Chan Ying Wai v. Secretary for Justice for and on behalf of Commissioner of Correctional Services

HCPI 838/2015

[2021] HKCFI 221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 838 OF 2015

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BETWEEN

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Before:  Hon Marlene Ng J in Court

Dates of Hearing:  17-20 June 2019

Date of Handing Down Judgment:  29 January 2021

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J U D G M E N T

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I. INTRODUCTION

1.The plaintiff (“P”) was/is employed by the defendant (“D”) as an Assistant Officer II (“AOII”) of the Correctional Services Department (“CSD”). He joined the CSD as an AOII on 13 February 1989, and was posted to the Lai Chi Kok Reception Centre (“Centre”) on 39 December 2008.

2.There was no dispute that:

(a)	D was P’s employer within the meaning of the Occupational Safety and Health Ordinance Cap 509 (“OSHO”), and was responsible for the Centre as a workplace within the meaning of the OSHO, and D owed P statutory duty under section 6(1) of the OSHO to ensure P’s safety and health at work;
(b)	D was an occupier of the Centre within the meaning of the Occupiers Liability Ordinance Cap 314 (“OLO”), and owed P a common duty of care under the OLO to see that P would be reasonably safe in using the Centre for the purpose for which he was invited or permitted by D (ie to carry out his duties/work as an AOII of the CSD);
(c)	D as employer owed P a duty of care to provide him with a safe system of work and other implied duties as to P’s safety in carrying out his work duties.[1]

(a)  Alleged accident

3.P claimed that at/about 7:26am on 19 August 2013 and in the course of his employment he descended the stairway near the Main Dining Hall (“MDH”) of the Centre (“Stairway”), and slipped and fell down about 4 steps of stairs “due to the wet and slippery surface of the same caused from raining. During the fall, [P] landed heavily on his buttocks and back”, causing “injuries including but not limited to right wrist sprain, left lower limb and back injury” (“Accident”). P was taken to the Centre hospital or sick bay at the Centre (“Centre Hospital”) for treatment, and was later transferred to the accident and emergency department (“AED”) of Princess Margaret Hospital (“PMH”) for further treatment.

(b)  Pleadings

4.On 5 August 2015, P commenced the present action to claim against D for loss and damages arising as a result of the Accident. In the Amended Statement of Claim filed on 26 January 2017 (“ASoC”), P claimed the Accident was caused or contributed to by the negligence, breach of statutory duty under OSHO, breach of common duty of care under the OLO, breach of employer’s duty of care and/or breach of implied terms of the employment contract on the part of D and/or its servants/agents for whom D would be vicariously liable.

5.P gave the following particulars in his ASoC:

“PARTICULARS OF NEGLIGENCE OF [D]

9.1  Failing to provide and maintain means of access to and egress from the workplace, that were, so far as reasonably practicable, safe and without any such risks.

9.2  Failing to provide or maintain any adequate or suitable safe system of work to enable [P] to carry out his work safely at the Scene.

9.3  Failing to take all reasonable care and/or precautions to ensure that [P] would be reasonably safe whilst he was working at the Scene.

9.4  Failing to devise and/or provide suitable and sufficiently safe place of work and/or to make and/or keep the place of work safe for [P].

9.5  Exposing [P] to the risk of damage or injury of which [D] knew or ought to have known.

9.6  Failing to supervise or organize the work adequately or at all so that the same was conducted in safety.

9.7  Failing to make any or any adequate assessment of risk of damage or injury.

9.8  Failing to provide [P] with any or any adequate instruction, warning sign and/or supervision as was necessary to ensure, so far as was reasonably practicable, the safety at work.

9.9  Failing to inform, advise, instruct, and/or forewarn [P] of the danger and risk of injury whilst he was working at the Scene.

9.10  Failing to make any or any adequate inquiries and/or arrangements for safety steps to be taken and safety measures before causing or permitting [P] to carry out his duties at the Scene (ie to ensure that no danger would befall [P]);

9.12  [P] relies on the occurrence of the Accident as evidence in itself of the negligence of [D].

9.13  [P] further relies upon the aforesaid breach of statutory duties as evidence of [D’s] negligence.

PARTICULARS OF BREACH OF THE COMMON DUTY OF CARE UNDER SECTIONS 3(1) AND 6(1) OF THE OLO BY [D]

9.14  Failing in their common duty of care to ensure that any unlawful visitor would be reasonably in using the Scene or the purposes for which he was permitted by the occupier to be there (ie performing his work in the course of his employment with [D]); and

9.15  Failing to prevent dangers befalling [P] due to the state of the Scene.

PARTICULARS OF BREACH OF THE OSHO BY [D]

9.16  Contrary to Section 6(1)

Failing to ensure, as far as reasonably practicable, the safety and absence of risks to health at work for its employees in connection with, in this case, formwork works within the workplace where [P] worked (ie the Scene).

9.17  Contrary to Section 6(2)(a)

Failing to provide and/or maintain a system of work that was, so far as was reasonably practicable, safe and without risks to health of [P].

9.18  Contrary to Section 6(2)(c)

Failing to provide instruction, training and/or supervision as was necessary to ensure the health and safety of [P] whilst he was at work.

9.19  Contrary to Section 6(2)(d)(i)

Failing to maintain the workplace (ie Scene in a condition that was, so far as reasonably practicable, safe and without risks to health).

9.20  Contrary to Section 6(2)(d)(ii)

Failing to provide or maintain means of access to and egress from the workplace that were, so far as reasonably practicable, safe and without any such risks.

9.21  Contrary to section 6(2)(e)

Failing to provide and/or maintain a working environment for [P] at the scene that was, so far as was reasonably practicable, safe, and without risks to health.

9.22  [P] relies upon the aforesaid breach of statutory duties as evidence of [D] negligence.

PARTICULARS OF BREACH OF THE EMPLOYER’S DUTY AND THE IMPLIED TERMS OF CONTRACT OF EMPLOYMENT BY [D]

9.23  [P] repeats and adopts the Particulars pleaded hereinabove in support of his plea that [D] as [P’s] employer failed to discharge its duty of care to its employee, namely [P].

9.24  Insofar as it is necessary, [P] will rely on the doctrine of res ipsa loquitur in aid of his proof of liability on [D].”

6.At the pre-trial review stage, P applied to re-amend the ASoC to expand on the particulars of wrongdoing by D to include complaints about inter alia general cleaning/maintenance of the Stairway, system of cleaning/maintenance of the Stairway and personal protective equipment for P, but this court dismissed such application.[2] So P was bound by his pleaded case, and could not rely on alternative allegations of D’s wrongdoing as causes for the alleged wet and slippery condition of the Stairway, especially those disallowed by this court.

7.By her Defence, D averred that she had no knowledge of the facts/matters of the alleged Accident, and that the Accident (which D put P to proof) happened without any wrongdoing on the part of D and/or her employees, servants or agents. D further averred that according to CSD’s records, “…… the surface of the [Stairway] was dry at the time of the alleged Accident”. D denied P’s pleas in paragraph 5 above, and pleaded that “reasonable steps were taken by [D] to ensure the safety of [P] when he was discharging his duties at the [Centre], including but not limited to the followings:-

PARTICULARS OF STEPS AND SAFETY MEASURES TAKEN BY [CSD]

a.  Handrails have been installed at both sides of the staircase;

b.  Warning signs to raise the awareness of the users of the staircase against possible slippery have been placed by CSD in various prominent places of the [Stairway];

c.  Adequate inspection has been conducted before the Accident to ensure the [Stairway] was dry;

d.  Proper instruction and supervision has been provided to [P] during the brief-in / brief out section;

e.  Guidelines on occupational safety and health has been provided to all personnel to remind them for safety in a regular basis;

f.  Pursuant to the Investigation Report prepared by CSD dated 26 August 2013 [‘Investigation Report’], taking into account the statements of the duty staff and [P], it is concluded that the incident was accidentally caused by [P’s] own negligence; and

g.  In the circumstances, CSD had taken all steps which were reasonably practicable to ensure the safety of [P] at all material times.”

8.Further or alternatively, D averred the alleged Accident was wholly caused and/or contributed to by the contributory negligence on P’s part, ie

(a)	failing to have any or any sufficient regard to his own safety;
(b)	failing to take any or any proper care and adequate precautions for his own safety while he was walking on the Stairway;
(c)	failing to devote any or the whole of his attention to where he was placing his feet;
(d)	failing to keep any proper or adequate lookout while he was walking on the Stairway;
(e)	walking too fast in the circumstances;
(f)	failing to walk more slowly and to take more care in the circumstances;
(g)	failing to maintain his balance to avoid slipping and thus causing personal injuries as alleged;
(h)	failing to take all reasonable care and to apply common sense to ensure his own safety and/or exposing himself in the circumstances to an unnecessary risk of injury which he knew or ought to have known.

(c)  Witnesses and experts

9.There were no direct eye-witnesses to the Accident, so P was the key factual witness whose credibility/reliability was materially relevant to the question of liability. There were other witnesses. P called as his witness Wan Chi Leung (former Assistant Officer I (“AOI”) of the CSD, “CL Wan”). D called Choi Chak Hung (“Choi”),[3] Wan Tat Man (“TM Wan”)[4] and Tang Ho Chung (“Tang”)[5] to give evidence on her behalf. P, CL Wan, Choi, TM Wan and Tang all adopted their witness statements (“WSs”), and P also adopted his supplemental WS (“SWS”) as part of their evidence.[6]

10.D also called her last witness Ho Pui Ki (“Ho”) to give evidence,[7] and she adopted her WS as part of her evidence in chief, but Mr Cheung, counsel for P, decided not cross-examine her as he informed the court P would no longer contend he would have been promoted to be an AOI but for the Accident.

11.The parties also adduced orthopaedic expert evidence from Dr Fu Wai Kee (“Dr Fu”) for P and Dr Cheng Hung Fai David (“Dr Cheng”) for D (collectively, “Experts”). The Experts’ joint reports dated 16 March, 31 August and 18 March 2017 (“1^st, 2^nd and 3^rd Jt Reports”, collectively “Jt Reports”) were adduced at trial without oral evidence.[8]

(d)  Witnesses’ credibility

12.This case fell to be decided essentially on the facts, so questions of credibility/reliability loomed large. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the pleadings, chronology of events, documentary evidence and inferences based on inherent probabilities and/or undisputed facts.[9]

13.Cross-examination was a revealing process. On balance, I do not find P’s evidence reliable, especially when viewed against the evidence of his own witness CL Wan. I find P embroidered his evidence in material respects, and I am not persuaded weaknesses in his evidence were due to faded memory. P’s overall evidence was unsatisfactory, and I find he had not been truthful over some important matters. Further, in light of material inconsistencies in the evidence of P and CL Wan and inherent concerns over the latter’s evidence, I am also not confident of the reliability of CL Wan’s evidence. Except for the matters that I accept in the discussion below, I reject P’s and CL Wan’s evidence on the core matters.

14.As for D’s witnesses, they struck me as straightforward and reliable witnesses. Notwithstanding Mr Cheung’s submissions that Choi and Tang were “utterly unreliable” as they “concocted” the allegations in their WSs that P told them he “不慎” slipped and fell down on the Stairway, I find such submissions did not serve to bolster the credibility/ reliability of P’s own evidence nor that of CL Wan. Having taking into account all of the evidence and Mr Cheung’s submissions, I find on balance D’s witnesses gave robust evidence and made concessions where appropriate, but stood their ground when questioned repeatedly over various matters under cross-examination. I accept their evidence on the core matters.

II.  LIABILITY

(a)  Issues

15.Mr Cheung and Ms Chao, counsel for D, agreed the issues on liability were as follows:

(a)	how did the Accident happen, ie whether the Stairway was wet and/or slippery at the material time and caused P to slip and fall;
(b)	if so, whether the wet and/or slippery condition created any unusual risk that D ought to show all reasonable measures had been undertaken;
(c)	what reasonable measures were expected of D, and whether D failed to take them;
(d)	if necessary, whether P was guilty of contributory negligence.

(b)  Pre-2005 accidents

16.It is useful to start with P’s earlier accidents so as to properly view his case on the Accident through the prism of his physical condition and his awareness of the same. P acknowledged his left leg was very weak “…… 因為[P]之前係整親, 係[P]報晒佢部門之外, [P’s]隻左腳 …… 因為成日都痛, 啲膝頭哥有少少痛 ……” In my view, P’s awareness of his such condition was relevant to (a) the matter of contributory negligence and (b) the veracity of P’s evidence as to what caused the Accident. I pause to add here as further background that P had diabetes mellitus.[10]

17.P’s Statement of Claim filed on 24 March 2016 (“SoC”) and his WS only referred to 2 prior accidents in 2005 and 2010, but prior to 2005 P suffered various other accidents which had been made known to the CSD.[11] According to the Accidents Annexure in footnote 11 above and as P agreed,

(a)	P had a slip and fall on 22 June 1989 (ie about 4 months after he joined the CSD) on the staircase opposite No 8 classroom, which was an injury on duty;
(b)	P had another slip and fall was on 16 December 1992 at the Admiralty MTR station, which was not work related;
(c)	P had another injury on duty on 26 August 1995 when he fell down 2 steps of the rear staircase of “D3 ward of SPP”;
(d)	P had another slip and fall from the Observation Tower 2 in SPP whilst on duty on 18 March 1997;
(e)	whilst P was on duty on 25 June 1999, he slipped and fell to the floor when walking to the “control room in TTCI”.

18.P acknowledged the slip and fall in 1989 was “…… 超級嚴重，…… [P]要喺四個月之內係做兩次嘅大手術，[P]爭啲係下半身係癱嘅，[P]毫無隱瞞咁匯報番畀[P’s]部門知，[P]其實[P’s]隻腳係弱嘅，…… 部門亦都好清楚 ……” According to the medical report dated 25 September 2015 by the department of orthopaedics and traumatology (“DOT”) of Caritas Medical Centre (“CMC”), P injured his lumbar spine and suffered left ankle sprain with “…… lumbar spine operation done twice in 1980s and 1990s” at Queen Elizabeth Hospital (“QEH”). The medical records of such surgeries were no longer available, but the 1^st Jt Report mentioned the 1^st operation was done in 1989, and the 2^nd operation was performed variously in 1990 or in 2000,[12] which I find it was probably done in 1990 (since P said he had 2 operations within 4 months). In the 2^nd Jt Report, the Experts noted (a) their joint examination of P on 5 July 2016 revealed surgical scar over the back, and (b) the medical report from CMC’s DOT showed the orthopaedic surgeons obtained history of back injury and 2 surgical procedures at the back in 1989/1990, noted an old surgical scar, and observed X rays showed defects over L3/L4 lamina suggestive of partial laminectomy. In any event, P’s 2 lumbar spine operations were major surgeries for significant injury that required convalescence for 3 years (see paragraph 43 below).

19.P testified that “…… 跌倒嗰排梗係特別差, 跟住落嚟都係咁上下, …… 冇力同痺呢個就係持續性嘅嘢㗎喇 ……”, and agreed that from the time of the accident in 1989 until the Accident in 2013 his left knee “…… 係間唔中會痛, 但係左腳弱係 …… 持續性 …….”, “…… 持續都係到89嗰次意外之後嘅五、六年打後都係咁上下……”, “…… 休養咗大約五、六年之後, 情況係慢慢好轉，但係佢有陣時天氣差就會差少少 ……” However, P claimed he seldom took sick leave in the several years before the Accident,[13] “…… 但係就有呢一個左腳比較弱或者有時痛嘅情況喇……”, “…… [P’s]隻左腳係長期都係比較弱啲嘅  …… 佢冇咁好力嘅, 同埋佢嘅反射神經係冇晒嘅 …… 對於出力、跑步或者行得比較長程、急步 …… 會有影響”.

(c)  2005 accident

20.P had another slip and fall down a staircase whilst on duty at/about 01:05am on 1 December 2005 (“2005 Accident”). P said he went to sleep at the Centre’s rest quarters at about 08:00pm on 30 November 2005 and was due to report for shift duty at/about 01:15am the following day. He claimed to have suffered the 2005 Accident when he and some colleagues walked down a staircase in the dark[14] on the way to report for duty. P described the 2005 Accident in his WS as follows:

“…… 當步行至中段時間, 因為踏錯梯級導致[P]失去重心, 坐骨先著地繼而逐級「鄧」落了2-3梯級才告停下。在旁邊同事立即將[P]扶起, 由於坐骨及腰部太痛, 最後由他們打電話召來十字車, 將[P]送往屯門醫院[Tuen Mun Hospital, ‘TMH’][AED]醫治.”

21.Interestingly, P in his SoC and WS gave precise times as to when the 2010 Accident referred in paragraph 29 below occurred and also when the Accident occurred, but he did not plead in the SoC the precise time when the 2005 Accident occurred (ie the SoC did not aver such accident occurred at/about 01:05am as stated in P’s WS, but merely averred it happened “at about 02:00am”). P claimed to have told his solicitors “…… 係點零鐘, 唔會過兩點鐘, 可能[P’s solicitors]就錄取咗兩點鐘, [P]唔知道係個影響得會咁大 …… 差唔多, 唔會過兩點, [P]係咁講, 係”. But such explanation was unconvincing because the 2005 Accident happened whilst P was on his way to report for duty at 01:15am, so it could not have happened after 01:15am let alone “at about 02:00am”. P was constrained to concede it could not have been after 01:15am, “…… 應該係修正番係大約呢個時間, 同埋[P]再問番[P]啲同事[P]當時個確實時間, 佢哋都係話1點05分, 係啱 ……” I find it hard to understand why P would have pleaded the 2005 Accident occurred “at about 02:00am”, which was plainly erroneous even on P’s case, in the SoC filed on 24 March 2016 (ie more than 11 years after the 2005 Accident). P tried to brush this aside by suggesting such plea was not erroneous, and his WS was merely being helpful in that “…… 畀到嘅話, [P]咪[in the WS]畀到更加準確嘅時間妳囉” (ie giving time of 01:15am in his WS).

22.On balance, I find P’s aforesaid explanation weak and unreliable. Since P knew he was to report for duty at 01:15am, even if he was uncertain about the exact time of the 2005 Accident, he must have known (as he eventually conceded) it would not have happened after 01:15am. To plead and verify such accident happened at/about 02:00am suggested P was cavalier over the truthfulness of his account.

23.P’s account of the 2005 Accident in his WS claimed “…… 因為踏錯梯級導致失去重心, 坐骨先著地, 繼而逐級躉落了兩、三級, 才到地下 ……”, and the 1^st Jt Report also recorded P’s account given to the Experts on 5 July 2016 that “[P] was going down stairs in the dark, he slipped and fell for a few steps, onto his buttocks”. But the SoC averred “[P] slipped and fell down at least ten (10) steps down the stairway, landing on his buttocks” (my emphasis). When pressed on the discrepancy between 2-3 or few steps and at least 10 steps (ie 10 steps or more), all P could say was that a long time had elapsed between the 2005 Accident and his WS made in 2017, and it was dark so he had to guess he had fallen down how many steps.

24.P claimed “…… [P]都係估計跣咗兩、三級, [P]同事 …… 都開電筒, 扶起[P]嘅時, [P]見到[P]自己喺個樓梯嘅大約咩嘢位置, …… 跌落去真係好痛, 其實係有砍到個頭添, …… [P]估計係三幾級, 即係無需要去作大或者作細 ……” But if that were the case, it was strange for P to aver he fell down at least 10 steps in his SoC that he verified on 24 March 2016, which date was closer in time to the 2005 Accident than his WS dated and verified on 10 August 2017. When pressed, P claimed he had told his solicitors “…… 係幾級樓梯, 唔過十級, [P]記得[P]都係咁樣講 ……”, and went on to suggest his solicitors might have misunderstood and “…… 就可能係咁樣寫咗落去係十級”. But such alleged misunderstanding by P’s solicitors could not explain why P did not correct such error when his solicitor translated the contents of the SoC to him, and indeed his solicitor certified on the same day P appeared to understand/approve such contents before he signed the statement of truth. Further, if P did tell his solicitors “唔過十級” in the course of preparing the SoC in 2016, he could not satisfactorily explain why he did not repeat that to his solicitors when he made his WS about a year or so later, but instead told his solicitors he fell down 2-3 steps. All P could say was “一年後[P]唔記得咗一年前[P]講嘅每一個細節，[P]只係希望講[P]嘅記憶嘅全部畀人哋聽[P]係跌咗幾級樓梯”.

25.In my view, P exaggerated the number of steps he fell down the staircase during the 2005 Accident when he put forward his claim against D in his SoC filed on 24 March 2016 (which at the time included a claim for loss and damages as a result of the 2005 Accident). Even taking into account it was dark at the relevant staircase, I find P’s above explanations quite strained. Although P might not have counted the precise number of steps he fell down, I find on balance that falling down 10 steps or more in the dark would not have been an easily forgotten experience, which experience would have been materially different from falling down just 2-3 steps. Indeed, it was after P amended the SoC on 26 January 2017 to remove his claim against D for loss and damages as a result of the 2005 Accident that he gave his WS dated 10 August 2017 which in turn gave reduced number of steps he fell down during such accident. I have no doubt P exaggerated his claim, and then sought to embroider his evidence in a poor attempt to explain away the discrepancy. P’s unreliability and his attempt to blame his solicitors when faced with difficult questions set the tone of his evidence on the Accident.

26.The 1^st Jt Report recorded as follows:

(a)	P attended TMH’s AED on 1 December 2005 complaining of back pain and left leg pain, and examination revealed local tenderness over lower back. X-ray spine was taken, but there was probably no pathology. P was treated and discharged with AED follow up and referral to the DOT.
(b)	P was seen at Yau Ma Tei Jockey Club Outpatient Clinic on 4 February 2006. By then P had returned to work for 2 days, but claimed he could not manage due to back pain, which pain was said to be relieved by analgesics. Examination revealed normal walking and mild paraspinal muscle sprain, and straight leg raising (“SLR”) was 70º (left) and 90º (right). P was given 2 days’ sick leave.

27.P was granted sick leave from 1 December 2005 to 30 January 2006 and from 2 February to 13 March 2006.[15] On 21 February 2007, P was assessed by the Medical Assessment Board (“MAB”) to have suffered 0.5% loss of earning capacity.

28.P claimed to have returned to full-time work in/about mid-March 2006 until another accident in 2010. But the Sick Leave Annexure (see footnote 13 above) showed P was granted sick leave from 5 January to 17 February 2008 and from 22 February to 5 March 2008, ie almost 2 months. But P did not say what such extensive sick leave in early 2008 was for.

(d)  2010 accident

29.P suffered another injury on duty on 28 September 2010 (“2010 Accident”). P was at work at 9:49am guarding inmates at the Exercise Yard referred to in paragraph 47 below. P’s WS described the 2010 Accident as follows: “在上述時間, 其中一名犯人不時向[P]挑釁, 在其中1次[P]在無預防下, 對方用肩膊撞向[P], 即時令[P]失去重心坐骨先著地再坐跌地上, 之後[P]感到腰骨很痛, 於是[P]向上級報告及落口供後, [P]才可收工立即前去[CMC]急症室求醫”. P told the Experts he fell onto his right hand and right buttock.

30.P testified he went to CMC’s AED after he went off duty, and there he complained of pain at lower right shoulder and lower back. Physical examination revealed (a) mild redness/tenderness on anterior aspect of right shoulder, (b) no local tenderness on the back and lower limbs, but (c) decreased range of SLR on left leg. X-ray lumbrosacral spine did not reveal significant bony abnormality. “The diagnosis was right shoulder and back injury, left sciatica”.[16] P was discharged and referred to the orthopaedic outpatient department (“OPD”) of CMC’s DOT for further treatment.

31.P resumed work after 4 days’ sick leave from 29 September to 2 October 2010. According to the medical report dated 25 September 2015 by CMC’s DOT, P was first seen by DOT’s OPD on 8 February 2011 complaining of (a) low back pain and pain radiation to posterior left thigh after the 2010 Accident, and (b) recurrent left ankle sprain since 1989. Physical examination revealed surgical scar over lumbar region of the back, but power/sensation of both lower limbs were intact. There was mild tenderness over anterolateral aspect but no instability of the left ankle. X-ray lumbrosacral spine showed normal alignment and bone defect compatible with previous operation. X-ray ankle/foot was unremarkable. P was managed with physiotherapy/analgesics.

32.According to the physiotherapy report dated 28 August 2015 by QEH, P had the 1^st course of physiotherapy for 10 sessions from 7 March to 30 May 2011 upon referral by CMC’s DOT for “left ankle instability, left foot pain and knee pain”:

(a)	Upon initial assessment, (i) P complained of left ankle pain and objective active range of movement (“AROM”) of left ankle was ¾ of the normal range, (ii) left single leg standing tolerance was 7 seconds, (iii) neither significant inflammatory sign nor tenderness was noted over left ankle upon palpation, and (iv) left ankle laxity was noted but P demonstrated functionally he could walk unaided independently.
(b)	With ice ankle mobolisation exercise, left ankle strengthening exercise, intrinsic muscles training and balance training, P’s condition gradually improved in subsequent sessions.
(c)	On 30 May 2011, (i) P subjectively considered there was improvement by 20%-30%, (ii) objectively AROM of left ankle remained similar, (iii) left single leg standing tolerance improved to 14 seconds, and (iv) functionally P claimed his walking tolerance was an hour, and as P’s condition became stable/static, he was discharged from physiotherapy treatment with home exercises.

33.According to the medical report dated 23 September 2015 by CMC’s department of prosthetics and orthotics (“DPO”), CMC’s DOT referred P to CMC’s DPO with “diagnosis of (L) ankle instability, (L) foot pain and knee pain” on 31 May 2011 (ie the day following completion of the 1^st course of physiotherapy referred in the above paragraph), and orthopaedic insole was applied for treatment use on 13 June 2011.

34.According to QEH’s physiotherapy report dated 28 August 2015, on 31 May 2011 P was again referred by CMC’s DOT for physiotherapy for management of his back problems. He had the 2^nd course of physiotherapy for 10 sessions from 12 August to 10 October 2011:

(a)	Upon initial assessment, P complained of low back pain and left lower limb pain of 4-5/10 on numeric pain rating scale, and of symptoms being aggravated after prolonged sitting/walking for 10 minutes. Objectively, AROM of trunk extension was limited at half of normal range. Neither significant inflammatory sign nor neurological deficit was noted upon palpation. Left and right SLR tests were 40º and 50º respectively. There was tenderness over left lumbar paraspinal muscles upon palpation. Functionally, P demonstrated he would walk unaided independently.
(b)	Intermittent pelvic traction, hot pad, manual therapy, back exercise and care advice were given, and P’s condition gradually improved in the subsequent treatment sessions.
(c)	On 10 October 2011, AROM of trunk extension improved to ⅔ of the normal range. Left and right SLR tests improved to 50º and 60º respectively. There was mild tenderness over left paraspinal muscles upon palpation. Functionally, P claimed his sitting tolerance improved to an hour. As P’s condition became stable and static, he was discharged from physiotherapy treatment with home exercises.

35.According to the 1^st Jt Report, the Experts opined P’s conservative treatment with added physiotherapy was appropriate. P responded well, but the Experts believed there were probably some lingering symptoms as record showed he began to attend CMC’s orthopaedic OPD with MRI scan done (see paragraph 40 below).

36.P said his superior was quite concerned about 2010 Accident as it involved an inmate attacking a CSD officer such that a report had to be submitted to the Commissioner of the CSD (“Commissioner”). P claimed “…… [P]都冇諗過要去做呢一個工傷 ……” and he did not “…… 同[CSD]正式申報呢一個係一個工傷意外 ……”, but rather “…… 係上司話「你畀犯人襲擊係一定要去政府嘅醫生度攞晒報告去做，你至方便係去告呢個犯人」……”, “…… [P]記得後期[P’s]部門叫[P]去補做番呢一個係工傷嚟嘅 ……. [P]記得[P]係有去番申報嘅[17]，但係就[P] …… 冇追討各樣嘢嘅……”

37.Although P claimed no MAB assessment was done for the 2010 Accident, the 1^st Jt Report noted a Form 7 dated 21 July 2016 was issued by the Labour Department for such accident, and such Form 7 revealed (a) P had been assessed by the MAB on 7 July 2016, (b) his sick leave was no more than 2 weeks (with long interruption) during the period from 28 September 2010 to 16 November 2012, and (c) his loss of earning capacity was assessed at 0%. P later testified he could not recall which injury on duty such Form 7 was for as “…… [P]唔想報工傷其實, 部門係「你快啲去報，快啲去報」……”, but in his earlier evidence he was quite adamant it was the 2010 Accident.

38.As regards P’s claim that he never wanted to sue D for damages over the 2010 Accident, I find such assertion not quite correct. Quite simply, in light of the matters in the above paragraph, there was little or no basis to support any claim for employees’ compensation.[18] P by his Writ of Summons issued on 5 August 2015 and by his SoC filed on 24 March 2016 in the present action sued D for loss and damages as a result of inter alia the 2010 Accident, and such claim was maintained until it was abandoned in the ASoC filed on 26 January 2017.

39.In my view, P had not been fully forthcoming over the 2010 Accident. I find on balance he did intend to claim against D over such accident as evidenced by the fact he not only reported such accident to the Labour Department (which he claimed was at the behest of the CSD), he actually went for MAB assessment and commenced common law claim against D. It was only much later that P abandoned his claim presumably upon legal advice.

(e)  Back issues in 2012

40.P claimed to have returned to full-time work since early October 2010 until the Accident on 19 August 2013. But in fact P was granted total sick leave of 18 days between 29 September 2010 and 16 November 2012.[19] According to the medical report dated 25 September 2015 by CMC’s DOT, MRI lumbar spine on 6 January 2012 showed (a) prolapsed intervertebral disc at L4/5 without impingement on left L5 nerve root, and (b) prolapsed intervertebral disc at L5/S1 with indentation on thecal sac at right lateral recess region. According to the 1^st Jt Report, QEH’s radiologist reported on the MRI as follows:

“Prolapse L5/S1 disc with indentation of adjacent thecal sac are shown.

There is narrowing of bilateral L5/S1 lateral recesses with indentation of left S1 nerve root. L5/S1 is desiccated.

No abnormal mass lesion or area of abnormal signal intensity is seen in the lumbar thecal sac or conus.

Bony defect is seen in left S1 lamina? previous operation. Suggest clinical observation.

No bony lesion is seen. Alignment is normal.

Comment: Prolapse L5/S1 disc with impingement of left S1 nerve root.”

41.The medical report dated 25 September 2015 by CMC’s DOT stated that at subsequent follow up P still suffered from low back pain and radiation pain to left thigh, and he could tolerate walking for 30 minutes. The Experts discovered from their review of the orthopaedic follow up notes that P attended orthoapedic follow up at regular intervals from 8 December 2011 to 14 November 2012, and extracted the following salient points:

“–  Back pain and left sciatica.

–  Disectomy L3/4 in 1989 and 2000, QEH.

–  MRI reviewed again (9.5.2012), minimal disc prolapse at L4/5 without (our emphasis) impingement of left L5 root.

–  Black disc at L5/S1 (darker disc means degeneration with desiccation of disc).

–  Condition explained, for connective treatment.

–  Swimming for exercise.

–  Discontinue physiotherapy.

–  Previous MRI mainly disc degeneration.”

42.According to CMC’s physiotherapy report dated 21 September 2015, CMC’s DOT referred P for outpatient physiotherapy with diagnosis of “protruded intervertebral disc, recurrent left ankle sprain and left sciatica symptoms”. The physiotherapy treatment period was from 29 March to 10 April 2012:

(a)	During the initial visit, P presented with mild leg pain and weakness of left ankle. On examination, the range of motion of back was full except back flexion, which was ⅔ of the full range as limited by mild pain. Left SLR test was 65º and elicited left lower limb pain. But there was no neurological deficit.
(b)	P received treatment for lower limb mobolisation, strengthening and proprioceptive training.
(c)	P was discharged from physiotherapy after 2 sessions of treatment as his condition was static. For his latest visit, P presented with left leg pain. On examination, the range of motion of back flexion was ⅔ of full range, and pain increased over left leg after walking for 10 minutes on treadmill.

(f)  P’s condition prior to the Accident

43.The 1^st Jt Report summarised P’s pre-existing condition/ injury as follows:

“4.  [P] informed [Experts] that he suffered a previous back injury in 1989/1990. He was treated at QEH. Surgery to the back was done, but had to follow by a second back surgery a few months later. According to the medical notes of orthopaedic clinic of CMC. He had PID L3/4 with discectomy done 1989. Revision L3/4 discectomy was done 1990. He was put on rest for over 3 years, and then continuous treatment at Orthopaedics for apparently another three years or so. In an entry on 30.6.2015 of the Orthopaedic follow-up notes copy, it is stated “history of spinal discectomy done in QEH, in 1989, in QEH”. According to different reports X ray revealed signs of laminectomy in L3, 4 and 5. The MRI Scan Report (6.1.2012) showed bone deficit in left S1 lamina, suggestive of previous surgery. In x-ray taken today, there are features suggestive some bone defect with lamina of L3 and L4.

5.  These two operations were done 26 years ago, and there is no medical records. As a result it will be difficult for us to comment the exact diagnosis and surgery performed at that time. It is also difficult to explain why needed laminectomy in so many levels at that time. Based on the above information we can get, the likely scenario is that [P] probably suffered from prolapse at L3/4 level, requiring two episodes of partial laminectomy and discectomy. Furthermore, according to [P’s] description, his convalescence took three years, suggesting that it was a significant injury.

6.  The same MRI of 6.1.2012 reported ‘disc desiccation’. The more complete report of the MRI scan (discovered from a copy and paste notes), stated ‘lumbar spondylosis (degeneration), Desiccation of L5/S1 disc. Mild L1/2 posterior central protrusion, Hypertrophy of bilateral facet joint at L3/4 level’. These are all features of degeneration of multiple levels.

We opine that the degeneration is a nature phenomenon, due to daily and tear, work, lifestyle, etc. The degeneration should not be caused by the three episodes of contusion injury in 1989. These three accidents took place on top of such a spine, and caused aggravation of symptoms.”

44.I find on balance that by the time of the Accident on 19 August 2013, P knew he had significant surgeries on his back, multiple slip and fall accidents (including 2 previous accidents on staircases in 1989 – which led to his 2 back surgeries and his recurrent left leg condition – and in 2010), recurrent/persistent left leg weakness with numbness, left sciatica and intermittent pain, some left knee/foot pain, recurrent ankle weakness/laxity (such that he was prescribed an orthopaedic insole in 2011 and received physiotherapy treatment in 2012), recurrent back pain and limited walking tolerance, which conditions P said would be aggravated when the weather was not good.[20] He also had a degenerative back that was already symptomatic in 2011-2012 and required physiotherapy treatment in 2012. In light of the objective medical reports/records and the Jt Reports available at trial, P admitted under cross-examination “…… [P]左腳係比較弱嘅 …… [P]唔排除係會令到[P]比正常人係容易跣倒嘅 ……” When it was suggested he slipped and fell during the Accident because his left leg was weak and not because the Stairway was wet and/or slippery, P testified “…… [P]覺得兩方面都有 ……” Thus, the relevant factual question was whether the Stairway was wet and/or slippery at the material time, and if so, why it was so wet and/or slippery.

(g)  Scene of the Accident and its surroundings

45.The MDH was on the 1/F. There was a gate at the entrance of the MDH (“MDH Gate”), which I find on balance to be a double gate[21] that would allow for 1 gate to be locked before the other was unlocked. There was no dispute the MDH Gate (a) was manned by a Gate Duty Staff (司閘員) who controlled ingress to and egress from the MDH via the MDH Gate, and (b) was unlocked at times when there was frequent usage of such gate for ingress to and egress from the MDH, eg during meal times.[22]

46.Outside the MDH Gate was the upper landing of the Stairway that extended from the MDH Gate and the top of the Stairway (“Upper Landing”). The Stairway, which was made of concrete with a tiled surface, was about 5ft wide with handrails on both sides. As shown in the Photos referred to in paragraph 57 below, there were yellow grooved tiles at the edge of each step of the Upper/Lower Flights, which P agreed were in existence at the time of the Accident. I have no doubt they were anti-slip tiles. I find that in saying he was unsure what they were for, P was not really ignorant of their purpose but was sidestepping reasonable measures taken by the CSD.

47.The Stairway had an upper flight of about 10 steps (“Upper Flight”) and a lower flight of about 10 steps (“Lower Flight”) in a scissor shape separated by a landing (“Middle Landing”). The bottom landing of the Lower Flight (“Lower Landing”) led to an open-air exercise yard (“Exercise Yard”). The Upper, Middle and Lower Landings and the Stairway (including the Upper and Lower Flights) had an overhead metal cover. As one walked down the Upper Flight, the bottom half of its left side that faced the Exercise Yard (“Outside Side”) was walled but the top half was open to the elements (“Opening”), and the right side away from the Opening and adjacent to the Lower Flight was partially walled (“Inside Side”).

48.Apart from the Stairway, there were 2 other access routes to the MDH. First, there was a kitchen on the 1/F adjacent to the MDH (“Kitchen”), and a staircase right next to the Kitchen generally known as the “rear staircase” (“Rear Stairway”). A user of the Rear Stairway could pass through the Kitchen to reach the MDH. Secondly, according to Choi, “…… 仲有一條通道係通到去另外一座大樓, 嗰個都會係一個通道 ……” (“Other Access Route”).

49.Block F (“Block F”) was another building at the Centre across the open-air Exercise Yard from the MDH.

(h)  Duties of various CSD officers on 19 August 2013

50.P  Ho’s WS gave detailed account of P’s main duties at the time of the Accident.[23] Although P claimed 70% of his work was escort duty for inmates receiving treatment at outside hospital/clinic,[24] and he did not always work at the MDH when on duty at the Centre, I find on balance that by August 2013 (ie having been posted to the Centre for about 4½ years) P was familiar with the layout of the Centre, the Upper Flight being the scene of the Accident, and the surrounding areas at/near the MDH.[25] Indeed, P confessed he would use the Stairway 90% of the time if he had to go to or pass through the MDH.

51.On 19 August 2013, P was on the Unlock Shift (開倉更) from 06:45am to 01:45pm, and his duties included (a) assisting meal issue for inmates at the MDH on the 1/F, (b) then going to “fingerprint room” (Reception Office) on the G/F, and (c) then performing escort duty for inmate to attend scheduled appointment at outside hospital/clinic.[26] So after “派更” at/about 07:00am (“大約係7點鬆啲啲喥”), P went up the Stairway to the MDH to assist with meal issue for inmates, and I find on balance the MDH Gate was unlocked when P entered the MDH. Later, after he finished assisting with meal issue arrangement at the MDH, P left the MDH via the MDH Gate which I find to be unlocked at the time,[27] and went down the Stairway with a view to attend the “fingerprint room” (Reception Office) on the G/F for scheduled outside escort arrangement. The Accident happened when P was on the Upper Flight as he walked down the Stairway.

52.CL Wan  CL Wan gave evidence he was on morning shift duty at the Kitchen on 19 August 2013, but he could not remember whether he went off duty at 10:30am or 01:45pm that day.

53.Choi  On 19 August 2013, Choi was on Unlock Shift duty from 06:45am to 01:45pm as the Gate Duty Staff who manned the MDH Gate. The Upper Landing (but not the Rear Stairway) also came under Choi’s responsibility. Choi said at/about 07:26am, he was outside the unlocked MDH Gate “…… 等候接管前往用膳所員期間 ……” (ie awaiting inmates to enter the MDH for meals) when P left the MDH via the MDH Gate, walked past him to the Upper Landing, and then went down the Stairway. Choi explained the MDH Gate was unlocked as it was “…… 屬於一個用閘頻密嘅時間 …… 係比較多在囚人士要進入[MDH]用膳嘅時間 ……”

54.TM Wan  TM Wan’s WS stated his job duties included but were not limited to maintaining proper order and discipline among inmates and his subordinates, and ensuring high degree of security and cleanliness within the Centre. On 19 August 2013, TM Wan was on duty as officer-in-charge of the MDH.[28] The Stairway was a main route to/ from the MDH, so “…… [Stairway]嘅一啲紀律、清潔嘅事項其實都係由[TM Wan]去主導去負責嘅 ……”

55.Tang  Tang’s direct supervisor was Principal Officer Ng Chiu Kok (“Ng”) who was the Day Orderly Officer (“DOO”). On 19 August 2013, Tang was on Unlock Shift duty from 06:45am to 01:45pm as the Assistant DOO. Tang escorted several inmates from Dayroom E6b at Block F across the open-air Exercise Yard and up the Stairway to the MDH on the 1/F. Then Tang left the MDH and went down the Stairway, and the Accident happened when he almost reached the Bottom Landing. Tang in his WS stated at/about 07:28am he “…… 發現[P]在[Upper Flight]位置 ……”

(i)  Relevant documents

56.It would be useful to first outline 2 written reports about the Accident both made by DOO Ng on 26 August 2013.

57.First, DOO Ng made an “Accident Report Staff Injury on Duty” (“Accident Report”),[29] which enclosed the following documents:

Date	Time	Place	Description
Undated			2 annotated “Photos of the Incident”: (a)  Stairway from MDH to Exercise Yard, (b)  Upper Flight of Stairway from MDH to Exercise Yard (collectively, “Annotated Photos”)
19/8/13	11:30am	DOO’s Office (“DOO Office”)	Staff Statement (CSD286) by Choi (“Choi CSD Statement”)
19/8/13			Staff Injury Report by Officer (Hospital) Wong Fu (“Wong”) (“Centre Hospital Report”)
Undated			Sick Leave Annexure
Undated			Accidents Annexure
19/8/13	11:35am		Medical certificate issued by PMH’s AED
Undated			2 colour photographs same as the Annotated Photos but without annotations (“Photos”)

58.Secondly, DOO Ng made the Investigation Report titled “Investigation into the Injury on Duty Case as reported by [P] on 19.8.2013”, which enclosed the following documents:

Date	Time	Place	Description
19/8/13	11:30am	DOO Office	Choi CSD Statement
19/8/13	11:30am	DOO Office	Staff Statement (CSD286) by Tang (“Tang CSD Statement”)
19/8/13	12:00 noon	DOO Office	Staff Statement (CSD286) by TM Wan (“TM Wan CSD Statement”)
19/8/13	08:00am	Centre Hospital	Staff Statement (CSD286) by Wong (“Wong CSD Statement”)
Undated			Annotated Photos

59.In October/November 2013, P gave various statements to the CSD as follows:

Date	Time	Place	Description
5/10/13	“05:15”	Staff Club of the Centre (“Staff Club”)	P’s 1st Staff Statement (CSD286) (“P 1st CSD Statement”)
5/10/13	“05:18”	Staff Club	P’s 2nd Staff Statement (CSD286) (“P 2nd CSD Statement”)
1/11/3	11:40pm	Staff Club	P’s 3rd Staff Statement (CSD286) (“P 3rd CSD Statement”)

The available documents at trial showed the P 1^st CSD Statement made on 5 October 2013 was P’s 1^st written record about the Accident. P could not remember whether there was any earlier written record, but agreed it was unlikely to be any since (a) he did not have the habit of keeping a diary, and (b) he only gave statements at the request of the CSD.

(j)  General condition of the Stairway

60.P claimed the Stairway was wet and/or slippery at the time of the Accident. In his WS, P claimed “由於廚房飯堂煮飯後, 都會用膠箱將餸菜經[Stairway]運去給予各犯人, 因此有機會餸汁濺落樓梯之間, 加上之前一晚曾經下雨, 故此令[Stairway]更濕”. It appeared P’s case for saying the Stairway was wet and/or slippery was due to the presence of (a) “餸汁” / “菜汁” (ie food sauce) that dripped onto the steps, and/or (b) rainfall coming in from the Opening that fell onto the steps.

61.Rainwater  P claimed (a) rainfall would enter the Stairway through the Opening on the Outside Side to fall on the steps, and (b) part of the Stairway closer to the Outside Side would be wetter than part of the Stairway closer to the Inside Side that was not open to the elements.[30] I accept on balance that if it rained, then depending on how heavy the rains were, it was possible some rainfall might come in via the Opening and fall onto the Stairway, but it was not necessarily be the case that the whole staircase would be wet.

62.Food sauce  For the allegation of “餸汁濺落樓梯之間”, P explained CSD officers escorting inmates to work at the Kitchen and CSD officers working at the Kitchen usually used the Rear Stairway, but CSD officers escorting inmates to/from the MDH for meals usually used the Stairway. P claimed whilst some inmates had their meals at the MDH, “…… 大部分就喺佢哋所屬嘅樓層嗰度食飯”, ie “即係話食物要交到去佢哋個樓層嗰度畀佢喇”, so it was said every day the food sauce:

“…… 都會係會整到啲落去[the Stairway]㗎喇, 但係 …… 每日都係會長官巡視之前會清潔好一次, 但係 …… 菜汁因為有油, 你洗到百分之九十九, 你百分之一喺度, 慢慢都會係令到[Stairway]係比其他嘅樓梯有雨水, 就會更加跣 …… 係舉個例子 …… 即係倒咗啲油喺個磁磚面, 你係抹乾淨咗個磁磚面, 係冇油漬㗎喇, 但係都會比較係容易啲跣咁嘅意思 …… [P]相信佢清潔咗好大部分, 但係點都會令到層樓梯比冇油漬係會跣啲 …… 因為佢日日都係咁樣樣會倒瀉啲油落去, 係好難100個per cent清潔好 ……”, “…… 因為經年累月啲餸汁濺落樓梯嗰度 …… 有機會濺落去, 就係濺咗落去嘅時候, …… 可能會被清潔, 但係唔徹底 ……”

It therefore transpired that P’s complaint was not about fresh food sauce spillage. Indeed, P accepted there was regular cleaning of the Stairway, and he did not complain such cleaning was not good (ie “…… [P]唔係講話清潔得唔好 ……”). But under cross-examination P complained of old oil stains or remnants of dripped food sauce on the Stairway that had not been thoroughly removed, so over time such old stains/remnants accumulated on the surface of the Stairway (“Old Remnants”) and rendered the Stairway quite slippery, and would become more slippery when there was water/wetness on top of the Old Remnants.

63.Although P must have known the cause of the Stairway being wet and/or slippery (which he claimed led to his injury as a result of the Accident) was a material matter on the issue of liability, detailed explanation of the Old Remnants (in contra-distinction to spillage of food sauce that itself was first mentioned in P’s WS rather than in the P 1^st, 2^nd and 3^rd CSD Statements, the SoC and the ASoC – see paragraph 60 above) as an alleged reason for the slippery state of the Stairway was only elicited under P’s cross-examination and not in his earlier staff statements, pleadings and WS/SWS at all. All P could say of this omission was that he had given his factual account in his WS (ie “…… [P]只係將[P]知道嘅事實講咗出嚟 ……”), and did not realise he had to provide such full details and did not expect to be cross-examined in such detail. On balance, I find such explanation for reticence on a known core issue of dispute rather lame.

64.On the other hand, Choi said in fact “…… 好少機會 ……” food would be transported via the Stairway because the Kitchen was closer to the Rear Stairway and the Other Access Route. His evidence was corroborated by TM Wan, who said whilst the Stairway was the main route to/from the MDH, the Rear Stairway being right next to the Kitchen “……係最直接可以運送到食物嘅樓梯, 所以[Rear Stairway]就係最主要愛嚟運送食物嘅, 我哋係好少會用到[Stairway]去運送食物嘅”. On balance, I prefer their evidence which struck me to accord with common sense, and I find on balance the Rear Stairway with its proximity to the Kitchen was the main/usual route for delivery of food.

65.Further, if food sauce (not the Old Remnants) was seen to have been spilled onto the Stairway on the “好少機會” occasions when food was transported via the Stairway, Choi said “…… 餸汁滴咗落地 …… 嗰個就係會搵人嚟 ……清潔咗跌咗落地嘅嘢 ……” This was again echoed by TM Wan who said as follows:

“…… 就算我哋用番[Stairway]嘅話, 因為我哋嘅餸菜其實都係會有啲我哋叫做籃篩，即係一啲籃桶, 去盛載嘅, 所以如果話有啲餸汁或者一啲食物可以殘留咗喺[Stairway]度, 呢個可能性都亦都係唔高嘅，不過若然有嘅話，…… 因為[CSD]嗰個價值觀都係要保持番啲地方清潔, 畀一個健康同埋清潔嘅環境畀在囚人士, 所以我哋會盡快就即時將一啲咁嘅可能會令導致有人意外受傷嘅位置就會清潔番乾淨佢嘅 ……”

66.As alluded to in paragraph 62 above, P did not dispute there was regular cleaning of the Stairway. TM Wan also confirmed there was daily cleaning of the Stairway, “…… 所以[TM Wan]覺得油漬呢樣嘢[ie Old Remnants]就係基本上就冇乜可能會發生, 除咗頭先講嘅[Rear Stairway]。同埋[TM Wan]都會不時要巡番去[TM Wan]轄下嘅地區, 不時做一啲inspection嘅, 所以[TM Wan]一發現如果係嗰度有唔乾淨嘅話，[TM Wan]都會即時命令番[TM Wan]嘅下屬就去將嗰啲地方保持番清潔嘅 ……”

67.On balance and also taking into account the analysis in Part II(p) below, I find P’s explanations in paragraphs 62-63 above to be unconvincing afterthoughts as P realised by the time of the trial that his claim was constrained by his pleadings and WS/SWS, ie it was not raining in the morning of 19 August 2013 and he could not challenge the general/regular cleaning and maintenance of Stairway, so he embroidered his evidence by alleging under cross-examination that “餸汁濺落樓梯之間” was in fact the Old Remnants that accumulated on the surface of the Stairway despite acknowledged regular cleaning. But I prefer Choi’s and TM Wan’s evidence of regular inspection and daily cleaning of the Stairway as well as ad hoc cleaning of the Stairway if and when spillage of food was observed. On balance, I reject P’s evidence/case that it was the Old Remnants accumulated on the Stairway that caused its surface to become slippery.

(k)  Weather during the night before the Accident

68.P claimed that given the condition of the Stairway as explained in paragraphs 61-62 above, “[P]嘅意思係之前一晚落雨令到條樓梯更加濕 ……” But as I have found the Stairway was not slippery because of any Old Remnants, P’s case that it became more slippery due to rainwater falling on top of the Old Remnants could not be supported. Further, although I accept it rained the night before 19 August 2013, there was no evidence as to (a) when it rained the night before, and (b) how light or heavy was such rainfall.

(l)  Weather in the morning of 19 August 2013

69.As alluded to in paragraph 51 above, P said after “派更” at/about 07:00am (“大約係7點鬆啲啲喥”), he went up the Stairway to the MDH on 1/F. P could not remember whether it was raining at the time, but bearing in mind the following matters, I find on balance it did not rain on the morning of 19 August 2013 before the Accident (including the time when P went up the Stairway just about/after 07:00am):

(a)	P’s WS referred to raining the night before without any mention that it rained on the morning of 19 August 2013;
(b)	Choi confirmed (and on balance I accept) there was no rain at/about 07:00am when he received instructions from TM Wan and when he proceeded to comply with such instructions (see paragraph 73 below);
(c)	Tang confirmed it did not rain from the time he escorted inmates from Block F across the open-air Exercise Yard to the MDH up to the time of the Accident;
(d)	P confirmed there was no rain at 07:26am when the Accident happened.

(m)  P going up the Stairway

70.P gave evidence about the condition of the Stairway on the morning of 19 August 2013. P testified when he walked up the Stairway that morning from G/F to 1/F to go to the MDH, he “…… 靠[P]左手邊[ie the Inside Side] …… [P]覺得左手邊嗰度真係冇跣……” When pressed on his allegation that the Stairway was wet and slippery shortly thereafter at/about 07:26am, P explained that when he went up the Stairway “…… 發覺唔到跣  ……  係因為上緊樓梯”, but he also confessed the condition of the Stairway was about the same for users going up or down. When further pressed, P initially said he did not pay particular attention as to whether the Stairway was wet when he walked up such staircase close to the Inside Side, but he later said “…… 而家諗番起, 都係有少少濕”, “[P]只係記得上樓梯嗰陣時, 都係 …… 有啲濕嘅 ……”, which he claimed was the same wetness when he descended the Stairway later that morning. P then went on to say “…… 喺呢邊上[Stairway], 就會冇咁濕 ……” and “…… 近窗嗰面會濕啲, 裡面嗰面就冇咁濕 ……”, but in the end he confessed “…… [P]上緊嗰陣時就冇太過留心邊邊濕啲嘅 ……”

71.I find on balance the Stairway was dry and not wet and/or slippery when P went up such staircase on 19 August 2013. I have found it did not rain that morning. With no evidence of when it rained the night before and/or whether or not such rainfall was heavy, and given the Stairway was 5ft wide, I am unconvinced that portion of the Stairway close to the Inside Side (which P said was where he walked when he went up the Stairway) was wet let alone slippery. Indeed, although P initially testified he did not pay attention to whether or not it was wet when he walked up the Stairway, he was quite firm it was not slippery. Actually, there was no mention in P’s WS/SWS of the Stairway being wet and/or slippery when he went up to the MDH that morning.

72.In my view, P unreliably shifted to suggest it was not slippery because he was walking up the Stairway, presumably to contrast with walking down the Stairway, but it did not sit well with his testimony that the feeling underfoot would have been the same for users whether going up or down the Stairway. I find it even less convincing that P (who initially said he did not pay attention when he walked up the Stairway) suddenly remembered during cross-examination (ie almost 6 years after the Accident) that the Stairway was a bit wet, which I find to be unreliable embroidery and/or afterthought to justify the allegation that he saw the same wetness when he came down the Stairway less than half an hour.

(n)  Precaution at the Stairway before the Accident

73.Both Choi and TM Wan said at/about 07:00am, in view of weather forecast that there might be scattered rain later that day, “…… 為確保通往[MDH]所員及職員的安全 ……”, TM Wan instructed Choi to ensure the surroundings of the MDH, including the Stairway that led from the MDH to the Exercise Yard, were dry, and to place adequate “……「小心地滑」警示牌[“Caution Signage”]在[Stairway]及其他樓層 ……” Choi said he complied with such instructions even though it was not raining at the time, so he “…… 開始巡視及確保[MDH]周邊範圍乾爽, 包括[Stairway]樓梯地面, 及放置足夠[Caution Signages]於近[MDH]入口及[Stairway]當眼位置, 包括[Middle Landing]上 ……”

74.On balance, I accept the evidence of Choi and TM Wan in the above paragraph, which evidence was unshaken under cross-examination. P claimed he did not see the Caution Signage placed at the Middle Landing when he went up the Stairway at/about 07:00am (“大約係7點鬆啲啲喥”), but I find this unsurprising because Choi only received TM Wan’s instructions at/about 07:00am and attended to such instructions shortly thereafter. I find on balance Choi checked the Stairway was dry, and placed Caution Signage at the Middle Landing after P went up the Stairway. In coming to such finding, I have taken into account the totality of the evidence/findings in Part II(m) above and Part II(o) below on the situation of the Stairway immediately before and after the Accident, which finding gave further support for my view in paragraphs 71-72 above that the Stairway was not wet when P went up the Stairway that morning.

(o)  P going down the Stairway

75.P said it was not raining when he left the MDH and walked down the Stairway. The Choi/Tang CSD Statements and Choi’s/Tang’s WSs also confirmed it not was raining at the time. But P testified the Stairway “…… 都有啲濕嘅 ……” and “…… 又唔會話淰晒咁樣樣, 又唔會係幾滴, 妳可以話輕微咁樣樣, 中停咁樣濕, 就唔會話, 嘩, 好似淋完大雨”, but “…… 肯定有水 ……”, “…… 見到嘅 ……” and “級級都有嘅”. P was wearing “軍裝皮鞋” and not carrying anything.

76.When pressed on what caused him to slip and fall, P admitted that after his slip and fall he did not walk up the Upper Flight back to where he started to slip to check what caused the Accident, but he claimed “…… 嗰刻咪又濕滑囉 …… [P]跌倒之後, [P]即刻去求醫, 但係[P]見到個地下係濕嘅 ……”, “撳地下起身嗰陣時候” and “[P]起番身之後, [P]擰轉頭睇番, 其實成條樓梯都有啲濕嘅”, “[P]而家諗番起轉頭, 係濕嘅”. But “[P]冇辦法可以分辨到濕嘅地方係百分之幾多係雨水、百分之幾多係餸汁嘅油漬, [P]凈係知道佢係濕嘅 ……” P further testified “…… [P]起番身嗰陣時，條褲、啲衫嗰啲都濕咗嘅，有印嘅 ……”

77.On balance and on the analysis in Parts II(m)-(n) above, I reject P’s allegations in the above paragraph that the Stairway was wet and slippery as he descended the Upper Flight. In coming to this view, I have also taken into account the totality of the discussions/findings in Part II(p) and (r) below in relation to the Accident and its immediate aftermath. After all, there were no rainfall that morning and no evidence as to when it rained the night before and/or whether or not such rainfall was heavy. I have found Choi checked the Stairway was dry and placed a Caution Signage at the Middle Landing before P came down the Upper Flight. Indeed, Choi confirmed when he “…… 放置[Caution Signage]嘅時間，[Choi]都會喺[Stairway]附近即係有一個好短時間嘅停留，[Choi]都喺呢個過程裡面發現唔到 ……” the Old Remnants and rainwater on the Stairway.

78.P’s WS/SWS did not mention (a) P looked back towards the top part of the Upper Flight after he got up from his fall, (b) he then saw the entire Stairway was wet, and/or (c) he also found his clothes (including his trousers) had wet stains from contact with the wet surface of the Stairway. These were plainly material matters to show the allegedly wet and/or slippery condition of the Stairway (which P claimed was the cause of his slip and fall), but they were only elicited under cross-examination. When pressed, all P could say was that his WS “……之前已經講咗地下濕, [P]又講咗[P]跣親 ……”, “…… [P]認為講咗[Stairway]濕, 就係話咗畀人知係濕, …… 令到跌低囉 ……”, “…… [P]真係唔知要詳細到[P]擰轉頭望過confirm咗地下濕都寫埋落去 ……” This, in my view, was a poor excuse, and I find on balance P clearly knew his observations of wetness on the Stairway (ie an alleged cause of the Accident) right at the time of the Accident was highly important, especially when there were no eye-witness(es), and P would not have omitted such observations from his WS/SWS if they were true. I reject P’s explanations as unreliable afterthoughts made with a view to bolster his claim.

(p)  Accident

79.I have no doubt, and as Ms Chao accepted, P did suffer a slip and fall on the Upper Flight. But I am not persuaded his account of how the Accident happened was credible/reliable. As seen in the discussion below, P’s case on the Accident went through a metamorphosis that spoke ill of his veracity, which was not helped by his overall unreliability on both issues of liability and quantum.

80.According to the Investigation Report made about a week after the Accident but long before P (who was on continuous sick leave) gave the P 1^st, 2^nd and 3^rd CSD Statements, P was already interviewed,[31] so presumably P gave a verbal account of the Accident to DOO Ng or some senior CSD officer.[32] This was supported by P’s recollection that (a) a senior officer (長官) whose identity he could no longer recall made a written report about the Accident on a date which he could no longer recall,[33] and (b) such senior officer (長官) “…… 問過[P]呢單事件點樣發生, 有做過個咁嘅報告 ……” In paragraphs 3.1.1-3.1.4 of the Investigation Report, DOO Ng summarised P’s account of the Accident upon being interviewed as follows:

“3.1.2  [P] claimed while he was proceeding to Reception Office via the [Stairway] from MDH to Exercise Yard, he had accidentally slipped a few steps and sat on the staircases leading to the injury of his back. He then verbally summoned assistance from staff nearby.

3.1.3  He opined the staircase thereat might be wet at the material time of the incident which led to his injury. Later, he felt painful over his back and requested to be sent out to A&ED of outside hospital instead of waiting for treatment by on-call medical officer of the Centre Hospital.

3.1.4  As [P] was on continuous sick leave after the incident, his statement would be supplemented upon his resumption of duty.” (my emphasis)

P disagreed he told the interviewer the Stairway “有機會濕” or “有可能濕” (ie “might be wet”), and said “…… 其實[P]講咗係「濕」……”, “…… [P]就好記得[P]講過係個[Stairway]嗰啲濕、跣倒, 即係呢啲咁嘅說話, …… [P]應該係講地下濕 …… 實個地下[P]肯定係濕 ……”

81.On balance, I find myself unable to accept P’s explanation in the above paragraph:

(a)	There was no reason for DOO Ng to make up P’s reply to the interviewer that the Stairway “might be wet” when Ng knew very well at the time he prepared the Investigation Report P was then still on continuous sick leave and would in due course give his Staff Statement Form (CSD286) to set out his own written account of the Accident.
(b)	There was no suggestion P worked directly for DOO Ng and/or DOO Ng had any personal grudge against P.
(c)	DOO Ng fairly recorded in the Investigation Report P’s suspicion (albeit uncertain) as to the cause of the Accident despite (i) P’s reticence on the subject in the P 1st/2nd CSD Statements, and (ii) P placing blame on poor management culture of senior CSD officers that made it hard for injured employees who “…… 指住 …… 話佢嘅地方facility做得唔好, 令到你受傷 ……” as reason for such reticence (see paragraphs 83, 87 and 89 below).

I find on balance P told the CSD quite early on when he was interviewed (ie within a week after the Accident) that he thought it “might be” wetness on the surface of the Stairway that caused his slip and fall, but plainly P himself was not sure about the cause.

82.In the P 1^st CSD Statement that was self-written on 5 October 2013, P merely stated “…… 大約係0725時, [P]係[MDH]協助派發犯人膳食後 …… 於[MDH]外上層樓梯跌倒, 跣下幾級樓梯並弄傷背部, 並由 …… [Tang]陪同下/_扶[P]前往[Centre Hospital]” without stating what caused him to slip and fall. Even though, as P accepted, the Accident was the sole/focal subject of the P 1^st CSD Statement, P brushed aside such omission by saying “…… [P]覺得「跣倒」已經係報咗個事實出嚟, 如果唔夠詳細, 佢可能會再問[P] ……”, “…… [P]唔想 …… 即係好似控訴人哋「點解你唔整好啲呀?」各樣嘢咁, 只係一個原因, 佢哋再追問嘅時間, [P]亦都講咗係濕滑 ……”

83.But when CSD Officer 蕭志烺 (who interviewed P just moments after P made the P 1^st CSD Statement) raised the follow up question of “請[P]再次詳細說出於約0726時意外發生時的情況”, P merely wrote down “在[MDH]外樓梯跣倒” in the P 2^nd CSD Statement again without giving any particulars. P was offered an opportunity to add, change or supplement the contents of the P 2^nd CSD Statement, but he just wrote down “NA”. Under cross-examination, P said “…… [P]好明白程序上咁樣問, [P]係要答有冇增加減少, 當時[P]嘅心態係唔想再補充 ……”, and he tried to explain away his reticence by saying that he did not expect his injury to be so serious and by adding that having worked at the CSD for 20 odd years, he realised if “…… 指住 …… 話佢嘅地方facility做得唔好, 令到你受傷, 係會好多長官會見你, 會好多長官會麻煩你, 要你改, [P]唔想發生啲咁嘅事, 所以[P]凈係講咗個事實啫, 冇好細微 …… 咁樣講 ……”

84.On balance, I do not accept P was shy in stating what caused the Accident because he was worried such disclosure would affect his relationship with the CSD and make it hard for him to work at the Centre. Indeed, such allegation was exploded by (a) my finding in paragraph 80 above that he told the CSD senior officer who interviewed him within a week after the Accident there might have been some wetness on the Stairway that led to his work injury, and (b) his express reference to wetness on the Stairway in the subsequent P 3^rd CSD Statement that he gave to the CSD (see paragraph 85 below). In my view, P did not refer to this in the P 1^st/2^nd CSD Statements because he knew the weakness of his left leg contributed to Accident, and was unsure whether there was any wetness on the Stairway at all. If P were sure about this, there was no reason to be shy in the P 1^st/2^nd CSD Statements since he had already mentioned the possibility of wetness in his earlier interview, and, as he pointed out, other CSD officers at the Centre would have known the Opening was open to the elements. In my view, P’s alleged concern over damage to his employment relationship with the CSD was nothing more than a poor attempt to excuse his silence in the P 1^st/2^nd CSD Statements on the cause for his slip and fall.

85.In the P 3rd CSD Statement made on 1 November 2013, the interviewer being another CSD Officer again “…… 想了解當時因為什麼情況[P]意外跣倒”, and P wrote down “因為在2013年8月18日晚上開始落雨, 所以當日, 即是2013年8月19日早上[MDH]外的[Stairway]有些水在[Stairway]上而引致到[P]跣倒”. By this time P was already on continuous sick leave for about 2½ months, and the CSD wanted to find out why the Accident happened. I find on balance that P, who at the time knew he had previously told the CSD “the staircase thereat might be wet” (see paragraph 80 above), found it convenient to give the aforesaid answer when the CSD Officer pressed him on the reason for his slip and fall (and such follow-up by the CSD was, in my view, unsurprising as there was other no eye-witness to the Accident and as P failed to explain why the Accident happened in the P 1^st/2^nd CSD Statements). But as discussed below, I find P’s explanation to be an unreliable embellishment that left much to be desired.

86.P agreed the P 3^rd CSD Statement was the 1^st time he informed the CSD in writing that the cause of the Accident was (a) wetness on the Stairway due to rainfall the night before, but he still failed to mention (b) any “…… 油漬、餸汁呀等等嘅” (ie food spillage and/or Old Remnants). For (a) above, P was constrained to concede that even on his own case there was no reason to shy about wetness on the Stairway, and I reiterate my observations in paragraph 84 above. For (b) above, P tried to explain away such omission by alleging “…… 其實我哋習以為常咗, 見到嗰度會有漬喺度, 亦都冇諗過要向[Centre]之外嘅人交代, 所以[P]係冇寫低嘅, [P]認為係喺[Centre]做嘅職員都知道嗰度會係會污糟少少, 所以冇特別提出, 因為個個喺度耐少少嘅都知 ……” I disagree. P was expressly asked by the interviewer to state the reason for his slip and fall, so there was no reason for him to be reticent about (b) above (if he considered it caused/contributed to the Accident) irrespective whether or not the state/condition of the Stairway was known to other CSD officers.

87.P later gave another explanation for not referring to the food sauce spillage and/or the Old Remnants as a cause of the Accident in the P 3^rd CSD Statement:

“…… 因為[P]冇諗過[P]會向個部門提出訴訟, …… 所以[P]冇喺呢一度 …… 特登寫低你餸汁長年累月會令到[Stairway]更加跣, 如果[P]繼續做嘅話, [P]咁樣寫落去, [P]相信[P]會好難喺[Centre]嗰度暢順咁樣工作 …… [P]將來嘅工作會有困難 ……”, and

“…… 其實[Stairway]係唔應該係有犯人咁樣樣拖飯餸落去 …… 如果[P]喺度指控，話佢咁樣做，[P]要指控好多個[P]嘅同僚, 同埋即係話我哋嘅部門做嘢唔啱，…… [P]呢個提出係令到[P]會好難喺嗰度好暢順咁樣去工作、生活、生存到”.

I am unconvinced by P’s such explanation for his reticence in the P 3^rd CSD Statement. First, I have found the Rear Stairway (not the Stairway) was the main route for transporting food from the Kitchen, and I have rejected P’s evidence of the Old Remnants accumulating on the surface of the Stairway (see Part II(j) above). Secondly, P claimed even mentioning wetness on the Stairway from rainfall caused him to slip and fall “會令到長官好反感嘅都 …… 對[P]好反感”, and at the time he “…… 希望身體好轉, 係返去工作嘅 ……”, yet he braved such concern and spelled out that rainfall/wetness caused the Accident in the P 3^rd CSD Statement. I find it strange even on P’s own case that P would risk “會令到長官 …… 對[P]好反感” by mentioning wetness (from rainfall) on the Stairway as causing his slip and fall, and yet on similar concern he declined to mention food sauce spillage and/or the Old Remnants as further reasons for his slip and fall. P’s interviewer offered P the chance to correct, alter and supplement the contents of the P 3^rd CSD Statement, but P merely wrote down “現時來講, [P]唔想在這作出補充住”. In my view, P did not explain or credibly explain why he did not supplement the contents of the P 3^rd CSD Statement by mentioning the Old Remnants when he had already upset CSD’s senior officers by raising the matter of wetness on the Stairway from rainfall as a cause of the Accident.

88.In the SoC filed on 24 March 2016, P pleaded “[at] the material time, whilst [P] was descending the [Stairway] ……, he slipped and fell down about four (4) steps of stairs due to the wet and slippery surface of the same caused from raining. During the fall, [P] landed heavily on his buttocks and back” (my emphasis). P knew such plea was to set out his case for his legal claim against D, and he verified such plea by his own statement of truth. In my view, by 5 August 2015 when P commenced legal claim against D for the 2005 Accident, 2010 Accident and the Accident based on D’s alleged wrongdoings, P would no longer have been worried about his work relationship with CSD. When pressed on why he did not fully set out his case by pleading “…… 可能佢有啲舊漬[ie Old Remnants]加雨水咁樣 ….”, P claimed “…… [P]同[P]嘅律師講, 都真係有講係雨水同埋嗰個成日經過搬嘢, 係應該會有漬, 可能[P’s solicitiors]佢係真係寫得唔夠詳細 ……” But when it was pointed out that he verified the SoC by his statement of truth, and that his solicitor certified the contents of the SoC had been translated to him and he appeared to understand the SoC and approved its contents as accurate, P then claimed his solicitor “…… 係好籠統講一個故事, 「係咪咁樣? 你係因為返工嘅時間你就上咗去上高, …… 跟住夠鐘, 你就落去做嘢, 你就因為嗰度有啲雨水漬, …… 令到嗰條樓梯就跣?」 …… 係[P]大意, 冇一定監督住[P’s solicitor]要加埋餸汁 ……”

89.In my view, P could not have been merely careless in his omission because (a) when the SoC was amended on 26 January 2017 he still did not plead the Old Remnants caused or contributed to the Accident, and (b) he verified the contents of the ASoC by his own statement of truth with his solicitor certifying that the contents of the ASoC had been translated to him, and he appeared to understand the ASoC and approved its contents as accurate. Again, P tried to explain the omission away by saying he did not realise the significance of the Old Remnants, and by adding “…… 同埋其實[Stairway]係唔畀人係攞呢啲飯餸落去, 但係[CSD]每日都咁樣做, [P]咁樣講其實係揭咗一個唔啱嘅做法出嚟 …… 所以[P] ……下意識[P]真係冇睇到咁樣樣出嚟 ……”

90.I find such explanations unconvincing. By this time, (a) P had the benefit of legal advice, (b) the present action had been ongoing for 1½ years, (d) both the SoC/ASoC averred the Accident was due to D’s wrongdoings, and (d) D had filed her Defence to contest the claim. P must have known he should set out the fullness of his claim against D, and I am not persuaded any reticence on his part was due to any wish to preserve cordial work relationship with the CSD. In fact, it was not until P’s WS dated 10 August 2017 that he mentioned about food sauce spillage, but not even in his SWS dated 29 January 2018 (ie after his formal invalidation from service on 9 November 2017 such that there was no further need to preserve good work relationship with the CSD, but every reason to set out the fullness of his claim against D) did he mention it was the Old Remnants that caused or contributed to the Accident.

91.On balance, I find the aforesaid metamorphosis of P’s case on what caused the Accident spoke ill of the veracity of his evidence. Indeed, when Ms Chao put to P the Stairway did not have any Old Remnants at the time of the Accident, P’s telling reply was “…… [P]唔敢肯定”. When further pressed on whether he was unsure because he did not know the actual condition of the Stairway at the time, P insisted he had a slip and fall, and claimed “…… 同埋[P]知道[Stairway]成日咁樣樣搬啲餸汁係會跣嘅, [P]係真心覺得係有影響, 啲餸汁 ……” and “…… 所謂個舊漬個情況係點, [P]根本就唔清楚, 但係以[P]一般見到話因為出入拎菜、拎餸, 或者[P]平日嘅感覺, [P]就相信因為呢個係會加重個濕滑 ……” Thus, even on P’s evidence, the Old Remnants were likely to be his surmise from seeing food being transported along the Stairway, but he could not say for sure whether the Old Remnants were or were not on the steps of the Upper Flight at the time of the Accident.

92.Further, Choi walked along and checked the Stairway that morning when he complied with TM Wan’s instructions in anticipation of scattered rains later in the day (see paragraph 77 above). As seen in Part II(r), (s) and (w) below, Choi, Tang and TM Wan confirmed that a few minutes after the Accident, the condition of the Stairway was as shown in the Photos, ie it was dry and obstacle-free. Indeed, Tang ascended and descended the Stairway just before and after the Accident, and TM Wan walked up and down the Stairway to check its condition. None of them saw any food sauce spillage, oil stains and/or Old Remnants. On balance, I reject P’s case/evidence in this respect, and find the Stairway was dry and obstacle-free (ie without rainwater, food spillage, old food/oil stains and/or the Old Remnants) at the material time.

(q)  Handrails

93.In his WS, P stated “[P]沿[Stairway]偏左[ie Outside Side]步行, 當行落至3-4級時, 腳部突然一跣隨即失去重心坐骨先著地, 繼而逐級「鄧」落約有2-4級才停下 ……” (my emphasis). P testified he walked down the Stairway at normal speed, “…… 好正常咁樣普通步速輕鬆咁樣落樓梯, 冇快, 冇特別慢”. He explained “其實[P]靠左手邊行嘅原因就係扶扶手, …… [P]係特登靠邊, 有事, [P]係可以扶扶手嘅  …… [P]左腳好弱㗎喎……” P clarified “…… [P]唔係成段都會扶住嘅 ……”, but at the very moment he fell down he held onto the left handrail because “跌親嘅時間, 自然反應隻手都係會扶嘅 ……” When pressed on why he did not hold onto the handrail as he walked down the Stairway when even on his own case he knew (a) his left leg was weak (and he had a number of slip and fall accidents in the past including 2 that happened on staircases), (b) it rained the night before and the Opening was open to the elements, and (c) the steps were wet when he walked up and down the Stairway that morning, all P could say was “其實[P]都已經係小心, 只不過係唔夠十足小心啫, [P]冇估計咁都會跣倒 …… 其實[P]係已經選擇小心地靠近扶手行, [P]好難做到行每一步都係扶住牆、扶住扶手, 今次係冇為意個地下咁跣而發生意外 ……”

94.Further, P’s WS did not describe he walked close to the Outside Side and/or he held onto the left handrail when he fell down. When pressed, P said he just described what happened, “…… [P’s solicitor]後期都好詳細問[P], 係點樣樣、幾多級、幾多級, [P’s solicitor]都冇問[P]有冇行邊邊、左手邊、右手邊、或者有冇扶住嗰邊, [P]真係冇醒起要咁樣樣講落去”. But actually P gave thought to which side of the Stairway he was on because he stated in his WS that he “偏左步行”. When pressed, all P could say was it would overburden his WS if he described very detail, and in any event it was his habit “…… 係落樓梯嗰一下[P]會扶一扶, …… [P]企起身, 坐低, [P]都會撳一撳, [P]唔知道[P]要寫埋[P]嘅習慣落去 ……”, but in the end P had to confess “…… 真係寫漏咗 ……”

95.Again, I find P’s evidence that he held the left handrail lightly and intermittently but grabbed the left handrail when he started to fall was an unreliable afterthought. P never mentioned this in his pleadings, WS and/or SWS, which (in my view) he would have done if such assertion was true, especially when D averred in her Defence that P was contributorily negligent. It was not a mere matter of describing an alleged habit or not overburdening his WS/SWS. I further find P’s attempt to blame his solicitors was merely his poor effort to sidestep questions he found difficult to answer.

96.In any event, P’s allegations defy belief even on his own case that he knew (a) he had left leg weakness, left ankle laxity/weakness and back problem, (b) he had history of slips and falls (especially 2 previous accidents on staircases one of which caused serious injury in 1989 and persistent sequalae in the years thereafter), and (c) there was wetness on the Stairway especially on the part close to the Outside Side where rainfall could enter through the Opening.[34] In such circumstances, one would have expected P to have walked either (a) close to the Inside Side that was less wet and to have held the right handrail for stability/ support as his left leg was weak and there was no handrail or support on his left side, or (ii) close to the Outside Side which was wetter and to have held the left handrail for stability/support as this part of the staircase would be wetter and more slippery. In my view, even if P were able to prove the Stairway was wet and/or slippery (which I disagree), he would have been liable for contributory negligence in not looking after his own safety by holding onto the handrails.

(r)  Immediate aftermath of the Accident

97.P claimed he needed help to get up after his slip and fall on the Stairway. In his WS, P stated “跌倒後[P]已痛至不能郁動, 剛巧在附近經過的[AOII]經過便過來將[P]扶起, 然後再步行返回G/F, 由G/F另一同事交犯給該同事後, 由同事帶同[P]前去另一座指模房的[Centre Hospital]求診”. P said under cross-examination it was Choi (whom he recalled as “Chak Hung”) who came down the Stairway to assist/help him get up, ie “…… 當時[P]跌完之後, [P]唞咗一陣, 因為好痛, [P]係自己起身, [Choi]嘗試過嚟扶一扶[P]嘅啫 ……”, “…… 其實[Choi]有幫手, 就唔係話成個抱起[P]咁樣樣, 點都有幫一幫手, 扶一扶隻手, 都真係咁 ……” P gave evidence that Choi asked him “……「英偉哥, 嘩, 點呀? 咩嘢事呀?」……” and he replied “…… 喺上高跣親, 整親個背脊”, “…… [P]冇話不慎 ……”

98.On the other hand, Choi’s WS stated Choi was outside the unlocked MDH Gate (ie he was on the Upper Landing) awaiting inmates to enter the MDH for meals when “…… [Choi]突然聽到身後近[Upper Flight]位置, 傳出有人大叫「哎吔!」一聲。[Choi]立刻前往查看, 並發現[P]坐於[Upper Flight]第四級樓梯位置。[Choi]立刻上前查問, [P]告訴[Choi], [P]不慎於[Upper Flight]滑下幾級樓梯, 並弄傷背部 ……” Choi reiterated in chief that when he heard “「哎吔!」” he walked forward to a position near the top of the Stairway (marked with red cross in exhibit D1) and saw P sitting on the 4^th step, so he “ ……嗰度問咗一句咩嘢事, [Choi]見[P]嘅反應唔似係好嚴重, 所以[Choi]就冇作出進一步上前協助嘅意願 ……” Choi fairly accepted he did not specifically identify his precise position (as he did in his oral testimony) in his WS which stated “…… [Choi]立刻前往查看，並發現[P]坐於[Upper Flight]第四級樓梯位置 ……”, and he clarified what he said in his WS, ie that “…… [Choi]立刻上前查問 ……” after he saw P, meant “…… 應該係[Choi]嘗試再接近啲[P], …… 可能少少𠌥低身作一個詢問嘅身體狀態或者姿態 ……” and asked P “……「有冇事？」……”

99.On balance, I find Choi did not go forward to help P get up from the 4^th step on the Upper Flight. At that time there were inmates inside the MDH and Choi (who was the Gate Duty Staff) was outside the MDH Gate (which was unlocked) awaiting inmates to enter the MDH for meals. In my view, he would have kept the unlocked MDH Gate within his line of vision, which he could from his spot on the Upper Landing near the top of the Stairway, and which he could not if he had gone down to where P landed on the Upper Flight. As Choi explained, “…… 如果[Choi]離開[MDH Gate]太遠嘅話, 就有影響, 即係[MDH Gate]變咗人出同入[Choi]就會唔知道, 係比較喺[Choi]職責裡面係唔理想嘅 ……”

100.P suggested Choi did not tell senior officer(s) (長官) he went down the Upper Flight to help P get up because it would mean “…… [Choi]冇盡[Choi]嘅職責, 當時候 …… [Choi]喺[CSD]當中仲係好新嘅一個職員, [Choi]未confirm, [Choi]未過試用期嘅, …… 度閘係由[Choi]負責, 開一度、閂一度，閂一度、開一度, 條例嗰度寫住咁樣樣, 實際情況係虛掩 ……” I disagree. In fact, Choi had no such qualms about the MDH Gate being unlocked at the time of the Accident, and frankly agreed it was the general practice for such gate to be unlocked during periods of frequent usage, eg meal times. In my view, the fact the MDH Gate was unlocked at the material time lent weight to Choi’s evidence that he stayed at a spot where he could keep the MDH Gate within sight to ensure secure/proper use of such gate. Further, Tang (who had gone down the Stairway) confirmed that at/about 07:28am he heard “「哎吔, 哎吔」” and walked back up to the spot marked with red cross in exhibit D2 (see paragraph 105 below) and saw P on the Upper Flight, but he did not see Choi going to P and/or helping/assisting P to get up during the 3-4 minutes from the time he heard “「哎吔，哎吔」” until he left with P to the Centre Hospital (and Tang said during that period “…… [Tang]應該就冇行開過, [Tang]應該就喺嗰個位置嗰一點嗰個, 大約嗰個位 ……” (ie spot marked with red cross in exhibit D2 – see paragraph 105 below).

101.By the time of the trial, Choi could not remember whether P replied to his query “…… 「有冇事?」……”, and noted he self-wrote the computer-printed Choi CSD Statement 4 hours after the Accident stating “…… [P]告訴職[P]不慎於上層樓梯滑下幾級樓梯並弄傷背部 ……”, which was repeated in his WS 4 years later in September 2017. Choi volunteered under cross-examination they were not P’s exact words: “…… 應該係 …… [P]當其時係咁講, 跌親, ……「我就係跌親啫」咁之嘛 ……” without express mention of “「不小心」、「不慎」”, which Choi said was his own impression, “……即係唔通[P]自己就跌咩, 咁梗係唔小心跌喇咁樣 ……”

102.I will deal with the making of the Choi CSD Statement in Part II(x) below, but suffice to state here that whilst it would have been more desirable for Choi to have clearly stated in the Choi CSD Statement and his WS what were P’s words and what was his own impression, I am not persuaded it dented Choi’s clarification in the above paragraph. In my view, Choi’s clarification was supported by TM Wan’s oral testimony that when he arrived at the scene of the Accident after P/Tang had left for the Centre Hospital, “…… [TM Wan]喺[Choi]口中聽到話[P]唔小心𨃩親 ……” Given Choi’s clarification that P did not actually say “「不小心」、「不慎」”, TM Wan’s evidence echoed/corroborated Choi’s testimony that right at the scene of the Accident Choi already formed the impression that P slipped and fell due to his own carelessness. In my view, this lent weight to Choi’s evidence, which I accept, that he had an impression P was “不小心” or “不慎” in respect of P’s slip and fall even through P did not expressly tell him so, and such impression, albeit inelegantly put, found its way into the Choi CSD Statement later that morning and still later into his WS.

103.Further, I am unable to discern any motive for Choi, a mere colleague and not P’s subordinate/supervisor, to “malign” P in written statements and then to “renounce” the same in oral evidence. In my view, Choi had no personal motive to “malign” P and/or had no need to appease his superiors by “maligning” P because despite annexure of the Choi CSD Statement to the Investigation Report, DOO Ng in making such report was unconcerned about Choi’s mention of “不慎” in the Choi CSD Statement, and instead DOO Ng summarised Choi’s statement by focusing on the following salient aspect of Choi’s account of what P said: “…… [Choi] …… found that [P] was sitting at the 4^th step of the staircase and claimed to have slipped a few steps from the staircase and injured his back ……” without any emphasis on “不慎” at all (see paragraph 3.1.6 of the Investigation Report).

104.P claimed he was too painful to notice whether, apart from Choi, other CSD officers (eg TM Wan and/or Ng) were at the scene of the Accident. I find on balance (as stated in Choi’s WS) “…… [Choi]便立刻通知[TM Wan]及[DOO][Principal Officer][Ng]。在兩位長官抵達前，[P]已由[Tang]陪同下自行前往[Centre Hospital]接受診治 ……” (my emphasis)

(s)  Tang’s arrival

105.Tang’s WS stated he just completed escorting inmates to the MDH, and “…… 在[MDH]當離開期間, 發現[P]在[Upper Flight]位置 ……” Tang explained in evidence (and on balance I accept) that after leaving the MDH with a view to attend to his other duties, “…… [Tang]落到[Stairway]底嗰陣時, 差唔多離開[Stairway] ……”, “…… [Tang]諗幾步喇 ……已經離開咗[Stairway] ……” he heard “……「哎吔，哎吔」, 所以[Tang]上去了解個情況, 就見到[P sitting on the Stairway]痛苦個表情, 即係縐眉囉 ……” This meant Tang had to walk back up the Lower Flight to the Middle Landing at the position marked by a red cross in exhibit D2 when he saw P.

106.Tang testified he had a brief exchange with P for a minute or so, ie “…… 跟住[Tang]問[P] ……「做乜事呀？你冇嘢吖嘛?」…… 跟住[P]話「我喺上面𨃩一𨃩幾級落嚟」…… [P]話個背部比較痛咁樣。…… 跟住[P]就自己慢慢起咗身…… [Tang]就陪[P] ……去[Centre Hospital] ……”[35] In the Tang CSD Statement and his WS, Tang stated P “…… 並告訴[Tang][P]不慎於上層樓梯滑下幾級樓梯並弄傷背部 ……” But P and Tang in their oral evidence both agreed “…… [P]話[P]𨃩倒 ……”, “…… 係喺上層唔小心跣落幾級弄傷嘅 ……”, “…… [P]冇講到「不慎」……” Although Tang fairly accepted the Tang CSD Statement should reflect what he saw/heard, he put down the words “不慎” because “…… [Tang]覺得--即係[Tang]自己嘅經驗覺得應該係即係[P]唔小心自己會𨃩落嚟, [P]唔會 …… 自己跌倒, 多數都係唔小心、不慎咁樣𨃩一𨃩㗎喇 ……” In short, Tang put down “…… [Tang]嗰剎那感覺, 即係嗰剎那見到嘅就係[P]𨃩咗落嚟, [Tang]自己亦都相信[P]係唔小心滑一滑樓梯, 所以摔倒 ……”

107.Tang agreed he adopted similar phraseology in his WS, ie “…… 當時, [P]告訴[Tang], [P]不慎於上層樓梯滑下幾級樓梯, 並弄傷背部 ……”, as in the Tang CSD Statement that did not spell out precisely what words P said and what words (eg “「不慎」”) were Tang’s own impression. Whilst Tang fairly accepted the words “…… [P]告訴[Tang] ……” in his WS might confuse a reader into thinking P expressly said “不慎”, Tang explained he conflated what P said with his own impression “因為 …… [P]講畀[Tang]聽, 所以[Tang]用[Tang]自己嘅經驗, …… [Tang]相信 …… 跌倒嘅唔會係專登跌落嚟, 多數都係唔小心跌倒嘅啫 ……”, which he thought was permissible under paragraph 3 of his WS that stated “…… [Tang]在此陳述書所述的內容, 除非特別聲明, 乃根據本人個人經驗及知識作出 ……” (my emphasis).

108.I will deal with the making of the Tang CSD Statement in Part II(x) below, but whilst I accept the distinction between words said by P and impression formed by Tang could have been more precise, I do not accept this undermined the veracity of Tang’s clarification in the above paragraph. Indeed, I am unsurprised that Tang thought P “…… 多數都係唔小心跌倒嘅啫 ……” when, as I have found above/below, it was not raining that morning (see Part II(l) above), the Stairway was dry and not slippery at the time (see Part II(p) below), and a Caution Signage was placed at a conspicuous place on the Middle Landing (see Part II(v) below). For reasons set out in paragraphs 102-103 above, which are applicable to Tang mutatis mutandis, I accept Tang’s explanation. Likewise, DOO Ng annexed the Tang CSD Statement to the Investigation Report, but did not place emphasis on the reference therein to “不慎” and instead he summarised Tang’s account in paragraph 3.1.11 of such report as follows: “[at] this junction, [Tang] found that [P] at the upper part of staircase and claimed to have slipped a few steps and sustained injury to his back thereat ……” (my emphasis). Tang’s assumption that paragraph 3 of his WS sufficiently covered his account of mixed fact and impression was understandable albeit not readily helpful to a reader unfamiliar with the background of the case.

109.In all the circumstances, I find on balance P told Choi and Tang that he slipped and fell down a few steps on the Upper Flight and did not say he was careless, but both Choi and Tang formed the impression P had been careless.

(t)  Centre Hospital

110.Tang’s WS stated Tang accompanied P to the Centre Hospital for medical examination/treatment, and P walked by himself without requiring assistance on the way there (ie “…… 期間, [P]能自己前往[Centre Hospital], 不需要扶助 ……”). P agreed he did not require Tang’s support all the way to the Centre Hospital, but claimed “…… 係痛, 趷下趷下咁過去嘅, 真係嘅 ……”, “…… [Tang]冇全程好似扶婆婆過馬路咁樣扶住[P], 有陣時[P]痛過龍, 停一停, [Tang]會可能驚[P]跌倒, 係隻手會傍一傍住[P’s]隻手, [Tang]係冇捉住[P’s]隻手慢慢咁扶[P], 係冇 ……” On balance, whilst I accept P had a painful fall, I am not persuaded it was as bad as he claimed. In my view, P had a weak left leg/ankle and lost his balance on his way down the Stairway, but such slip and fall did not have the force and momentum of a slick slide that would follow upon stepping on wet and/or slippery surface. I prefer Choi’s/ Tang’s evidence that P was able to get up by himself, and that he did not require support on the way to the Centre Hospital. Wong also noted P arrived at the Centre Hospital unaided.

111.Tang did not stay with P at the Centre Hospital, and left to attend to other duties. Wong noted P arrived at the lobby of the Centre Hospital at/about 07:35am and alleged to have slipped a few steps at the Stairway. According to paragraph 2.2 of the Investigation Report,[36] “[preliminary] examination was conducted by Officer (Hospital) [Wong] …… at Treatment Room of Centre Hospital, no irregularity or external injury was detected. ……” Wong informed the on-call medical officer to return to the Centre at once for further assessment of P. Despite being informed of such arrangement and prior to examination by the on-call medical officer, P strongly requested to be sent out for examination by outside hospital’s AED, and he was sent to PMH’s AED for further examination/treatment per his own request. P did not dispute the above matters, but claimed “…… [P]知道個醫生流程, 佢好晏返工, [P]真係好痛, 所以[P]想快啲解決咗個痛, 因為佢又唔肯同我打止痛針, 我真係想 ……即刻去打止痛針咁解 ……”, so he asked for an ambulance to take him to PMH’s AED for medical treatment.

112.Ms Chao submitted P exaggerated his pain by not waiting for the on-call medical doctor to return to the Centre and by demanding to be sent to an external hospital for treatment. I do not think P could be criticised for wanting to receive medical treatment as soon as possible. As I have found, P was in pain after his slip and fall (albeit not as severe as he would have this court believe), and he was helpfully given intramuscular analgesics injection at PMH’s AED.

(u)  Stairway after the Accident

113.Choi and Tang in the Choi/Tang CSD Statements and their WSs confirmed that immediately after the Accident the surroundings of the MDH[37] including the Stairway were dry and obstacle-free, which they confirmed in evidence were in the state as shown in the Photos. Tang said it was not unusual to mention this in the Tang CSD Statement as he wanted to show the Stairway “…… 係正常囉, …… 冇乜其他特別嘢喺度 …… 即係好似平時咁樣, 附近乜嘢都冇嘅, 同埋乾爽係好配合番[that he stated]冇落雨 ……”

(v)  Caution Signage

114.P disagreed any Caution Signage was placed on the Middle Landing as shown in the Photos, but he did not say so in his WS. P claimed he would not say what he did not see in his WS. But when P was reminded that his solicitors had told him even before he made his WS that D had filed a Defence in May 2017 disputing liability and pleading “[warning] signs to raise the awareness of the users of the staircase against possible slippery have been placed by CSD in various prominent places of the staircase”, P tried to explain his silence in his WS by saying “…… 其實[P]係有講過當時[P]見唔到有呢塊咁嘅牌喺度, …… [P]同律師講, [P’s solicitors]同[P]講對方嘅證人一定話有擺 …… 因為[P]當時真係見唔到, 而[P]相信[P’s]同事後期同[P]講佢見到有人抹乾淨晒啲嘢, 擺個牌喺度至影相, [P]覺得咁樣已經係好足夠證明 ……” But if that were the case, P’s direct evidence at the time of the Accident would surely have been more helpful than the evidence of his colleague who only later arrived at the scene, so P was constrained to admit “…… 係因為[P]大意, [P]冇提到落去 ……”

115.On the other hand, Choi confirmed he placed such Caution Signage at a conspicuous place on the Middle Landing pursuant to TM Wan’s instructions that morning, and it was still intact and present at that location (ie in front of the spot where P claimed to have sustained his injury) after the Accident. This was echoed by Tang who also saw a Caution Signage placed just in front of the spot where P claimed to have sustained his injury when Tang went back up the Stairway after hearing “「哎吔，哎吔」”, and by TM Wan who also confirmed the same was observed when he arrived at the scene of the Accident.

116.On balance, I prefer Choi’s and Tang’s evidence. P’s resort to blame his solicitors and/or his own carelessness for omitting to mention the absence of the Caution Signage in his WS had a hollow ring. In my view, if P’s colleague CL Wan had told P the scene of the Accident was altered by placing the Caution Signage after the Stairway was cleaned and before photographs were taken, P must have known this would discredit D’s defence to his claim, so he would have mentioned this in his WS instead of mentioning part and not all of what CL Wan told him. Further, as seen in paragraphs 133-134 below, P’s allegation that CL Wan told him the Caution Signage was placed at the Middle Landing after the Stairway was cleaned but before photographs were taken was exploded by CL Wan’s own evidence that he did not see anything else at the scene apart from inmates mopping the Stairway and photographs being taken. But I will deal with CL Wan’s evidence in further detail in Part II(x) below.

(w)  TM Wan’s arrival

117.The TM Wan CSD Statement and TM Wan’s WS stated at/about 07:26am (ie at/about the time of the Accident) TM Wan was handling some miscellaneous requests of inmates at Block F. He said in chief that he learned from Choi via “…… 通訊機 ……” that P slipped and fell on the Stairway, “…… 所以TM Wan]第一時間就攞咗部相機,大概五分鐘喥, 即係大概07:31分喥，[TM Wan]就到達咗[Stairway] ……”

118.Mr Cheung suggested TM Wan did not go to scene immediately and his saying that he arrived at the scene in/about 5 minutes (ie at 07:31am) was “beyond belief”. On balance, I disagree. Although TM Wan did not record in writing the precise time of his arrival at the scene (ie 07:31am), he cogently explained “…… [TM Wan]喺07:26分 …… [at Block F]接到呢一個咁樣嘅職員意外跌倒嘅事件,[38] [TM Wan]會即時去攞一個相機,[39] 而呢一個係[TM Wan]個工作嘅範圍之一嚟嘅, 所以[TM wan]一定係五分鐘就可以到達現場 ……” because “……. 大概五分鐘嘅路程 ……”

119.TM Wan further explained what he said in his WS, ie “[at] about 0726 hours …… I was reported by [Choi] that [P] had slipped for a few steps at the [Upper Flight] …… When I arrived at the spot, I was informed …… At the time I arrived at the spot of the incident, I found ……”, already reflected a connection between “at about 0726 hours” when he received Choi’s report of the Accident and “…… the time [TM Wan] arrived at the spot of the incident”, ie “就係由[TM Wan]接到個call, …… 就係07:26分, 跟住[TM Wan]就去攞相機, 跟住[TM Wan]第一時間到咗現場, 嗰陣時[TM Wan]就現場觀察, [TM Wan]就係知道[Stairway]係乾爽同埋冇阻礙物。而呢個第一時間就係[TM Wan]頭先咁講, 即係within五分鐘[TM Wan]一定去到現場 ……” TM Wan explained what he wanted to express in his WS was that “…… [TM Wan]已經攞完相機, 跟住第一時間去到現場, 嗰陣時[TM Wan]見到啲乜嘢 ……”, so he disagreed he did not immediately go to the scene.

120.I find on balance (a) Choi promptly reported the Accident to TM Wan, (b) TM Wan promptly went to the control room to pick up a camera, and (c) TM Wan promptly set off for the Stairway. In my view, the Accident being an injury on duty at the Stairway would have required the prompt attention of TM Wan as the officer-in-charge of the Stairway. There was no suggestion TM Wan’s work at Block F was more urgent than his looking into the Accident. Whilst it was true the TM Wan CSD Statement did not state the precise time of TM Wan’s arrival at the scene of the Accident, I find the criticism levelled against TM Wan’s testimony missed the point because his evidence did not focus on the precise time of arrival. Rather TM Wan emphasised he knew Choi reported to him at/about 07:26am, but since (i) he forthwith took the actions in (b)-(c) above and (ii) it would have taken 5 minutes to reach the Stairway, he believed he would have arrived at the Stairway at/about 07:31am. I see nothing to fault TM Wan’s estimate of the time required for his journey from Block F to the control room and then to the Stairway. In any event, it was consistent with Tang’s evidence that 3-4 minutes elapsed from when he heard “「哎吔，哎吔」” until he left with P to the Centre Hospital, which explained why TM Wan did not see them at the scene when he arrived in/about 5 minutes after the Accident.

121.I also accept on balance that TM Wan picked up a camera on the way to the Stairway, and he eventually took 2 photographs of the scene (see paragraph 123 below) even though these matters were not expressly mentioned in the TM Wan CSD Statement and/or his WS. TM Wan explained it was part of his duties if an accident occurred, and “…… 就一定會攞部相機去影, …… 但係的而且確當日就係[TM Wan]去影相 ……” TM Wan further explained when he made his WS 4 years after the Accident, he expressed the contents of the TM Wan CSD Statement in the form of a witness statement, and did not realise the relevance of his act of taking photographs with the camera he brought to the scene. In my view, this was not unreasonable because he was not the one who liaised with the Department of Justice who represented D in the present action. All TM Wan knew was that P slipped and fell down the Stairway and later sued the CSD, but he did not read the P 1^st, 2^nd and 3^rd CSD Statements[40] and did not know why P slipped and fell. He was told by his CSD section in 2017 to give his account in a WS for the litigation, which he did by referring to the TM Wan CSD Statement to aid his recollection, but he did not read P’s WS/SWS.

122.TM Wan insisted that “…… 係當時真係[TM Wan]影相 …… 因為[CSD]就係如果有事件發生, 就一定係我哋作為[CSD Officers], 即係officer rank, 就會去攞部相機, 跟住就去影相 ……”, and he was quite adamant that had he still worked as a CSD Officer at the Centre at the time of the trial, if an accident happened, he would still have gone to the control room to pick up a camera to take photographs of the scene. On balance, I accept TM Wan had past experience of handling accidents with a practice of taking photographs of the scene, and such standard practice was unsurprising for an officer of TM Wan’s grade in view of the need for internal investigation for eventual compilation of accident/investigation reports. Indeed, when TM Wan was cross-examined as to why he would mention in his WS that the Stairway was observed to be dry and obstacle-free and that the Caution Signage was intact and present at the Middle Landing, TM Wan tellingly said “…… 因為呢個係[TM Wan]客觀喺現場做一個調查嘅一個結果嚟嘅, 有事件發生, [TM Wan]一定要喺現場裡面搜證, 所以[TM Wan]咪用相機去拍照同埋 …… 係親身去行過條樓梯, 去視察番當時個環境係點 ……” On balance, I find such explanation credible, especially when TM Wan learned about P’s allegation as to the cause of the Accident only quite recently. He explained that about 3-4 months before the trial he received an email from CSD headquarters (and he believed a colleague there liaised with the Department of Justice) informing him to attend court to give evidence, and it was only then that he “…… 大概知道原來[P]係話嗰度𨃩親, 可能係有水漬, 呢個當然[TM Wan]冇再深究究竟[P]話究竟係咩嘢事𨃩親 ……”, “…… 總之要上庭 …… 講番嗰個真實嘅實情出嚟 ……”

123.In any event, although the TM Wan CSD Statement did not expressly mention he picked up a camera on the way to the scene (which after all was merely standard practice to TM Wan), and there was no direct evidence it was TM Wan took the 2 Photos and/or Annotated Photos (although he did mention he took 2 photographs), I find this immaterial since Choi, Tang and TM Wan all confirmed the Photos reflected the immediate post-Accident state of the Stairway.

124.When TM Wan arrived at the Stairway, DOO Ng “…… 就一齊到場嘅 ……” Apart from DOO Ng, TM Wan saw Choi (and no one else) at the Stairway, but was told P had gone to the Centre Hospital for examination/treatment. TM Wan testified Choi told him “…… 較早前[P]就喺[Upper Flight]行咗之後就 …… 跌咗落樓梯, 跟住坐咗喺度”, so he asked Choi “「大概喺邊個位置佢跌倒? 邊個位置佢話𨃩親?」”, and “…… [TM Wan]就喺嗰度做一個現場嘅視察 …..” TM Wan said then “…… [TM Wan]喺[Choi]口中聽到話唔小心𨃩親。……如果喺人嗰面, [TM Wan]係咁樣得到呢個資訊, 但係[TM Wan]自己就喺現場就自己親自做一個視察嘅 ……” Mr Cheung complained that the TM Wan CSD Statement did not record such conversation between TM Wan and Choi. But this was not quite correct as such statement stated “…… [TM Chan] was reported by [Choi] that [P] had slipped for a few steps at the [Upper Flight] ……” albeit not in verbatim terms. TM Wan fairly accepted he did not put down in the TM Wan CSD Statement “「唔小心」個字眼”, but explained it was just “…… 當時寫呢份文嗰陣時[TM Wan]嘅演繹方式就係咁 ……”

125.Again, I do not consider this would detract from the veracity of TM Wan’s evidence. DOO Ng was to prepare CSD’s internal Accident/ Investigation Reports in due course by gathering information from interviews and statements. By the time TM Wan arrived at the scene, P had already left for the Centre Hospital, so TM Wan had no interaction with P. TM Wan would have known there were other officers who had interaction with P who would give statements for DOO Ng to compile the internal CSD reports. So his focal duty at the time was to check the objective condition of the scene of the Accident, and this was covered in the TM Wan CSD Statement and his WS by the statement that the surroundings of the MDH were dry and obstacle-free and a Caution Signage was seen at the Middle Landing. As pointed out in paragraphs 103 and 108 above, for the purpose of the internal Accident/ Investigation Reports, DOO Ng did not place emphasis on whether P was “唔小心” despite annexure of the Choi/Tang CSD Statements.

126.Further, the veracity of D’s witnesses on the condition of the Stairway in the aftermath of the Accident was in contrast to the inherent unreliability of the evidence of P and CL Wan, especially in light of their inconsistencies.

127.TM Wan reiterated in-chief that the condition of the Stairway observed upon his arrival after the Accident (ie in/about 5 minutes) was as shown in the Photos with a Caution Signage placed at the Middle Landing facing the Upper Flight, and that “…… [TM Wan]喺現場行過[Stairway]嘅, 而當時[TM Wan]見唔到有啲餸菜嗰啲漬、食物咁樣 ……” He agreed he did not stay long as “…… [TM Wan]望一望個現場環境, 見到 …… 冇餸菜、冇汁, 同埋啲牌喺度, [TM Wan]就即刻就影咗兩張相嘅。因為[TM Wan]又要趕住日常工作，…… routine，我哋繼續要做其他嘢 ……”

128.This was in contrast to P’s allegation under cross-examination that his colleague CL Wan (who P claimed was not familiar with P and who did not have P’s telephone number) “…… 同[P]識嘅朋友, 攞咗[P’s]電話 ……”, and then 1-2 days after the Accident (when P was still on sick leave and not at work) CL Wan telephoned “…… 同[P]講[CL Wan]見到有人抹乾淨晒啲嘢, 擺個[Caution Signage]喺度至影相 ……” But P did not mention in the P 1^st, 2^nd and 3^rd CSD Statements that 1-2 days after the Accident he learned from CL Wan that the scene of the Accident had been altered before photographs were taken, and P’s WS only mentioned “…… 意外發生後, [P]的同事[CL Wan] …… 告訴[P]他看到[CSD]同事即時帶來數名犯人, 先將肇事地點[Stairway]清潔後才進行影相紀錄 ……” without mentioning a Caution Signage was deliberately placed at the scene for taking photographs. Under cross-examination, P offered a reason for his reticence, ie CL Wan “……. 受好大壓力㗎 ……” as “[CL Wan]仲喺[CSD]做緊, [CL Wan]肯咁正義講畀[P]聽, [P]係 …… 非必要, 唔會 ……講出嚟, 令到[CL Wan]在職緊都有咁難受 ……” But such explanation was not readily understood because when CL Wan made his WS on 5 May 2017 and P made his WS on 10 August 2017 disclosing alleged alterations to the scene of the Accident (ie that the CSD caused the Stairway to be wiped before photographs were taken) CL Wan was still a serving CSD officer.[41]

129.Further, apart from saying his relationship with P was an ordinary one between colleagues without much communication, the evidence of CL Wan and P was inconsistent on fundamental matters. Contrary to what P said, CL Wan testified he actually had P’s telephone number, and they actually had infrequent telephone conversations. This was in direct and fundamental contradiction to P’s testimony, which raised doubt over P’s and CL Wan’s assertions that their relationship was ordinary or not close.

130.CL Wan was adamant he never told P about the following matters set out in his WS (and there was no communication between them in relation to the Accident despite P’s allegation otherwise) until the very day he made his WS (ie 5 May 2017):

“…… 在2013年8月19日約上午7:40a.m.左右, [CL Wan]在[Centre]當值期間, 途經由1/F至G/F平台一列有頂蓬樓梯, 知道剛巧之前有1名同事途經上述樓梯時跣倒受傷, 而事發後[CL Wan]看到署方同事即時帶來數名犯人, 先將肇事地點樓梯清潔後才進行影相紀錄。事後[CL Wan]才知悉跣倒受傷同事是[P], 而[P]因為此次樓梯跣倒意外引致腰部受傷。”

Rather, CL Wan said it was P who approached him (and he did not, as P alleged, approach P) on the morning of 5 May 2017, and he said “…… [P]話聽啲朋友講, …… 唔知係同事定朋友, [P]係喺其他人口中得知[CL Wan]見過呢啲嘢, [P]嘗試搵人攞[CL Wan’s]電話, 聯絡[CL Wan]咁樣 ……”, and “…… [P]問[CL Wan]呢件事仲記唔記得, [CL Wan]話記得 ……”, so P asked CL Wan whether he could give a WS to which he agreed, and he made his WS that very day.

131.CL Wan’s evidence in the above paragraph wholly contradicted that of P who said it was CL Wan who took the initiative to approach him 1-2 days after the Accident (ie when P was off work and still on sick leave), and it was years later that he invited CL Wan to give his WS. In any event, there was nothing in CL Wan’s own account of the events on 19 August 2013 to cause him to take note or to recall those matters almost 4 years later in mid-2017, especially as there was no written record.[42] In my view, the above direct inconsistency and inherent unreliability of P’s and CL Wan’s evidence, and the further analysis of their evidence below led inexorably to the conclusion that this court cannot safely rely on their evidence as to the post-Accident events.

132.CL Wan testified he was on duty at the Kitchen in the morning of 19 August 2013. In the course of the morning he left the MDH to go to the Upper Landing via the MDH Gate to have a cigarette,[43] but he was not sure of the time except it should be about 7:40am (and in any event before 08:00am). But Choi as the Gate Duty Staff at the MDH Gate had no impression of CL Wan leaving the MDH via the MDH Gate before 08:00am. Rather, “…… [Choi]話8點前係肯定[CL Wan]冇經過[Choi]管[MDH Gate] ……就係每一日8點鐘都會有[Centre]一啲高級長官會巡視[Choi]管轄嘅範圍, 所以喺嗰個時間之前[Choi]都會比較去留意關於[Choi]自己工作崗位嘅嘢, [Choi]會比較有深刻印象, 嗰一部分 ……”

133.CL Wan said he was at the Upper Landing for less than 10 minutes for his smoke, and “…… [he]只係見到有帶犯人嚟做清潔 ……”, “…… [he]當時見到嘅就係有犯人用一啲氈係嗍緊地下啲水嘅, 因為當日係落過雨嚟嘅 ……”, but he did not see anything else as “…… [CL Wan]食完煙咪走囉 …… [and the inmates] …… 應該係轉咗彎落去㗎喇 …… 一路咁樣拖落去, 嗍水”. I find such evidence unconvincing and unreliable as it was common ground amongst the other witnesses including P that it did not rain that morning (see Part II(l) above).

134.I also note CL Wan agreed he did not see Choi/inmates doing anything else at the Stairway, which meant there was no evidence from CL Wan himself that “…… [CL Wan]見到有人抹乾淨晒啲嘢, 擺個[Caution Signage]喺度至影相 ……”, which, of course, contradicted P’s evidence that CL Wan told him that. In any event, CL Wan could not have seen that because he left before the inmates finished cleaning the Stairway (ie they were still mopping down to the Lower Flight when he left). Also, it was improbable for CL Wan to have seen that after the Stairway was mopped “…… 有人 …… 擺個[Caution Signage]喺度至影相 ……” because CL Wan claimed he again went out to the Upper Landing about an hour later for a 2^nd cigarette, and it was only then that he saw a CSD officer taking photographs of the scene (see paragraph 137 below). CL Wan claimed the CSD officer stood at the Middle Landing and looked upwards to take photographs of the Upper Flight, so it would have been pointless for the purpose of taking photographs to “frame” the scene by placing a Caution Signage on the Middle Landing.

135.CL Wan said it was “澤雄” (ie Choi) who led the inmates to the clean/mop the Stairway. He did not mention Choi in his WS, and sought to explain away such omission by saying “…… [CL Wan]唔係好識，[CL Wan]讀得書少，…… [CL Wan]意思就係嗰個 …… 署方即係職員、同事呀咁 …… [CL Wan]真係唔知佢全名，[CL Wan]不嬲都係嗌開佢叫澤雄咁樣 ……”, but he agreed there was only 1 CSD officer called “澤雄” at the Centre who was actually the Gate Duty Staff at the MDH Gate that morning. Plainly, Choi was identifiable (even if not by his full name), and there was no logical reason for CL Wan not to mention this in his WS, especially when Choi was being criticised for altering the scene of the Accident to facilitate “framing” the photographic record.

136.CL Wan agreed that at that time he did not know about the Accident, and yet he said in his WS that “…… 事發後[CL Wan]看到署方同事即時帶來數名犯人 ……” (my emphasis). He also said he only learned from a colleague just before he went off duty (either at 10:30am or 01:45pm but he could not remember which time) that earlier in the day another colleague slipped and fell on the Stairway, and yet he stated in his WS “…… 剛巧之前有1名同事途經[Stairway]時跣倒受傷 ……” (my emphasis). CL Wan on his own testimony would not have known the time of the Accident and hence the interval of time that lapsed between the occurrence of the Accident and the alleged cleaning of the Stairway by inmates under Choi’s supervision, so he was constrained to agree “…… 可能嗰啲字眼[CL Wan]用得唔好 ……” I find these matters exacerbated my reservations over the veracity of CL Wan’s evidence given he had no reason to particularly remember the incident that happened about 4 years before he gave his WS, and further given the inconsistencies between his evidence and P’s evidence.

137.Further, CL Wan said “…… 係[CL Wan]食煙嘅時候[Choi]喺度嘅 …… 但係[CL Wan]好肯定係有個職員喺度影相嘅。…… 係另一位同事嚟嘅, 但係[CL Wan]真係記唔到係邊個 ……” Interestingly, CL Wan’s WS never suggested it was another CSD officer (ie not Choi) who took photographs of the scene, which evidence was only elicited under cross-examination. CL Wan offered no particular reason why he would remember it was his colleague Choi who led the inmates to clean the Stairway, and not the name of his colleague who took photographs of the scene. When it was suggested that even on his account he could not have seen any photographs being taken of the scene after the Stairway was mopped/cleaned because he had left when the inmates were still mopping the Stairway down the Lower Flight, CL Wan for the first time claimed under cross-examination that “…… 佢唔係一做完清潔即刻影相嘅, 佢係做完清潔之後, [CL Wan]第二次出去食煙嘅時候先至見到嘅 …… 隔咗一段時間嘅 …… 一個鐘頭喥喇 …… 係咁上下, 九點幾喥……” But CL Wan’s WS only stated what he allegedly observed at/about 7:40am without mention that he went out to the Upper Landing again about an hour later. All CL Wan could say was that “[CL Wan]唔記得係[P’s solicitor]冇問吖, 定係[CL Wan]冇答[P’s solicitor]”. In my view, CL Wan was making up his evidence as he went along in face of difficult questions, and I find his evidence about photograph-taking quite unreliable.

138.By reason of the above, on balance I reject CL Wan’s and P’s evidence in relation to the aftermath of the Accident, and prefer the evidence of Choi, Tang and TW Wan. I find on balance (a) CL Wan did not go out to the Upper Landing for a smoke at/about 07:40am or before 08:00am, (b) Choi did not lead a team of inmates to clean the Stairway as CL Wan alleged, (c) TM Wan arrived at the scene of the Accident at/about 07:31am to check the Stairway and to take photographs, and he left after a short while but before 07:40am, (d) CL Wan did not go out to the Upper Landing for a 2^nd time sometime after 09:00am, and no photographs were taken of the scene at that time. In my view, if CL Wan ever saw inmates mopping the Stairway that day, it was nothing more than daily routine cleaning. As CL Wan himself said, “…… 犯人清潔[Stairway], 其實每日都必定要做嘅工作嚟嘅 ……” I accept the evidence of Choi, Tang and TM Wan that immediately after the Accident the surroundings of the MDH, including the Stairway and the Upper Landing, were dry and obstacle-free, and a Caution Signage was intact and placed at a conspicuous place on the Middle Landing in front of the spot where P slipped and fell.

(x)  Choi, Tang and TM Wan CSD Statements

139.Mr Cheung submitted Choi and Tang were “utterly unreliable witnesses” who “concocted” evidence that P “「不慎」” slipped and fell on the Stairway, and it could not have been “sheer coincidence” that they both mentioned this in the Choi/Tang CSD Statements. Both Choi and Tang made the Choi/Tang CSD Statements a few hours after the Accident (ie at 11:30am) at the DOO Office, which Tang said was about the size of the public gallery of the trial court, and which TM Wan said was a bit larger than ¼ of the court, ie its size was about the distance from the bench to the dock.

140.Choi agreed “……[Choi]係有被署方去查問關於[Accident] ……”, and he self-wrote the computer-printed Choi CSD Statement. As to why he wrote down “「不慎」” in the Choi CSD Statement, Choi explained he thought P slipped and fell because he was “「不小心」”, and he felt this should be reflected in the Choi CSD Statement because “…… 如果冇咗呢個字眼，[Choi]就有啲覺得自己好似寫得唔係好通順, 即係唔通[P]自己就跌咩, 咁梗係唔小心跌喇咁樣 ……” Choi further explained he originally wanted to use the words “「不小心」”, but “…… 嗰陣時[Choi]用倉頡打嗰個「小」字 …… 打唔到, 唔知點解, 所以[Choi]就用「不慎」呢個字 ……” Choi fairly accepted that when he made his WS about 4 years later he referred to the Choi CSD Statement to aid his recollection, but he disagreed he merely copied the Choi CSD Statement for his WS, and went on to say “…… 如果同一字眼, [Choi]覺得係一樣準確 ……”

141.Tang’s supervisor DOO Ng instructed him to make a Staff Statement Form about his own experience concerning the Accident, so Tang made the Tang CSD Statement. He had given Staff Statement Forms before concerning, say, fights among inmates, but the Tang CSD Statement was his first statement in relation to injury on duty by a CSD officer. Tang said when he made the Tang CSD Statement at the DOO Office there were other colleagues there. Even though one could if one wished see who was present at the DOO Office, Tang said he did not pay attention and so did not see Choi there. Tang fairly agreed his WS were similar to the Tang CSD Statement as he referred to the latter to aid recollection when he made the former. As to Mr Cheung’s complaint that the Tang CSD Statement conflated Tang’s own view that P was careless with what P told him, Tang said this was “…… 自己以往對於不小心𨃩倒嗰啲經驗 ……”, and he wrote “「不慎」” because “…… 一係不小心, 一係不慎, 諗唔到其他詞語 ……” Tang disagreed he and Choi copied from each other when they made the Tang/Choi CSD Statements at the DOO Office at 11:30am.

142.I reiterate my analysis of Choi’s and Tang’s evidence on what P said to them in Parts II(r)-(s) above, especially paragraphs 102-103 and 108-109 above. On balance I prefer and accept their evidence, and in doing so I have taken into account Mr Cheung’s submissions in paragraph 139 above which I have carefully considered but do not accept. Deliberate collusion and concoction of evidence against an injured colleague were serious allegations. Neither Tang nor Choi were P’s supervisor or subordinate. They simply just happened to be near the spot where P slipped and fell, and had no personal motive to collude so as to harm P with falsities. Had they such ill intent, bearing in mind it was their mere word against P, they could have maintained P told them he was careless without clarifying that it was their own impression.

143.In my view, the fact both Choi and Tang came to the impression that P slipped and fell because he was careless was not surprising as it did not rain that morning, the Stairway was dry and obstacle-free, and a Caution Signage was conspicuously placed at the Middle Landing. There was no suggestion they were aware P had a weak left leg. Further, there was corroborating evidence from TM Wan who confirmed Choi told him a few minutes after the Accident that “…… [P]唔小心𨃩親 ……” (see paragraph 124 above).

144.If it were suggested CSD had a poor management culture of downplaying institutional default and pressurising staff to fall in line, there was no allegation that TM Wan (Choi’s and P’s superior) and/or DOO Ng (responsible officer for preparing the Accident/Investigation Reports) were part of the alleged collusion/concoction. In my view, such alleged bad culture within the CSD was exploded by the contents of the Accident/Investigation Reports in which Ng did not even highlight in the body of such reports the assertions in the Choi/Tang CSD Statements that P “…… 告訴[Choi/Tang][P]不慎 ……” in relation to his slip and fall (my emphasis) (see paragraphs 103 and 108 above).

145.I see nothing sinister in Tang not noticing Choi in the DOO Office when he focused on writing the Tang CSD Statement and not paying attention to who was actually present. This was so especially when there was no evidence how many persons were present at the DOO Office at the time, but it was evident from TM Wan’s testimony that there would have been CSD officers (eg officers-in-charge or “屬於嗰個主管”) regularly entering and leaving the DOO Office to make reports to DOO Ng. I also do not see anything sinister in Tang and Choi using the same words “不慎” in the Choi/Tang CSD Statements. Both of them gave their separate explanations, which on balance I accept, and I note it was not even put to Choi during cross-examination that he colluded with and copied from Tang. Their involvement concerning the Accident fell within a small but similar compass, so there was nothing alarming that their statements had similar wording. As Tang said, “…… 一係不小心, 一係不慎, 諗唔到其他詞語 ……”

146.As for the TM Wan CSD Statement, it was also made on the day of the Accident at 12:00 noon at the DOO Office. He explained the involved CSD officers had to return their Staff Statement Forms to DOO Ng for preparation of the Accident Report, so such colleagues “…… 如果係可以有人頂咗佢個位置, …… 就會盡番去番[DOO Office], 就喺部電腦打呢份供詞 ……”, which in my view sensibly explained why Choi/Tang were at the DOO Office at 11:30am preparing their own statements.

147.TM Wan explained he “…… 係要去到12點先得閒, 嗰陣時12點就去到[DOO Office] …… 自己打[TM Wan Statement] ……” He agreed he must have entered the DOO Office before 12:00 noon, but had no idea exactly when because he “…… 不時 …… 都要喺[DOO Office]出出入入。…… 因為[TM Wan]係屬於嗰個主管, 其實我哋有好多嘢我哋都要返落去同[DOO Ng]去匯報 ……” TM Wan had no impression of seeing Choi and/or Tang at the DOO Office that morning, which I find unsurprising as the Choi/Tang CSD Statements were short one-page statements that were probably completed before Tang went to the DOO Office. On balance, I accept TM Wan’s account as to how he made the TM Wan CSD Statement.

(y)  Cause of the Accident

148.On balance, I accept P slipped on the Stairway and fell down for about 4 steps. But for all the above reasons, I find on balance the Accident was not due to any wet and/or slippery surface of the Stairway “caused from raining” as averred in the ASoC and/or caused by the presence of rainwater on top of food spillage/sauce, old oil stains and/or the Old Remnants as P alleged in his WS and/or under cross-examination. I find it more likely than not that P lost his balance and thus slipped and fell on the Stairway due to his weak left leg and recurrent left ankle laxity/problem. In my view, he was prone to slip and fall given the catalogue of similar incidents (including 2 that occurred on staircases) in the past. Indeed, even P himself admitted such physical condition contributed to the Accident. In the circumstances, P failed to establish that the Accident was caused by D’s wrongdoings (whether by negligence, breach of statutory duty, breach of common duty of care, and/or breach of employer’s duty and contract of employment).

(z)  CSD’s measures

149.In any event, I find D had taken reasonable measures. As Ms Chao submitted, the act of walking down the Stairway was a simple one that CSD as employer/occupier would have expected its employees to carry out in a safe manner.[44] The Stairway had handrails on both sides, and non-slip tiles at the edge of each step. Shortly before the Accident, TM Wan instructed Choi to ensure the surroundings of the MDH (including the Stairway) were dry, and to place Caution Signages at the Stairway, and Choi complied by checking that the Stairway was dry and placing inter alia a Caution Signage on the Middle Landing. Choi, Tang and TM Wan confirmed this when they attended the scene in the immediate aftermath of the Accident. There was also daily cleaning of the Stairway, and ad hoc cleaning when on infrequent occasions food sauce was observed to be spilled on the Stairway. CSD officers were at hand to go to P’s aid after his slip and fall, and he was accompanied by a colleague to the Centre Hospital. I cannot see what further practical precautionary measures that the CSD could have taken to maintain dryness/cleanliness and/or to enhance staff awareness. After all, the CSD could hardly have posted staff all the time at the Stairway to mop rainwater and/or spillage.[45] In my view, the aforesaid measures demonstrated the CSD had provided a reasonably safe work place and/or system of work.

(aa)  Summary

150.For all the above reasons, P failed to establish any liability on the part of D, and hence his claim must fail. Even if I were wrong, P would have been contributorily negligent to a significant degree as (a) he failed to keep a proper lookout as to the condition of the surface of the Stairway when (i) he was not unfamiliar with the route up and down the staircase and when he had no problem walking up the Stairway in the same condition that morning and (ii) he claimed a slip was more likely upon going down rather than going up the Stairway, and (b) he failed to take adequate preventive measures by (i) holding onto the left handrail tightly when walking down the Stairway close to the Outside Side given his weak left leg which he said would worsen on days with poor weather (see paragraph 19 above) and (ii) choosing to walk down the Stairway close to the drier Inside Side away from the Opening and holding onto the right handrail to steady himself.

151.For completeness and in case I am wrong on the issue of liability, I shall briefly consider the issue of quantum of damages.

III.  QUANTUM

(a)  Personal history

152.P was born on 1 June 1968 and was 45 years old at the time of the Accident. He received secondary education, and could read/write both English and Chinese. He was divorced, and had a grown up son. He did not smoke or drink. He told the Experts he used to play all sorts of sports, and “was all around in exercise”. P also said he used to play billiard, war games etc 4-5 times a month prior to the Accident, but ceased to do so after the Accident. In light of his medical history in relation to his back and left leg/knee/ankle in Parts II(b)-(f) above, I am not persuaded P used to be as vigorously sporty as he said. Nevertheless, he admitted in his WS that he followed doctor’s advice and took up swimming and cycling, so he maintained reasonable sports even after the Accident.

(b)  Injuries and treatment

153.According to the medical report dated 28 October 2013 by PMH’s AED, P attended PMH’s AED for back injury due to slip and fall (landing on his buttocks) as a result of the Accident. He was able to walk unaided, but complained of back pain. Physical examination showed (a) stable vital signs, (b) full bilateral lower limb power with normal sensation, and (c) tenderness over lumbrosacral region. X ray lumbrosacral spine showed normal alignment with no fracture seen. P was given intramuscular analgesics injection, and discharged with analgesics and sick leave for 4 days for 19-22 August 2013.

154.P’s ASoC averred that as a result of the Accident P suffered right wrist sprain as well as left lower limb and back injury. P could not remember whether he told the CSD he had hurt his right wrist, which complaint was not mentioned in the CSD’s Form 2 dated 5 September 2013 submitted to the Labour Department. But P agreed any right wrist sprain would not have been serious, and it must have subsided as he did not mention it in his WS/SWS. P confessed “…… 最主要[P]係講[P]條腰骨躉到好痛 ……”

155.P’s WS claimed (a) after his discharge he limped with his son’s support, (b) he had to take analgesics for sleep due to increase in pain, and (c) he could not tolerate the pain, so on 21 August 2013 he went to QEH’s AED for treatment. P trusted QEH because (i) it was reputed to be one of the best public hospitals and (b) he had his 2 major operations there. P’s major complaint to QEH’s AED was low back pain. Medical examination revealed no external wound and no lower limb weakness. X ray coccyx showed no fracture (which contradicted P’s WS saying no X ray was taken).[46] The clinical diagnosis was soft tissue injury. P was treated and discharged with analgesics and sick leave for 21-24 August 2013. In my view, and consistent with the Experts’ opinion (see paragraph 187 below), P suffered back contusion without bony injury or neurological complications.

156.P’s WS claimed his back pain radiated to his left thigh, calf and foot with numbness that affected his walking tolerance. On 26 August 2013, P attended South Kwai Chung Jockey Club General Outpatient Clinic (“SKCJC GOPC”) for persistent back pain.[47] On physical examination, he could walk unaided with normal gait. There was mild tenderness over lumbrosacral spine region. On flexion of the back, his hands could touch the upper part of his shins. P was diagnosed to have low back pain, and was prescribed analgesics with sick leave for 26-29 August 2013.[48] The OPD of CMC’s DOT continued P’s sick leave until 6 September 2013, and granted him further sick leave from 9 September to 14 November 2013. Thereafter until August 2017 P regularly attended SKCJC GOPC, and on each visit the attending doctor prescribed analgesics and sick leave (see paragraphs 167 and 179 below).

157.On 13 November 2013, P attended follow up at the OPD of CMC’s DOT when he told the orthopaedist about the Accident and his low back pain with radiation pain to posterior left thigh.[49] P’s WS claimed (a) it was a scheduled follow up for P’s injuries as a result of the 2010 Accident, and (b) it was convenient for him to attend CMC as he worked at the Centre in Lai Chi Kok. P was granted sick leave for 13-15 November 2013.

158.P claimed that after several follow ups he was referred for physiotherapy, and thereafter his staple treatment was essentially analgesics and physiotherapy. In my view, although P complained of back pain and left sciatica/weakness with limitation in range of movement, his condition was not severe as (a) he was able to walk unaided in normal gait, (b) he chose to default physiotherapy treatment (see paragraphs 160 and 162 below), which was the only treatment then offered to him other than pain-relief medication, and (c) the orthopaedists at CMC’s DOT did not see fit to schedule more frequent follow ups.

159.On 5 August 2014, PMH referred P for physiotherapy management of back pain.[50] At the initial assessment on 27 August 2014, P complained of pain over back, but was able to walk unaided with normal gait. P’s AROM was “full, pain++” for flexion, and “full, pain+” for extension, rotation to right and rotation to left. His sensation was normal with “tenderness+ over L3-L5 region” and “tenderness+ over paraspinals” elicited on palpation. P received 2 treatment sessions that included magnetic therapy, back mobolisation and stabilisation exercise. On 19 September 2014 (last treatment session), P still complained of back pain with same objective assessment as the initial assessment.

160.P’s WS claimed that after the 2 physiotherapy sessions on 27 August and 19 September 2014, “…… 治療2次完結”. P said under cross-examination this was because POH did not give further physiotherapy appointment and only taught him home exercises. But when he was shown the physiotherapy report that stated he defaulted follow up appointment (see footnote 50 above), P admitted his default and said “…… [P]大多數嘅物理治療，[P]都係 …… 有去到跟進，但係就[P]唔記得咗點解[P]冇去到呢一個，可能係因為太遠或者凈係熱敷其他各方面呢啲嘢，[P’s]屋企都可以解決得到熱敷呢一樣嘢 ……” I find myself unable to place reliance on P’s inconsistent evidence, and in my view, P chose to default physiotherapy (which treatment would at least provide symptom relief if not absolute therapeutic cure) because his complaints were moderate and bearable, and not as serious as P would have this court believe. After all, P attended full 10 physiotherapy treatment sessions in 2011 for “left ankle instability, left foot pain and knee pain” following the 2010 Accident, and 2 physiotherapy treatment sessions in 2012 (until his condition became static) for his degenerative back and recurrent leg symptoms (see paragraphs 32 and 42 above).

161.On 11 November 2014, P attended follow up at the OPD of CMC’s DOT,[51] and complained he still suffered from low back pain and left foot plantar surface numbness and could tolerate walking for only 15 minutes. P was granted sick leave for that day.

162.According to the medical report dated 11 August 2016 by SKCJC GOPC, P was referred for physiotherapy and finished 4 courses with mild improvement. But P did not actually complete such courses of physiotherapy because he again defaulted the next course. According to CMC’s physiotherapy report dated 21 September 2015, SKCJC GOPC again referred P for physiotherapy due to low back pain, and P started his treatment on 10 March 2015. During the initial visit, P presented with mild back and left lower limb pain. On examination, the range of motion of P’s back was ⅔ of the full range limited by back muscle tightness. Left SLR was 50º with back pain elicited at the end range whereas right SLR was 80º with no pain. P managed to walk unaided independently. The physiotherapy treatment he received was intermittent pelvic transaction, short wave diathermy, lower limb and back mobolisation, stretching and strengthening exercise. But despite P’s testimony that he would attend physiotherapy treatment, if offered and that “…… [P]有做到好多期嘅物理治療, 包括水療”, he again defaulted treatment after 1 session and CMC’s physiotherapy department stated his progress could not be followed. P was silent on this course of physiotherapy in his WS, which I find was due to his wish to avoid saying he defaulted treatment, and not because, as he claimed, “都唔需要” mention the same. On balance, I find P’s condition moderate, so he chose to default 2 courses of physiotherapy being his staple treatment at the time.

163.P’s WS claimed his supervisor requested medical report of his condition, so P made enquiry with a private doctor who referred him for private MRI lumbrosacral spine, which was done on 11 March 2015 with the following findings:

(a)	lumbar spondylosis with desiccation of L5/S1 disc;
(b)	L4/5 posterior broad-based disc protrusion indenting onto the thecal sac and bilateral lateral recesses (which were narrowed) with the protruded disc mildly compressing bilateral descending L5 nerve roots;
(c)	L5/S1 right paracentral and posterolateral disc protrusion indenting onto the thecal sac and right lateral recess with the disc-osteophyte complex compressing the right descending S1 nerve root;
(d)	mild L1/2 posterior central disc protrusion slightly indenting onto the thecal sac;
(e)	hypertrophy of bilateral facet joints at L3/4 with narrowing of bilateral recesses.

164.P’s WS claimed P suffered continued pain, so he consulted private othoapedist Dr Wong See Hoi since 8 April 2015 (but Dr Wong See Hoi did not appear to have granted him sick leave until May 2017). P provided the MRI report to the orthopaedists at the OPD of CMC’s DOT for reference, and P claimed they then prescribed analgesics and sick leave. But according to the agreed sick leave schedule, CMC’s DOT did not grant any sick leave after 11 November 2014 (1 day) until 18 August 2017 (29 days).

165.Consistent with the Experts’ opinion seen in paragraphs 188-189 below, I note (a) P’s subjective complaints and clinical findings with no positive/objective signs were on the left side (see also the 2012 MRI findings – see paragraphs 40-41 above and paragraphs 168 and 188-189 below), but the 2015 MRI findings were bilateral and on the right side (see paragraphs 163 and 188-189 below), and (b) the 2015 MRI findings revealed a symptomatic and progressively degenerative low back with sequelae from previous injuries and surgeries on top of such pre-existing condition. In my view, as reflected by absence of extensive orthopaedic sick leave by CMC’s DOT, a significant part of P’s overall discomfort and symptoms was not due to the simple back contusion P suffered as a result of the Accident, but attributable to his pre-existing physical state caused by previous traumas/surgeries and natural degeneration.

166.A medical board was held on 4 June 2015 at CMC to examine P’s health condition “at the request of Head of Department/ Grade”. The Medical Board Report stated “[P] had residual back pain after this injury”, ie back injury after a fall due to the Accident, and “[P] is affected or likely to be affected in performing the principal duties of his rank/post”, so P was recommended to continue sick leave until his condition improved. But the medical board considered it difficult to predict the degree and speed of P’s recovery. P was not told about the result of such medical board, but he correctly believed there was no recommendation as yet for his invalidation. P claimed he was actively seeking treatment as his then thinking was to work until normal retirement if his health condition permitted, but I will return to this allegation in paragraphs 210-219 below.

167.Echoing the observation in paragraph 156 above, the 1^st Jt Report noted multiple attendances at SKCJC GOPC with doctors recording previous MRI findings and treatment at CMC’s DOT. “There are large bundles of follow-up records, most are “copy & Paste”, all with complaints of pain. Condition is static. There is, in the copy and paste, a more detail of the MRI Report” as set out in paragraph 163 above.

168.CMC’s DOT diagnosed P to have L5/S1 disc prolapse with left S1 nerve root impingement,[52] which was pre-existing condition (see paragraphs 191-192 below). At the orthopaedic follow up at the OPD of CMC’s DOT on 30 June 2015, there were “[no] symptoms on right, only on left, surgery suggested and discussed, previous two back surgery considered” and “[plan] injection to confirm level”.[53] P was referred to the OPD of the department of anesthesia (ie pain specialist) for assistance in management of his symptoms and “for spinal injection before high risk surgery”.

169.Pursuant to referral by CMC’s DOT for diagnostic left L5/S1 nerve root block, P was first seen by CMC’s department of anaesthesia on 21 July 2015.[54] He complained of back pain radiating to left buttock and foot after his slip and fall as a result of the Accident with numbness over the left sole. Private MRI spine in March 2015 showed L4/5 and L5/S1 disc protrusion and left L5/S1 disc-osteophyte complex compressing right descending S1 nerve root. Spinal surgery was considered by the orthopaedic team, but in view of previous spinal surgeries, CT scan spine was arranged and diagnostic left L5/S1 transforminal injection was suggested before proceeding to operation. P would like to have injection after CT scan, and he was prescribed medication with scheduled follow up on 8 December 2015. P claimed he still continued to follow up with CMC’s department of anesthesia every 3-4 months.

170.When P was first seen on 21 July 2015, CMC’s department of anaesthesia referred P for clinical psychology consultation for mood management due to low mood and sleep disturbance,[55] or to put in another way, for mood/distress and pain management.[56] P’s WS claimed that at CMC’s department of anaesthesia “…… 醫生發現[P]精神有異及呆滯, 建議轉介[P]前去精神科接受治療, 但[P]對精神科有抗拒, 因此轉為前去[department of clinical psychology]接受治療 ……” Under cross-examination, P said “…… [department of anaesthesia]就同[P]講「哎吔，咁你咁抗拒精神科，不如去[department of clinical psychology]嗰度當傾下偈喇，睇下對你有冇幫助喇」……” An appointment was scheduled by the department of clinical psychology for 10 September 2015, but P was seen once on 29 September 2015 with the following impression:

“3.  [P] was impressed to have adjustment disorder who had difficulty adjusting to the pain. He expressed of feeling pressured at work for his long sick leave. He admitted of having thought of death months before he was seen due to intense pain. He said he, however, did not plan to harm himself because of his love for his family and religious belief. No concrete suicidal plan was noted. Treatment modalities were introduced and follow-up appointment was offered. [P] default the appointment without responding to our letter for rescheduling. Case was then auto-closed.”

P defaulted further clinical psychology appointment. P’s WS explained that at the consultation on 29 September 2015, “…… 醫生主要是透過談話來了解[P’s]狀況, 同時教[P]一些舒緩痛楚的方法, 但[P’s]心理上仍未接受, 因此1次後便無去 ……” P said under cross-examination “…… [P]覺得[P]唔需要同[P]唔相識嘅人講[P]嘅狀況，同埋[P]覺得對[P]冇幫助，[P]接受唔到點解[P]要同佢講，同埋[P]覺得佢幫[P]唔到，所以[P]冇去 ……”

171.P disagreed he exaggerated his mental issues. I agree with the Experts there was no recognisable psychiatric illness. The consultation for clinical psychology was part of the assessment for pain management by CMC’s department of anaesthesia (see paragraph 193 below). In my view, if P had any significant psychiatric/psychological issues, he would not have rejected proper treatment merely because of worry over the perceived stigma of such treatment.

172.P reported to the Experts he attended orthopaedic and pain clinics at 4-5 monthly intervals.[57] The Experts reviewed the orthopaedic clinical follow up notes of CMC’s DOT, and noted from 13 November 2013 to 12 April 2016 P regularly attended the OPD of CMC’s DOT at 3-6 monthly intervals but was not given any sick leave. There was complaint of back pain of various degrees (with history of previous discectomy twice at QEH in 1989-1990), but no weakness/numbness, no sensory disturbance and no muscle wasting. P had physiotherapy at times, and then his condition became static. Indeed, at the follow up at the OPD of CMC’s DOT on 25 August 2015, P’s condition was said to be static with low back pain, radiation pain to left posterior thigh, and numbness over left foot.[58]

173.At such follow up on 25 August 2015, “[injection] was planned in December 2015, by Pain Clinic doctor”.[59] P was also arranged to follow up at the OPD of CMC’s DOT on 15 December 2015. CT scan lumbrosacral spine was done on 3 November 2015 with the following findings:

(a)	broad-based posterior disc herniation at L4/5 level with possible narrowing of the lateral recesses;
(b)	narrowed L5/S1 intervertebral disc space was noted with marginal osteophyte at upper S1 causing obvious narrowing of the right lateral recess;
(c)	alignment of lumbar spine was normal, but calcifications were seen in L4/5 and L5/S1 vertebral discs, and the rest of the lumbar levels unremarkable apart from minimal degenerative changes.

In my view, like the 2012/2015 MRI findings, the 2015 CT scan findings also reflected pre-existing condition and degenerative changes (see paragraphs 191-192 below).

174.Another medical board was held on 3 December 2015 at CMC. The medical board noted P’s medical condition was “chronic back pain, lumbar spine prolapsed intervertebral disc”, and concluded P was incapable of performing the principal duties of his rank/position (AOII) in his then state of heath due to his medical condition. P was recommended to invalidate in view of his health condition; no definite recovery was expected, and reassessment was not required.

175.P’s WS claimed the doctors at CMC’s department of anesthesia “….. 給[P]更強止痛藥服食, 但食後精神呆滯, 記憶力較差, 醫生有轉藥, 之後再建議[P]分別在2016年1月21日及10月6日, 以入院形式進行神經根管注射類固醇藥物[nerve root sleeve injection], 打針後即日離院。每次打針後可舒緩痛楚, 第1次舒緩期有半年, 而第2次舒緩期衹4個月時間 ……” The Experts found in the bundle of medical notes of CMC’s pain clinic that “injection (left L4 and L5 selective nerve sleeve injection) was done on 17.12.2015, as an inpatient” and “[P] followed up at Pain Clinic”:[60]

“26.1.2016

-  Left L4/L5 selective nerve root sleeve injection done on 17.12.2015

-  Left LL (lower limb) pain much improved

-  Further assessment for instability before consideration of surgery.

-  Early retirement recommendation noted.”

176.But P’s WS claimed the orthoapedist at CMC’s DOT told P “…… 可做手術, 但因位置太近大動脈, 風險太大下亦不敢冒險, 表示[P]衹好接受痛楚情況 ……”, so P continued orthoapedic follow up at CMC on half yearly basis. P claimed under cross-examination that the orthopaedists suggested surgery to “…… 切除嗰個椎間盤凸出物, 但係最終經過啲顧問醫生, 啲大醫生睇完, 因為[P]個凸出物太接近個大動脈, 同埋[P]89年做過兩次嘅手術, 佢哋都冇信心可以同[P]做呢個手術係有進展, ……「你可以去嘗試去打啲藥物落去個脊椎--脊髓入面去麻痺你嗰條神經線, 你可以一年、年零去幫你減輕個痛楚」, 而[P]去私家醫院度睇, …… 私家醫生係話都太過危險, 可以做, 但係唔敢肯定一定得, 同埋好貴。…… 所以政府醫生喺咁嘅情況之下, 就建議[P]退休 ……”

177.Thus, after December 2015, there was no further therapeutic treatment “…… 除咗[P]話打針呢個之外 ……” for symptom-relief. Despite P’s disagreement, I find on balance his condition had become static in the latter half of 2015, and latest by December 2015 he had reached maximum medical improvement (“MMI”), which was why the medical board was able to assess his condition and to recommend invalidation without need for re-assessment and without expectation of definite recovery.

178.The Experts’ review of the orthopaedic follow up notes showed that at the follow up on 12 April 2016 P still had “back pain and LL weakness” but “no instability or slip”, and MAB was scheduled on 7 July 2016. P followed up at CMC’s Pain Clinic on 24 May 2016, and it was noted P “[contemplating] early retirement” and “[opt] not to go for surgery because of high risks”.[61]

179.As alluded to in paragraphs 156 and 167 above, P regularly followed up at SKCJC GOPC. He reported slow improvement of pain (nevertheless his low back pain had 50% improvement), but numbness over left calf and foot persisted. He was given analgesics and 4-6 days’ sick leave on each visit. The 1^st Jt Report stated that “[simply put], [P] attended [SKCJC GOPC] for sick leaves. From the list of medical certificates, 1003 days of sick leaves are granted, with 13 days overlapping, ie a total of 990 days, from 26 August 2013 up to 5 June 2016”. P’s SWS stated “…… 因為下腰背受傷，因此獲取病假由2013年8月19日至2017年8月15日, 合共1135天。[P]現在間中仍然有痛楚, 需要再接受治療 ……” I will return to the matter of sick leave in paragraphs 202-209 below.

180.Form 7 issued on 26 September 2016 for the Accident showed P had been assessed on 7 July and 12 September 2016 for back injury resulting in prolapsed disc L4/5, and the assessed sick leave period was from 19 August 2013 to 30 June 2016 (with short interruptions) with the loss of earning capacity of 7%.

181.P’s SWS stated when he followed up with Dr Wong See Hoi on 10 May 2017, he was advised to “…… 接受左側L5神經根注射和硬膜外類固醇注射療程 ……” P’s WS/SWS stated “…… [P]需要在2017年9月7日入院形式在[CMC’s department of anesthesia]進行神經根管注射類固醇藥物[nerve root sleeve injection]。醫生建議[P]在長期需要每6個月至一年以入院形式進行[nerve root sleeve injection] ……” P claimed that even at the time of P’s SWS (ie 29 January 2018) he was still considering whether or not to undergo the high risk operation. But in fact, as seen in paragraph 178 above, P had already informed CMC’s Pain Clinic on 24 May 2016 that he would “[opt] not to go for surgery because of high risks”. In my view, P had decided against surgery in early 2016.

182.P was still having follow up at CMC’s DOT and department of anesthesia. P’s WS further claimed “…… 在受傷中期, 由朋友介紹下嘗試做推拿、針灸等治療 ……”

(c)  P’s complaints

183.According to the 1^st Jt Report, P complained of constant back pain of fluctuating nature, which increased upon sitting, standing or walking for 20-25 minutes whereupon P would have to stretch. P also complained of (a) pain and pulling sensation with paraesthesia down the left lower limb mainly on the outside, but such complaints were bearable, and (b) weakness of left lower limb, especially when using staircase with high steps. P claimed his lifting power was reduced by about 2kgs to about 10 kgs. P said there was discomfort during sexual activities. The symptoms also disturbed his sleep at times, but he could manage his daily activities without too much difficulty.

184.But P’s WS claimed his daily activities were greatly affected as he could not walk for long otherwise his left foot would become numb and he had to rest. P “坐立要不斷改變姿勢, 令[P]坐立不安”, and there was pain/numbness in lower back, tight tendons near that area, and pain radiating to left thigh, calf and foot with numbness. P could not bend down to touch the floor with his hands, and “…… 腰部轉動幅度較低及靈活性較差, 活動能力減低及緩慢 ……” When P was on, say, a bus or minibus for more than 15 minutes, there would be numbness in his waist and left leg, so P mostly drove his own car, but “…… 必須要將座椅調較得很斜, 同時每隔20分鐘便要停車休息才可 ……” His back pain would increase when the weather was humid/rainy, and he had to change his posture during sleep which prevented continuous sleep, and which left him tired and in a foul mood during the day. P’s WS further claimed his back and right leg had no strength, so he could not carry (and he avoided carrying) heavy weight.

185.P claimed his social circle was reduced after the Accident as he stayed home most of the time and seldom contacted his friends. He claimed to be upset about his pain, and would lose his temper and be unreasonable to his wife which soured their relationship. P further claimed “……. [P]的性生活也大受影響, 由於受傷以致活動能力遲鈍, 影響興趣心情, 以前[P]一個月也有6-7次性生活, 但意外後減至1個月衹有1次，影響與太太關係漸差。[P]更在2013年和太太離婚 ……” But under cross-examination, P could not remember whether his divorce was before or after the Accident on 19 August 2013. That being the case, I find myself unable to place weight on his complaint that the poor relationship with his wife and his sexual dysfunction were attributable to the Accident.

(d)  Jt Reports

186.Examination  The Experts jointly examined P on 5 July 2016. He was of good general condition, and walked, stood and sat normally. He could support himself on any one leg and on his toes and limbs, and could squat and rise normally (but said to be painful at his back). Examination of P’s back revealed mid-line surgical incision but no deformity. Tenderness was elicited over low back and left paraspinal region. There was mild stiffness for range of movement and slight leg-raising test, but no muscle wasting with power/reflex normal. There was subjective decreased sensation over lateral aspect of left leg/thigh. Radiological examination of lumbar spine showed normal alignment with lumbar lordosis maintained. Marginal osteophytes were seen at L3-5 vertebrae with suspected deficit over L3/L4 lamina “(probably previous surgery)”.

187.Diagnosis and causation  The Experts’ diagnosis was back contusion with no bony injury or neurological complication, and they opined the Accident (ie falling onto one’s back) could have caused contusion.

188.Treatment Persistent complaints of back pain, sciatica and weakness were on the left side, but there were no symptoms on the right side. Medical examinations showed no positive/objective signs[62] and only subjective complaints/signs. The treatment doctors reviewed (a) the MRI scan in 2012 opining there was prolapsed disc at L5/S1 compromising the left S1 nerve root, and (b) the MRI scan in March 2015 opining there was broadbased prolapsed disc at L4/5 mildly compressing both descending L5 roots and at L5/S1 disc compressing the right descending S1 nerve root. The doctors carried out injection tests to ascertain the condition, and recommended anterior surgery of the spine probably with “full discussion of the risks etc in view of previous surgery, inconsistent MRI findings with symptoms”. P declined surgery and chose conservative treatment (medication and physiotherapy), but P was not too diligent and defaulted treatment after a few sessions of physiotherapy. The Experts noted P’s early retirement following recommendation by the medical board. CMC’s DOT did not issue any significant long sick leave, but since 26 August 2013 P attended SKCJC GOPC many times and managed to have over 1,000 days’ sick leave (now known to be 1,135 days).

189.The Experts opined P suffered from prolapsed L4/5 and L5/S1 discs with inconsistency of symptoms between MRI and clinical findings. “The L4/5 disc prolapse in a broad-base prolapse, mildly compressed bilateral L5 roots, the L5/S1 disc impingements on the right S1 root. Yet symptoms are conservatively on the left side, and there are no supporting findings on clinical examination ……” The Experts opined that the treatment offered to P was appropriate, and that the proposed surgery would be difficult with likely complications in view of 2 previous surgeries and certainly with unpredictable outcome, so P declining surgery and preferring conservative treatment was understandable.

190.Prognosis  By the time of the 1^st Jt Report, it was 3 years after the Accident and 6 years after the 2010 Accident. P complained of back pain and left leg pain and paresthesia with some weakness, but there were no positive subjective signs to suggest genuine neurological deficit. The Experts noted the MRI findings and inconsistency of symptoms. P understandably declined suggested surgery with unpredictable results, so the Experts opined P had reached MMI, and the prognosis should be fair to good. They suggested P should carry out regular exercise and take sensible approach to activities, but no further treatment was needed although annual monitor was advised.

191.Accident and previous injuries  The Experts opined the effect of P’s condition was moderate, and despite MRI finding of prolapsed disc P had no significant physical impairment except subjective complaints of pain. P’s back injury in 1989 with 2 surgeries was significant and “likely to aggravate accelerated natural degeneration which is also present”. So the Experts opined there was a likely possibility that some other events or natural progression of P’s pre-existing condition would have brought about his present state with (a) 50% of his condition due to previous injuries and pre-existing condition, and (b) 50% of P’s condition attributable to the 2005 Accident, the 2010 Accident and the Accident (which were more than normal “wear and tear” or natural progression but were traumas to the spine). The Experts found apportionment not easy, but noted (i) P’s recovery from the 2005 Accident was good as P was probably treated conservatively with good results and he returned to work within a few months, so the contribution by the 2005 Accident should be minimal, (ii) P resumed normal duty after a few days’ sick leave for the 2010 Accident, but he should have some residual pain as he needed regular follow up at CMC, and (iii) P claimed he could not return to work and needed long sick leave after the Accident, and further claimed his existing symptoms mainly appeared after the Accident. So the Experts agreed the best estimate they could make was that the 2010 Accident caused 25% and the Accident caused 75% of the remaining 50% of P’s condition, ie the Accident caused 37.5% of P’s total condition.

192.Degeneration  The Experts in the 2^nd Jt Report opined that by the time of the Accident P suffered from degeneration of his back not caused by the 2005 Accident, 2010 Accident and the Accident, and which was a natural condition due to general wear and tear aggravated by the back injury in 1989 and the surgeries in 1989/1990. The Experts considered there were sufficient medical evidence to say (a) there was pre-existing condition of back injury and surgical procedures to P’s back, (b) the injury was likely to be a disc prolapse, (c) surgery of partial laminectomy was done twice, and (d) it was significant injury. The 2015 MRI findings showed desiccation of L5/S1 disc and hypertrophy of bilateral facet joints, which were MRI features of degenerative lumbar spondylosis, so there was pre-existing degeneration of P’s back by the time of the 2005/2010 Accidents and the Accident due to general wear and tear aggravated by the 1989 injury and the surgical procedures that followed. The 2005/2010 Accidents and the Accident took place on top such degenerated back and caused aggravation of symptoms. The Experts opined this degeneration was significant, so there was a strong possibility that some other events or natural progression of such pre-existing condition would have brought about P’s present condition when P was about 50-55 years (which was the Experts’ best educated guess – see the 3^rd Jt Report), which was why they gave 50% apportionment for such pre-existing condition (see paragraph 191 above).

193.Psychiatric condition  The Experts noted P was diagnosed to suffer from adjustment disorder “first seen in 2016”, but such psychological assessment was part of the treatment at the Pain Clinic. The Experts opined that such adjustment disorder was not a psychiatric illness, but rather a response to “presence of back pain”. P defaulted further attendance, so the Experts considered there was no need for P to be assessed by expert psychiatrists or clinical psychologists.

(e)  P’s pre-Accident work and Experts’ opinion on post-Accident work capacity

194.P started to work when he was 16 years old. He had been a ready-to-wear salesman. In February 1989, P (then 20 years old) joined the CSD. At the time of the Accident in August 2013, P was an AOII at General Disciplined Services (Rank & File) Pay Scale (“GDS(R&F)PS”) Point 17 earning $25,995/month. He was on shift duty and rotated among 4 shifts[63] with 1 rest day per week. He was stationed at the Centre, and his work duties were set out in footnote 23 above.

195.P was invalidated on 9 November 2017 pursuant to recommendation by the medical board held on 3 December 2015. The Experts opined that the work of a CSD officer would require good physique (especially when handling possible violent inmates), and considered it understandable and not unreasonable if P chose not to continue with such work (which P felt he could not handle). But the Experts considered P was not entirely helpless, and he should be fully capable for jobs of moderate physical demand, eg security guard watchman, and he should be capable of driving a car or handling any “ordinary” type of work.

(f)  Pain, suffering and loss of amenities (“PSLA”)

196.I have found that P was not as sporty as he alleged given his pre-existing condition, back problem and left leg/knee/ankle sciatica, weakness and laxity, and that he only suffered back contusion being soft tissue injury as a result of the Accident, which would have had reasonable rehabilitation but for his pre-existing injuries/surgeries, symptomatic degeneration of his back as well as recurrent sciatica/weakness due to weak left leg. The back contusion as a result of the Accident was mild as evidenced by P’s voluntary default over at least 2 courses of physiotherapy, and absence of aggressive treatment, accelerated follow up and/or lengthy orthopaedic sick leave by CMC’s DOT.

197.In my view, the chronicity of P’s complaints (especially his complaints of back pain, sciatica, weakness, reduced walking/sitting tolerance, limited lumbar range of movement etc) were largely due to P’s pre-existing degeneration (as evident from the 2012/2015 MRI findings and 2015 CT scan findings) aggravated by previous traumas/surgeries (including the significant injury in 1989 with 2 surgeries and the 2005/2010 Accidents) as explained in Part II(b)-(f) and Part III(b)-(d) above. On balance, I accept the Experts’ opinion that about 37.5% of P’s total condition was attributable to the Accident. As discussed in paragraphs 202-209 below, I have reservations about the extended sick leave P received, and I find such sick leave did not properly reflect P’s condition attributable to the Accident.

198.Dr Cheng opined that a simple back contusion would only require sick leave for 3-4 months. But given P’s underlying condition as explained above, I have found P reached MMI latest by December 2015 (see paragraph 177 above). As Ms Chao noted, the orthopaedist at the OPD of CMC’s DOT on 25 August 2015 found P’s low back condition static (see paragraph 172 above). CT scan lumbrosacral spine was done in early November 2015 (see paragraph 173 above), medical board recommending invalidation was held in early December 2015 (see paragraph 174 above), and P received nerve root sleeve injection in mid-December 2015 (see paragraph 175 above). There was no further therapeutic treatment after December 2015, and in May 2016 P declined further surgery (see paragraphs 177-178 above) and continued conservative pain-relief treatment. Indeed, the Experts opined no further treatment was required except for annual monitor (see paragraph 190 above).

199.The proper approach to damages when there was a pre-existing condition is set out in Chan Kam Hoi v Dragages et Trauvaux Publics[64] which I have summarised in Yu Wai Kan v Law Choi Tai as follows:[65]

“71.  It appears to me that the following are the principles which govern the issue of causation and the quantification of loss suffered by the Plaintiff:

……

(e)  When considering the effect of a pre-existing condition on an award of damages, there are 3 possible scenarios. ……The first is where the plaintiff is almost certain to have gone through life unaffected by the condition, and the defendant will be liable for all damage caused. The second is where there is a strong possibility that some other event or natural progression of the condition will have brought about the plaintiff’s present state, so it will be necessary to assess the degree of the possibility in deciding what reduction is appropriate in the same way as it is necessary to assess the effect of other vicissitudes of life that may abbreviate the plaintiff’s working life or lifespan and thus abridge his loss. The third is where this will certainly have occurred at some stage in any event so that clearly an allowance has to be made but the extent of which depends on the evidence as to when the precipitating event will have occurred (see Chan Kam Hoi v Dragages et Trauvaux Publics [1998] 4 HKC 523, 527).

(f)  Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. Past loss of earnings may also be reduced if the risks during the years concerned are sufficiently high. For future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence, especially when a plaintiff’s working life is likely to be limited by a pre-existing condition (see Chan Kam Hoi at p.529 and Cheung Fat Tim v Wong Siu Ming trading as Kee Construction Company & anor HCA 5079/1991, Findlay J (unreported, 17 January 1995)).”

200.The Experts agreed P’s case fell into the 2^nd category explained in Chan Kam Hoi, so even without the Accident P would still have sequelae/symptoms from his pre-existing injuries, surgeries and degeneration, which on the Experts’ educated estimate would have brought about P’s present condition when he was about 50-55 years old. On balance, I accept the Experts’ joint opinion in this respect, and taking an average I find that but for the Accident P’s condition would likely have reached his present state when he was about 52½ years old (30 November 2020).

201.I have viewed the cases cited by Mr Cheung[66] and Ms Chao[67]. Taking into account (a) P’s moderate injuries as a result of the Accident, ie simple back contusion without bony injury and/or neurological complication that, in my view, did not give objective clinical support for P’s varied and serious complaints outlined in Part III(b)-(d) above, (b) some moderate sequelae from the Accident, eg mild back pain, with P’s other complaints attributable to his previous condition, (c) inconsistent 2015 MRI findings (with compression of bilateral and right roots) and clinical findings all along (with symptoms conservatively on the left side where P had pre-existing left leg weakness, left knee pain and left ankle laxity), (d) P’s exaggerated sick leave (see paragraphs 202-209 below), (e) P’s treatment history including his default in physiotherapy treatment twice, and (f) the Experts’ opinion (including their view that the Accident accounted for 37.5% of P’s total condition), but accepting P had previous injuries/surgeries and symptomatic/progressive degeneration (not attributable to the Accident but likely to have brought about P’s present condition by the time he was 52½ years old but for the Accident), I find the appropriate award for PSLA in respect of the Accident was $160,000.

(g)  Pre-trial loss of earnings

202.Sick leave  P was granted on net basis 1,135 days’ sick leave. According to the agreed sick leave schedule, apart from initial sick leave granted by PMH’s AED on 19 August 2013 (4 days) and QEH’s AED on 21 August 2013 (4 days), (a) CMC’s DOT only gave P sick leave on 13 November 2013 (3 days), 11 November 2014 (1 day) and 18 July 2017 (29 days), (b) Healthlink Medical Centre, Townhealth Medical Centre, Dr Cheung Siu Ching and Dr Wong See Hoi respectively gave P sick leave for 1 day (16 September 2014), 1 day (20 June 2015), 7 days (1-7 July 2016) and 21 days (29 May to 18 June 2017), and (c) the rest of the sick leave was granted by SKCJC GOPC on P’s visits every 4-6 days.

203.P disagreed he visited SKCJC GOPC to “extend” sick leave because he knew from past experience that CMC’s DOT would not grant lengthy sick leave. He claimed he was driven to visit SKCJC GOPC to “extend” sick leave until the next orthopaedic follow up appointment (scheduled far into the future) with the OPD of CMC’s DOT because of continued back pain after expiry of orthopaedic sick leave granted by CMC’s DOT. P also claimed he told the orthopaedists at the OPD of CMC’s DOT (being a different doctor on each visit) that “……. [P]係喺[SKCJC GOPC]嗰度攞住病假嚟駁落嚟嘅, 咁就嚟覆診 ……”, but when he asked for orthopaedic sick leave he was told by the attending orthopaedists that “…… 「你都攞開咗嗰度畀到你嘅，你喺嗰度繼續攞, 你嚟呢度覆診, 睇進展嗰方面嘅嘢」, 已經係成為咗一個習慣 ……” P testified that the same senior doctor attended him on his many visits to SKCJC GOPC, and he claimed that upon telephone enquiry by the CSD, such doctor confirmed to the CSD his sick leave “…… 真係有需要 ……”

204.In my view, P’s such explanation did not sit well with his evidence in relation to the overlapping sick leave granted by SKCJC GOPC (4 days) and the OPD of CMC’s DOT (1 day) both on 11 November 2014. When pressed, P at first claimed he would not have attended SKCJC GOPC and the OPD of CMC’s DOT on the same day, but on recognising that he did, he disagreed it was for “…… 駁假 ……”. P claimed he attended SKCJC GOPC at/about 09:00am on 11 November 2014 when he obtained 4 days’ sick leave, and then on the same day he attended his scheduled orthopaedic follow up with the OPD of CMC’s DOT, and “…… [CMC’s DOT]畀埋[P]嘅sick leave各樣嘢, [P]就隨手[P]就遞埋返去, 可能係重疊咗 ……” But if P’s explanation in the above paragraph were true (ie P told the orthopaedists at the OPD of CMC’s DOT that SKCJC GOPC already granted him sick leave, and such orthopaedists replied it was sufficient that he had sick leave from SKCJC GOPC), then the OPD of CMC’s DOT would not have granted him overlapping sick leave on 11 November 2014, especially when (a) on this occasion P could not have forgotten to tell the orthopaedist at the OPD of CMC’s DOT he already got 4 days’ sick leave from SKCJC GOPC that very morning, and (b) P claimed CMC’s DOT knew all along “…… [P]不斷喺[SKCJC GOPC]度攞病假 …… 而[CMC’s DOT]喺度睇[P]症嘅時間, [CMC’s DOT]個電腦紀錄完全睇到, 冇隱瞞嘅 ……”

205.Further, I find there was no practical medical need for P to attend SKCJC GOPC on the morning of 11 November 2014 when he already had a scheduled orthopaedic follow up appointment at the OPD of CMC’s DOT that very day for orthopaedic specialists to address any discomfort he might have. In my view, P attended SKCJC GOPC notwithstanding the scheduled orthopaedic follow up that day because (a) P’s sick leave granted by SKCJC GOPC expired on 10 November 2014, (b) P knew CMC’s DOT would likely grant him only 1 day’s sick leave whilst SKCJC GOPC would likely grant him 4-6 days’ sick leave, and (c) P intended to “…… 駁假 ……”, ie to secure continued sick leave, from SKCJC GOPC (a general clinic), and he reserved therapeutic treatment (if any) and/or orthopaedic monitoring to the consultation at the OPD of CMC’s DOT (a specialist clinic).

206.Dr Fu opined the sick leave issued by P’s treating doctors who assessed him regularly should be appropriate and endorsed, but other than stating such opinion Dr Fu did not offer any critical or reasoned analysis of the extended sick leave granted by SKCJC GOPC against P’s injuries, treatment and condition. I find myself unable to place reliance on Dr Fu’s opinion in this respect.

207.As alluded to in paragraph 198 above, Dr Cheng opined that for simple back contusion sick leave up to 3-4 months would have been reasonable. Dr Cheng noted P first attended SKCJC GOPC on 26 August 2013 (ie shortly after the Accident) and then at 4-5 days’ interval, managing to get continuous sick leave for over 1,000 days (ultimately 1,135 days by 15 August 2017), yet the clinical notes of SKCJC GOPC were unremarkable and merely reported P’s subjective complaints and prescribed analgesics. P was referred for physiotherapy but he defaulted; and the orthopaedists (who did not issue continuous/lengthy sick leave) suggested surgery but P declined. P’s condition had stabilised, and Dr Cheng explained the fact P was in MMI state did not mean his injuries were cured or he was symptom-free, but it meant a stage was reached when treatment or lack of treatment made little difference. As Dr Cheng explained (and I agree), upon reaching MMI, steps should be taken to properly assess P’s condition, to recommend what work he could do, and to assess permanent disability if any.

208.The starting point is Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[68] in which Le Pichon JA said medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge should not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff. This, in my view, echoed Dr Cheng’s opinion that extended sick leave given to P was unjustified when P had already reached MMI state and when there was nothing remarkable in SKCJC GOPC’s records except for P’s subjective complaints. I find Dr Cheng’s reasoned opinion convincing, and I share his concern it was so easy for P to obtain medical certificates indefinitely beyond MMI.

209.I have carefully considered the treatment/expert medical evidence, and I reiterate my analysis above in respect of those matters. Given my findings in relation to P’s underlying history/condition, the moderate residue from his Accident-related injuries, and the static nature of his condition as found by the orthoapedist at the OPD of CMC’s DOT in August 2015, and his MMI status achieved latest in December 2015, I find sick leave attributable to the Accident should be up to December 2015 by which P’s condition was in static MMI state with no further medical improvement expected despite his continued subjective complaints, his continued visits to SKCJC GOPC for analgesic symptom relief, and his further nerve root sleeve injection for pain management. Indeed, the Experts confirmed that when they jointly examined P in mid-2016 his condition was already at MMI state, and no further active treatment was required. Although P claimed he might need inpatient nerve root sleeve injection every half year or every year, I find this was more due to his previous injuries/surgeries and pre-existing degeneration rather than due to any mild residue of his simple back contusion as a result of the Accident.

210.Return to work P’s normal retirement age would have been 55 years on 1 June 2023. P claimed that even after the Accident he wished to work until normal retirement, and that “…… [P]仲 …… 爭取[P]個每年嗰個表現，因為55歲退休，[P’s]份退休金係大啲嘅 ……” Ms Chao argued that if that were so, P would have wished to get better as soon as possible, and would not have defaulted physiotherapy appointments. In my view, P defaulted physiotherapy not because he wished to retire early, but because he knew his simple back contusion from the Accident was not serious, and he knew from physiotherapy treatments in 2011-2012 that his recurrent pre-existing back/leg condition was not curable by physiotherapy although it gave symptom relief.

211.The outcome of the 1^st medical board in June 2015 was not yet out in August 2015 when P (who was still with the CSD at the time) commenced the present action against D based on the CSD’s wrongdoings. P claimed at that time “……. 幾方面嘅諗法都有 …… [P]又想做到尾，但係身體狀況又咁辛苦, 好矛盾, 所以諗咗咁耐, 終於係要入稟 …… 嗰一刻又想繼續喺度做, 又想係冇咁辛苦, [P]唔可以好確實答 …… 100個per cent [P]入稟得, [P]就一定唔會再想做 ……” P further claimed when he attended clinical psychology session in late September 2015, “…… 嗰段時間, [P]會諗住提早退休, …… 有部分諗過, 唔出奇, 但係[P]真係 …… 唔會係話[P]一定想提早退休, [P]真係冇咁樣諗過 ……” But Ms Chao suggested that P would have wished for early retirement out of concern that his work relationship with the CSD might be adversely affected by his suing D based on the CSD’s wrongdoings. I find on balance that by reason of P’s overall condition (of which only 37.5% was attributable to the back contusion as a result of the Accident) and P’s present legal claim against D, P did seriously think about early retirement, but he had not yet made up his mind because his CT scan and nerve root sleeve injection, the final medical board recommendation, and his decision on the proposed surgery were still pending. I do not accept Ms Chao’s suggestion that P attended the clinical psychology session in September 2015 with a view to exaggerate his mental symptoms to justify not returning to work. I bear in mind P was referred for such clinical psychology consultation not at own request but as part of the assessment by CMC’s department of anaesthesia for its pain management plan for P, and P was in fact reluctant to receive psychiatric/psychological service.

212.In December 2015, the 2^nd/final medical board noted P was incapable of performing the principal duties of his rank/post (AOII) in his then state of health due to medical condition, and recommended for P’s invalidation in view of his health condition. P was invalided from service on 9 November 2017 for health reasons when he was about 49 years old (ie about 6 years before normal retirement age). I have accepted the Experts’ opinion that but for the Accident  P’s pre-existing condition due to traumas, surgeries and degeneration would have caused him to reach the present state when he was about 50-55 years old. In my view, even without the Accident, P would have to retire early from service due to health reasons at the latest when he was about 52½ years old (30 November 2020), and he would not have been able to work as a CSD officer until normal retirement. But P was invalided from service on 9 November 2017. The question was whether P’s early retirement from service for about 3.06 years before 30 November 2020 (ie when P would be 52½ years old) was attributable to the Accident. Ms Chao submitted (but Mr Cheung / P disagreed) it was due to P’s unjustified decision in not returning to work, and not due to the Accident.

213.I have found P’s condition had stabilised in August 2015 with only subjective complaints and no positive/objective clinical signs, and he had reached MMI state by December 2015. But P remained on continuous sick leave and never returned to work at all, and he did not take any initiative to even return to work on trial basis for 1-2 days or to ask for light duty to accommodate his condition. P claimed “…… [P]嘅身體狀況係unfit，好多unfit, 部門係知嘅，…… 同埋醫生都認為[P]當時再做唔到[P]呢一個工作 ……”, “…… 因為[P]連坐都好辛苦, [P]都唔知有啲咩嘢 …… [P]真係冇作出過咩嘢要求”. But P agreed he could physically handle light work, eg “……. 送文件、收錢、唔使抬重嘢, 呢啲咪輕工囉, 揸車 ……” Despite his alleged poor sitting tolerance, he confessed he could work as a driver cum delivery worker that also required sitting if he could adjust the driver’s seat to make himself more comfortable and he could take periodic rests. Indeed, P agreed under re-examination the CSD had adjustable chairs “…… 都有得一部分嘅活動、郁動, …… 有一部分崗位會係有[P]坐緊呢類嘅座椅, 但係唔係好多 ……” although he claimed such chairs “…… 就唔可以令到[P]攤得舒服啲咁解 ……” But I note the Experts opined he should be capable of driving a car and handling jobs of moderate physical demand or “ordinary” type of work (eg security guard watchman).

214.As to whether light duty was available at the CSD, P acknowledged it could be arranged subject to the Commissioner’s approval, “…… 睇你情況, 批畀你, 唔係話你想做邊個崗位就做邊個崗位 ……” P said he had applied for and had been assigned light duty in the past due to poor physical condition and weak left leg from previous injuries that rendered him, say, unfit for patrol duty, “…… 有啲長官體諒你, …… 佢畀你輕便啲, …… 有部分長官係會畀咗一啲輕便啲嘅工作[P]。…… [CSD]係本身總部都知, 喺[P]醫療報告嗰度有晒 …… [P]係會要求「阿Sir, 可唔可以畀啲輕便啲嘅duty或者夜更嗰度就一就? 因為夜晚特別痛呀」咁 …… 曾經有一段時間, 有啲長官係好好，係真係會達到 ……”, but sometimes “…… 有啲環頭去到，佢係畀番啲普通AO做嘅崗位[P], …… 係喺[Centre]嗰度係[P]仍然係做番正常嘅AOII嘅工作, 亦都要係需要夜更 ……”

215.In my view, given (a) P’s own recognition that he could have performed some light duty after reached MMI state, (b) his own knowledge that in appropriate circumstances CSD would arrange light duty for officers with health issues, and (c) his past personal experience of having been assigned light duty to accommodate his poor physical condition of back pain and left leg weakness/sciatica (ie similar to P’s subjective complaints after the Accident) , it was strange that P would not even report to the CSD for duty to see if suitable light duty could be arranged for him when, as he claimed, he was still considering returning to work until his normal retirement.

216.It was only in re-examination that P claimed he had spoken at length to his superior about his condition, “…… 因為佢哋見[P]嘅時間, 問[P]take statement嘅時間, [P]都係會透露「其實有冇位啱我做?」……. [P]都係話如果睇身體狀況, [P]提出過係話到時睇下就唔就到。…… 其實都唔係話好強烈嘅要求嘅, 都係諮詢過話睇下有冇做到…… 有咩嘢工作位做到 ……” P clarified he made such informal enquiry when he gave the P 2^nd and 3^rd CSD Statements quite shortly after the Accident in October/November 2013. P said “…… 好大機會係[P]係呢段時間 …… 大家好善意咁樣傾偈期間，…… 因為佢同[P]都傾過好多偈咁樣樣就講, 應該係喺呢一個嗰度傾偈期間我哋係提出 ……” But P claimed there was no reply to his informal enquiry, and he did not follow up.

217.On balance, I do not accept such explanation given by P only in re-examination. First, it did not make sense to raise enquiry in October/ November 2013 about light duty upon return to work when P himself had no idea then as to when he could return to work. Secondly, the person P should sensibly approach about arrangement for light duty upon his return to work would be his own supervisors (probably his supervisor TM Wan who was the appraising officer who signed P’s appraisal report for the appraisal period from 1 August 2012 to 31 July 2013 (“2013 Appraisal Report”) and/or other senior officers (長官) to whom P directly report to in respect of his work duties), but P did not offer any explanation why he did not approach them. Thirdly, P knew the interviewing officers for the P 2^nd and 3^rd CSD Statements were to take statements from him about the Accident and not about his work duties after the Accident. I do not agree he would, as he alleged, chit-chat with them on many things or talk to them at length about his condition. Fourthly and more importantly, P did not explain why he did not renew or follow up on his alleged enquiry with his interviewers for light duty more seriously when his condition stabilised and reached MMI state. Fifthly, although P claimed in re-examination that he was not proficient in computer-operation despite his work at the CSD “…… 好多時都要用 …… 電腦嘅 ……”, and that “…… 好多時因為我學識問題, 同埋英文唔好, 好多嘅文書工作都差咗啲 ……”, I disagree it meant there was no light duty suitable for him at the CSD. After all, despite his alleged weaknesses in handling clerical matters, the CSD was able to find light duty for him in the past that accommodated his poor back/leg. I find on balance that P did not ask for light duty even though he knew he could have made such request, and he knew there was real possibility of being assigned light duty.

218.In my view, since the Accident P (as he confessed) had thought about early retirement (which thinking I find on balance led to his efforts to seek continuous sick leave from SKCJC GOPC, not to return to work at the CSD for trial or at all, and not to ask for light duty to accommodate his condition), and I find that latest by June 2016 D made a considered and firm decision to not return to work at the CSD anymore, to proceed to find alternative work and to apply for early retirement:

(a)	By December 2015 the 2nd/final medical board recommended P’s  invalidation for health reasons, so he had the comfort of knowing he could seek hurdle-free early retirement.
(b)	P’s condition had become static in August 2015, CT scan was performed in November 2015, nerve root sleeve injection was done in December 2015, P’s condition reached MMI in December 2015, and P made up his mind not to undergo surgery in May 2016. In short, by mid-2016 P’s overall physical condition was in stabilised MMI state with no further therapeutic treatment. P knew he had to learn to live with his condition with annual or biannual nerve root sleeve injection for symptom relief. In my view, P realised it would not be easy for him to work until normal retirement, so he decided not to (which decision the Experts opined was reasonable in light of his overall condition of which, I note, 37.5% was attributable to the Accident).
(c)	By mid-2016 P had commenced the present action for almost a year, and MAB for the Accident was scheduled for July 2016. P subjectively felt his allegations about the CSD’s wrongdoings for the 2005/2010 Accidents and the Accident in his SoC would make it difficult for him to continue to work at the CSD, which subjective concern also contributed to his decision not to return to work. But I pause to say I find no objective basis to support P’s subjective view, especially in light of the support the CSD previously gave him (eg assignment of light duty as needed, and positive appraisals by his supervisors).
(d)	I also find P did not entertain hope of being promoted in the near future given his awareness of his performance in 2012-2013 (see discussion in paragraphs 225-229 below), and he did not wish to make the effort given his overall condition.
(e)	P’s decision of not returning to work was borne out by P’s continued regular attendance at SKCJC GOPC every 4-6 days for sick leave (and not for therapeutic purpose) even after his condition had became static and he had reached MMI state, and by the fact P never seriously applied to his supervisor or direct superiors for light duty despite knowing the possible availability of such arrangement.
(f)	It was most telling that during his continued sick leave secured from SKCJC GOPC and even before P’s invalidation on 9 November 2017 (ie whilst P still a full-time CSD officer), P already took up alternative full-time job in January 2017 and continued thereafter on full-time and later on part-time basis until his invalidation and beyond. In my view, P clearly intended to retire early, and it was obvious that in the period of almost 2 years between the 2nd/final medical board that recommended his invalidation until his actual invalidation, P took steps to position himself so that he would not return to work at all, but would ready himself with alternative work in anticipation of his early retirement.

219.In my view, P’s early retirement was his own voluntary choice, which I find was largely due to his pre-existing injuries, surgeries and degeneration rather than the back contusion as a result of the Accident that contributed in a much lesser degree to his overall condition. I find on balance that (a) P failed to demonstrate on the balance of probabilities he was unable to return to work at the CSD after mid-2016, and (b) P was unable to satisfy this court that had he wished to return to work (which was not evident since he continued to submit medical certificates to the CSD and remained on sick leave albeit such sick leave, I have found, was not justified), no light duty suitable to his condition was available at the CSD for him at all and/or the CSD would not have assigned him such light duty. In such circumstances, I am unable to see how P could claim for loss of earnings for the period after June 2016 until his invalidation on 9 November 2017.

220.Alternative work P in his SWS claimed that since early January 2017 he found light duty work as “…… 司機及送貨員, 負責文件及貨物交收服務, 每月收入為港幣8,000.00 元 ……”, which he said under cross-examination was paid in cash without need to sign wage receipts. Such manner of wage payment was unsurprising since P was still a serving CSD officer (albeit on sick leave) at that time on half pay, normal sick leave and ex-gratia leave during the period from 1 July 2016 until 8 November 2017, and he was only invalided from service on 9 November 2017.

221.P explained under cross-examination that since January 2017 he worked on full-time basis from Monday to Saturday (6 days) each week, but “…… [P]唔係凈係做司機, [P]係會同佢喺個公司嗰度, 有陣時幫佢去收下票 …… 只不過[P]提出唔好攞重嘢, 佢話「我都唔會叫你攞重嘢㗎喇」……” There were 4 such drivers cum delivery workers, including “…… 個老細自己佢都係送嘅 ……” Then about 2-3 months later (but P could not clearly remember when), “因為佢已經係冇能力請一個長工, 佢有需要嘅時間, 佢以part-time形式係愛嚟咁樣僱用[P]”, “佢又斷續咁樣樣叫[P]返 ……” P’s part-time work hours were “朝頭早10點鐘左近就返工, 佢話就6點鐘, 但係好多時都係四點零鐘都走得”, and P usually worked 5 days a week but “…… 佢話 …… 你有事, 你就預早同佢講有邊日唔返得咁樣樣，…… 同埋有陣時 …… 佢會主動叫[P] …… 呢兩日唔使返、幾時唔使返咁嘅 ……” P agreed such full-time and part-time work “其實佢個分別唔大 ……” His part-time pay was $400/day, which suggested his part-time income was also $8,000 (ie $400 x 5 days x 4 weeks), but P said “…… 唔係8,000鈫 ……” because “返唔足嘅”, but P did not say how much he earned per month on part-time basis. P agreed “…… [P]初頭係想做全職, 佢都係想請[P]做全職 ……”, and he was only asked to work part-time because of his employer’s financial/ operational problems.

222.P further disclosed under cross-examination (not mentioned in his SWS) that about 1½ years before the trial (ie about January 2018) “…… [P]喺深水埗一個二手電話嗰啲公司嗰度, 又係用part-time嘅形式, 嗰度幫佢賣嗰啲電話 ……”, earning about $400/day and working about 8 days/month (ie earning about $400/day x 8 days = $3,200/month). P therefore agreed that since about 1½ years before the trial (ie about January 2018) P “…… 同時間都有接兩樣嘅嘢嚟咁樣做 ……” P did not file any tax return as he believed “…… [P]嗰個收入應該都唔過嗰個報稅嗰個 ……”

223.But P’s SWS dated 29 January 2018 did not mention (a) the names of his employers for such full-time or part-time work, (b) his full-time work as driver cum delivery worker on monthly pay basis turned into part-time work on daily pay basis after 2-3 months, and (c) he also had part-time work selling mobile telephones. P also did not produce any document/witness to support his allegations in relation to his post-Accident work and income. P claimed he just answered what his lawyers asked of him, but was unclear about what evidence he ought to adduce. But when pressed, P confessed (a) he understood his post-Accident income was relevant to his claim since it would go to reduce his claim for loss of earnings, and (b) he knew he could call witnesses to give relevant evidence, eg he called CL Wan to give evidence on his behalf with a view to support/corroborate his case. When further pressed on whether he had considered asking his post-Accident employers to testify on his behalf about his post-Accident employment, the nature of such alternative work and the amount of his earnings, all P could say was to merely allege ignorance as to the significance of their evidence (even though he invited CL Wan to be his witness), and suggested “…… [P]可以補叫佢上嚟做證 ……”

224.I agree with Ms Chao that P’s evidence on his post-Accident employment must be viewed with caution. P did not explain why his SWS dated 29 January 2018 was silent of the matters in paragraph 223(a)-(c) above, especially when he secured his part-time work in selling mobile telephones that very month. Even when pressed under cross-examination on the lack of information about his employers, P still did not offer their names, and he could not give clear evidence of his part-time earnings as a driver cum delivery worker, ie on one hand he said that on average he worked 5 days/week at $400/day which would result in similar income for the same work on full-time basis. This did not make sense since P claimed he became a part-time driver cum delivery worker due to his employer’s financial troubles such that his employer could not afford to employ him on full-time basis. When P realised the improbability of his assertion, he then claimed he would have earned less than $8,000/month when he worked on part-time basis, but he did not say how much he actually earned. In my view, adverse inference must be drawn against the vagueness and paucity of P’s evidence in this respect when he could have asked or subpoenaed his employers to give evidence on his behalf, especially when, as I find on balance, he had the benefit of legal advice, he knew this was an important aspect of his case, and he invited CL Wan to be his witness to give what he hoped to be useful evidence on his behalf.[69] On the above analysis, I find on balance P’s actual post-Accident earnings were (a) $8,000/month on full-time basis from January to March 2017, (b) $7,500/month on part-time basis from April to December 2017, and (c) $10,700/month (ie $7,500/month + $3,200/month) from January 2018 onwards.

225.Loss of chance of promotion  When P gave evidence at trial, he adopted his SWS and thus maintained his claim that he would have been promoted to AOI in 2014, and he went on to deny under cross-examination that his chance of promotion was low. But after Ho started to give evidence, P abandoned such claim. I still proceed to briefly consider P’s evidence in this respect for assessment of his veracity.

226.P was classified as “very effective” just below the top rating “outstanding” for “overall performance” in the 2013 Appraisal Report. As for his rating for “promotion potential”, P claimed it used to be “green” in his appraisal reports but it became “yellow” in the 2013 Appraisal Report with the recommendation that P “has potential for promotion but not yet ready”. In my view, P’s chances of promotion were not high as the promotees to AOI in the 5 annual promotion exercises in 2012-2016 had “outstanding” rating for “overall performance”, “green” rating for “promotion potential”, and rating of “strong candidate for promotion” on promotability.

227.It was only in re-examination that P doubted the recommendation on promotability in the 2013 Appraisal Report, ie that he “has potential for promotion but not yet ready”, on the basis that his rating for “promotion potential” was green all along, that it only became yellow in the 2013 Appraisal Report made by his supervisor TM Wan on 16 October 2013 when P was still on sick leave after the Accident, and that “…… 呢個係你自己本身嗰個體會?” P insisted the Accident had impact on the recommendation on promotability in the 2013 Appraisal Report, and he claimed such report (which he did not sign) should have been but was not explained to him.

228.I see no merit in P’s contentions. First, the appraisal period for the 2013 Appraisal Report was from 1 August 2012 to 31 July 2013, which expired before the Accident in August 2013. This was confirmed by TM Wan, who said “……. 呢個工作報告其實係一年[TM Wan]對於[P]嘅一個客觀嘅observation、評估、觀察，同埋[TM Wan]同[P]相處嗰陣時[P]嘅能力, [the Accident]喺8月19號發生㗎嘛, 所以都係冇喺呢一個period裡面去評核嘅 ……” Secondly, P himself knew the CSD’s internal procedures required “…… 係三個月內一定要交番呢個報告, 所以喺[P]冇簽名嘅情況下就交咗呢個報告 ……” This was confirmed by TM Wan who explained that (a) P did not sign the 2013 Appraisal Report because he was still on the continuous sick leave, “ …… [TM Wan]係有叫過[P]返嚟簽, 因為[P]話[P]請咗病假, [P]唔方便返嚟簽 ……”, and (b) “因為[CSD]總部其實都對於我哋一啲appraisal嘅report都有限期嘅, 其實到佢個限期, 譬如7月30號係一個最屘嗰日, 其實我哋大概兩、三個月就一定要將呢份appraisal嗰個report就要畀到去總部 ……”

229.In my view, P was unlikely to have been promoted in 2014 as he alleged. On balance I find this was a factor that led to P’s decision not to return to work at the CSD and to seek early retirement.

230.P’s earnings as AOII  According to Ho’s WS, the earnings of an AOII of the CSD at GDS(R&F)PS Point 17 would have increased with effect from April of following years: $25,995 (2013), $27,220 (2014), $28,480 (2015), $29,815 (2016) and $30,690 (2017). The monthly earnings of an AOII were $32,075 as from April 2018. P was on intermittent sick leave since 19 August 2013, but received full pay for the 3-year intermittent sick leave period from 19 August 2013 to 30 June 2016. From 1 July 2016 onwards, P did not receive any payment for the sick leave taken in relation to the Accident, but was granted full pay normal sick leave, vacation leave, half pay normal sick leave and ex-gratia leave from 1 July 2016 until 8 November 2017. P was invalided from the service on 9 November 2017.

231.Loss of earnings At trial, it was common ground that (a) P received $994,347.81 for the period from 9 August 2013 to 18 August 2016,[70] (b) P’s actual earnings as AOII for the period from 19 August 2016 to 8 November 2017 were $382,413.06, (c) the notional earnings of an AOII of the CSD during the period in (b) above were $444,222.06, and (d) the difference between (b) and (c) above was $61,809.00.

232.P admitted he started working as driver cum delivery worker since about January 2017, which meant he had 2 income streams from about January 2017 to 8 November 2017. However, given (a) P had no loss of earnings up to June 2016 (see paragraph 230 above) and (b) my conclusion in paragraph 219 above that P was not entitled to claim loss of earnings from July 2016 to 8 November 2017, there was no loss of earnings for the period from the time of the Accident up to 8 November 2017 given that P failed to prove he could not have returned to work at the CSD since July 2016.

233.However, there would be loss of earnings for the period from 9 November 2017 until the trial in June 2019 given my conclusion that but for the Accident (which contributed to his health condition that led to his early retirement) P would have retired when he was 52½ years old (30 November 2020). P’s notional earnings as an AOII would have been $30,690 x 4.71 months (9 November 2017 to 31 March 2018) + $32,075 x 15 months (1 April 2018 to June 2019) = $625,674.90. His actual earnings as a full-time driver cum delivery worker from 9 November 2017 to 31 December 2017 would have been $7,500 x 2 months = $15,000, and his earnings as a part-time driver cum delivery worker and part-time salesman of mobile telephones from 1 January 2018 until 30 June 2019 would have been $10,700/month x 18 months = $192,600, totalling $207,600.

234.But Ms Chao reminded that according to the Experts P was capable of taking up alternative employment as security guard. Ms Cho suggested a security guard would have earned $15,000/month, but there was no such evidence before the court. Indeed, D did not adduce any evidence as to the earnings of any alternative employment. On such basis, I am unable to accept P’s notional post-Accident work would have generated earnings of $15,000/month. Thus, P’s pre-trial loss of earnings would be $625,674.90 – $207,600 = $418,074.90.

(h)  Future loss of earnings

235.In Chan Kam Hoi, Mortimer VP held that at page 965 that “[when] calculating the damages for future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence. This is particularly so when a plaintiff’s working life is likely to be limited by a pre-existing condition as in this case”.

236.On the aforesaid analysis, P would suffer future loss of earnings for the period from July 2019 to 30 November 2020 (when but for the Accident P would have retired when he was 52½ years old due to his pre-existing condition). His notional monthly earnings as an AOII for such period would be $32,075, and his actual monthly earnings for such period were $10,700. The parties agreed that the relevant multiplier would be 1½ being the average of the multipliers for retirement ages 52 years and 53 years under the Personal Injury Tables Hong Kong 2019. Thus, P’s future loss of earnings would be ($32,075 - $10,700) x 17 months x 1½ = $545,062.50. There is no need for me to deal with any MPF entitlement since P’s notional income as an AOII was on pensionable terms.

237.In my view, there could not be any further claim for future loss of earnings in respect of P’s post-retirement work because P’s condition would have reached his present state when he was 52½ years old, so even without the Accident he would have retired from the CSD by then, and his overall condition would support post-retirement work similar to his present part-time work.

(i)  Loss of pension

238.Since I have found that but for the Accident P would have retired when he was 52½ years old instead of the normal retirement age, he would suffer loss of pension. Mr Cheung and Ms Chao agreed that if P retired at 52 years as an AOII at his existing pay scale, then P’s loss in respect of his lump sum pension and annual pension was respectively $182,119.24 and $197,356.40, totalling $379,475.64. Since I have found P would have retired at 52 ½ years rather than 52 years, P’s loss would have been less. Bearing in mind that the present assessment exercise is only notional as I have found P failed to establish liability, and there was no calculation of loss of pension on the basis that P would have retired when he was 52½ years old, I propose to give a minor discount and award $375,000 under this head of claim.

(j)  Loss of earning capacity

239.I see no basis to grant any substantial loss of earning capacity since (a) P had been with his part-time employers since 2017-2018, and he was still working for them by the time of the trial in June 2019, and (b) there would not be any loss of earning capacity after 30 November 2020 (by which time P would be 52½ years and his pre-existing condition would have reached the present state even without the Accident). Effectively, P would only be at risk of being thrown on the labour market during the period from June 2019 to November 2020. I award $20,000 under this head of claim.

(k)  Special damages

240.Special damages are agreed at $20,000.

(l)  Future medical expenses

241.There was no justification for P to attend private medical doctor for annual orthopaedic monitor, and for all his previous injuries as well as those from the Accident he was followed up at and monitored by QEH and/or CMC’s DOT. I have also found the inpatient nerve root sleeve injection was largely due to his pre-existing condition rather than the back contusion as a result of the Accident. In any event, P’s pre-existing condition would have reached his present state even without the Accident when he reached 52½ years, so P would have required orthopaedic monitor in any event. I allow $3,000 for this head of claim.

(m)  Summary

242.I summarise the above awards as follows :

	HK$
PSLA	160,000.00
Pre-trial loss of earnings	418,074.90
Post-trial loss of earnings	545,062.50
Loss of earning capacity	20,000.00
Special damages	20,000.00
Future medical expenses	3,000.00
Total :	1,166,137.40

In coming to the above conclusion, I have already taken into account employees’ compensation received by P (see paragraphs 230-232 above).

IV.  CONCLUSION

243.In the circumstances, P’s claim is dismissed. There is no reason why costs should not follow event. I grant a costs order nisi that P do pay D costs of the action (including all costs reserved, if any) to be taxed if not agreed.

Mr Jeremy Cheung, instructed by B Mak & Co, for the plaintiff

Ms Jolie Chao, instructed by the Department of Justice, for the defendant