days for the Lunar New Year month for the purpose of computing P’s earning. The average number of working days per month is therefore 22.68 days at $1,050. The average for a month is therefore $23,817.49. He disagreed to top it up by reasons of other fringe benefits such as lunch and afternoon tea. Neither was he agreeable to consider additional earning for any indoor plumbing work during bad weather. He only agreed to round it up to $24,000 per month for the purpose of computing P’s loss of earning. The difference between P’s and D2’s proposed figures is $3,000 per month.

90.I accept Ng an honest and truthful witness. He is simple and straight forward. His evidence corroborated that of P who also testified that when working for D1 they were offered free lunch and afternoon tea. In the EC decision, the learned DDJ Lee accepted $45 per day for free meals. I also accept provision of free lunch and/or afternoon tea a usual practice in the kind of work P and Ng were engaged to do. Accordingly, when coming to an assessment of P’s earning, the worth of food should be taken into account. Assuming $45 per day, based on D2’s proposed salary, at least $1,020 per month[84] should be added.

91.I also accept that when the weather was bad, Ng would be able to work for other employer(s) doing indoor plumbing work. Despite Mr Lim’s challenges, I accepted Ng’s evidence that on average he worked 2 days per month. Accordingly, another $2,190[85] should be added. The top-up per month will be around $3,210[86]. As a matter of fact, the agreed earning of $16,880 (being $15,480 [87]+ $700 x 2) for P as at time of accident is also based on a 26-day month. Taking all these factors together, Ng’s average would be around $27,210. I accept had P not sustained the injury, he would have earned similarly to that of Ng. View from this perspective, P’s estimate of monthly earning as at date of trial being $27,008 using Government statistics a realistic and reasonable one.

92.I therefore adopt a round-off figure of $27,000 per month as P’s notional monthly earning as at the date of trial.

Pre-trial Loss of Earning (plus MPF)

93.D2 agreed to adopt $16,880 as P’s monthly wages at the time of the accident. This Court has already accepted P’s notional monthly wages as at the time of trial being $27,000. His pre-trial monthly median is $21,940[88]. It is my conclusion he will not be able to find any gainful employment after the accident. His pre-trial loss of earning (28/5/2012 to 12/06/2018)[89] was therefore:

$21,940/month x 72.5 months x 105% = $1,670,183

Loss of Future Earning (plus MPF)

94.P has just turned 58 on 15 August 2018, and both counsel have agreed to adopt a multiplier of 6.62 instead of 7.52 originally proposed by Ms Loh, on the basis his retirement age being 65[90]. I accept this agreed multiplier for the purpose of the present assessment. His loss under this head is therefore:

$27,000 x 1.05 x 12 x 6.62 = $2,252,124

Loss of Earning Capacity

95.In light P’s claim for full past and future loss of earnings and MPF benefits have been accepted, no claim for loss of earning capacity would be allowed.

PSLA

96.Counsel for P and D2 referred to Lee Ting Lam v Leung Kam Ming[91] as the authority for categorization of injury according to its severity for the purpose of PSLA. It was a Court of Appeal (“CA”) decision decided in May 1980. In ascending order of severity, they are

i)   serious injury;

ii)   substantial injury;

iii)   gross disability; and

iv)   disaster.

97.Ms Loh submitted P should fall within the category of “substantial injury” while Mr Lim asked this Court to accept it should only be the “serious” one.

98.In Lee Ting Lam (supra), the CA explained these 4 categories. The two on the lowest end are as follows:

“Serious Injury

This is the lowest category. It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device or bad fractures leaving recurrent pain. …

Substantial Injury

This category extends to injuries which requires treatment in hospital for many months and leave the victim with reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim’s life. …

99.The CA had pointed out there is no rigid distinction, for severity of injury present a sliding scale.

100.Ms Loh relied on David John Slater v Commissioner of Police[92] in which Hon Bharwaney J updated PSLA in personal injury cases falling within the Serious Injury Category to start at $530,000[93]. The learned judge also referred with approval the Personal Injury Table 2016 adjusting for inflation of PSLA for Hong Kong over the past years[94]. Based on the said Table, Miss Loh has come to, and I think correctly, the David Slater (supra) figure represents a +3.1% over the 2016 figure. Accordingly, as at 2017, the range of awards for PSLA for Hong Kong should be revised upwards to:

i)   Serious Injury :   $530,000 - $716,000[95];

ii)   Substantial Injury: $716,000 - $874,000[96].

101.They will be adopted for the purpose of this assessment. Mr Lim took no issue with the updated figures. Ms Loh asked for $800,000 under the Substantial Injury category. Mr Lim proposed $550,000, submitting it only falling into the bottom of the Serious Injury category.

102.In the present case, P fell from a height of about 10 feet and landed on his back. He suffered no head injury but unfortunately he suffered a serious and deep cut on his face by an operating grinder which affect his vision and nose. Though he was only hospitalized for a few days, he had undergone a series of operations for treatment of his left eye/nose, fixing of the fractured face bones and jaw with metal bridge implanted in his head, removal of metal particles and clearance of obstructed tear duct and restoration of tear flow, etc. He was left with double vision, very poor eye sight of the left eye and glaucoma. He cannot wear correction glasses for long (only helpful to reduce but not eliminate completely[97]) because of the pain it has induced. He had frequent tearing problem which may be associated with dry eye disease or non-specific symptoms developed after the facial trauma. He had to attend eye treatment and follow-up for life[98]. He may need a future operation to his left eye, but as said by doctors, that cannot eliminate his double vision completely[99]. Foreign bodies and/or dystrophic calcification were found around the fractured areas in his head[100]. That may need be monitored from time to time for the rest of his life. His mobility had been impaired to a certain extent because of the poor vision and residual back pain left from his healed displaced fractured rib and transverse process of L1-4. P has suffered from multiple injuries. He can no longer do cycling and swimming as he used to do on Sundays. He cannot enjoy watching television and walk as much as he did before the injury[101]. There is a conspicuous 10 cm long scar on his face.

103.Mr Lim referred me to the following cases in support of his suggestion that the injury should fall into the lower end of “Serious Injury”:

i)   Ho Yam Pan v Tse Tak Ming trading as Ken’s    Company (supra)[102]

The plaintiff sustained a work-related injury to his right eye resulting in total loss of vision of that eye    and its eventual removal. He was assessed to have    suffered 24% defect of the whole person and 30% loss    of earning capacity.  It was accepted by Master Chung (as Chung J then was) that the plaintiff’s case fell    within the lower end of the “serious injury”. The    assessment took place in April 1997, and a sum of $450,000 was awarded for PSLA.

I cannot accept this to be of assistance as there was no    evidence that the plaintiff’s mobility had been    impaired in any way, and that he was required to be    medically followed up regularly, or for life, as P is required to do here. The plaintiff’s impairment was    also less serious;

ii)   Chan Kin Ka v Siu Tung Hung & Another[103]

In this case, the plaintiff employee’s left eye was    injured by a small broken wire while operating an electric wire brush. Traumatic cataract had developed.   His eye lens was removed and an artificial lens was    implanted. He was assessed by Sakhrani J to have    suffered 28% permanent disability of the whole    person and 30% loss of earning capacity. The    assessment took place in July 1999 and the plaintiff    was given $350,000 for PSLA, falling within “Serious    Injury” category;

Again, I find this case of little assistance. The    plaintiff did not suffer multiple injuries. Further,    correction glasses were found useful, and there was no    evidence that his mobility was greatly impaired.    Neither was the plaintiff required to attend regular    follow-up for life;

iii)   Kei Yiu Fuk v Wong Ching Nam[104]

The plaintiff was assaulted and suffered injuries to his    left eye. The plaintiff maintained he had diplopia,   numbness of left cheek, sunken left eye, nose area    pain, insomnia, and difficulty with crossing roads and    sports and general living. However, he refused to try    any correction glasses against medical advice. The    assessment took place in July 2002 and the plaintiff    was awarded PSLA of $300,000, which presumably    was the low end of the “Serious Injury” category by    Master Jefferies.

There is not much discussion of the plaintiff’s medical    conditions. It is not a case of multiple injuries. No    medical follow-up for life was mentioned. It is not    helpful either;

iv)   Leung Chau v Incorporated Owners of Kwai Wan Industrial Building and Ors[105]

Here, the plaintiff sustained injuries to his face and    mouth in a faulty lift owned by the defendant. As a    result, his appearance was affected. His cheek was    deformed, eye-lids could not be completely closed, the    upper and lower teeth could not close resulting in    incomplete chewing, slurring of speech and blockage    of nasal passage. The assessment took place in    November 2004, and Master J Wong awarded a sum    of $500,000 for PSLA being in the “mid-range” of the    “serious [injury] category”. The plaintiff was required    to undergo 2 further operations and some courses on    speech therapy.

The plaintiff in that case suffered from multiple    injuries but not as extensive as P did in the present    case. It is noted his mobility was not impaired in any    way. Neither was there any evidence that the plaintiff    required medical follow-up for life as P does in the    present case;

v)   Sze Ka Choy v Chan On Cheung[106]

The plaintiff was assaulted by a punch on the face, resulting in total blindness of his right eye. The   assessment took place in December 2006, and DDJ Li    awarded the plaintiff $450,000 under the head of    PSLA, presumably within the category of serious    injury.

It is readily noted that the plaintiff’s mobility was not    impaired in any way, and there was simply no    evidence that he was required to undergo other    medical treatment for the rest of his life. This case is    unhelpful.

vi)   Huang Xiao Chun v Choy Wing Chun (transliteration)[107]

The plaintiff suffered a work-related injury while   operating an electric saw when its rotating blade hit some metal and bounced back. It resulted in facial    laceration across his right forehead, eyelids, eyeball,    nose and lip. A series of operations were performed    and his right eye-ball had to be replaced by an    artificial eye. He was left with a facial scar, but was    assessed by expert that he could perform activities of    daily living with reserve capacity. He had impaired    distance and depth perception and difficulty in driving,    which he intended to learn before the accident. He could not play table tennis, badminton, basketball,   soccer and volleyball which he used to play. He had    dizziness, headache and loss of memory and concentration. It was diagnosed he needed not receiving further medical treatment. He only needed to    consult his family doctor for symptomatic treatment of    headache and dizziness on a need basis.  The assessment was done in May 2012. Mater K Lo    considered it falling within the serious category and    awarded $600,000 for PSLA which was obviously at the upper end of the “serious Injury” category.

I find this case relevant and helpful. The injuries    sustained by the plaintiff resembles P’s, except   that the plaintiff did not require regular specialized    medical follow-ups for life, and that he did not have    recurrent back pain which impaired his mobility    further. The plaintiff in that case suffered a total loss    of eye-sight in the right eye, which, as discussed    above, was    considered either less problematic or   less serious than that suffered by P in the present case.    The overall injury of the plaintiff is less serious than    that of P in the present case.

104.Huang Xiao Chun (supra) referred to Kan Kwok Cheung v Cheung Chung[108]. In Kan Kwok Cheung (supra), the plaintiff employee’s left eye, which had pre-existing defects, was injured while operating an electric breaker breaking tiles. Complications developed in the treatment. After a series of repair operation, his left eye was removed. An artificial eyeball was inserted. However, further complications arose and it had to be removed again, leaving behind a sunken left eye socket and dark eyelid that were full of scars and wrinkles. As a result of treatment to the left eye, side effect also developed in his right eye. He still had some degree of vision left in the right eye albeit reduced by glaucoma and cataracts. It stabilized after medication. The plaintiff was depressed, worried, withdrawn and lost confidence for fear of discrimination for his cosmetic appearance. He was diagnosed to have suffered from adjustment disorder with symptoms similar to those of post traumatic disorder. Psychiatric medication was prescribed. He, however, has no difficulty in walking. Assessment was done in June 2010. Master M Ng (as the Deputy Judge then was) awarded $680,000 under the head of PSLA. When giving her reasons, the learned Master considered the injury falling into the upper end of the “serious injury” category and not “substantial injury”. She, however, took into account the approach adopted by Master Chu (as the Ladyship then was) in Lee Ping Foon v Li Hoi trading as Hoi Tat Construction & Decoration Engineering[109] that there should be an upward adjustment from a proper award for loss of vision of 1 eye if the vision in the other eye was diminished as a result. The learned Master’s award of $680,000.00 had apparently exceeded the upper limit of the serious category. Certain add-up had been made to reflect the enhanced problem of the plaintiff’s eye in that case.

105.In the present case, although there is no total loss of an eye, as discussed above, the severely-impaired left eye had made P’s overall visual ability worse than as if his left eye was totally blind. He needs to take regular specialized medical treatment of his left eye for life. On the other hand, although he had back pain, I do not consider his mobility can be said to have been reduced similarly to that described in the Substantial Injury category.

106.As said in Lee Ting Lam (supra), severity of injury is always a sliding scale. Taking into account of P’s overall multiple injuries, I consider his PSLA falling within the upper end of Serious Injury Category, with some upward adjustment for the dragging down effect on P’s overall vision, and that he is required to attend medical specialized follow-up on his left eye for life.

107.I award a sum of $750,000 under this head.

Other Claims

Medical Expenses Already Incurred

108.P’s claim for medical expenses already incurred was initially $2,447. It was supported by receipts. He said he did not know he could also claim bone-setter treatment expenses and therefore he had no receipts. He said he made 12 visits in the past years each at $180. The total for bone-setter expenses is therefore $2,160. Since this Court has accepted his evidence, there is no reasons why he cannot be awarded with this amount. This Court thus allows a total sum of $4,607, being the aggregate of $2,447 and $2,160.

Travelling Expenses

109.Initially P claimed $3,000 for attending medical treatment[110]. This was revised to $5,000 which was not opposed by D2. I accept this claim.

Tonic Food

110.In P’s 2^nd witness statement, P claimed he had spent $15,000 on tonic food on advice of traditional Chinese herbalists[111]. Mr Lim proposed $5,000 as there was no documentary evidence. Since this Court finds P honest, I accept this sum has been incurred and is reasonable, in view of P’s prolonged sick leave (about 3 years). I allow his claim in full.

Domestic Helper Expenses

111.P said he paid $15,000 to a friend/aunt in the initial 2 months after his discharge from hospital to help take care of him. D2 did not challenge liability but proposed $8,000, computed on the basis of 2 months’ wages of a notional foreign domestic helper.

112.In my judgment, the quantum proposed by D2 is unrealistic, given it is generally understood that local helpers charge a rate far higher than that of foreign domestic helpers. Further, it will be unlawful for any foreign domestic helper to work for anyone other than the employer endorsed in her work visa. It is therefore totally unrealistic to expect one can engage a helper, be it local or foreign, at $4,000 a month in Hong Kong. I accept the expenses necessary and reasonable given the seriousness of P’s multiple injuries, and the requirement to attend medical follow-up and operations after the accident. The fact he is now independent in his daily living is irrelevant to his claim under this head which relates to his condition immediate after the accident.

113.I allow P’s claim of $15,000 in full.

Medication/Painkiller

114.P’s claim of $1,800 is not challenged by D2, and I accept it.

Future Medical Expenses

115.According to the joint report of the eye experts, P may require one future operation and regular follow-up once every 3 to 4 months. Such operation was estimated to be around $30,000 to $40,000 if done in private hospital, but only $100 if done in public hospitals. As for eye follow-up, it would be around $600 to $1,000 per visit for private doctor, with medication of $300 to $600 per month, see: [31(vii) & (viii)] above. Presumably it would be $100 per consultation if in the public sector.

116.It is fair to say both psychiatrists said P required at least one to two years of psychiatric treatment. No estimates were stated. Ms Loh pitches it at $10,000.

117.P claims a total of $50,000 as future expenses under this head, being $20,000 for the operation, $20,000 for the eye follow-ups and $10,000 for the psychiatric treatment.

118.Mr Lim proposes $8,000 on the basis P should do it in the public sector, which is good and adequate.

119.No doubt Hong Kong’s public medical and health care system is good. However, it is a hard fact that it is now subject to great demand and long queues are expected. An estimate based on private sector charges is entirely reasonable to enable P receive proper and timely medical attention without delay.

120.I accept $10,000 for psychiatric follow-up reasonable.

121.As for eye operation, I am prepared to accept $35,000, being the average of the estimate made by the experts. As regards medical follow-up, consultation and medication together, I am prepared to accept an average of the range estimated by the experts, i.e. $800 per visit of 3.5 times per year, and $450 per months for medication. The average for a year will be $8,200. Given P has just turned 58, it would be reasonable to adopt a multiplier of 20 for computation for the rest of his life. P’s future medical expenses for his eye will be around $200,000[112].

122.The total future medical expenses on the 2 areas will therefore be around $210,000. I therefore find P’s estimate of $50,000 most reasonable. Presumably he has already exercised good sense on when to seek treatment/operation in the private or public sectors. I have no hesitation to accept P’s claim of $50,000.

P’s Total Claims

123.To sum up, the damages awarded to P are as follows:

i)	PSLA :	$750,000 [113]
ii)	Pre-trial loss of earning :	$1,670,183[114]
iii)	Loss of future earning :	$2,252,124 [115]
iv)	Future Medical Expenses :	$50,000 [116]
v)	Medical Expenses Incurred:	$4,607 [117]
vi)	Tonic Food :	$15,000 [118]
vii)	Domestic Helper:	$15,000 [119]
viii)	Travelling Expenses:	$5,000 [120]
ix)	Medication/Painkiller :	$1,800 [121]
	Total :	$4,763,714

124.Giving credit for 44,000 previously paid by D1 to P, the total damages P is entitled to is $4,719,714 ($4,763,714 - $44,000) plus interest, and I now so order. Interest on general damages do run at 2% per annum from date of writ to the date of judgment; and interest on pre-trial loss of earnings and other special damages accrued at half judgment rate from date of accident until date of judgment. Thereafter, interest on all damages accrues at judgment rate until full payment.

Costs

125.Ms Loh submitted that there is no doubt D1 should be liable for P’s costs. It is also her submission that in view of D2’s active participation in resisting P’s claim, D2 should be held liable for P’s costs jointly and severally with D1 as from the date of joinder.

126.Mr Lim submitted that this Court has no jurisdiction to award costs against the Fund Board. Alternatively, if this Court rules otherwise, D2 contends it should not be held liable anyway as it has acted reasonably in defending quantum.

127.Despite Mr Lim’s submission that this Court has no jurisdiction to award costs against the Fund Board, he submits no authorities to support his proposition. Instead, he refers this Court to the CA’s decisions in Hussain Kamran v Khan Amar[122] and Jiang Zhong v Yeung Chun Leung and Ors[123] and does not seek to exclude their applicability. In both cases the Fund Board joined as a party in the proceedings and sought, unsuccessfully, that the court has no jurisdiction to order costs against it. The CA considered the court has retained jurisdiction to make adverse costs order directly against the Fund Board, and such jurisdiction has not been ousted by the Employees Compensation Assistance Ordinance, Cap 365 (“ECAO”). Both decisions , and in particular Jiang Zhong (supra), upheld the decision of Hon Bharwaney J’s decision in Kwan Kam Pui v Fung Man & Ors[124].

128.This Court is bound by the aforesaid CA’s decisions, and accordingly, I reject Mr Lim’s submission on the jurisdictional point.

129.In Kwan Kam Pui (supra), Hon Bharwaney J, after going through the relevant provisions of the High Court Ordinance, Cap 4 (“HO”), the ECAO and its amendment history together with a number of decided cases, ruled that:

i)   the court retains full discretion under the wide    jurisdictional provision of section 52A of the HCO    despite the apparently limiting provisions in the    ECAO, see [40] of Kwan Kam Pui (supra);

ii)   if the Fund Board elects to join as a party in the    proceedings, and obtain the benefit of such joinder by    preventing the claimant from obtaining a judgment    higher in amount of damages which would almost invariably be the case if the proceedings were    undefended, it must at the same time accept the risk of    an adverse order being made against it, see [45] of Kwan Kam Pui (supra);

iii)   it would be unfair to an injured employee whose    claims are reduced and the proceedings lengthened by the Fund Board’s participation, but could not    obtain an order of costs for prosecuting his claims to    judgment and to cover the increased costs due to the    active participation of the Fund Board, see [48] of of    Kwan Kam Pui (supra);

iv)   the usual costs order in the circumstances should be an    order against the Fund Board, as is made against the    employer defending the proceedings against whom a    judgment for damages has been obtained. Such usual    order is to pay the entire costs of the action, if the   Fund Board disputed both liability and quantum, see:    [66] of Kwan Kam Pui (supra). Where the Fund Board intervenes in order to dispute quantum only, the usual    order should be to pay costs of the proceedings from    date of its joinder, see [67] of Kwan Kam Pui (supra).

130.Mr Lim invited this Court to exercise the discretion in favour of the Fund Board and make no order as to costs relying on Yu Chun Kit v Wong Wing Yau[125] (my decision) and Wo Chun Wah v Chau Kwei Yin and Ors[126]. He submits what the Fund Board is doing in the present case is entirely reasonable and helpful.

131.I do not intend to go through these 2 cases referred to by Mr Lim. Suffice it to say that in the said 2 cases, the plaintiffs’ claims have been inflated, and the court had ruled against the plaintiffs on a number of issues. For examples, In Yu Chun Kit (supra), the earning was reduced by the court by about 30%[127] whereas in Wo Chun Wah (supra), DHCJ To criticised the injured’s claim a gross exaggeration as being 2.31 times the awarded damages[128].  In the proper exercise of discretion on costs where the conduct of respective parties should be taken into account, the court is entitled to come to a no costs order against the Fund Board. In my judgment, it is not quite the same in the present case.

132.In the present case, D2 challenges the quantum, and as a result, medical evidence on 6 expert areas need be adduced and fully ventilated. Substantial costs have to be incurred. Whether he has worked for another employer doing indoor plumbing work during bad weather was queried. It is noted all these challenges had in fact been raised but unsuccessfully in the EC trial. These challenges were repeated here. Further, D2 takes the view P can resume work with reduced capacity. Instead of adopting a holistic approach, submission was made on D2’s behalf by reference to individual joint medical reports all of which have expressed to be restricted to a particular injury only. This Court considers D2’s suggestions unrealistic and unfair. It is a total disregard of the reality of the Hong Kong employment market. From what has been set out in the preceding paragraphs, this Court rules against D2 almost on each and every issue raised by it, who appears to me too mean and too harsh on P, even it has a role to play in protecting the Fund. As observed in Jiang Zhong (supra)[129], the well-established principle of costs to follow event should apply. To be visited with an adverse costs order is a litigation risk that the Fund Board has to take in performing its duty. In my judgment, to make an order as now contended by D2 would be to do injustice to P, who has to spend a long time and incur substantial effort (and expenses) in order to meet D2’s unsuccessful and harsh challenges.

133.For the reasons set out in the preceding paragraph, I have no hesitation to order the Fund Board to pay the costs of the proceedings as from the date of the joinder. 

Disposition

134.I now make the following order:

i)   D1 and D2 do pay P a sum of $4,763,714 the    breakdown of which is set out in [123] above, plus    interest on PSLA accruing at 2% p.a. from date of writ    to date of judgment; and 4% p.a. on pre-trial loss of    earning and special damages from date of writ to date    of judgment; and interest on the judgment sum do   accrue at judgment rate from date of judgment until    full payment;

ii)   D1 do pay P’s costs of the whole action, including all    costs reserved;

iii)   D2 do pay P’s costs of the action (including all costs    reserved) jointly and severally with D1 as from the    date of joinder; and

iv)   P’s own costs to be taxed in accordance with the    Legal Aid Regulations.

135.The aforesaid costs orders are in the form of order nisi, and be made absolute if no application is made to vary the same in 14 days.

Miss Phillis Loh instructed by Tang, Wong & Chow & Co., for the Plaintiff

The 1^st Defendant Mr Mo Man Ho, acting in person, present

Mr Patrick D Lim instructed by P.C. Woo & Co., for the 2^nd Defendant