Ho Kwok Sang v. Lo Chin Pang Edman

HCPI 628/2014

[2021] HKCFI 208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 628 OF 2014

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Before: Master Roy Yu in Court

Date of Hearing: 4 & 5 November 2020

Date of Judgment: 27 January 2021

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ASSESSMENT OF DAMAGES

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1.It is the plaintiff’s case that on 5 July 2011 at around 2:35 pm, he was assaulted by the defendants (“the incident”). As a result, he suffered injury and took out these proceedings to recover his loss. Interlocutory judgement on liability has been entered against the defendant on 25 August 2014. This is the assessment of the damages.

The Incident

2.The incident is set out in the statement of claim.  Paragraphs 2 &3 read

2.  On 5 July 2011 at around 2:30 pm, at the common area close to the entrance gate on ground floor of the complex, the plaintiff and the defendant who have never been acquainted before, accidentally bumped into each other when the plaintiff was about to leave the complex. A dispute then arose between the plaintiff and the defendant. 

3.  In The heat of the dispute, the defendant approached the plaintiff and without the plaintiff’s consent intentionally inflicted unlawful force onto the plaintiff. 

3.I do not repeat the particulars of attack and shall come to the details in the evidence of the plaintiff later.  At paragraph 4 of the statement of claim, the plaintiff elaborates his reaction to the assault

4.  In defending himself, the plaintiff struggled and had: -

(a)   make attempts to push away the defendant’s hand and/or arm which was grappling and/or holding over his neck; and

(b)   bitten the defendant’s finger(s) which were poking into his eyes and/or mouth.

4.It is the plaintiff’s case that he later lost his balance and fell onto the ground and lost consciousness for a brief duration.  The plaintiff was sent to hospital and I shall come to his injury and treatment later. 

The Damages Claimed

5.According to paragraph 2 of the Amended Revised Statement of Damages, the plaintiff said he has and/or continues to suffer the following injuries as a result of the incident: - 

a.  a brief duration of loss of consciousness;

b.  Bruises at the right lower eye lid, both elbows and left knee;

c.  Abrasion on forehead;

d.  Scratch marks at anterior neck;

e.  Tenderness over right shoulder, left knee and lower cervical spine;

f.  Redness over both forearm;

g.  Reduced limb power on the right upper limb;

h.  Neck pain and left knee pain;

i.  Persistent pain and stiffness over the right thumb; and

j.  Reduced grip and pinch strengths in the right hand. 

6.The plaintiff claims the total loss and damages of HK$3,888,772.00 as follows –

PSLA	$100,000
Pre-trial loss of earnings	$1,466,745
Future loss of earnings	$2,300,760
Special damages	$21,267
Total:	$3,888,772

7.Mr Chan, counsel for the defendant submits that the core issues to be determined by this Court are: -

(a)  Whether the plaintiff’s symptoms on his right thumb/wrist and left knee were caused by the defendant in the incident; and

(b)  What is plaintiff’s pre and post-trial loss of earnings. 

8.I trust these are 2 of the issues to be considered in assessing the claim.  The pre-accident job and earnings of the plaintiff is also an issue in dispute. 

The plaintiff’s Medical Treatment

9.After the incident, the plaintiff has been sent to Princess Margaret Hospital (“PMH”) for treatment.  The joint orthopaedic expert, Dr Law Yee Cheong and Dr Tsoi Chi Wah Danny have reviewed and summarised the medical notes and reports on the injuries and treatment of the plaintiff in their report dated 31 August 2018, which shows a fair picture of the injuries, treatment and recovery of the plaintiff from these reports.  It is recorded from page 5 of the report -

1.  According to the A&E report by Dr Li Shi Nga of PMH dated 1/2/2012, the plaintiff attended their department on 5/7/2011 after fighting with another man.  He complained of neck pain in right upper limb weakness.  Physical examination revealed bruise at right lower eyelid, abrasion forehead, and scratch marks over anterior neck.  There were tenderness over cervical spine and both arms.  X rays did not reveal any fracture.  He was then admitted into Orthopaedic ward. 

2.  According to the Orthopaedic report by Dr HK Wong of PMH dated 12/1/2012, the plaintiff was admitted into their ward through A & E department on 5/7/2011.  Physical examination revealed bruise over right inferior eyelid, both elbows, tenderness over right shoulder, bruise and tenderness over lateral aspect of right knee as well as tenderness over lower cervical spine with muscle spasm.  X-ray of cervical spine, both knees and right shoulder revealed no fracture or dislocation. Urgent CT brain revealed no lesion and he was discharged with neck collar on 6/7/2011. 

The plaintiff attended Orthopaedic outpatient follow up on 13/7/2011 complaining of right thumb pain with stiffness.  Physical examination revealed mild swelling over MCPJ of right thumb with stiffness.  X ray revealed two calcification foci adjacent to the first metacarpal bone. 

The plaintiff was then admitted into PMH receiving examination under anesthesia and arthrotomy as well as manipulation of MCPJ under anaesthesia. 

All along the plaintiff was given sick leave until 6/2/2012. 

3.  According to the Physiotherapy Report by Tse Chee Kok Tommy of PMH dated 10/1/2012, the plaintiff [received] 22 sessions of outpatient physiotherapist until 15/12/2011. 

4.  According to the Occupational Therapy reports by Ms Aileen Chu of PMH dated 16/1/2012 and Ms Florence Leung of PMH dated 22/7/2014, the MCPJ and the 1st web space was decreased.  The plaintiff underwent occupational therapy and assessment until 15/12/2011.  The right thumb motion improved.  The pain at MCPJ improved.  There was overall decreased grip and pinch strength of his right hand due to pain on exertion. 

10.Further, after discharged from PMH, on 8 July 2011, the plaintiff received treatment/examination by Kin Lam Medical Centre.  It is recorded in the medical report of the Centre that the plaintiff has multiple superficial lesion over the body including the abrasion on the forehead, nose, neck, right forearm, right knee, left forearm and the left thigh. 

11.And from 2 March 2012 to 12 April 2012, the plaintiff attended 41 sessions of bone setter treatment to his right thumb and left knee.  The receipts from bone setter have been produced.  On the receipts, it is mentioned that the right thumb and left knee were injured accidentally with no reference to which accident/incident.  I refer to the first receipt dated 2 March 2012 and the diagnosis is written -

右手拇指關節意外扭傷及左膝關節意外扭傷

Similar diagnosis has been stated in other receipts.  There is no other record of treatment.

The Plaintiff’s Evidence

12.The plaintiff is the only factual witness in this assessment.  He adopted his witness statement dated 31 August 2018 and his supplemental witness statement dated 20 August 2019 as his evidence-in-chief.  He also gives supplemental evidence in Court on his latest employment status and the condition of his right wrist/thumb and left knee. 

13.The plaintiff was 31 at the time of the incident and is now 41.  He was educated in Hong Kong and completed a diploma major in design. 

14.Before the incident, the plaintiff did not know the defendant.  He later knew that they both lived in the same complex.  According to paragraph 3 of his witness statement, the plaintiff said on 5 July 2011, when he was walking at the common pathway of the complex on the date of incident, he passed by the defendant and might have inadvertently bumped his body against the defendant.  And the defendant attacked him from behind, causing him injuries. 

15.The plaintiff said in his witness statement that the defendant looped his neck by hand (被告突然從後向我箍頸施襲).  He struggled and tried to push away his hand.  The defendant attacked his head with hand repeatedly and scratch his face, punch his eye.  He struggled a long time but could not get rid of the defendant.  He did not know how long but later someone told him that he had been unconscious.  When he was sent to PMH, he was conscious. 

16.The plaintiff said he was hospitalized for one night at PMH after the incident. Thereafter, he received physiotherapy treatment in PMH.  Later, he discovered his right thumb felt painful and powerless, and his left knee felt pain.  He reported to his physiotherapist and was referred for further examination at PMH.  (As mentioned above, according to the medical report, he complained of right thumb pain with stiffness on 13 July 2011, about a week after the incident.) 

17.The plaintiff received an operation at PMH to treat his thumb (which I have mentioned above and I do not repeat).  He also received 22 sessions of physiotherapy treatment at PMH. 

18.When being cross examined on his thumb injury, he said he was pushing away the defendant’s hand to release the hoop and could then injured his thumb.  And he had fallen on the ground, when his left knee might have also been injured. 

19.Mr Chan put to the plaintiff that his injuries on the thumb, right wrist and left knee are not caused by the incident as these injuries were not set out in the medical report after the initial treatment.  The plaintiff said he had mentioned to the medical staff and do not know that they have not been put down. 

20.The plaintiff also claims that the injuries affected his daily life.  Before the incident, the plaintiff said he had good health.  He enjoyed sport.  On weekday evenings, the plaintiff would play football with his friends.  On weekend, he would play volley ball or basketball.  He also like running.  Every day he would travel by motorbike, and sometimes he would drive his motorbike around the city and enjoy himself. 

21.The plaintiff said he also enjoyed cooking.  When having gathering with friends, sometimes he would toss wok to show his cooking skill. 

22.After the injury, he could not share the household work and he became tired easily. Squatting down for long would cause left knee pain.  He was right handed.  But now he could not hold the chopstick securely and he had to adapt to using spoon for eating.  He was also learning to brush his teeth with his left hand. 

23.For the first one or two years after the incidents, the plaintiff gave up all sports.  Then he attempted to start football again.  But after each match, his left knee felt painful and had to rest for a few date.  Occasionally, he needed to have treatment from bone setter.  And as his income was unsecured, the travelling expenses to football ground became a heavy burden.  He had stopped playing football for 3 or 4 years. 

24.He said his right thumb is still powerless and the stretching angle of his right wrist is less than his left wrist.  This affected his skill at volleyball which he had given up.  He also gave up basketball and running. 

25.He also gave up driving as his right hand could not handle the motorbike. 

26.On his income before the incident, he said in his first witness statement that he was a shopkeeper (店務員) in a bakery shop known as 超宣言.  He had to carry and put heavy goods onto the racks.  His monthly earning was about $20,000.  He said he lost his job at the bakery shop after the incident, mainly because his right thumb is powerless and cannot carry heavy objects.  Squatting down for too long would cause him left knee pain.

27.In his supplemental witness statement, the plaintiff clarifies that he joined 超宣言on 1 June 2011, about 1 month before the incident.  He also corrected himself that the shop was not a bakery shop but a grocery shop/convenient store (雜貨店).  And he was not a shopkeeper but a manager (店長). 

28.It is also noted that it has been recorded in both expert reports (which I shall come to later) that he was a convenient store manager for a few months before the accident.  His duties involve hands-on loading and unloading goods and grocery items. 

29.On cross examination, he admits that the shop 超宣言 was operated by his brother-in-law.   He said he used to help out in the shop with no pay.  His brother-in-law later asked him to work in the shop and promised to pay him $20,000 per month.  No employment contract or other documentary proof on employment has been produced save a certificated issued by 超宣言 on his earnings, signed by his brother-in-law.  No tax return has been produced. 

30.It has not been mentioned in both of his witness statements what his employment/work was before he joined 超宣言.  On cross examination, the plaintiff said after graduation in 2002, he began his working career as a product designer.  He was then on employment basis and his last monthly wages is about $13,000.  In 2007 or 2008, he started to work as a freelance designer. 

31.He was not clear on his earning as a freelance designer.  On cross examination, he said he also worked as a freelance designer for safety equipment in playground.  Initially, he worked as a designer of the safety equipment.  And later he also worked as installation worker of the safety equipment, earning about $1,000 per day.  His earning depended on the job.  He estimated to have worked for 20 odd days a month.  Unfortunately, all these have not been stated in his witness statement.  And there are no supporting documents. 

32.As mentioned above, the plaintiff said in his witness statement he lost the job after the incident, mainly because his right thumb was powerless and could not carry heavy goods.  And his left knee was painful from time to time.  And he could not stand too long or go up and down staircase because of the left knee pain.  On cross examination, the plaintiff agrees that he was not dismissed. There is no evidence that he had returned to work before he found that he could not handle the job.  It is by agreement with his brother-in-law that he left the job.  For the second month, he only worked 5 days before the incident and he was paid on pro rata basis.  The exact time when he terminated the job was not clear. 

33.After leaving the shop, the plaintiff said he wanted to find clerical work.  He had not specified the type of work/job he was looking for.  There is no documentary evidence on his application, or any details.

34.It is not disputed that because of the incident, both the plaintiff and the defendant had been charged for the offence of fighting in public place.  The prosecution prepared a set of the brief facts and offered not to adduce evidence on condition that the plaintiff agreed to be bound over.  The plaintiff disagreed with the brief fact and the prosecution did not pursuit the charge against the plaintiff. 

35.The plaintiff said in his witness statement that there was an App on the web called “do no evil”.  Some employers use the App to check whether an applicant was involved in criminal matters/proceedings.  When he looked for a job and said he had no criminal record, some employers would refuse his application saying that he had been dishonest, as he had been charged for fighting in public place.  It is not disputed that the App is no longer available.  While the App is no longer available, he said he still had no confidence to look for jobs. 

36.It is the plaintiff’s evidence that from July 2011 to 30 June 2014, he worked as a freelance designer earning around $4,000 to $5,000 per month.  And because of his right thumb problem, he could not draw a line without repetition.  When doing demonstration to clients, they would question his ability. 

37.According to his witness statement, from 2014 to 2018, he worked in another shop of his brother-in-law called 食物宣言.  His monthly salary was $8,000 per month.  His work included looking after the shop, being the cashier, and to arrange distribution of manpower.  By 2018, as the rental kept increasing, the shop could not maintain profit.  His brother-in-law closed the shop and he lost the job.  And due to his injury, he was still unemployed at the time when he signed the witness statement. 

38.In his supplemental witness statement, he repeats that from June 2014 to May 2018, he worked in 食物宣言 as a shop assistant, to look after the shop, being a cashier and arrange manpower.  On the average, he worked 120 hours a month, at $40 per hour.  He corrected himself and said that his average earning is only $4,800 per month and not $8,000 as he said in his first witness statement.  As his income is low, he had to take on more part time work in other jobs. 

39.He corrected himself that he has also worked in a company called Ho King Development Ltd as a part-time worker assisting with the installation of anti-collision safety facilities from July 2014 to end of September 2019 earning around $2,500 per month.  And since May 2017 to end of August 2019, the plaintiff also worked in a company called Jing Fung Engineering Co as a casual worker assisting with interior decoration work and installation of furniture earning about $2000 per month.  And since June 2018 to end of September 2019, the plaintiff worked in a shop named 激安電子特賣場 as a part-time shop assistant earning an average of about $2500 per month.  As from November 2019 to January 2020, the plaintiff said he worked for a logistics/delivery company called “My Style” when he worked 10 hours a day, and 5 days a week.  He was paid at an hourly rate of $40, earning a monthly salary of about $8,000.  The job duties involved packing and unpacking items for delivery.  From February 2020 to now, the plaintiff is still working at My Style.  While his hourly pay has been raised to $50, but he was asked to work 7 hours a day, 5 days a week and his monthly earning is about $7000. 

40.Mr Wou has kindly prepared a chart show the earnings of the plaintiff after the incident from the witness statements of the plaintiff.  The chart is attached hereto as Annexure. 

Expert evidence on Plaintiff’s Injuries and Recovery

41.Two expert reports have been obtained and leave has been given for them to be adduced without calling the makers. 

42.A single report has been obtained from Dr Tsoi Chi Wah Danny nominated by the plaintiff dated 12 June 2015, with examination done on 1 June 2015, when the defendant was then acting in person.  He opines at page 11 that “based on the description by the plaintiff and the information from the available medical documents, it is likely that the plaintiff sustained the following injuries when he was assaulted on 5 July 2011: –

Facial contusion and head concussion

Eye contusion

Sprained neck

Sprained right wrist

Sprained right thumb

Sprained left knee

Multiple superficial contusion over various parts of body

Dental injury

43.Dr Tsoi recorded that the plaintiff has X-Ray of right thumb done in PMH, and according to Dr Wong of PMH, there are 2 calcification foci adjacent to metacarpal bone of right thumb.  He was admitted to PMH for treatment as above mentioned. 

44.He commented that the plaintiff’s left knee was in stable and satisfactory condition.  The range of motion and strength returned to normal and no laxity was detected.  The only residue was some tenderness over biceps and semi-tendinous tendon insertion. 

45.Examination of right wrist also confirm mild stiffness especially on extension.  There was no laxity and strength was preserved. 

46.There was residual stiffness over MCP joint of right thumb despite removal of calcified foci.  The pinch grasp between thumb and fingers was slightly weakened. 

47.Dr Tsoi commented that the plaintiff has recovered well.  It is Dr Tsoi’s opinion that the plaintiff can resume his pre-injury job as supermarket/convenience store manager (the job he claims to have before the incident), but with reduced capacity in handling very heavy items, say over 30 kilograms frequently. 

48.Sick leave up to January 2012 was endorsed by Dr Tsoi. 

49.By further order of this Court, a joint report dated 31 August 2018 has been obtained from Dr Tsoi and Dr Law Yee Cheong Wally (an expert nominated by the defendant when he has legal representation) with examination done on 16 July 2018.   

50.Dr Tsoi repeated his said findings on the injuries to the plaintiff. 

51.After examination, Dr Law recorded the plaintiff’s condition including right thumb MCP joint stiffness, left knee pain, right wrist pain and stiffness, and the other injuries including facial contusion, abrasion, head concussion, neck contusion, elbow/forearms contusion, right knee sprain and right shoulder sprain.  Dr Law said in the treatment records after the incident, there was no mention of any involvement on his right thumb, right wrist, or left knee.  As it is customary for healthcare staff, in cases of patient being involved in assault, to have detailed account of all injuries, to prepare for future reporting purpose.  Therefore, it is very likely that the plaintiff did not have any evidence of injury on 5 July 2011 upon his right thumb/wrist and left knee. 

52.Dr Law said it is reported that the plaintiff had two calcific shadows adjacent to his right thumb on 13 July 2011 which was probably due to soft tissue calcification.  The x-ray was taken 8 days after the alleged injury and soft tissue calcification could not have developed in such short time.  The calcific shadows are likely pre-existing and related to previous trauma.  He therefore opines that the plaintiff’s complaint of right thumb/wrist and the left knee symptoms were not related to the alleged injury. 

53.Dr Tsoi agrees that the calcific foci were probably pre-existing, but the swelling and tenderness around the MCP joints suggested recent trauma.  It was also noted that X-Ray right knee had been taken during his stay at PMH immediately after the incident.  This suggested that his both knees might have been also injured. 

54.Dr Tsoi repeats that the plaintiff has recovered well and the injured areas are now in stable and satisfactory condition.  Particularly for the right thumb, he opines that there is residual stiffness, but the pinch grasp and grip strength returned to normal. 

55.Dr Law opines that the other injuries have no active symptom.  His right thumb conditions represent soft tissue injury or disease, with pre- existing calcific shadow.  The condition was not related to the subject injury. 

56.Both experts agree that the plaintiff may resume his pre-injury job as supermarket/convenient store manager.  Dr Tsoi repeats that the plaintiff may have difficulty in handling heavy items (say over 30 kgs) frequently.   Dr Law opines that his limitation on his physical tolerance in heavy manual duty by his right thumb and wrist conditions is mild, and his physical capacity is suitable to most open employment except those extremely strenuously like steel fixing or scaffolder. 

Discussion and Ruling

57.I would start with the most controversial issue, namely, whether the injury to his right thumb, right wrist and left knee is a result of the incident. 

58.It is the evidence of the plaintiff that the defendant hooped his neck from behind. There is no conflicting evidence.  He explains that he has tried to push away the hand of the defendant which, as a result caused injury to his thumb.  While not in his witness statement, this is in line with his pleaded case in the Statement of Claim. 

59.The main argument of Mr Chan is that there is no record of the injuries when the plaintiff was admitted to PMH.  And the plaintiff said in his witness statement that he discovered the pain “later”.  He also refers to the expert opinion of Dr Law who said in his report, given this an assault case, the healthcare staff would be very careful to take down all the complained injuries.  But what Dr Law said may be his experience from practice which I should take into consideration.  But this is not conclusive. 

60.On the other hand, Dr Tsoi note that x-ray right knee had been taken during his stay at PMH which suggests his both knees may have been injured.  This is also an opinion which I would take into account. 

61.Mr Wou submits that, one cannot expect a victim would be able to remember each and every injury (or attack).  That is particular true as the plaintiff had felt onto the ground and lost consciousness.  To that I agree.  Mr Wou also refers to the opinion of Dr Tsoi who opines that was a recent tumour causing the swelling and tenderness of the right thumb. 

62.I accept the evidence of the plaintiff that he had been pushing the arm of the defendant when being hooped, which must be a natural reaction.  I found in favour of his explanation that his thumb and right wrist was injured in the struggle. And for his left knee, in this case there were multiple injuries and the plaintiff was fainted and only recovered before he was sent to PMH.  It is possible that his left knee had been injured.  And he had report the pain a week later which is close to the time of the accident.  It is a reasonable inference that this is a result of the incident as there is no evidence to show that he had suffered another injury between the times.  I therefore find on the balance of probability that his right thumb, right wrist and left knee were injured at the incident. 

63.It is admitted that the calcific foci are pre-existing.  Mr Chan does not dispute the legal principle of “you take your victim as you find him.”  What he only challenge is that the injuries are not caused by the incident which I have found against the defendant.  The plaintiff accepts that the calcification is pre-existing and I would come back to apportionment on assessing the loss, if necessary. 

64.It is important also to consider the recovery of the plaintiff’s injury to assess his loss of earning and PSLA.  It is the plaintiff’s evidence that he still has problems with his right thumb, right wrist and left knees.  He cannot return to work as a manager and he has to give up his sport activity.  And he has to change his life style such as having to use his left hand to brush, to use a spoon instead of chopsticks. 

65.I accept his evidence that there would be inconvenience to his daily life.  His social activity has been affected and this would be taken into account in assessing his PSLA.  But according to both experts, he had recovered well, including his right thumb, right wrist and left knee.  And residual difficulty is mild.  And both experts agree that the plaintiff could return to his pre-accident work as manager in the convenience store.  Their evidence has been set out above and I do not repeat.  Their conclusion is very similar.  The main difference is whether the plaintiff could carry heavy objects of over 30 kgs.  

66.Mr Wou submits that I am not bound by the findings of the experts.  I agree.  But they are evidence that I should take into account on assessing the seriousness of the plaintiff’s residual injuries after treatment, after hearing evidence from the plaintiff.  And I bear in mind that they have conducted independent medical examination and assessment, and reviewed all past medical record before they come to their opinion.  Having considered their reasons given, I see no reason to doubt their conclusion. 

67.And the plaintiff’s evidence for why he cannot return to work in the convenient store is unreliable.  He started by saying that he could not return to work because he could not handle the job in his witness statement.  It is only on cross examination when it is reviewed that he had not returned to try out the work at all.   How he had assessed his working capacity is unknown.  The evidence on cross examination only goes to say that he reached an agreement to termination his employment with his brother-in-law.

68.While the plaintiff claims that he cannot carry heavy objects, this is not supported by the experts’ evidence.  I accept the evidence of Dr Tsoi, an expert nominated and appointed by the plaintiff, that he could go back to work with a mild limitation that he may have difficulty to carry object heavier than 30 kg frequently.  And both experts have recorded the nature of his work and must have come to their conclusion after proper assessment.  

69.While I found that the thumb and left knee injuries are caused by the incident, I adopt the opinion of both experts that he had recovered satisfactorily.  He should be able to return to his pre-injury work as a shop keeper or manager of a convenient store, with some limitation of lifting heavy objects over 30 kgs frequently.

70.And he should attempt to find some similar work after a reasonable time from the incident, at least after the sick leave.  There is no suggestion that he had tried to look for or work as a manager or similar work in a convenience store after the sick leave.  He returned to work as a freelance designer from July 2011, after the incidence.  He attempted a few other discipline of job as above mentioned, but not as a manager or shop keeper of convenient store.

71.It is his evidence that he would look for clerical work after the injury, suffers a lower income.  He cannot prove on balance of probability that he cannot work as a manager or shop keeper because of the injury.  The loss if any would be his choice for not returning to the work of manager/shop keeper in convenient store. 

72.The plaintiff said he had no confidence to look for job because of the “Do no Evil” Apps is not helpful to his case.  It is not disputed that the Apps is no longer available and his fear is groundless.  Further, the prosecution is lodged by the Government and not the defendant.  And he is never convicted of any offence.  I cannot understand why he cannot explain the position to the employer.  I have no evidence on the attempt for application, the nature of post applied for, and details of the interviews.  There is not one single example, least of documentary support of his attempt for interview.  In any event, this is not a “damage” caused by the defendant.  It is unfortunate that the Police decided to prosecute him and drop the charge later.  I would not exclude the possibility that some employer would use Apps and information on the internet to check the background of applicants.  But if they fail to accept the truthful explanation of the plaintiff, this would be an prejudice caused by the unfair judgment of the employers.  I cannot see any reasons why the defendant has to compensate the plaintiff if he suffered such disadvantage, which, I found he has not proved to have such interview and/or come across such treatment. 

73.As an alternative, if he were a designer as claimed in his cross examination, there is no direct comment by the experts on whether he could continue to work as they have not been asked to comment on the job.  But the findings of the experts on his physical ability is sufficient to consider if he could return to work as a designer.  His main complaint is that he could not use his right hand efficiently, as his right thumb is painful.  Yet he said he could draw.  There would be some difficulty in the beginning as the experts commented, but he had recovered well.  And assuming that he may have to attend to installation of protection device, which may be more physically demanding job.  And with the comment that he would only have difficult with lifting heavy object of over 30 kgs, I found that he could return to work as a designer cum installation worker, if this claim has come before me. 

74.With these conclusion, I found that the plaintiff can return to work as a manager or shop keeper carrying the same duties he claimed.  I could safely come to the conclusion that the plaintiff fail to prove he suffered loss of earnings as a result of the incident or his residual injuries after the sick leave period.  There would be no award of loss of pre-trial and post-trial loss of earnings save for the sick leave period.

75.Dr Tsoi endorse the sick leave until January 2012, a period of 6 months and 26 days. Dr Law is of the view that only 1 week’s sick leave is related to the incident, saying that other sick leave given are not related to the incident.  Having find in favour of the plaintiff that the injury to the thumb is related to the incident, I adopt the opinion of Dr Tsoi for sick leave up to January 2012 is reasonable.  His loss during his sick leave shall be assessed. 

76.It is admitted by the plaintiff, as set out in the schedule of loss of earnings of Mr Wou that he has started working in July 2011.   He only claims partial loss of earning during sick leave based on the monthly earning of $20,000 he claims to have before the incident.  And his actual earning during this period has to be deducted from the calculation of his loss.  This earning is disputed by the defendant.

77.There is problem with the earnings he claims to have before the incident.  His earnings are not supported by any documents.  There is only a declaration made by his brother-in-law for his earning.  I would be surprised that the plaintiff has no tax return, having worked for many years before this incident as a designer.  While it is trite that when there is no tax return, the Court has to decide if the evidence of the plaintiff is believable.  As I mentioned above, the plaintiff said in his witness statement that he was a shop keeper and then changed to said he was a manager in his supplemental witness statement.  He also mix up the nature of business of the shop.  No credible explanation for this mistake has been given in Court.  

78.Common sense tells that income of a shop keeper would be different from that of a manager.   

79.And the plaintiff has changed his evidence on post accident earnings.  He said that he worked for his brother in law earning $8,000 per month and later changed to say that he earns $4,800 per month.  There is no credible explanation for the mistake and this further shows that he is not a reliable witness.

80.On balance of probability, I do not believe the plaintiff’s evidence that he was employed as a manager in the convenient store of his brother-in-law before the accident earning a monthly salary of $20,000.

81.Mr Wou has submitted some Government statistic to show the earnings of selected occupations.  He invited me to use the statistic to assess the pre-incident earning of the plaintiff.  Using the average monthly salaries of clerical and secretarial workers, which is closer to the work nature of the job described by the plaintiff, the average earnings would be in the region of $11,000 to $12,000 in 2011 to 2013. 

82.Another means to assess his pre-accident earnings, as I have no clear evidence of his work before the accident, is to project his pre-accident earning from his post accident earnings.  It appears that he is earning about $4,500 to $9,300 since July 201 to October 2020.  As I found he could return to his pre-accident work after sick leave, the earnings after sick leave could reflect on his pre-incident earnings.  Taking the period from July 2014 to May 2018, he was earning a total of about $7300 per month on the average, when he was able to take up two jobs.  Giving the benefit of some loss of earning capacity, and taking into account the statistic, I am prepared to adopt $10,000 per month as his earning during the sick leave, had he not met with the incident.  As he claims to earn $4,500 per month during the sick leave, his loss is $5,500 per month.  And his loss during sick leave from 5 July 2011 to January 2012, including MPF, is ($5,500x12)/365 x 210 x1.05= $39,871.23. 

83.There should be a loss in his earning capacity, as he may have difficulty to carry objects over 30 kgs frequently.  But this has not been claimed in his Amended Revised Statement of Damages.  If this has been claimed, I believe a reasonable award would be $50,000.  

84.I now consider the appropriate award for PSLA. 

85.The plaintiff claims a sum of $100,000 as the reasonable compensation for PSLA.  Mr Chan also invites me to award $100,000 and Mr Wou invites me to award no less than $100,000.  I have considered the judgment referred to by counsel in their respective written submission.  I have taken into account the injuries and the adverse effect on his work and social life as mentioned above.  I accept the submission of Mr Wou and I award $100,000 for the claim of PSLA. 

86.For special damages, the plaintiff claims the medical expenses of $14,267 and travelling expenses of $2,000 which are allowed. 

Interest

87.I will allow interest at 2% pa from the date of issue of the Writ to the date of assessment on general damages; and special damages at half judgment rate from the date of the accident to the date of assessment. 

Summary

88.I assess the damages as follows –

	$
Pain, suffering and loss of amenity	100,000.00
Pre-assessment loss of earnings	39,871.23
Post-assessment loss of earnings	Nil
Special damages	16,267.00
Total	156,138.23

89.There be also an order nisi that the Plaintiff should have his costs of the assessment against the Defendant with certificate for counsel for the hearing.  As the award is below $1,000,000 (the jurisdiction of the District Court when the writ was issued), the costs should be taxed according to District Court scale. 

Mr Carl Wou, instructed by David Y Y Fung & Co, for Plaintiff

Mr Stony Chan, instructed by T K Tsui & Co, for Defendant

Annexure

The following table is a summary of the Plaintiff’s jobs and income after the incident as claimed in his witness statements.