Chan Tak Man v. Wing & Kwong Steel Engineering Co, Ltd and Another
Read the full judgment text of HCPI 394/2020 on BabelCite. This High Court CFI judgment was delivered on 31 March 2022.
1. The Plaintiff claims against the Defendants for damages for personal injuries sustained in the course of work on 4 October 2017 as a result of the Defendants’ negligence, breach of the contract of employment and breach of statutory duties.
Cites 8 cases
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HCPI 394/2020 [2022] HKCFI 891 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 394 OF 2020 ________________________ BETWEEN
________________________ Before: Master D To in open court Date of Hearing: 24 & 26 January 2022 Date of Decision: 31 March 2022 _________________________________ ASSESSMENT OF DAMAGES _________________________________ 1.The Plaintiff claims against the Defendants for damages for personal injuries sustained in the course of work on 4 October 2017 as a result of the Defendants’ negligence, breach of the contract of employment and breach of statutory duties. 2.Pursuant to the Consent Order dated 15 January 2021, Interlocutory Judgment on liability to the extent of 85% was entered for the Plaintiff against both the Defendants leaving damages to be assessed. Interlocutory Matters 3.At this hearing for assessment of damages, two matters in respect of adducing evidence are still in disputes which require the Court’s determination. The Defendants object to both the Plaintiff’s belated discovery and the calling of Mr Chan Siu Lung (“Mr Chan”) to testify for the Plaintiff pursuant to the Writ of Subpoena Ad Testificandum issued on 20 January 2022 (“the Writ of Subpoena”). Plaintiff’s belated discovery 4.The Plaintiff’s belated discovery was disallowed; documents annexed to the 2nd Supplemental List of Documents filed on 29 December 2021 were expunged from the assessment hearing bundle. I reserved reasons which I now give. 5.Those documents are (a) the transaction records of the Plaintiff’s account with Bank of China from 15 October 2016 to 31 December 2018; and (b) a handwritten note purportedly issued by the proprietor of Fung Mei Yuen Restaurant on 23 December 2021, which seeks to show the Plaintiff’s pre-accident income as a part-time cook more than 4 years ago, from 1 July 2017 to 3 October 2017. 6.For the bank account records, the Plaintiff waited for 3 years from the end of 2018 to the end of 2021 to discover them. No explanation was provided to account for the late disclosure. Despite the Defendants’ objection, it is only at the hearing the Plaintiff conceded he would not seek to discover the bank account records. 7.For the late disclosure of the handwritten note, the Plaintiff explained that the note was not available until recently Fung Mei Yuen Restaurant agreed to provide. 8.Although discovery is a continuing obligation, belated discovery of documents that may prejudice the other side in the conduct of a trial or assessment of damages is not permitted. See : Kinetics Medical Health Group Company Ltd & Ors v Dr Tse Ivan Cheong Yau HCA 1115/2010 (8 May 2013); Hongkong Changyi Real Estate Development Ltd v Neo China (Group) Infrastructure Investment Limited HCA 1576/2011 (25 February 2014). 9.The Plaintiff argues that the Defendants are not being taken by surprise since they were already provided with a copy of the note on 30 December 2021. However, this is not a case in which the belated discovery of documents supplements or updates what has already been discovered. All along, the Plaintiff other than his bare assertion has no objective evidence such as tax return or income proof to prove his case on working as a part-time cook. 10.Upon late discovery, the other side should be given a proper opportunity to look into issues arising out of the new document. In the present case, the Defendants are prejudiced because they are disabled from conducting any meaningful investigation within short time before this assessment hearing. 11.Relevance and the probative value of this piece of evidence are also considered. The note is simply scribbles on a piece of blank paper without company letterhead. Although it bears a stamp purportedly of Fung Mei Yuen Restaurant, one cannot identify the person signing off this handwritten note. Worse still, no hearsay notice was filed in respect of this note. The note therefore has little probative value; it is unable to make a disputed point more or less true. Since the evidence is not logically probative, it should not be regarded as relevant. 12.By reason of the foresaid, it is plainly in the interest of justice to exclude the documents. 13.Parties have addressed the Court on the issue of costs. I order that costs of and occasioned by the Plaintiff’s belated discovery (including the 30-minute cost of this hearing with certificate for counsel) be to the Defendants in any event. The Plaintiff’s own costs be taxed in accordance with the Legal Aid regulations. The Writ of Subpoena 14.I disallowed the Plaintiff to call Mr Chan pursuant to the Writ of Subpoena to testify for the Plaintiff. I reserved reasons which I now give. 15.Shortly before the assessment hearing, the Plaintiff on 10 January 2022 belatedly applied ex-parte for leave to issue the Writ of Subpoena. Upon the Court’s repeated requisitions, the Plaintiff clarified that Mr Chan’s evidence relates to the Plaintiff’s pre-accident job as a part-time cook and how wages were calculated. 16.There was no good explanation of delay in seeking leave to issue the Writ of Subpoena. From a case management angle, the late application should not be entertained unless exceptional circumstances are shown. 17.However, as laid down by the Court of Appeal in Chan Cheung Ming Jacky v Siu Sin Man [2014] 5 HKLRD 89, the Court should not follow a mechanical rule invariably refusing an application simply of serious delay without good explanation, but conduct a balancing exercise of the relevant factors. 18.In providing a preliminary filter (without having to evaluate the merits of the evidence), I am satisfied that that the new evidence does relate to the cause or matter because the Plaintiff’s pre-accident income is significant to assessing his loss of earnings, both pre-trial and post-trial. 19.On balancing the significance of the new evidence, potential disruption to the trial, prejudice to the parties, and the overall justice of the matter, leave was granted. The Writ of Subpoena was issued on 20 February 2022 and served on 21 February 2022. As the Defendants rightly submitted, despite the grant of leave, the Court retains its unfettered discretionary power to set it aside or to disallow the person being called to testify. 20.Up to the hearing, no statement or notice whatsoever was provided by the Plaintiff informing the Defendants what evidence Mr Chan would be giving. The Defendants complained that they were deprived of the opportunity to consider the evidence beforehand, to collect relevant information for the purpose of cross-examination. Despite the Defendants’ complaint, the Plaintiff made no proposal to cure or remedy. Even the Plaintiff did offer to provide a statement, any adjournment for such purpose would inevitably interrupt the trial. 21.The question over the probative value of Mr Chan’s evidence was raised by the Court and discussed at the hearing. The Plaintiff himself has not discovered any documents in support of his income as a part-time cook. Mr Chan at most can testify that the Plaintiff was his colleague and how wages of a part-time cook were calculated; there will not be any direct evidence from him on the Plaintiff’s income back in 2017. 22.In response to the Court’s concern, the Plaintiff through his Counsel indicated that Mr Chan would produce documents to show the Plaintiff’s income. This not only has caught the Defendants by surprise, the Plaintiff should not be allowed to use a subpoena ad testificandum for the purpose of general discovery of documents. 23.By reason of the aforesaid, I find that the calling of Mr Chan to testify for the Plaintiff would prejudice the Defendants’ rights and is against the overall justice of the matter. 24.Having considered parties’ submission on costs, it is ordered that costs of and occasioned by the Writ of Subpoena be in the cause of assessment of damages. Assessment of Damages Injuries and Treatment 25.The Plaintiff was born in Hong Kong on 24 July 1970, and is now aged 51. At the time of the accident, he was 47 years old and was under the 1st Defendant’s employ as a bar bender and fixer. He is right hand dominant. 26.At the time of the accident, while the Plaintiff was feeding a steel bar to a bar-bending machine, his right index finger was caught and crushed. He sustained a deglove injury involving the right index finger, from the proximal phalanx to the distal phalanx at the volar side. 27.After the accident, the Plaintiff was sent to the Accident & Emergency Department of North District Hospital (“NDH”). Physical examination revealed large skin flap over his right index finger. He was admitted to the orthopaedic department for further management. 28.On admission, the Plaintiff’s general condition was stable. The diagnosis was ‘acute traumatic right index finger deglove injury’. He had a 4 cm longitudinal crush wound at the right index finger. X-ray examination showed there was disrupted subcutaneous tissue. Surgical toilet and suturing was performed. Intra-operation found right index finger crush injury with partial thickness degloving involving the volar aspect of proximal phalange to distal phalange. The Plaintiff was discharged from NDH on the same day. 29.The Plaintiff was followed up in specialist outpatient clinic. He has attended 16 sessions of wound management at Ngau Tau Kok general outpatient clinic. 30.Orthopaedic follow-up treatments were provided at the NDH specialist outpatient clinic from 19 October 2017 to 30 January 2020. At the last attendance, there was still right index finger discomfort upon movement with limited active range of movement. 31.Meanwhile, the Plaintiff during the period from 20 November 2017 to 5 November 2018 has received 22 sessions of out-patient physiotherapy treatments at United Christian Hospital (“UCH”). 32.The Plaintiff first attended occupational therapy department of UCH on 17 May 2018 for initial work assessment. A finger loop was prescribed as home program for the index finger stiffness. A work capacity evaluation was arranged to assess the Plaintiff’s residual work capacity. His demonstrated work capacity did not match with his pre-injury job demand. The Plaintiff was suggested for a course of work rehabilitation training, but he defaulted treatment. He was therefore discharged on 31 July 2018. 33.The Plaintiff was also referred for clinical psychology service of NDH for psychological intervention of adjustment problem. Psychoeducation and stress management skills was offered to the Plaintiff in the two treatment sessions on 29 November 2018 and 18 April 2019. 34.Since April 2019 the Plaintiff was followed up in UCH. He was diagnosed with moderate depressive episode and was given medication treatment and community nurse intervention. 35.Sick leave was from 4 October 2017 to 29 January 2020 for a total of 848 days (about 27.8 months). Medical Expert Evidence 36.Joint Orthopaedic Expert Report dated 3 August 2020 (“the Joint Report”) was prepared by Dr Fu Wai Kee (“Dr Fu”) for the Plaintiff and Dr Ko Put Shui Peter (“Dr Ko”) for the Defendants. By the Order of Master Kot made on 14 July 2021, the Joint Report shall be adduced as evidence without calling the maker thereof. 37.The Plaintiff was examined by the experts on 4 June 2020 (about 2 years 8 months since accident). He complained of on and off pain mainly over the radial side of his right index finger around the proximal interphalangeal joint. The pain was aggravated by cold weather, lifting 5 kg or finger movement. He complained of cramping feeling at night that occurred once a week, each lasting for more than a minute. He also complained of decreased dexterity in his right hand. He could use chopsticks and write with reduced proficiency. He also needs regular analgesics and psychiatric medication. 38.Both Dr Fu and Dr Ko agreed to the diagnosis of crush injury of right index finger with deglove injury. Their views, however differ in respect of sick leave, extent of residual symptoms, and whether the Plaintiff is suitable to resume his pre-accident job as a bar bender and fixer. Sick Leave 39.Dr Fu opined that the sick leave issued by the treating doctors who assessed the Plaintiff regularly should be appropriate for his conditions. 40.It is noteworthy that the Plaintiff has understated his work capacity to the experts. He did not reveal to the experts that he had been continuously working as a cook from February 2019 to January 2020. The experts are deprived of this information which must be relevant to considering appropriate and reasonable sick leave. 41.Dr Ko opined that the Plaintiff should have had reached maximal medical improvement and static condition by around 6 – 8 months after the accident. Nonetheless, he accepted that sick leave covering the period of treatment, investigation and rehabilitation until around November 2018 should be reasonable. 42.The court is not bound by sick leave certificates. It is the court’s responsibility to look at the evidence and come to its conclusion. See : Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd, CACV 172/2004 (15 July 2005) 43.It is not unusual the court places more weight on the sick leave granted by the treating doctors who have the benefit of reviewing the plaintiff’s medical condition on a regular basis from time to time, than on the view expressed by experts long after the event. However, there are good reasons in the present case to allow only part of the sick leave granted by the treating doctors. 44.According to the Plaintiff’s own account of post-accident jobs, for the period of almost 12 months from February 2019 up to mid-January 2020 whilst on sick leave, he was able to work continuously as a cook. This is clear evidence that upon discharge from rehabilitation services the Plaintiff was able to return to full time gainful employment. 45.I find that sick leave of 13 months (from 4 October 2017 up to 5 November 2018 when the Plaintiff was discharged from rehabilitation services) is reasonable and appropriate. Extent of Residual Symptoms 46.The Defendants submit that the Plaintiff exaggerated his symptoms. In order to assess the true extent of the right index finger injuries, the Court needs to consider whether the subjective symptoms presented by the Plaintiff to his treating doctors, let alone the experts are credible and reliable. See : Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 47.The Plaintiff accepted that there were no further injuries or any complication after the Accident, and that his condition remained static over time. On that basis the Defendant challenge that one could then expect the Plaintiff’s right hand grip power and the range of motion of his right index finger to at least remain consistent if not improve over time; but the Plaintiff’s hand grip power dropped without good reasons. 48.The Defendants made the following analysis to support that the Plaintiff is a malingerer and he only paid suboptimal effort in the physical examination.
49.Considering the overall medical evidence, the above criticism should be viewed objectively against the following.
50.This Court is referred to Huen Cheong Lam v JV Fitness Ltd [2021] HKDC 101 (28 January 2021) where the Court questioned and rejected the deterioration of the range of movement to be genuine. However, each case turns on its own facts. That case concerns a plaintiff who already had been able to have full range of movement but subsequently had worse performance without good cause. The present case concerns a range of fluctuation which the Plaintiff could reasonably explain as the result of the varying degree of pain and stiffness. 51.Notwithstanding the above, I do observe that the extent of pain and residual efficiency complained by the Plaintiff stands in contrast to the medical evidence and the surveillance evidence. This includes the complaint made to the experts on 4 June 2020 that he suffered pain upon lifting 5 kg with his right hand, and that he had to avoid using his right hand in his daily activities. 52.The following relevant evidence are considered.
53.By reason of the aforesaid, I find that the Plaintiff has exaggerated the extent of his pain and reduced efficiency. Resume pre-accident job as a bar bender and fixer 54.The Plaintiff testified in Court that as a bar bender and fixer, he was required to tie steel bars with metal wires in building the pillars and foundation of a structure. He used his right hand to twist and tighten the metal wires so as to secure the steel bars. He emphasized that he had to use a lot of strength to tighten the metal wires otherwise the pillars would collapse. 55.Dr Fu opined that the Plaintiff’s pre-accident job as a bar bender and fixer was physically demanding, and only laborers with top fit conditions could afford such job. He agreed to the occupational therapists’ assessment that the Plaintiff’s working capacity did not match his job demand. 56.However, in accepting the physical conditions as presented by the Plaintiff, Dr Fu did not perform an independent assessment of the Plaintiff’s subjective complaints. It is discussed in Bokhim Dil Kumar v Dragages Hong Kong Ltd [2020] HKCFI 3136 (29 December 2020) at §30 that
57.On the other hand, Dr Ko opined that the Plaintiff should be left with mild residual pain, and very mild stiffness and weakness only. There was only soft tissue injury with no structural loss or derangement. All tendons, bones, joints, ligaments, nerves and blood vessels were intact; There was a lack of objective signs supporting the Plaintiff’s complaints. 58.I am of the view that Dr Ko’s conclusion is far too general and over-simplified. He has never rejected the Plaintiff’s complaint of stiffness; he simply regarded it as “very mild stiffness” but this conclusion is not well-reasoned.
59.In deciding whether the Plaintiff can resume his pre-accident job, it is insufficient to just consider his overall physical conditions and extent of pain. The precise job nature, the particular motor skills required of, and the extent of restriction should also be considered. Although the Plaintiff has exaggerated the extent of pain and reduced efficiency, I accept that he has difficulties in bending his right index finger normally which is essential for the twisting tightening and securing of metal wires. 60.By reason of the aforesaid, I find that the Plaintiff is unsuitable to resume his pre-accident job as a bar bender and fixer. 61.The Defendants rely on the case of Gurung Bhakta Bahadur v Green Valley Landfill Ltd HCPI 333/2009 (28 January 2011) that the Plaintiff having failed to mitigate his damage, should not be compensated for his choice to take up alternative employment as a cook. 62.The Defendants submit that the Plaintiff was suggested by occupational therapists for a course of work rehab training, but he has defaulted. In reality, the Plaintiff’s progress with physiotherapy has already become static in around November 2018; there is no evidence how would his conditions differ upon attending the work rehab training. The Plaintiff testified that he had practiced at home twisting metal wires with the aid of hooks, but he experienced pain and numbness after 30 minutes. 63.The Defendants suggest that the Plaintiff should have learned and adapted to using his left hand to twist metal wires. I think this is purely theoretical. I also have great reservation on how long (if possible) would it take for a person who has been right-hand dominant for 50 years to get trained and adapted to performing the task of a bar bender as if he is left-hand dominant. Further, adapting to using the left hand to perform bar-bending jobs must be distinguished from simply handling daily activities. 64.Dr Fu opined that the Plaintiff should shift to lighter duties such as security guard or waiter. The Plaintiff’s culinary skills and physical conditions afford him to work as a cook. The activities of a cook should be more dexterous than a security guard or waiter, and it yields more income. Therefore, I find it more than reasonable for the Plaintiff to take up alternative employment as a cook. Pain, Suffering and Loss of Amenities (“PSLA”) 65.The Plaintiff’s claim of HK$280,000 for PSLA is agreed. Pre-trial Loss of Earnings 66.Regarding the Plaintiff’s pre-accident income as a bar bender, it is agreed that the Plaintiff worked an average of 22 days per month earning an average of $53,240.00. The daily wages of HK$2,420 (HK$2,370 + HK$50 MPF) is in line with the Notice issued by the Hong Kong Bar-bending Contractors Association Limited. 67.What the Defendants seriously dispute is whether the Plaintiff also worked as a part-time cook in the evening from 7:30 pm to 2:15 am for 26 days a month at the daily wages of HK$600, earning an extra HK$15,600.00 per month as alleged. 68.Apart from the Plaintiff’s allegation, there is no documentary evidence in support at all. His allegation is also contradicted by the following.
69.By reason of the aforesaid, I find that the Plaintiff has failed to prove his pre-accident income as a part-time cook, whether for the sum as alleged or at all. Pre-accident Income 70.For the purpose of assessing the Plaintiff’s pre-trial loss of earnings, the agreed monthly income of HK$53,240 as a bar bender at the time of the accident has to be adjusted because there has been a general increase in wages for a bar bender and fixer. 71.According to the rate fixed by the Hong Kong Bar-Bending Contractors Association Limited, the daily wages (inclusive of MPF benefit) of a bar bender and fixer for the period from 1 May 2017 to 30 April 2020 is as follows.
72.Adopting HK$2,535 as the median figure of daily wages, the Plaintiff’s pre-accident monthly income as a bar bender for the purpose of assessing his pre-trial loss of earnings comes to $55,770 ($2,535 x 22 days). Loss of earnings during sick leave period (13 months) 73.Credit should be given to the following income the Plaintiff earned as a cook during the sick leave period, which is $16,600 in total (HK$800 + HK$15,000 + HK$800).
74.The loss of earnings during sick leave period is therefore assessed at HK$708,410 ([HK$55,770 x 13 months] – HK$16,600). Partial loss of income upon expiry of sick leave to assessment (38.5 months) 75.As discussed in paragraphs 54 - 64 above, the Plaintiff is unfit to resume his pre-accident job as a bar bender. The Plaintiff suffered partial loss of earnings representing the difference between the income of a bar bender and the alternative employment as a cook. 76.Although the Plaintiff suggests the figure of HK$28,000 as the income of a cook for the purpose of assessing his future loss of earnings, he has not conceded that the same figure be adopted for assessing partial loss of his pre-trial earnings. 77.In all fairness, I shall assess a reasonable figure, taking into account the following pattern of income which the Plaintiff earned as a cook upon expiry of sick leave.
78.In those days when the Plaintiff’s employments as a replacement cook was on monthly basis, his income ranged from HK$17,000, HK$22,000, HK$25,000 to HK$26,000 per month. I shall adopt an average figure of HK$23,500 (inclusive of MPF benefit) as the reasonable pre-trial monthly income as a cook. 79.Partial loss of earnings for the period from expiry of sick leave up to assessment is HK$1,242,395 ([HK$55,770 – HK$23,500] x 38.5 months). 80.Therefore, the total amount of pre-trial loss of earnings is HK$1,950,805 (HK$708,410 + HK$1,242,395). Future Loss of Earnings 81.Although the Plaintiff has not earned as much as HK$28,000 per month as a cook, it is suggested for him the figure of HK$28,000 as the income of a cook for the purpose of assessing his future loss of earnings. The Defendants do not suggest otherwise. 82.On the basis that the Plaintiff would retire at the age of 65, it is suggested that a multiplier of 11.53 should be applied. The Defendants do not oppose. 83.Future loss of earnings is therefore assessed at HK$3,842,257 ([HK$55,770 – HK$28,000] x 11.53 x 12) Loss of Earning Capacity 84.It is settled law that an award for loss of earning capacity is to cover the risk that, at some future date during the plaintiff's working life, he would lose his employment and suffer financial loss because of his disadvantage in the labor market. 85.The Plaintiff asserted that during the post-accident period when he worked as a cook, he was dismissed on the following occasions, namely (a) his employment at ‘Chan Kee Restaurant’ was terminated in end of June 2021 because of unsatisfactory working efficiency due to the residual disabilities of his injured finger; (b) he worked from mid-July 2021 as a cook at a spa restaurant but was dismissed in early December 2021 for the same reason. 86.However, based on the record of employment as a cook in paragraph 77 above, the overall picture is that there was a continuous pattern of working as a cook, some up to 9 months with the same employer. This shows that there is no substantial or real risk that the plaintiff would lose the job as a cook at some time before the estimated end of his working life. 87.Further, it is evident that the Plaintiff on each occasion of dismissal took only a fortnight to secure a new job. It is not shown that there are factors affecting his chances of getting a job at all, or an equally well-paid job. 88.By reason of the aforesaid, the Plaintiff is not entitled to any damages for loss of earning capacity. Special Damages 89.The Plaintiff’s claim of HK$11,200 for special damages representing medical expenses, travelling expenses and tonic food expenses is agreed. Summary of Damages 90.The damages awarded are summarized as follows:
91.The Plaintiff is entitled to interest on PSLA at the rate of 2% per annum from the date of Writ to the date of judgment; interest on special damages at half judgment rate from the date of accident until judgment. Interest thereafter will be at judgment rate until payment. 92.I make an order nisi that the Defendants do pay the Plaintiff’s costs of the action on the issue of quantum, with certificate for counsel, to be taxed if not agreed. The Plaintiff’s own costs be taxed in accordance with the Legal Aid regulations. 93.The order nisi shall become absolute unless an application to vary is made within 14 days from today.
Ms Alice C K Liu instructed by B Mak & Co for the Plaintiff Mr Alfred C P Cheng instructed by Mayer Brown for the Defendants |
Cases cited in this judgment