Cheung Chung v. Softtrans Supply Chain (Hongkong) Co Ltd

HCPI 954/2016

[2018] HKCFI 2781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 954 OF 2016

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J U D G M E N T

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A. THE ALLEGED ACCIDENT

1.The plaintiff was born on 20 January 1975 in Mainland China.  He came to Hong Kong in February 1995.  He was educated up to junior school in the Mainland.  He can read and write Chinese.  From 1995 to 1998 he worked as a road repair worker and welder at construction sites.  Since 1998, he started working as a container truck driver.  In May 2007, he started being employed by the defendant.

2.In the statement of claim, the plaintiff claimed an accident took place on 19 October 2013.  The accident was described in his pleading as follows:

(a)   on 19 October 2013 at or about 11:45 am, the plaintiff was instructed to deliver and hand over a freight container at the Container Depot No 102, Lot 2917, Kwu Tung Road, San Tin, New Territories, Hong Kong, also known as Ever Power Container Depot No 2 (“the Site”).

(b)   At the material time, the plaintiff was prepared to go to the temporary container office at the Site to deliver paperwork.

(c)   While the plaintiff was alighting from the container truck to the ground of about 2 meters in height, he was using the side steps next to the driver seat.  He gripped the handle at the driver seat with his left hand and held the door with his right hand.

(d)   When the plaintiff was landing his left foot from the last step of the side steps to the ground, the uneven ground with sands and stones created a slippery surface and caused the plaintiff to lose his balance.

(e)   The plaintiff subsequently slipped and sprained his back due to the uneven ground with sands and stones.

(f)   As a result, the plaintiff sustained a serious back injury.

3.There was no eye witness to the alleged accident.

4.The defendant challenges whether the accident did happen.  Therefore, the first issue in this case is whether the defendant’s description of the accident is to be believed by the Court.  This primarily turns on the credibility of the plaintiff.

B. THE PLAINTIFF’S CREDIBILITY

5.It is trite that credibility of a witness can be assessed by measuring his/her evidence against:

(a)   contemporaneous written documents and documents which came into existence before the problems in question emerged;

(b)   the inherent likelihood or unlikelihood of an event having happened or the apparent logic of events; and

(c)   the consistency of the witness’s evidence with undisputed or indisputable evidence and the internal consistency of the witness’ evidence, such as comparison between the witness’ oral testimony and his or her witness statement.

6.While demeanour of the witness is clearly relevant, the Court should not be too readily drawing conclusions about truthfulness and reliability solely or mainly from it.

7.I do not find the plaintiff’s evidence credible, for the following reasons.

8.During cross-examination, the plaintiff was put with a number of documents and asked why they recorded differently the accounts of the mechanism of the alleged accident.  The plaintiff did not provide any satisfactory explanations.  Those documents include:

(a)   First, the ambulance record by the ambulance men.  This was the first opportunity after the alleged accident when the plaintiff talked to paramedical officers.  Entries in the record is usually written by those ambulance men pursuant to the plaintiff’s own account as to how the accident happened.

(b)   However, the ambulance record contained no reference to any accident, slip or fall.  The plaintiff only told the ambulance men that he had “sudden onset of pain at waist” when he “turnedaround”.  And it was stated that the chief complaint was “non-trauma”.  This is plainly contrary to the plaintiff’s current claim that he had a serious accident.  The plaintiff denied he gave this account.  But it is inherently improbable that the ambulance men would give such an inaccurate account.

(c)   Second, the AED (the Accident and Emergency Department) record by the triage nurse.  Upon arrival at the North District Hospital, the plaintiff was sent to the AED.  AAs in any other common ambulance case, the plaintiff was then sent to AED.  Again, the AED record prepared by the triage nurse contained no reference to the alleged accident, slip or fall. Instead, it was stated in the AED record that the plaintiff only suffered “LBP [i.e. lower back pain] after self turning around”.  The description of “self turning” casted grave doubt on whether the alleged accident ever took place at all.  It is inherently improbable that what the triage nurse recorded in the AED record was inaccurate and was not what the plaintiff told him/her.

(d)   The plaintiff did not come up with any satisfactory explanation.  He told the Court that he did tell the triage nurse that he sprainedhis waist whilst alighting the vehicle.  This would have to mean the triage nurse prepared the record with serious inaccuracy.  Absent any substantiating evidence I find this explanation incredible.

(e)   Third, the AED report by the AED doctor.  Again, the report of AED did not make any reference to the alleged accident, any slip or fall.  Rather, the report only contained a general description of “back injury, he sprained his back”.  Similarly, it is inherently improbable for the doctor at the AED not to record the alleged accident or any slip or fall if the plaintiff had told him about the incident.

(f)   Fourth, the DOT (the Department of Orthopaedics & Traumatology) Progress Note.  It was stated in this DOT Progress Note that the last update record was made at 17:40 on 19 October 2013, soon after the plaintiff was transferred from the AED to the DOT ward.  As recorded by Dr Chow Tsz Ling of DOT, in the Progress Note, the plaintiff told her that he “noted back pain after self turning around when checking the container”.  This record is, again, in direct conflict with the plaintiff’s case.  There was no mention of any slip, fall or accident.  Further, the plaintiff repeated what he told the triage nurse that he was injured by turning himself.  He also told Dr Chow that he was checking the container when he had back pain.  He made no mention of his pain in connection with his alighting from the vehicle.

(g)   Again, the plaintiff could not give any satisfactory explanationof the material discrepancy.  He agreed during cross-examination that the doctor made detailed enquiry.  He told the Court that he did tell the doctor that he injured his back whilst alighting from the vehicle. Again, it is inherently improbable that he described the alleged accident to the doctor but the doctor made up something else in the note.  Further, if the plaintiff did tell Dr Chow of the accident, Dr Chow would not have recorded in the note that there was no “definite trauma”.

(h)   The plaintiff said there might be communication problem with the doctor.  I do not accept this explanation.  The plaintiff gave evidence in Punti.  This Court has no difficulty in understanding what he said. There was no explanation why the doctor recorded something radically different, but which was similar to the triage nurse’s record.

(i)   Fifth, the Discharge Summary.  On 25 October 2013, the plaintiff was discharged from the hospital.  The Discharge Summary recorded that the plaintiff was still making the same complaint.  It was signed by two doctors (other than Dr Chow).  Again, there contained no record of the plaintiff recounting the accident.

9.Further,the plaintiff’s evidence given during cross-examination is inconsistent with his witness statement and what he told the experts as recorded in the joint medical experts' report.  In his witness statement, the plaintiff gave the following account of the alleged accident:

(a)   “ At the time, my left foot first touched the ground but the sole of my foot suddenly slipped, causing my left hand loosened it[s] grip on the handle, my whole body turned back and I fell.”

(b)   “ My pelvis first hit the ground and I sat on the ground.”

(c)   “ After I slipped on the ground, my natural reaction was to stand up immediately, but I was not able to do that, my back was in such great pain as it had been broken.”

10.In the above paragraphs of the plaintiff’s witness statement, he was suggesting that during the alleged accident, he fell.

11.However, in his oral evidence given to the Court, the plaintiff denied that he fell during the alleged accident.  He said he “lost balance” and “slipped of waist and sat next to the tyre”.

12.At paragraph 3 of the joint medical experts’ report, under the section “Medical History as given by Mr. Cheung”, the two expert doctors recorded that the plaintiff “slipped his left foot and fell onto the ground”.  It is likely that the plaintiff had mentioned the word “fell” (“跌” in Chinese) to them.  Therefore, this record is contradictory to what the plaintiff told this Court that he did not fall during the alleged accident.

13.Furthermore, during cross-examination the plaintiff said he slipped his right hand when alighting from the truck, which caused the alleged accident. This is inconsistent with his witness statement where he claimed to have slipped his left hand.

14.Lastly, the plaintiff’s account during cross-examination of what happened after the occurrence of the alleged accident was markedly different from what he said in his witness statement.  It was stated in his witness statement that after the alleged accident:

(a)   He slowly climbed up the steps back to the driver’s seat to get his phone.

(b)   But when he returned to the driver’s seat, he felt so painful that he again could not move.

(c)   So, he called his company’s manager in the operation department, Manager Cheung.  He told him he could not continue the retrieval and delivery work of containers on that day.  Manager Cheung said he would call the person in charge of this container depot.

(d)   In the meantime, he stayed at the driver’s seat, unable to move.

(e)   He stayed inside the vehicle for about 15 minutes, before the person in charge of this container depot came to take away the collection documents.

(f)   He waited for a further 30-minute period or so before a container operator came to unload the containers he brought.

(g)   That was completed at around 11:45 am, and he called to summon an ambulance.

(h)   He stayed at the driver’s seat until the ambulance arrived.

(i)   Paramedical officers used an elevating platform to help him get down, and then used a stretcher to lift him into the ambulance. He was then sent to the North District Hospital’s Accident and Emergency Department.

15.It was clear from his witness statement that the plaintiff claimed that after the accident took place at the Site, he stayed there until the ambulance arrived and sent him to the North District Hospital.

16.However, after this Court’s admission of the supplemental witness statement of Mr Cheung (i.e. Manager Cheung) at the beginning of the trial, the plaintiff accepted during his cross-examination that after the alleged accident he had moved the container truck to another container depot called Tai Wall and boarded the ambulance there.  So he changed his case from boarding the ambulance at the Site to boarding the ambulance at Tai Wall site.

17.In explaining why he moved the truck to Tai Wall, he said it was Manager Cheung who asked him through a second telephone conversation to drive his truck to Tai Wall, as staying at the Site would affect the operation there. Not only was this explanation contradictory to the evidence of Manager Cheung, it was also in conflict with what the plaintiff said in his witness statement as summarized above.  Driving to Tai Wall and another telephone conversation with Mr Cheung was not mentioned anywhere in his witness statement or evidence in chief. In his oral evidence, the plaintiff gave no explanation why he did not refer to these matters in his witness statement.  Moreover, it is difficult to understand how he was able to drive the truck to Tai Wall, given his evidence that his pain was so severe after the alleged accident.

C. FINDING REGARDING THE ALLEGED ACCIDENT

18.The plaintiff bears the burden of proof of whether the accident did happen, how the accident happened, where the accident happened and what the cause of the accident was.

19.By reason of the numerous inconsistencies of the plaintiff’s case described above and his incredible evidence, I find that he has failed to discharge the burden that the accident did take place as claimed.

20.Therefore, the claim must be dismissed.

21.For the purpose of completeness, I shall set out below my findings on other issues.

D. ALLEGED FAILURE TO GIVE PROPER SAFETY TRAINING OR TO DEVISE PROPER SAFETY PROCEDURE

22.The plaintiff complained that he did not receive any training, guideline or working instructions from the container truck.

23.Assuming the plaintiff’s version of the alleged accident were accepted, the alleged accident happened when he put his left foot on the ground and slipped.  I agree with the defendant’s counsel’s submission that this has nothing to do with the plaintiff’s alighting motion from the vehicle or the side-steps.  According to the plaintiff’s case, it was the landing action of his left foot on the ground that caused the alleged accident.

24.During cross-examination the plaintiff agreed that landing or walking on articles on the ground and unevenness of the ground level are common risk that every man has to face. 

25.As such, in my view, there is nothing to be trained.  If the defendant is required to provide training in this regard, what the defendant is asked to guard against would be a common everyday risk that a reasonable person should be aware of, but not any special risk or danger by the workers. This is not known to the law.

26.I also agree with the defendant’s counsel’s submission that landing one’s foot on the ground from a height of 1.5 feet is simple.  Whetheran employee is required to be given specific instructions or advise as to how a task should be done is a question of fact in each case and depends on the simplicity of the operation concerned.  If the operation was simple and it was reasonable that the employee could be trusted to exercise his or her common sense to carry out the operation without the need for the employer to prescribe a system of work or give specific instructions or advice, the Court would find it unnecessary to do so, see the Court of Appeal in Fong Yuet Ha v Success Employment Services Limited unreported, CACV 100/2012, 28 December 2012 per Kwan JA at paragraphs 19 – 21.

27.Therefore, in my judgment, even if the alleged accident did happen, there is no breach of duty on the defendant’s part for failure to provide proper safety training and devising proper procedure.

E. ALLEGED FAILURE TO FOREWARN THE PLAINTIFF THE RISK OF THE UNEVEN AND SLIPPERY GROUND OF THE SITE

28.The plaintiff complained that the defendant failed to inform, advise, instruct and/or forewarn the plaintiff of the danger and risk of injury and risk of falling caused by dangerous object and/or articles present at the Site.

29.According to the plaintiff’s evidence during cross-examination, he is an experienced container truck driver who travels to and from various container depots every day.  He confirmed that from his experience, the conditions at a container yard cannot be viewed under the same light as other vicinities, eg a shopping mall, and that there are container trucks coming in and out of container yards that may bring sands and stones into those container depots and make the ground uneven.

30.The general test in this regard was propounded in Stokes v Guest,Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783 per Swanwick J:

“ From these authorities I deduce the principles, that the overall testis still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probably effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

31.I agree with the defendant’s counsel’s submission that in the circumstances of the present case, a reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know, could in no way avoid sending the plaintiff to the Site, as this is his job responsibility.  This is because firstly, in the plaintiff’s own evidence, he was well aware of the conditions of container depots; secondly the conditions of every container depot including the Site were very much the same; and thirdly there was not any mishap in the past.

32.Therefore, in my judgment, even if the alleged accident did happen, there is no breach of duty on the defendant’s part for failure to forewarn the plaintiff the risk of the conditions of the Site.

F. CONTRIBUTORY NEGLIGENCE

33.The defendant claims that if it was found liable for the alleged accident, the plaintiff should also be found contributorily negligent for it.

34.During cross-examination, the plaintiff admitted that he observed the ground immediately before stepping onto it.  He said he had taken a glance.  If so, I accept the defendant’s counsel’s submission that the plaintiff should be able to take heed of the presence of any sand or stones or unevenness of the ground.

35.Therefore, as the defendant’s counsel submitted, rightly in my view:

(a)   The plaintiff did not pay or pay enough heed of his steps notwithstanding he knew about the yard being covered with sand/stones and the ground was uneven.

(b)   He had taken a glance but did not pay attention to the conditions of the ground.  This rendered his glance meaningless.

36.Therefore, the plaintiff should also be held responsible for his own negligence.

37.I accept that the following cases are relevant in considering the degree of his responsibility:

(a)   In Ng Siu Cho v The Incorporated Owners of Jardine Court, unreported, DCPI 976/2005, Deputy District Judge S T Poon (as he then was), 6 July 2006, the plaintiff suffered a slip-and-fall at the stairs while carrying a bucket of water. The plaintiff gave evidence that he was well aware that the stairs were always wet with moss growing on them.  He could have taken precautionary measures to prevent himself from falling eg removing the moss or used a smaller bucket to carry the water.  He was found to be 25% liable.

(b)   In Lai Wai Tan Peter v Secretary for Justice acting for Hong Kong Police Force,unreported, DCPI 1469/2006, Leung J, 9 October 2007, the plaintiff slipped and fell inside the toilet.  The Court ruled that the plaintiff did not notice the condition of the floor before and after entering the toilet, but which employees are expected to be able to take the basic care when using a toilet or shower room, which could be wet inside.  The plaintiff was found to be 25% in contributing to the accident.

(c)   In Chong Chi Ching v Secretary for Justice and Another, unreported, DCPI 2733/2012, Deputy District Judge S P Yip, 24 October 2016, the plaintiff also suffered an accident in the toilet.  She was found to be aware of the wet and slippery condition of the toilet floor when she entered into it.  She should be more cautious and walk more carefully upon realizing the toilet floor was wet and slippery and especially when holding a ladle of water.  Given also that she has entered the toilet for third times but a lack of evidence that she had been more cautious eg by walking more slowly or taking smaller steps on the third time when she slipped, the Court found her to be 20% liable for the accident.

38.Having considered the relevant cases and the circumstances of the alleged accident, I find that if the defendant is held liable for the alleged accident, the plaintiff should be held 25% liable for the alleged accident.

G. QUANTUM OF DAMAGES

39.The plaintiff has received employees’ compensation in the sum of $833,322.51.

40.Before going into other items, I should first deal with the discrepancies between the plaintiff’s witness statement, the joint medical expert report and the surveillance video evidence, as it has bearing in my determination of the quantum of damages should I be found to be wrong on the liability issues above.

G1. The discrepancies between the plaintiff’s witness statement, joint medical expert report and surveillance video evidence regarding his subjective complaints

41.In the plaintiff’s witness statement dated 12 September 2017, he complained that:

(a)   He could not walk for longer than 10 minutes, otherwise his back would experience pain and his left thigh would become very stiff.

(b)   When he remained seats or standing, he had to keep changing his postures, and he felt uneasy either sitting or standing.

(c)   Pain and numbness concentrated at the back of his spine, with the muscles and tendons nearby becoming very stiff.

(d)   The pain and stiffness extended radiated to his left thigh, calf and ankle.

(e)   His waist can only turn for a limited range, and his mobility is very limited.  As a result, his waist now has low mobility and can only move slowly.

(f)   He has to use a “walking stick” to assist him walking.

(g)   He has to rely on painkillers to ease the pain in the long term.

(h)   He will avoid carrying anything heavy as much as possible.

(i)   Whenever it rains or when the days are humid, or when temperature drops, the soring pain in his back and left ankle would worsen.

(j)   When he sleeps, he has to keep moving and changing his postures.

(k)   His left calf would always cramp out of no reason.

(l)   He has lost more than 10 kilograms.

(m)   His sex life is affected to a great extent.

42.About a month before his witness statement was filed, during the joint medical examination on 4 August 2017, the Plaintiff complained to the two medical experts:

(a)   Left lower limb weakness, first appeared during hospitalization,after walking a few steps then there is weakness and he needs to stop because of weakness and LBP.

(b)   LBP intermittently, when sitting not in a right position, or when sleeping on the left side immediately leading to pain, or when going out walking for a few steps but he did not count the number of steps then he needs to rest for a few (1 – 2) minutes, or when getting up not right, or when sitting on toilet bowl for long but the ‘long’ he did not count; or during sex therefore he does not have or moving not right resulting in pain.  Pain intensity is grade 7.

(c)   Seldom going out because of lower limb weakness.

(d)   Use a stick to walk since hospitalization, holding it on his right hand, needs to use it at home going to toilet and must use it when going out.

(e)   Analgesic once a day.

43.These complaints are not in line with the surveillance video evidence, which tells a different story as to what the plaintiff’s condition truly is.

44.The videos were taken on 3 April 2017, 26 June 2017, 25 August 2017 and 30 August 2017.  As I observe, the videos show that the plaintiff:

(a)   could rise from a chair with brisk motion without any or seeking any support;

(b)   could ascend long flight of stairs without relying on a stick;

(c)   could stand with hands lighting a cigarette without or without relying on a stick;

(d)   could walk without or without relying on a stick;

(e)   could bend forward;

(f)   could sit for a prolonged period in a restaurant; and

(g)   could turn or rotate his trunk.

45.The only explanation the plaintiff gave in cross-examination was that the complaints made in the witness statement were those before he took painkillers, whereas those at the joint medical examination were after he took painkillers.

46.This saying cannot explain the discrepancies.  For example, in his witness statement he complained that he could not walk for more than 10 minutes.  However, during the joint medical examination he said that after walking a few steps then there was weakness and he needed to stop because of weakness and low back pain.  As such, the plaintiff’s said explanation would mean that his condition was worse after he had taken painkillers.

47.As to the high degree of walking and sitting tolerance that he exhibited in the surveillance video evidence, the plaintiff could give no explanation at all.

G2.   Pain, Suffering and Loss of Amenities (“PSLA”)

48.The only possible residual symptom that the plaintiff’s own medical expert, Dr Tio Man Kwun, Peter consider the plaintiff to have is tenderness with reduced ranged of movement of lumbar spine.

49.I accept the following cases are relevant for considering the appropriate award under PSLA:

(a)   In Wong Siu Wa v Win Sino Engineering Limited [2018] HKCFI 1663, Deputy High Court Judge Raymond Leung SC, the plaintiff suffered 2 accidents, the first one was when he strained his back while pulling and holding fast the stern wire in the course of relocating it, and the second one being when he sprained his back while applying force to break the stern wire from resistance.  The plaintiff was diagnosed with back sprain but was also found to have pre-existing lumbar degeneration at L4/5 and L5/S1.  PSLA was awarded at $50,000 for the first accident and $150,000 for the second one.

(b)   In Sher Rahman v Tong Kee Engineering Limited [2018] HKCFI 1446, Deputy High Court Judge Leung, the plaintiff suffered injuries to his back when he was moving pallets of bags of cement as part of his job duties.  The diagnosis was back sprain.  There were also pre-existing degenerative changes at the plaintiff’s lumbar spine.  PSLA was agreed at $150,000 between the parties.

(c)   In Chau Fung Yee v Hospital Authority – Tai Po Hospital [2018] HKCFI 1589, L Chan J, the plaintiff suffered an accident at work by tripping over an unlocked and exposed caster of a meal-tray trolley.  The diagnosis was tenderness of her back and soft tissue injuries.  The plaintiff had multi-level degeneration of the lumbar spine, lumbar spondylosis and spinal stenosis.  Although the defendant was found not to be liable for the accident, the Court opined that a PSLA award of $150,000 would be appropriate.

(d)   In Wong Kwok Wai v Jardine Air Terminal Services Limited, unreported, HCPI 335/2014, 17 August 2017, Master Chow, the plaintiff was moving cargoes from the apron of the airport to the warehouse and pulling a dolly with his colleague when he hurt his waist.  The experts agreed that the injury suffered by the plaintiff was to soft tissues only, with many other complaints by the plaintiff unsubstantiated with objective medical evidence.  There was also pre-existing degeneration of the plaintiff’s lumbar spine.  The Court awarded $84,000 as PSLA.

50.I would award $100,000, which is in my view reasonable, under this head.

G3. Pre-trial loss of earnings & MPF

51.The parties agreed that the plaintiff’s pre-trial average monthly incomes are $21,671.37.

52.I reject the plaintiff’s claim of salary increment at an annual rate of 5%.  There is no substantiation from any evidence.  There is no reference in the plaintiff’s witness statement, nor the plaintiff gave any explanation when he gave oral evidence in court.

53.As to the length of sick period to be allowed for the purpose of this item, it is trite that despite the sick leave certificates which have been issued since the alleged accident up to 2018, the Court is not bound by the issuance of sick leave certificates when determining the appropriate and reasonable sick leave period to be granted, see the Court of Appeal in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210, paragraph 18, per Le Pichon JA.

54.Dr Chun Siu Yeung (“Dr Chun”), the expert engaged by the defendant opined that 6 weeks of sick leave have led the plaintiff to reach a satisfactory stable state, whereas Dr.  Tio endorsed a sick leave period of 3 years from 19 October 2013 to 18 October 2016.  In light of the highly questionable reliability of the plaintiff’s subjective complaints, which were mainly relied on by Dr Tio, I prefer Dr Chun’s opinion, which is, in the circumstances of the present case, based on the more objective medical evidence such as physiotherapy reports.

55.I would therefore award the pre-trial loss of earnings of the Plaintiff plus mandatory provident fund (“MPF”) in the amount of: $21,671.37 × 1.5 months × 1.05 = $34,132.40.

G4. Pre-trial partial loss of earnings and Post-trial loss of future earnings

56.It is trite that whether there would be any loss of earnings that should be allowed beyond the finding of reasonable sick leave depends on the plaintiff’s ability to return to his pre-accident job.

57.Both medical experts, Dr Chun and Dr Tio agreed that the plaintiff is able to return to work as a container truck driver.

58.I view Dr Tio’s suggestion of reduction in work capacity and efficiency with great skepticism in the circumstances of the present case, largely because of the unreliability of the plaintiff’s evidence as I have found above, particularly his high degree of walking and sitting tolerance as demonstrated in the surveillance evidence as explained above.  Particularly, it is demonstrated in the surveillance video that the plaintiff could sit in a restaurant for nearly 4 hours, with occasional visit to the washroom.  This is directly against what he told the occupational therapists that his sitting tolerance was less than 1 minute.

59.I find that the plaintiff is able to return his pre-accident job as a container truck driver.  As such, I make no award for pre-trial partial loss of earnings and post-trial loss of future earnings.

G5. Loss of earning capacity

60.The gist of this award is to compensate the plaintiffs for risk of losing their current jobs, and thereby would suffer disadvantage because of their injuries or disabilities when they are thrown back into the labour market, see Moeliker v A Reyrolle & Co Ltd. [1977] 1 WLR 132 at 141B – 142D per Browne LJ.  The plaintiff is not in any gainful employment at present, and he did not produce any evidence to show that such risk exists.

61.I would not allow any award under this head.

G6. Special damages

62.There is no receipt produced by the plaintiff for the special damages claimed.

63.The defendant accepts $5,000 to be awarded under this head.  I would so award.

G7. Conclusion on Quantum

64.In conclusion, if I am wrong on the liability issues held above, my determination of the quantum of damages would be:

Head of damages	Amount awarded (HK$)
PSLA	$100,000
Pre-trial loss of earnings and MPF	$34,132.40
Post-trial loss of earnings and MPF	Nil
Loss of earning capacity	Nil
Special damages	$5,000
Sub-total	$139,132.40
Less: Contributory Negligence (25%)	($34,783.10)
Subtotal:	$104,349.30
Less: Employees’ Compensation	$833,321.51
Total:	Nil

H. OVERALL CONCLUSION

65.For the above reasons, the plaintiff’s claim is dismissed.

66.There is no reason why the costs in the present proceedings should not follow the event.  I therefore make an order nisi that the plaintiff pays the defendant costs of these proceedings, to be taxed if not agreed.

67.I thank Counsel for the parties for their helpful assistance.

Ms Michelle Clough, instructed by B Mak & Co, for the plaintiff 

Mr Gary K H Chung and Mr Jethro Pak, instructed by Winnie Leung & Co, for the defendant