Lam Shun Shing v. 王仁鋤 and Others

HCPI 89/2014

[2019] HKCFI 489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 89 OF 2014

________________________

________________________

______________

JUDGMENT

______________

A. INTRODUCTION

1.The plaintiff brings this action for damages for personal injurysustained by him in an accident that occurred on 16 February 2011 (the “Accident”). The plaintiff claims that the Accident occurred in the course of his employment by the 1^st defendant as a paint worker.

2.The 1^st defendant died during the course of the action, and on 13 December 2016, Master Leong ordered the action to proceed in the absence of a person representing the 1^st defendant’s estate.

3.The plaintiff is presently 65 years of age, and the Accidentoccurred when he was 57 years old.  He belongs to a Chinese ethnic groupknown as Hoklo which originated from southern Fujian Province.  Although he has lived in Hong Kong for some two decades, he spoke limited Cantonese, and gave evidence in court in his native Hoklodialect through the assistance of an interpreter. 

4.The Accident took place as the plaintiff was working inside a residential flat in Tai Po, New Territories (the “Premises”).  He was standing on a wooden trestle ladder (the “Ladder”) when a cord of hemp rope (麻繩) attaching the two legs of the Ladder below the apex suddenly snapped.  The two legs then slid outwards and the Ladder collapsed, causing him to fall onto the floor.  The plaintiff alleges that the Ladder, which he said was supplied to him by the 1^st defendant for his work, was defective.

5.The plaintiff consulted a traditional Chinese bonesetter shortly after the Accident and was found by the bonesetter to be suffering from injury to the tendon of his right knee and right popliteal fossa.  He consulted another bonesetter on 26 February 2011 and 4 March 2011 and was diagnosed with right knee fracturing and swelling.

6.According to the plaintiff, on 10 March 2011, he experienced severe pain in his right knee in bed in the middle of the night and was taken to the A&E Department of Princess Margaret Hospital (“PMH”).  He was admitted into PMH’s Department of Orthopaedics & Traumatology (“O&T”)on the same day.  There is an issue as to whether he fell off his bed that night and whether that constituted a novus actus interveniens or at least aggravated his earlier injury from the Accident.

7.After physical and X-ray examination at PMH, the plaintiff was diagnosed with a fracture of the right tibial spine and tear of right posterior cruciate ligament.

B.   THE PARTIES’ PLEADED CASES AND WITNESSES

8.On 29 January 2014, the plaintiff commenced the present action against the 1^st defendant, alleging inter alia that the Accident occurred in the course of his employment by the 1^st defendant, that the 1^st defendant was the occupier of the Premises within the meaning of the Occupiers LiabilityOrdinance (Cap 314) (the “OLO”), and that the plaintiff had been provided with a defective Ladder by the 1^st defendant which led to the Accident and his resulting injury.  The plaintiff claims against the 1^st defendant for negligence, breach of implied terms of the employment contract, breach of common duty of care under section 3 of the OLO and breach of statutory duty under section 6(2)(c) of the Occupational Safety and Health Ordinance (Cap 509) (the “OSHO”).

9.On 4 March 2015, the 1^st defendant, acting in person, filed a defence.  In short, he (1) denied that the plaintiff was employed by him and alleged, rather, that the plaintiff was an independent contractor (獨立判頭) and his business partner (合作夥伴); (2) alleged that the plaintiff chose and purchased the Ladder himself despite the 1^st defendant’s warnings to him not to do so; and (3) alleged that the injury was caused by the plaintiff himself in choosing an unsuitable ladder.

10.On 22 December 2016, the plaintiff filed a revised statement of damages (the “RSD”), signed by his counsel, Mr Stephen Fong, claiming a total sum of HK$2,919,489.75 in general damages, special damages, pain suffering and loss of amenities (“PSLA”) and interest.

11.On 4 July 2017, Deputy High Court Judge Kent Yee gave leave to the 2^nd defendant (the “Board”) to be joined as the 2^nd defendant in the action and to have the right to defend the plaintiff’s claim, including the filing of a defence and an answer to the RSD.  I will come back later to the role of the Board when dealing with the costs of and occasioned by the Board’s intervention in these proceedings.

12.On 13 July 2017, the Board filed a defence and an answer to the revised statement of damages.

13.In the Board’s defence, the plaintiff was put to strict proof of his alleged employment and the terms of any contract of employment with the1^stdefendant.  The Board did not admit that the Ladder had been providedby the 1^stdefendant and denied that the sole cause of the Ladder’s collapsewas that it was defective.  The Board noted that, according to the plaintiff’sown evidence, there had been water on the waxed flooring of the premises,which caused the two legs of the Ladder to slide outwards leading to its collapse.  Further, as a skilled and experienced paint worker, the plaintiff ought to have taken precautions to ensure his own safety, including but not limited to inspecting the condition of the Ladder and the floor before he used the ladder or otherwise performed his work.  In failing to take such precautions, the plaintiff was himself negligent and contributed wholly or partly to the collapse of the Ladder.  Further or alternatively, the plaintiff’s fall from his bed on 10 March 2011 (the “Alleged 2^nd Fall”) constituted a novus actus interveniens or at least aggravated his injury.

14.As mentioned above, the plaintiff gave evidence at the trial. The plaintiff’s daughter, 林希玟 (“Ms Lam”) was also a witness for the plaintiff at the trial.  Before his death, the 1^st defendant filed a witness statement, which was admitted as hearsay at the trial.  The 1^st defendant also filed statements from two other witnesses, neither of which appeared at the trial.

15.The plaintiff’s medical expert was Dr Wong See Hoi (“Dr Wong”), a specialist in orthopaedics and traumatology.  Dr Wong examined the plaintiff on 9 September 2015 and prepared two medical reports opining on the cause of the fracture of the tibial spine.  No medical expert evidence was adduced by either the 1^st defendant or the Board.

C.   ISSUES TO BE DETERMINED

16.On the parties’ pleaded cases, the issues on liability may be summarised as follows:

(1)   Whether the plaintiff was employed by the 1^st defendant at the time of the Accident (the “Employment Issue”);

(2)   Whether the 1^st defendant was in breach of the implied terms of his employment contract with the plaintiff (if any), and if so, whether the Accident was caused by such breach (the “Breach of Contract Issue”);

(3)   Whether the 1^st defendant was negligent, and if so, whether the Accident was caused by such negligence (the “Negligence Issue”);

(4)   Whether the 1^st defendant was the occupier of the Premises at the time of the Accident, and if so, whether the 1^st defendant had breached the common duty of care to the plaintiff (the “Occupiers’ Liability Issue”);

(5)   Whether the 1^st defendant was in breach of his statutory duty under section 6(2)(c) of the OSHO (the “Statutory Duty Issue”);  

(6)   Whether the plaintiff was contributorily negligent in causing the Accident and his injury (the “Contributory Negligence Issue”); and

(7)   Whether the Alleged 2^nd Fall was a novus actus interveniens breaking the chain of causation between the 1^st defendant’s negligence (if any) and the plaintiff’s loss, or alternatively,whether the Alleged 2^ndFall contributed to the injury, and if so, whether there should be an apportionment of liability (the “Alleged 2^nd Fall Issue”).

17.As to quantum:

(1)   The appropriate amount of damages for pain, suffering and loss of amenities (the “PSLA Issue”);

(2)   The plaintiff’s income prior to the Accident (the “Pre-Accident Income Issue”);

(3)   Whether the plaintiff has suffered and will continue to suffer a loss of income after the trial as a result of the Accident (the “Loss of Income Issue”); and

(4)   The amount of special damages (“Special Damages”).

18.I examine each of these issues in turn.

D.   DISCUSSION ON LIABILITY

The Employment Issue

19.The starting point for determining whether an employment relationship exists is the Privy Council decision of Lee Ting Sang v ChungChi Keung [1990] 2 AC 374, where their Lordships held at 382E–G (quoting the judgment of Cooke J in Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 at 184 – 185) that:

“ The fundamental test to be applied is this: ‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’ If the answer to that question is ‘yes’, then the contract is a contract for services. If the answer is ‘no’, then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as tothe relative weight which the various considerations should carryin particular cases. The most that can be said is that control willno doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes,what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”

20.The approach in Lee Ting Sang was more recently affirmed and refined by the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156.  In that case, Ribeiro PJ reviewed the authorities and explained the “modern approach” as follows (at §18):

“ The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developed in the abovementioned case-law with a view to deciding whether,as a matter of overall impression, the relationship is one of employment, bearing in mind the purpose for which the questionis asked. It involves a nuanced and not a mechanical approach”.

21.His Lordship then referred to Hall v Lorimer [1992] 1 WLR 939, where Mummery J said at 944:

“ In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.”

22.In the context of casual employment, the courts have recognised that two types of contract may arise.  As Ribeiro PJ observed in Poon Chau Nam at §§35 – 37:

“ As and when a particular casual job is offered and accepted, the parties enter into a contract in relation to that engagement. Thatcontract may well be classifiable as a contract of employment on an analysis of the type discussed in section B above. Plainly,such a contract does not involve any general obligation to provide or accept work. It comes into existence in relation only to the specific engagement and normally terminates by performance when the engagement is completed. …

On the other hand, it is possible (although uncommon) for the parties to enter into an overall contract whereby they do undertakemutual obligations to provide and accept work. Such a contracthas been called an ‘umbrella’ or ‘global’ contract, to indicate thatit is an over-arching and continuous agreement between the parties,encompassing a series of specific engagements within its span. …

An umbrella contract therefore embodies an obligation mutually undertaken by the parties to supply and take up work. It obviously follows that if no such obligation is undertaken,no umbrella contract comes into existence.  But the fact that there is no umbrella contract does not prevent the court from finding that the parties have nevertheless entered into a contract of employment each time a specific engagement occurs. …”

23.As mentioned above, prior to his death, the 1^st defendant filed a witness statement stating that the plaintiff was not his employee but was, rather, an independent contractor and his business partner.  However,apart from the 1^stdefendant’s witness statement, there is no other evidencebefore the court showing or suggesting that the plaintiff and the 1^stdefendanthad ever shared profits in any jobs or projects, including the one where the Accident occurred.

24.In cross-examination, the plaintiff maintained that he was notthe 1^stdefendant’s business partner.  The plaintiff told the court that he was a casual worker (散工) who was employed for different jobs by different contractors, including the 1^stdefendant.  As to the job in which the Accident occurred:

(1)   All the tools used by him had been provided by the 1^st defendant, including the Ladder, which, contrary to what the 1^st defendant said in his witness statement, had not been purchased by the plaintiff;

(2)   The 1^st defendant also employed one Mr and Mrs Ng as cleaners and who were working for the 1^st defendant in the Premises at the time;

(3)   He was paid a fixed wage of HK$750 per day, which was paid to him after the job was completed;

(4)   He was required by the 1^st defendant to attend work with fixed working hours, including a 1-hour lunch break between noon to 1:00 pm; and

(5)   He was taken to the Premises by the 1^st defendant on the first day of work on the job on 15 February 2011.

25.Having heard the plaintiff’s evidence, and in the absence of any evidence other than the 1^st defendant’s bare assertion in his witness statement, I reject the 1^st defendant’s allegation that plaintiff and the 1^st defendant were business partners.

26.The remaining question, then, is whether the plaintiff was the 1^st defendant’s employee or an independent contractor.  Although the evidence before the court is one-sided due to the death of the 1^stdefendant, having examined the features of their relationship, I find that the plaintiff was a casual worker under the 1^st defendant’s employment at the time of the Accident:

(1)   The 1^st defendant appears to have been operating a contracting business and had engaged the plaintiff to work as a paint worker from time to time, paying him wages at a daily rate of HK$750;

(2)   The 1^st defendant was responsible for the provision of tools, and had hired other workers to work in the Premises. The profits earned from each project belonged to the 1^st defendant. In contrast, the plaintiff personally carried out the work required and did not hire any staff to assist him. He bore no financial risk and reaped no financial rewards beyond his daily remuneration;

(3)   Although the plaintiff accepted during cross-examination that he required little supervision or control over the carrying out of his work as he was a skilled and experienced paint worker,control is not a determining factor in these circumstances and does not alter the picture painted by the other circumstances: see eg Poon Chau Nam at §53; and

(4)   The fact that the plaintiff worked for various contractors from time to time and was free to take up work wherever it can be found (when he was not otherwise engaged) does not mean that he is not an employee, as that is merely the nature of casual employment: Poon Chau Nam at §61.

27.I should note here that the Board accepted in its closing submissions both of the conclusions above.

The Breach of Contract Issue, the Negligence Issue and the Contributory Negligence Issue

28.At the trial, the principal complaint of breach of contract and negligence was that the 1^st defendant had failed to provide a safe and stable ladder for the plaintiff to carry out his work.

29.The Board fairly accepted that if a contract of employment were found between the plaintiff and the 1^st defendant, the contract would contain the usual implied terms that, inter alia, the 1^stdefendant (a) would take all reasonable precautions to ensure the safety of the plaintiff when he was carrying out his work; and (b) that he would provide and maintain safe plant or equipment for the plaintiff.

30.As mentioned above, on the plaintiff’s case, the collapse of the Ladder was due to the sudden snapping of the hemp rope.  The cause of the snapping is not entirely clear.  The plaintiff gave evidence during cross-examination that he had been using the Ladder on 15 February 2011,ie the first day of work in the Premises, and on that day, the rope had remained intact.  The plaintiff also used the Ladder in the morning of 16 February 2011, ie the day on which the Accident occurred, without any issue.  The rope only snapped at around 3:00 pm that day.

31.In the plaintiff’s witness statement, he stated that there was water on the waxed floor that caused the legs of the Ladder to slide outwards while he was standing on it. In cross-examination, the plaintiff explained that the floor of the Premises already had waxing on the first day he came to work, but the waxing did not appear to be new.  The presence of water on the floor was caused by himself as he was using water to remove the existing wallpaper from the wall.  It was natural that some of the water would drip onto the floor, although the amount was not substantial.

32.In this regard, the plaintiff accepted in cross-examination thathe had some responsibility for the Accident.  However, it was also his case that if the hemp rope on the Ladder was not defective, old or worn out, it would not have snapped.

33.On the materials before the court, there is no reliable evidence one way or the other on whether the snap was caused by the rope being subjected to excessive tension from the outward sliding force due to the slippery floor caused by the plaintiff himself, or whether the rope was defective.  Indeed, other than the plaintiff’s evidence that the rope was made of hemp, the details of the rope, such as its condition, thickness or duration of use, are not before the court.

34.On balance, in the absence of circumstances suggesting that the plaintiff had used the Ladder in a way other than how a ladder would ordinarily be used in the course of his work, I find that it was likely to have been defective in the sense alleged by the plaintiff. This was also accepted by the Board. Insofar as necessary, I rely on the doctrine of res ipsa loquitur to infer that the Accident would not have happened had the hemp rope been in good and durable condition to withstand the tension applied to it during normal or ordinary use of the Ladder: see eg Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207 at §§2 – 3 per Bokhary PJ. 

35.The 1^st defendant’s failure to provide a safe ladder or to ensure that the Ladder provided by him was fit and in proper condition constituted a breach of the implied terms of the employment contract as well as negligence on his part, and I so find.

The Occupier’s Liability Issue

36.Section 3(2) of the OLO provides that:

“ The common duty of care is a duty to take such care as in all thecircumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

37.The 1^st defendant was the contractor for the refurbishment works being done in the Premises and the plaintiff was the 1^st defendant’s employee. The 1^stdefendant was plainly an occupier of the Premises and owed a common duty of care to the plaintiff.  For the same reasons that the 1^st defendant was negligent, the 1^st defendant was in breach of the common duty of care to the plaintiff.

The Statutory Duty Issue

38.Section 6(1) of the OSHO provides that:

“ Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees.”

39.In his statement of claim, the plaintiff relies specifically on section 6(2)(c), which refers to:

“ a failure to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of the employer’s employees”.

40.As mentioned above, the plaintiff’s principal complaint at the trial was that the Accident was caused solely by the defective rope of the Ladder.  Moreover, the plaintiff expressly accepted in cross-examination that as an experienced and skilled paint worker, he required no information,instruction, training and supervision, and that the absence of such was not the cause of the Accident.  I therefore find that the cause of action for breach of statutory duty under section 6(2)(c) of the OSHO has not been made out.

The Alleged 2^nd Fall Issue

41.The origin of the Alleged 2^nd Fall Issue is the treatment record issued by PMH’s A&E on 10 March 2011, where it was recorded that the plaintiff had told the attending physician that he had injured his right knee “tonight” by falling off his bed, and that he had a history of right knee injury 20 odd days ago from falling off a ladder.

42.In his evidence, the plaintiff strenuously denied having fallen off his bed that day and attributed the statement in the treatment record to miscommunication between himself and the physician due to his limited Cantonese and heavy Hoklo accent.

43.Ms Lam corroborated her father’s evidence.  Although she accepted that she was not in the plaintiff’s bedroom when he shouted in pain, she explained that the plaintiff could not have fallen from his bed as the plaintiff’s bedroom was very small and there was little space between the bed and the wall.

44.Given that the maker of the treatment record has not been called to give evidence at the trial, I attach limited weight to the record,and on balance, I accept the plaintiff’s explanation that the statement on the treatment record was likely to have been due to miscommunication.

45.More importantly, however, in Dr Wong’s supplemental medical report, he opined that the right tibial spine fracture could not have been caused or aggravated by the plaintiff falling off his bed.  I was impressed overall by Dr Wong who gave his evidence in an impartial and professional manner, and there can be no question as to his qualifications and expertise.  I accept his evidence in full.

46.In the circumstances, the Alleged 2^nd Fall Issue falls away.

Conclusion on liability

47.For the reasons above, the plaintiff has established liability against the 1^stdefendant for breach of contract of employment, negligence and occupier’s liability, but not breach of statutory duty.

E.   DISCUSSION ON QUANTUM

48.As mentioned above, the plaintiff claimed a total sum of HK$2,919,489.75 in his RSD.  This sum is made up as follows:

(1)   PSLA of HK$450,000,together with interest of HK$18,000;

(2)   Special damages totalling HK$1,941,654.66, comprising (a) medical expenses of HK$15,000; (b) travelling expenses of HK$5,000; (c) nourishing food of HK$5,000; (d) past loss of earnings of HK$1,420,874; (e) loss of retirement benefits under the Mandatory Provident Fund (“MPF”) of HK$71,043.70; and (f) interest on the above at HK$424,736.96; and

(3)   General damages of HK$509,835.09 comprising (a) future loss of earnings of HK$359,842.94; (b) loss of MPF of HK$17,992.15; and (c) loss of earning capacity of HK$132,000. 

49.In his written opening submissions, however, Mr Fong reduced the quantum of the plaintiff’s claim by nearly two-thirds to HK$1,083,119, comprising (1) PSLA of HK$450,000; (2) past loss of earnings of HK$493,166.70; (3) future loss of earnings of HK$120,000;and (4) special damages of HK$19,952.3 (which was further reduced to HK$18,997 in oral submissions).  Mr Fong was unable to give anexplanation to the court when I asked him the reason for such substantial reductions, given that he himself had settled and signed the RSD.

50.Further, in the course of the trial, Mr Fong informed the court that the plaintiff will not be pursuing alleged future loss of earnings,thereby further reducing the quantum of his claim to HK$962,163.70. This was a fair concession given that the plaintiff is currently 65 years old and past the usual retirement age for paint workers.

51.In its opening submissions, the Board submitted that (1) pre-trial medical expenses should be limited to HK$9,847; (2) pre-trial transportation expenses should be limited to HK$885.50; (3) past loss of earnings and MPF to be assessed; (4) loss of earning capacity should be nil; and (5) PSLA should be limited to less than HK$300,000.

52.In its closing, the Board revised and updated its position and submitted that the appropriate amount of damages to be awarded should be HK$682,932.50, comprising: (1) PSLA of HK$400,000; (2) past loss of earnings of HK$267,200; and (3) special damages of HK$15,732.50.

53.I examine each head in turn.

PSLA

54.Central to the determination of the appropriate award for PSLA is the extent of the plaintiff’s residual disability or impairment as a result of the Accident.

55.In his RSD and witness statement, the plaintiff complained of right leg numbness, pain, stiffness and not being able to walk for more than 30 minutes.  Further, he experienced cramps when he straightened his right leg during sleep, which affected the quality of his sleep.  The plaintiff accepted in cross-examination, however, that his daily activities were largely unaffected, and he was able to take care of himself, including taking public transport alone.

56.As to the medical evidence, the extent of the plaintiff’s injuries immediately after the Accident and the details of the treatments received by him are well-documented:

(1)   Physical examination by the PMH’s O&T on 10 March 2011 revealed inter alia tenderness in the right knee.  No swelling was noted, and mild tenderness over the lower lumbar region was recorded.  X-ray examination showed tibial spine fracture with displacement;

(2)   The plaintiff initially opted for conservative treatment but was admitted on 13 October 2011 for open reduction and internal fixation of posterior cruciate ligament avulsion fracture, which Dr Wong accepted was a reasonable course. The post-operative course was uneventful;

(3)   Thereafter, he attended physiotherapy for 32 sessions from 14 November 2011 to 24 May 2012, and occupational therapy for 17 sessions from 16 May 2012 to 18 July 2012;

(4)   The active range of his right knee increased to 120 degrees after receiving physiotherapy.  It was measured at 125 degrees upon Dr Wong’s examination, showing further improvement;

(5)   There was mild knee extension, and some sign of muscle wasting in the right thigh.  There continued to be laxity in his posterior cruciate ligament;

(6)   The diagnosis was that the plaintiff sustained avulsion fracture over the proximal right tibia associated with PCL laxity.  In terms of causation, Dr Wong agreed that the diagnosis was compatible with the mechanism of injury and that the fracture was directly caused by the Accident;

(7)   Overall, Dr Wong’s prognosis was that the plaintiff’s recovery was fair.  Dr Wong considered that the plaintiff would continue to experience pain in his right knee and this will not improve or disappear.  However, most of his daily activities would remain unaffected.

57.In terms of loss of amenities, the plaintiff confirmed that he has no regular sports activities and did not indicate that his injuries have prevented him from pursuing any activities that he enjoys.  The injuries have only prevented him from continuing to work as a paint worker. He therefore did not complain of any loss of amenities as a result of the residual impairment of his right knee.  The plaintiff also did not complain of any psychiatric conditions arising from the injury.

58.It is clear from the above that the plaintiff’s injury falls belowthe “serious injury” category set out by the Court of Appeal in Lee Ting-lam v Leung Shu-wing [1980] HKLR 657, being the lowest category covering 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 badfractures leaving recurrent pain.  It has recently been held that the range ofawards for PSLA for “serious injury” is now HK$530,000 to HK$716,000. See eg Chan Ho Kan v Mo Man Ho & Anor [2018] HKCFI 2174 at §100.

59.Neither the plaintiff nor the Board submitted that the present case falls within the serious injury category.  On that basis, the following cases are relevant and are of guidance:

(1)   In Ku Chiu Chung Woody v Tang Tin Sung (unreported) HCPI 288/2001, 20 September 2002, the court awarded HK$375,000 for PSLA for an injury involving close fracture of the left acetabulum with dislocation of the left hip; open fracture of the left proximal tibia; open complete tear of the anterior cruciate ligament of the left knee; open partial tear of the lateral meniscus of the left knee and closed fracture of the shaft of the left tibia;

(2)   In Kamal Rana v Aoki Corporation (unreported) HCPI 1404/2000, 31 December 2002, the court awarded the plaintiff HK$350,000 for PSLA in an injury involving hemarthrosis of right knee.  The residual impairment is similar to that of the plaintiff in the present case, although in that case, the plaintiff suffered some loss of amenities and was no longer able to play football as a forward.  The case fell below the serious injury category.

60.As mentioned above, the residual impairment to the plaintiff’s right knee is relatively mild.  His daily activities are not affected, and he does not claim to suffer any loss of amenities.  That said, the plaintiff willcontinue to experience pain to his right knee which, according to Dr Wong, would be expected to worsen as the plaintiff ages.  His quality of sleep is also affected.  As the two cases above were decided some 16 years ago,it is reasonable to allow for some inflation.  In my judgment, an award of HK$420,000 for PSLA is reasonable.

Pre-trial loss of earnings and MPF

61.There is no dispute that the plaintiff should be entitled to his full loss of earnings for the entire period of sick leave granted by his treating doctors from 16 February 2011 to 3 November 2012 (20 months and 18 days), which Dr Wong agrees was reasonable.

62.Thereafter and up to the plaintiff’s retirement age of 60, ie from 4 November 2012 to 22 September 2013 (10 months and 18 days),the Board submitted that the plaintiff should only be awarded partial loss of earnings since he should have been able to resume gainful employment and mitigate his loss.  In cross-examination, the plaintiff accepted that his doctors told him that he was not suitable to resume his pre-injury employment.  He understood that he had reduced capacity as a paint worker as he could not stand or walk for extended periods of time and could not climb up and down a ladder.  The plaintiff’s gradual reduction of income and employment as a paint worker was therefore inevitable.

63.The plaintiff explained, however, that due to his limited ability to speak Cantonese, he had attempted but was unable to find other forms of employment of a more sedentary nature.  The Board contends that the plaintiff could have found employment, for instance, as a cleaner, although I have some doubts as to his employability as such given his physical condition.  It is also unclear that even if the plaintiff were able to find alternative employment, what the earnings from such employment would have been.

64.In the end, I am not persuaded that this is a case where the plaintiff should have his damages reduced by reason of failure to mitigate his loss.  I would therefore award the plaintiff damages for his loss of earnings in full from 4 November 2012 to 22 September 2013 (10 months and 18 days).

65.The remaining issues are what was the rate of the plaintiff’s daily wage, and for how many days he worked on average each month prior to the Accident.

66.The plaintiff claims that his monthly earnings immediately prior to the Accident were HK$19,500 on the basis that he worked an average of 26 days per month at a daily wage of HK$750.  I agree with the Board, however, that the evidence in support of the plaintiff’s contention is unsatisfactory.

67.First of all, there is no documentary evidence at all showing the plaintiff’s monthly earnings prior to the Accident.  Although the plaintiff disclosed during the trial his savings deposit passbook, there were no deposits of his earnings into his savings account before or around the time of the Accident.  The plaintiff also did not file any tax returns, claiming that this should have been done by his employers on his behalf.

68.Mr Fong referred the court to the “Average Daily Wagesof Workers Engaged in Public Sector Construction Projects as Reported byMain Contractors” for February 2011 published by the Census and Statistics Department (which was adduced only during the trial).  It is shown there that the average daily wages of a painter and decorator was HK$785.6.  In the circumstances, I accept as reasonable the plaintiff’s evidence that he received a daily wage of HK$750.  The question, then, is the number of days that he was employed on average each month.

69.The plaintiff accepted in cross-examination that he kept no records of his receipt of income or the number of days he was employed each month.  He was therefore unable to give any support to his assertion that he was working 26 days a month around the time of the Accident.

70.From his passbook, however, it can be seen that in the period from June 2004 to April 2010, the plaintiff received deposits of subsidies from the Social Welfare Department (“SWD”) under the Comprehensive Social Security Assistance Scheme.  As explained by the plaintiff and Ms Lam, the amount of SWD payments varied each month depending on the amount of income (if any) from other sources.

71.Mr Fong prepared a summary of SWD payments into the plaintiff’s bank account showing the average monthly income of the plaintiff’s household from 2004 to 2010, comprising monthly SWD payments and monthly public housing subsidies of HK$2,500.  In addition, the plaintiff said his wife worked part time at a dim sum restaurant and later a bakery, earning HK$3,800 per month.

72.From the summary, it can be seen that the average monthly household income was HK$17,253.60 in 2004, HK$16,818.7 in 2005, HK$18,270 in 2006, HK$15,166.90 in 2007, HK$14,772 in 2008, HK$12,637 in 2009 and HK$10,642.25 in 2010 (up to April 2010). Taking an average of the seven years before the Accident, the monthly household income would have been HK$15,080.06.

73.In cross-examination, the plaintiff said that when he was receiving SWD payments, he did not work.  The plaintiff stopped receiving SWD payments after April 2010 when he started working.  Mr Phang invited the court to infer that the plaintiff and his wife were likely to have earned a similar aggregate income to that prior to April 2010, when the plaintiff was receiving SWD payments.  On that basis, excluding the HK$3,800 contributed by the plaintiff’s wife, the plaintiff’s earnings from being a paint worker should have been around HK$11,280 per month (HK$15,080 less HK$3,800).  This figure would translate to the plaintiff working around 15 – 16 days a month (HK$11,280 divided by HK$750).

74.I accept that this calculation is by no means precise and rests upon a number of assumptions.  However, given the dearth of evidence concerning the plaintiff’s income or the number of days he worked a month other than his unsubstantiated assertions, the court can only do its best on the available evidence.  The plaintiff was unable to give any real explanation as to why he was able to move from having no work prior to April 2010 (when he was receiving SWD payments), to suddenly working at almost full capacity of 26 days a month after April 2010.  In my view, working 15 – 16 days a month is more reasonable taking into account 1 rest day per week, and on the plaintiff’s own evidence, a gap of a day or two between jobs.

75.I therefore agree with Mr Phang that the court should adopt a pre-injury monthly income of HK$12,000 (HK$750 multiplied by 16 days).  Hence, the plaintiff is entitled to pre-trial loss of earnings of HK$393,120, comprising: (1) HK$12,000 × 20 ¹⁸⁄₃₀ months = HK$247,200; (2) HK$12,000× 10 ¹8⁄₃₀ months = HK$127,200; and (3) MPF at HK$18,720 (HK$374,400 × 5%).

Special damages

76.Based on the receipts produced by the plaintiff, he has incurredmedical expenses in the amount of HK$9,847.  This amount is not disputed by the Board, and I therefore allow this sum.

77.As for transportation expenses, although the plaintiff claims the sum of HK$4,150, I agree with Mr Phang that the receipts produced bythe plaintiff only total HK$885.50.  I therefore allow a sum of HK$885.50. 

78.As for the claim of HK$5,000 for tonic food, no receipts were produced. However, the plaintiff gave evidence that he had consumed nourishing or tonic food such as chicken or fish soup to help him recover.  This was not challenged by the Board, which noted that such claims are in practice allowed even without documentary evidence (see, for instance, Chan Ho Kan v Mo Man Ho & Anor [2018] HKCFI 2174 at §110).  I therefore allow the sum of HK$5,000, which I find reasonable, for tonic food.

79.The final award of damages (not including interest) is therefore HK$828,852.50, comprising: (1) PSLA of HK$420,000; (2) past loss of earnings of HK$393,120; and (3) special damages HK$15,732.50.

F.   ORDER AND COSTS

80.There is no dispute between the parties that the final award of damages (together with interest) is to be made against the 1^st defendant alone, and no judgment is to be entered directly against the Board: see eg Tu Zhiqiang v Hap Sang Co (a firm) [2012] 1 HKLRD 1075 at §§48 to 51 per Cheung CJHC (as he then was).  It is for the plaintiff to exhaust his enforcement remedies against the 1^st defendant (or more accurately,his estate) and, if the judgment remains unsatisfied, he may make an application to the Board for a “relief payment” under sections 20B(1) and 20A(2) of the Employees Compensation Assistance Ordinance (Cap 365) (“ECAO”).

81.I therefore enter judgment for the plaintiff against the 1^st defendant in the sum of HK$828,852.50.  There will be interest on general damages (PSLA) at 2% per annum from the date of the writ to today, and interest on special damages (past loss of earnings and miscellaneous special damages) at ½ of the current judgment rate from the date of the Accident (ie 16 February 2011) to the date of this Judgment.

82.As between the plaintiff and the 1^st defendant, there is no reason why costs should not follow the event, and therefore, the plaintiff is to have the costs of the action against the 1^st defendant, to be taxed if not agreed.

83.The plaintiff also seeks a costs order against the Board on the basis of the Board’s intervention and defence of the action. As Mr Phang accepted, the Court of Appeal has held, for instance, in Jiang Zhong v Yeung Chun Leung [2018] 1 HKLRD 886 that the court has the power to order costs against the Board in appropriate circumstances. I am of course bound by such authority.  However, I should record that Mr Phang reserved the Board’s position, should this matter proceed further, that upon a proper construction of the ECAO, and in particular, section 20B(3) thereof, the court has no jurisdiction to order costs against the Board.

84.The principles upon which the court should exercise its discretion on costs where the Board intervenes to defend an action were considered by the Court of Appeal in Jiang Zhong and more recently in Wo Chun Wah v Chau Kwei Yin & Ors (unreported) [2018] HKCA 789, 23 November 2018.

85.In Jiang Zhong, Cheung JA held that at §6.10:

“ Bharwaney J’s view [in Kwan Kam Pui v Fung Man & Ors [2014] 6 HKC 361] that the Board may be liable for the costs of the whole action is not necessarily appropriate in all circumstances. It depends on the context of the case. What is important is that the discretionary jurisdiction is guided by well‑established ‘principles’ on how costs are to be awarded.”

86.Further, in Wo Chun Wah, Kwan JA (giving the reasons of the court) held at §§33 and 34 that no “… specific guidance how the discretion as to costs should be exercised where the Board has intervened in proceedings [was] necessary.  The rules and principles laid down in the rules of court and decided cases would give adequate guidance.”  The judge below was thus entitled to take into account the usual matters in Order 62, rule 5(1) of the Rules of the High Court (“RHC”) as well as to recognise the special position of the Board as may differentiate it from ordinary litigants.

87.Much time was spent in written submissions by the plaintiff and the Board criticising each other’s conduct of the action and how such conduct should impact upon costs.  I have considered them and do not intend to address each and every one of them in detail in this judgment.  It is sufficient to note the following:

(1)   There can be no dispute that there was a very substantial reduction in quantum claimed in the plaintiff’s opening submissions from its position in the RSD, which was settled by Mr Fong.  As mentioned above, no satisfactory explanation has been given by Mr Fong for the reduction, resulting in the inevitable impression that there was some degree of exaggeration in the RSD.  There were also further reductions in the course of the trial.  I agree with Mr Phang that the plaintiff would unlikely have made the reductions had the Board not joined in the action;

(2)   In the end, the amount I have awarded to the plaintiff is less even than the reduced amount sought.  The court was assisted by the Board’s assessment and evaluation of the evidence in determining the appropriate amount of damages to be awarded under each head of claim, including in particular,the plaintiff’s claim for past loss in earnings, which was largely unsupported by any evidence.  The approach of the Board throughout the trial was a fair and balanced one;

(3)   Although the Board pleaded positive defences of contributory negligence and novus actus interveniens, these were issues that arose from the evidence adduced by the plaintiff himself. Even had the Board not intervened, the court would likely haveraised the same queries and would likely have necessitated the same supplemental evidence to be adduced by the plaintiff to address those queries;

(4)   I have also taken into account the fact that the Board did not make a written offer before the trial, which it was at liberty to do under section 29 of the ECAO (see eg Wo Chun Wah (ibid) at §§41 – 43).  In particular, I considered the correspondencebetween the respective solicitors of the plaintiff and the Boardand note the refusal by the plaintiff’s solicitors of the Board’s request for supporting materials on pre-injury income, which was directly relevant to the bulk of the plaintiff’s claim.  In the absence of such materials, I agree with Mr Phang that it was rather difficult for the Board to have made a meaningful written offer before the trial;

(5)   In any event, even had the Board had made such an offer, the trial would still have to proceed as against the 1^st defendant who is not bound by any “settlement” between the plaintiff and the Board.  The plaintiff would in any event have to come to court to prove his case on liability and quantum against the 1^st defendant.  Hence, a written offer would not have obviated the necessity of a trial, although I accept that the length of the trial, which lasted two and a half days, may have been slightly shorter.

88.Having regard to all the circumstances, including the matters above and the factors in RHC Order 62, rules 5(1) and (2), I consider that the appropriate order in this case would be no order as to costs between the plaintiff and the Board.

89.Finally, in the last paragraph of his written closing submissions, Mr Phang mentioned briefly that there should be an order that the 1^stdefendant bear the Board’s costs as he is the “real party at fault”.  No authority has been cited by Mr Phang in support of such an order, and the point was not developed in oral submission.  In any event, this was the first time the point has been raised, and given the absence of the 1^stdefendant, I do not think that it would be fair or appropriate to considersuch an order without hearing argument or at least giving the 1^stdefendant an opportunity to respond.  I therefore decline to make such an order.

90.Last but not least, I thank both counsel for their assistance.

Mr Stephen Fong, instructed by Damien Shea & Co, for the plaintiff

Mr Roger Phang, instructed by P C Woo & Co, for the 2^nd defendant

The 1^st defendant, since deceased, his estate unrepresented