Lama Binod v. Dragages Hong Kong Ltd and Another

HCPI 322/2019

[2023] HKCFI 2541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 322 OF 2019

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.This is the plaintiff’s claim for personal injuries allegedly resulting from an accident at the Tuen Mun - Chek Lap Kok Link Northern Connection Sub-sea Tunnel, Tuen Mun, New Territories (the “Site”) on 22 March 2017.  The claim is made against the 1^st defendant (the plaintiff’s then employer) and the 2^nd defendant (the main contractor of the construction at the Site) (together, the “defendants”). The defendants dispute both liability and quantum.

2.The plaintiff was born in Nepal and came to Hong Kong in 1997.  He had a licence to operate a forklift truck and a truck with crane. He has worked as a truck driver, a bulldozer driver and a crane mounted lorry driver in construction sites. Prior to working for the 1^st defendant, he had been working in the construction industry for 12 years. At the time of the injury, he had been working as an operator of forklift truck for 4 - 5 years.

3.The plaintiff was legally-aided until 1 April 2021 and has been acting in person since then.

THE ALLEGED ACCIDENT

4.As at the time of the alleged accident, the plaintiff was 54 years old. He was at that time employed by the 1^st defendant as a forklift operator. 

5.At around 3:00 p.m. on 22 March 2017, the plaintiff was assigned by his supervisor to carry around 20 bags of cement onto the pallet (the “Task”) at a distance of about 15 feet.  This was necessary because a plastic wrap that bound a bundle of 50 cement bags was torn, which caused about 20 bags of cement to have fallen on the ground.  The plaintiff was instructed to work under a time constraint in order not to disrupt the site schedule.  He lifted one bag of cement at a time.  After completing the Task, the plaintiff injured his back causing him serious back pain (the “Accident”).

6.The plaintiff reported the Accident to his supervisor immediately.  The plaintiff took a rest for about 1 hour and 30 minutes (the pleaded case) and continued with his duty.

7.The plaintiff continued with his duty in operating the forklift truck with no physical lifting, until 8 April 2017, when he felt an acute pain over his back whilst changing his uniform.  He reported this to his supervisor and was sent to the Accident & Emergency Department (“A&E Department”) in Tuen Mun Hospital by taxi.  The plaintiff was granted sick leave from 8 April 2017 to 25 April 2017.

8.He subsequently received further medical treatment from the A&E Department of Pok Oi Hospital and the Tin Shui Wai (Tin Yip Road) Community Health Centre.

9.The plaintiff had an operation of multi-level laminectomy on 2 May 2017 in Nepal.  He was recommended to rest from 11 May 2017 to 1 April 2018 by doctors in Nepal.

LIABILITY

The disputes

10.Negligence, breach of common duty of care, breach of employer contract, breach of occupier’s duty and breach of statutory duties on the part of the defendants were pleaded.

11.The plaintiff pleaded that the defendants were negligent and in breach of occupier’s duties for:

1) Failing to provide adequate training, instruction or supervision for lifting and transporting bags of cement;

2) Failing to provide tools for lifting and transporting bags of cement;

3) Causing the wrap binding the cement bags to be torn and requiring the plaintiff to lift the cement bags manually;

4) Exposing the plaintiff to a risk of injury that the defendants knew or ought to have known;

5) Failing to formulate a policy regarding safety and health;

6) Failing to carry out a risk assessment on the potential hazards associated with lifting and transporting bags of cement scattered on the floor;

7) Failing to provide a safe and healthy working environment and policy to the workers;

8) Failing to provide the plaintiff with safety measure and warning at the Site. 

12.The defendants did not dispute the need to comply with such duties. The disputes in terms of liability were whether the Accident happened at all and, if it happened as alleged, whether the Accident caused the injuries and if so, whether the defendants were negligent or in breach of their duties.

Did the Accident Happen? - The Evidence

13.The plaintiff gave evidence by adopting the contents of his witness statement through an interpreter.  Two other witnesses, Mr Sunwar and Mr Limbu also gave evidence in support of the plaintiff’s claims.

14.The defendants did not call any witness but put the plaintiff to strict proof that he met with any accident at all.

15.In assessing credibility of the witness, I adopt the often cited principles in Hui Cheung Fai and Other v Daiwa Development Limited and Others (unreported, HCA 1734/2009, 8 April 2014) by Deputy Judge Eugene Fung SC at §§76-82:-

“76. In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

77.Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce).

78.In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79.In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence.  The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80.I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA))…” [emphasis added]

16.I consider the plaintiff, Mr Sunwar and Mr Limbu as unreliable witnesses who were only keen to give evidence which they thought were favourable to the plaintiff’s case and were evasive in areas of evidence which seemed detrimental to it:

1) The plaintiff was evasive when being asked whether he had attended any safety training provided by the 1^st defendant.  His answer was that although there were classes, they were not provided for him.  He had watched and observed but he did not learn anything from the classes.  This answer is disingenuous given the plaintiff indicated later on in cross-examination that he knew what was the correct posture in carrying heavy things.

2) The work record, which was a contemporaneous documentary record, showed that the plaintiff had worked for a full day on 22 March 2007 (the day of the Accident), from about 7:15 am to about 8:20 pm, which seemed to indicate that the plaintiff’s injuries, if there were such injuries at all, were not so severe to have made it impossible for the plaintiff to continue working.  When cross-examined, the plaintiff said that he had rested for 3.5 hours after the Accident at about 3 p.m. and thereafter waited until the end of the work day before going home.   That is why the work record showed him as having worked the whole day as he had stayed at work, although he was really resting.  This account was contrary to i) his pleaded case of having rested for 1.5 hours, ii) his witness statement’s account of having rested for only 30 minutes and iii) Mr Limbu’s evidence which said he was told that the plaintiff had rested for 20 minutes.  The plaintiff was trying to paint the picture that he was unable to work after the alleged Injury and tried to justify why the work record showed that he had worked for a full day.  I do not accept the plaintiff’s evidence in this regard.

3) Both Mr Sunwar and Mr Limbu testified on having been told by the plaintiff on 22 March 2017 that he had met with an accident on that day.  However, upon cross-examination, it is clear that there being no aide-memoire, it was impossible for either of them to have remembered that the conversation took place on 22 March 2017 instead of any other day.  Yet, both witnesses repeatedly tried to stress that they could remember, without any written document that they could rely on for the exact date of the alleged Accident. Eventually, Mr Limbu admitted that the content of the witness statement was drafted by the solicitors for the plaintiff and confirmed by him, although he had no basis to confirm the date.  I attach no weight to both Mr Sunwar and Mr Limbu’s evidence on the date of the alleged Accident.

17.When assessing whether the Accident occurred, I took into account the following:

1) the plaintiff had stayed at work on the day of the alleged Accident after having taken a rest.  The plaintiff had confirmed in his oral evidence that he did not feel much back pain in the next few days following the Accident and had continued to work. The work records showed that he had continued to work for around 13 hours each day on 23, 24, 25, 27 – 31 March 2017 and 1, 3, 5 - 7 April 2017.  There is no dispute that he did not require any medical treatment until 8 April 2017, 17 days after the alleged Accident. I am of the view that this pattern of work does not support the allegation that the plaintiff met with an accident causing “serious back pain”.

2) When the plaintiff had medical consultations, he had not always informed the doctors of the Accident.

3) Upon cross-examination, the plaintiff admitted that his back pain had been recurring since around August to September 2023, before the Accident.

4) Although the plaintiff had called Mr Sunwar and Mr Limbu in support of his claims, they both agreed that they did not see the Accident first-hand.  They only testified to the fact that they were told by the plaintiff on 22 March 2023 that the Accident happened.  Their witness statements were given two years after the Accident and there were no contemporaneous documents recording such conversation.  Further, after much cross-examination, Mr Sunwar and Mr Limbu eventually agreed that they in fact did not remember the date of the Accident being 22 March 2023.

18.I am thus of the view that the plaintiff has failed on a balance of probabilities to prove that the Accident had occurred at all.

Causation

19.The defendants submitted that even if the Accident did occur, the Accident had not caused the plaintiff’s injuries.

20.From the medical reports, the plaintiff had on separate occasions (11 April 2017 and 14 April 2017) told different treating doctors that he was injured on duty 4 months ago.  I place great weight on these contemporaneous documents, as these were recorded only about 3 weeks after the alleged Accident and yet the plaintiff told to the doctors that he was injured 4 months ago, which was prior to the date of the alleged Accident.

21.The version that the Accident happened 4 months before April 2017 is in fact more in line with the oral evidence the plaintiff gave in Court, that his back pain started some time in 2016 after having been employed by the 1^st defendant.

22.This is also supported by the defendants’ orthopaedic specialist, Dr Chun, who opined that the x-ray taken on 8 April 2017, 17 days after the alleged injury, already showed significant degeneration of the spine, which could not have been caused by the alleged Accident but was in fact a pre-existing injury.  The clinical presentation also did not support any acute/sudden onset of cord compression, which was contradictory to the thoracic cord compression being sustained from the alleged Accident.  Dr Wong, the plaintiff’s orthopaedic expert did not provide any explanation to contradict the above. I prefer Dr Chun’s opinion in this regard.

23.After assessing the evidence, I agree that the plaintiff has failed on a balance of probabilities to prove that even if the Accident had occurred, it was the cause of the injuries as alleged.

Negligence/Breach of Duties?

24.Even if I were wrong on the above conclusions and the Accident did happen and had caused the injuries, I am of the view that the defendants were not negligent and there was no breach of duties on their part for the following reasons:

1) There is no evidence that the defendants had caused the plastic wrap that bound the bags of cement to have been broken.

2) A bag of cement weighs 25 kg.  The plaintiff moved one bag of cement at a time for about 4.5 metres each time.  As confirmed by one of the witnesses Mr Sunwar, this is not a weight that is so heavy that it is incapable of being carried by an adult, not to mention an experienced worker at a construction site. I do not see that there are any special risks involved in such a task.

3) The operation of moving one bag of cement at a time is not a complicated task and it is natural and reasonable that the decision of how it shall be done should be left to the workman on the spot Winter v Cardiff Rural District Council [1]. I thus do not agree that the defendants had to provide instruction, training or a system of work on how moving a bag of cement ought to be done.

4) In any event, the plaintiff and his witnesses agreed that the workers were provided with safety briefing on how to move heavy objects, despite the plaintiff’s allegation that he saw the briefing but he did not learn anything.  I already set out above why I consider the plaintiff to be dishonest and evasive in this regard.  He clearly knew what was the correct posture to adopt when carrying heavy objects, as he had explained in his oral evidence: squat down and carry the object from beneath with a straight back.  In fact, he testified that he had adopted the correct posture whilst carrying out the Task.

5) The plaintiff was/ought to have been aware of the common risks in in carrying heavy objects in general and should have adopted the necessary precautions. The Court should not be too paternalistic and expect an employer to treat an experienced construction worker as kindergarten pupils Lee Yam Kam v Ng Pui Kuen[2].

6) Since I find that there was no negligence on the defendants’ part, the doctrine of res ipsa loquitur has no application in the present case.

25.Based on my above conclusions, the plaintiff has failed to discharge his burden of proving liability.

Contributory Negligence

26.Given the plaintiff’s confirmation that he adopted the correct procedure whilst carrying the bags of cement, the defendants no longer pursue contributory negligence.

Quantum

27.As I find against the plaintiff on liability, he is not entitled to any damages.

28.However, for completeness, I proceed to consider the quantum of damages, on the assumption that there was an Accident and it had caused the plaintiff’s injuries, and that the Defendants were negligent and are liable to pay the plaintiff damages.

29.The plaintiff claims total damages in excess of HK$4,400,000.

Injuries and medical treatments

30.The plaintiff claims that he has suffered injuries to his back as a result of the Accident.  The following medical treatments were undertaken:

1) The plaintiff attended Tuen Mun Hospital on 8 April 2017.  Dr Hui of the A&E Department of Tuen Mun Hospital reported that at the time the plaintiff alleged an industrial accident.  He was able to walk unaided with tenderness on the lower back and knees.  X-ray revealed no fracture to the spine.  The mode of injury could not be determined.

2) The plaintiff re-attended the A&E Department of Tuen Mun Hospital again on 11 April 2017 and 14 April 2023 when he reported that he sustained an injury on duty 4 months ago when he was handling a bag of cement.  He was given medication and sick leave and was thereafter discharged.

3) The plaintiff re-attended the A&E Department of Tuen Mun Hospital on 18 April 2017, 1 April 2018, 5 April 2018 and 6 May 2018 for persistent lower back and knees pain.  He was treated and discharged.

4) The plaintiff attended the A&E Department of Pok Oi Hospital on 22 April 2017 for lower leg swelling and joint pain. 

5) The plaintiff then underwent multilevel laminectomy on 2 May 2017 in Nepal.

6) On 13 May 2018, the plaintiff re-attended Pok Oi Hospital for right knee pain and low back pain.

7) The plaintiff consulted a private doctor, Dr David Ip, an orthopaedic specialist on 15 May 2018. The plaintiff had told Dr Ip that an injury was caused whilst on duty on 22 March 2017.  The plaintiff was treated with low-level laser, ultrasound and TENS treatment. The plaintiff re-attended with Dr Ip on 14 June 2018, 13 July 2018, 10 August 2018, 7 September 2018, 19 October 2018 and 19 November 2018.  Dr Ip noted that in the last session, the plaintiff’s pain score had improved but pain remained.  There was poor standing and sitting tolerance of the back and decreased straight leg raise test.  However, there was no objective neurological deficit of the lower limbs.

Joint orthopaedic examination

31.The plaintiff was jointly examined by orthopaedic experts Dr Wong Tak Chuen (the plaintiff’s expert) and Dr Chun Siu Yeung (the defendants’ expert) on 2 May 2019.  The experts rendered their joint expert report dated 19 March 2020.

32.The following complaints of the plaintiff during the joint examination were recorded:

(1) He could not walk or move properly because of numbness and pain.

(2) Pain at the posterior aspect of the thigh, leg, ankle and sole (bilaterally), with the right side worse than the left, intermittently, triggering factors like standing up, sitting down, or walking for 5-6 minutes, intensity grade 8-9 when turning position during sleep.

(3) Numbness on the whole lower limb on both sides, continuously, fluctuating in intensity, from grade 4 to grade 7 - 8.

(4) He could not move the lower limb properly.

(5) Continuous lower back pain of fluctuating intensity.

(6) Urine urge.

Pre-Existing Condition

33.The experts’ focus on the joint medical report were on the plaintiff’s pre-existing condition.  Of note is the fact that both Dr Chun and Dr Wong agreed that the degenerative changes of the spinal condition were pre-existing and not related to the Accident.

34.The major disagreements between the experts lie in:

1) Whether the medical documentation supported an injury caused by the alleged Accident.  On this, I have already set out in paragraph 22 above why I preferred Dr Chun’s opinion.

2) Whether in the absence of the alleged injury caused by the Accident，his conditions would have occurred at any time in any event due to his pre-existing conditions.

35.As to the bearing of pre-existing condition of a plaintiff on the assessment of damages, it was explained in Chan Kam Hoi v Dragages et Travaux Publics[3]. There are 3 scenarios:

(1) The first is where the plaintiff was almost certain to have gone through life unaffected by the condition and in such a case the defendant would be liable for all damages caused.

(2) The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the plaintiff’s present state, and in such a case it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.

(3) The third is where the present condition would certainly have occurred at some stage in any event, and in such a case clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.

36.As to whether the plaintiff’s conditions would have occurred in any event, Dr Chun’s opinion is that the plaintiff belonged to Scenario (3), which means that the plaintiff’s present state would have occurred in any event, for the following reasons:

1) The x-ray taken on 8 April 2018 already showed significant degeneration.  The pre-existing degenerative changes in the lumber spine, together with the prior back injury as reported by the plaintiff, support the conclusion that the plaintiff’s present state would certainly have occurred in any event.

2) Thoracic cord compression is either sudden/acute on the one hand or chronic/gradual on the other hand.  There was no indication in clinical presentation as recorded in the medical reports that the thoracic cord compression was sudden/acute or acute on chronic situation.  Thus, the cord compression at the thoracic spine was unrelated to the injury but was the natural course of degenerative spinal condition requiring surgery.

3) The x-ray on 1 April 2018 showing degenerative changes supported his conclusion that the complaint of knee pain was unrelated to the injury and was most likely related to his obesity.

37.Dr Wong on the other hand is of the opinion that although the degenerative changes to the spinal condition was pre-existing and not related to the Accident, it was still reasonable to believe that the plaintiff had sustained thoracic cord compression and other present symptoms from the Accident for the following reasons:

1) Despite his pre-existing degeneration, the plaintiff could still work as a construction site worker with no difficulty until the Accident; this would have been impossible if he had already suffered from cord compression before.

2) The cord compression was evident on the MRI scan taken after the Accident.  The Accident made the cord compression more severe and more symptomatic that required surgical intervention.

3) The plaintiff’s back symptoms were likely triggered by soft tissue injury in the Accident.

38.On the issue of whether the thoracic cord compression and other symptoms would have occurred in any event, I prefer the opinion of Dr Chun over that of Dr Wong’s for the following reasons:

1) Dr Wong opined that “the cord compression became more severe and more symptomatic” with pre-existing degenerative changes of thoracic spine.  This seems to suggest that there was already cord compression prior to the Accident.

2) From the medical reports, there was no record of a sudden/acute onset of cord compression after the alleged Accident.  This is not disputed by Dr Wong.  The only reason relied upon by Dr Wong in arriving at the conclusion that the Accident had caused the cord compression was: “should [the plaintiff] suffer from cord compression before the accident, he simply could not manage his pre-accidental job which is strenuous in nature”.  It was on this basis that Dr Wong opined that it was reasonable to believe that the plaintiff sustained thoracic cord compression in the Accident.

3) However, this conclusion seems to have overlooked the undisputed fact that the plaintiff had also continued with his duty for 17 days after he has allegedly sustained his injuries from the Accident. The ability to continue to work therefore does not point to the absence of cord compression, whether prior to, or after the alleged Accident.

4) On the other hand, Dr Chun had supported his opinion that the thoracic cord compression was chronic/gradual and not sustained at the Accident based on the following:

a) no medical treatment was sought by the plaintiff until 17 days after the Accident;

b) there was no record of a sudden onset of cord compression from the clinical presentation;

c) the oral confirmation of the plaintiff at the hearing that his back pain had started since 1.5 months after he joined the 1^st defendant in September 2016, before the Accident.

39.I am therefore of the view that the medical evidence shows that the present condition of the plaintiff was largely attributable to his pre-existing condition instead of the injury from the Accident. Dr Chun opined that the plaintiff’s condition falls into the Scenario (3) of the Chan Kam Hoi categorization mentioned above.  In view of the above reasons, I accept the opinion of Dr Chun. 

40.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 into account the risks in the assessment of general damages. The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high. This will depend on the circumstances of the case and whether the symptoms of the pre-existing condition had occurred through natural progression or as a result of the Accident or both. 

41.When assessing the damages for future loss of earnings, the conventional approach is to apply a reduced multiplier on account of the future loss associated with the plaintiff’s pre-existing condition.

42.Considering Dr Chun’s opinion that a discount of 100% should be applied and Dr Wong’s opinion that 50% discount should be applied, counsel for the defendants suggests that 85% discount should be applied to any award for general damages for pain, suffering and loss of amenities as well as damages for pre-trial loss of earnings.  Based on the evidence as set out above, I agree.

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

43.As explained above, I have determined that the thoracic cord compression was not caused by the Accident.  I therefore accept Dr Chun’s diagnosis that the plaintiff suffers from recurrent mechanical low back pain or non specific low back pain.

44.The plaintiff claims HK$600,000 which the defendants argues to be grossly exaggerated.  Counsel refers to the following authorities as comparable in the scenario where the plaintiff’s spinal thoracic cord compression was caused by the Accident:

1) Chan Yuet Keung v Harmony (International) Knitting Factory Limited [4] - HK$300,000 for PSLA (would have been higher but for pre-existing degeneration)

2) David John Slater v Commissioner of Police[5] - HK$320,000 for PSLA (assuming it was pleaded correctly)

3) San-To, Po Yuk Hitler v Wing Kwong Painting Co Ltd[6] – HK$350,000 for PSLA

45.Counsel for the defendants submit that the case of David John Slater v Commissioner of Police was most comparable and a figure of HK$352,000 would be appropriate, taking into account inflation.  Having regard to the facts of this case and the above cases, I would have awarded of HK$352,000 under this head if I were to hold that the Accident had caused the injuries.

Working capacity

46.Dr Chun opined that the plaintiff’s degenerative changes in his whole spine will progress and deteriorate.  His degeneration of the knees and other joints will progress with his obesity, not caused by or related to the injury.  The plaintiff is suitable to do sedentary type of work such as cashier or clerk.

47.Dr Wong is on the other hand of the view that there is a 25% whole person impairment and loss of earning capacity.

48.The defendants submitted that the plaintiff could have alternative employment as a cashier, which would fetch a monthly salary of HK$13,733 according to the statistics for March 2023.

49.The plaintiff on the other hand said that he would not be able to work as a cashier as he did not speak English or Cantonese.

50.Counsel for the defendants invited the Court to draw the inference that after so many years in Hong Kong, the plaintiff must be able to speak simple English or Cantonese.  As there was simply no evidence led on this issue, there is no basis to draw such inference.  The defendants have not discharged the evidential burden of proving that the plaintiff has the language ability for him to work as a general cashier in Hong Kong. 

51.However, I am of the view that the plaintiff should be able to find alternative employment of a sedentary nature, equivalent to a miscellaneous non-production worker, which does not require English or Cantonese language skills.  Such a worker would earn HK$11,622 per month according to the 2023 March statistics.  I would apply a 10% reduction in salary due to the plaintiff’s inability to speak English or Cantonese, i.e. HK$10,460.

Sick Leave

52.The plaintiff was given sick leave from 8 – 25 April 2017, 1 April to 9 August 2018 and 7 September 2018 to 4 March 2019 (a total of 325 days).  The plaintiff in fact claimed a total of 625 days as he included his time in Nepal in the calculation.  The defendants disputed as to the reasonableness of the prolonged sick leave granted. 

53.It is trite that sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence and the Court is not bound by the mere issue of sick leave certificates: see Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd[7]; Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[8].

54.Dr Wong opined that all the sick leave granted was reasonable and appropriate.  Dr Chun on the other hand was of the view that a reasonable period for sick leave for the alleged injury of mechanical low back pain should only be from 8 April to 21 April 2017 (14 days).  This is because the subsequent sick leave is not related to the injury sustained in the Accident.

55.If I were of the view that the plaintiff’s back injuries were a result of the Accident not affected by pre-existing conditions, I would be of the view that a period of 3 months would have been reasonable, given that his condition was more or less stagnant throughout, and it would have been apparent after 3 months that the condition would not further improve.

Pre-Trial Loss of earnings and MPF

56.The plaintiff claimed his pre-accident monthly income was HK$30,309.96.  This was not disputed.

57.The plaintiff claimed to be unable to return to work at all after 8 April 2023. I have set out in my reasons in paragraphs 46 - 51 above on why I would be of the view that the plaintiff would be able to find alternative employment and earn HK$10,460 per month.

58.I have set out above that the period of reasonable sick leave would have been 3 months.  The calculation of pre-trial loss of earnings and MPF is thus:

1) From the date of the Accident - 21 June 2017 (expiry of 3 months of reasonable sick leave):

HK$30,309.96 x 3 x 1.05 = HK$95,476

2) After expiry of sick leave from 21 June 2017 to trial date (20 September 2023) with alternative employment - 75 months

(HK$30,309.96 – HK$10,460) x 75 x 1.05 = HK$1,563,184

Total = HK$95,476 + HK$1,563,184 = HK$1,658,660

Future Loss of Earning

59.The plaintiff is 60 years old at the time of trial.  Assuming a retirement age of 65, the multiplier would be 4.95 (with a discount rate for needs not exceeding 5 years to be - 0.5%)[9].

60.Thus the future loss of earnings with MPF would be (HK$30,309.96 - HK$10,460) x 12 x 4.95 x 1.05 = HK$1,238,042

Loss of Earning Capacity

61.The principles in making an award for loss of earning capacity are set out in Yu Kok Wing v Lee Tim Loi[10], citing Moeliker v A Reyrolle & Co Ltd[11]:

“It is important to remember what an award for loss of future earning capacity is actually for. As was said by Lord Fraser of Tullybelton in the Privy Council in Chan Wai Tong v Li Ping Sum [1985] HKLR 176 at 183B-D, it is intended… to cover the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk — see Moeliker v A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140, where Browne L.J. dealt fully with this matter…”

62.Having taken into account the situation of the plaintiff, I am of the view that the plaintiff’s conditions would put him at a disadvantage.  The award should be on the basis of 9 months of the salary of a miscellaneous non-production worker: HK$10,460 x 9 = HK$94,140.

Special damages

63.The plaintiff’s pleaded claim of HK$35,000 was not disputed.

Summary

64.Had liability been established, the quantum of damages would have been as follows:

PSLA	HK$352,000
Pre-trial loss of earnings +MPF	HK$1,658,660
Future loss of earnings + MPF	HK$1,238,042
Loss of Earning Capacity	HK$94,140
Miscellaneous special damages	HK$ 35,000
	HK3,377,842
Less
Pre-existing condition at 85%	- (HK$ 2,871,165.70)
Total:	HK$506,676.30

65.If the plaintiff had been successful in establishing the existence of the Accident, the injuries being sustained from the Accident, and that the defendants were negligent, the plaintiff would have been entitled to HK$506,676.30.

66.However, since I hold that the plaintiff has failed to prove his case on liability, he is not entitled to any compensation.

ORDER

67.The plaintiff’s claim is therefore dismissed with costs to the defendants to be taxed, if not agreed, with certificate for Counsel.  The plaintiff’s own costs up to the discharge of his legal aid certificate shall be taxed in accordance with the Legal Aid Regulations. This costs order is nisi, and will become absolute without further order of the court, in the absence of an application to vary within 14 days.

68.I thank Mr Cao for his assistance.

The plaintiff appeared in person

Mr Yuan Shan CAO, instructed by Norton Rose Fulbright, for the defendants