Ip Siu Chi v. Kwan Wing Hang t/a Fai Hung Construction Company and Others

HCPI 1200/2018

[2024] HKCFI 1237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1200 OF 2018

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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 work place in a construction site at Provident Centre, Wharf Road, North Point, Hong Kong (the “Site”) on 5 December 2015. The claim is made against the 1^st defendant (“D1”) (the principal/main contractor), the 2^nd defendant (“D2”) (the subcontractor of D1) and the 3^rd defendant (“D3”) (a subcontractor of D2) (together, the “Ds”).

2.D3 has not appeared at any time after the commencement of the present action and had since passed away. On 15 June 2020, interlocutory judgment was entered against D3, with damages to be assessed.

3.D1 and D2 dispute both liability and quantum.

4.The plaintiff (“P”) has been awarded HK$950,000 for compensation as employee’s compensation in DCEC 845/2016.

THE ALLEGED ACCIDENT

5.As at the time of the alleged accident, P was instructed to dismantle a bamboo scaffolding. She was wearing a safety belt at the time but there was no independent lifeline for her to secure her safety belt onto. As a result P secured her safety belt to the bamboo scaffolding.

6.At around 1:30 pm to 2:00 pm on 5 December 2015, P was climbing down the bamboo scaffolding when some bamboos she stepped on cracked, including the bamboos which P secured her safety belt onto. As a result, P fell for about 2-storeys and sustained multiple injuries (the “Accident”).

LIABILITY

The disputes

7.It is P’s case that her injuries were caused by the negligence and/or breach of statutory duties of Ds and/or their servants for which D1 and D2 were liable.

8.D1 and D2 admit that they were the principal contractor and subcontractor of the Site and D3 undertook the scaffolding works of the Site. D1 and D2 do not know P’s capacity (whether as an employee or as an independent subcontractor) save that she performed a foreman/supervisory role amongst the team of workers. However, the capacity of P is irrelevant for the purposes of this trial, as D1 and D2 admit to being persons responsible for the Site and would be subject to the various statutory duties as pleaded by P regardless of whether P was an employee of D3 or not.

9.D1 and D2 put P to strict proof as to how the Accident occurred.

10.D1 and D2 deny the Accident was caused by their negligence and/or breach of contract of employment and/breach of statutory duties or breach of common law duty of care.

11.D1 and D2 contend that the Accident was caused wholly and/or contributed by P’s own negligence.

Statutory Duties

OSHO statutory duties

12.Regardless of whether P was an employee of D3, Mr Erik Shum, counsel for P, submitted that D1 and/or D2 are persons responsible for the Site, under s.3(2) of the Occupational Safety and Health Ordinance (Cap. 509) (the “OSHO”), which provides:

“the person responsible for a workplace is the employer of the employees who are employed to carry out work there, or if the employer does not exercise any degree of control over the relevant part or aspect of the workplace, means the occupier of the workplace.”

13.As such, it is said that D1 and D2 owe a statutory duty under the OSHO to:

(1) to ensure the safety and health at work of all the employer’s employees (s.6(1) OSHO);

(2) to provide or maintain plant and systems of work that were safe and without risks to health (s.6(2)(a) OSHO);

(3) to provide such information, instruction, training and supervision as might be necessary to ensure the safety and health at work of the employer's employee's (s.6(2)(c) OSHO); and

(4) to provide or maintain a working environment for the employer's employees that was safe and without risks to health (s.6(2)(e) OSHO).

FIUO and CSSR statutory duties

14.Further, Mr Shum submitted that the dismantling of the scaffolding at the Site falls within the definition of industrial undertaking under s.2 of the Factories and Industrial Undertakings Ordinance (Cap. 59) (the “FIUO”) and/or is a construction site under s.2 of the Construction Sites (Safety) Regulations (Cap. 59I) (the “CSSR”). As such, D1 and D2 are said to be the proprietors in relation to the Site as they had the management or control of the Site. They were also occupiers of the Site under s.2 of FIUO and contractors responsible for the construction Site under s.2 of CSSR. As such, they owed P statutory duties to, so far as reasonably practicable:

(1) provide maintain of plant and systems of work that are safe and without risks to health (s.6A(2)(a) FIUO);

(2) provide of such information, instruction, training and supervision as is necessary to ensure the health and safety at work of all persons employed by the proprietor at the industrial undertaking (s.6A(2)(c) FIUO);

(3) maintain the industrial undertaking in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks (s.6A(2)(d) FIUO);

(4) provide and maintain a working environment for all persons employed that is safe, and without risks to health (s.6A(2)(e) FIUO).

(5) identify the hazardous conditions of persons working at a height in the construction site, rectify any hazardous conditions of persons working at a height in the construction site and safeguard any person working at a height in the construction site against all hazardous conditions (Regulation 38A(l) CSSR);

(6) take adequate steps to prevent any person on the site from falling from a height of 2 metres or more (Regulation 38B CSSR).

(7) provide suitable and adequate safety nets and safety belts in lieu of complying requirements in Regulation 38B(1) (Regulation 38H CSSR).

Occupiers Liability Ordinance (Cap. 314) (the “OLO”) statutory duties

15.Mr Shum further submitted that as:

(1) D1 and D2 were occupiers of the Site as they had control over the Site[1];

(2) P was the lawful visitor of the Site as she was permitted by D1 and D2 to be at the Site carrying out her work duties (s.2(2) OLO); and

(3) The Site and the subject scaffolding are premises within the meaning of s.2(3)(a) OLO,

D1 and D2 as occupiers of the Site and/or the scaffolding, owed to P:

(1) a common duty of care to all its visitors including P (s.3(1) OLO); and

(2) a duty to take care to see to it that visitors including P would be reasonably safe in the Site for the purposes for which she was invited or permitted by the occupier(s) to be there (s.3(2) OLO).

Common Law Duty

16.Mr Shum submitted that D1 and D2 owed P a common law duty of care, as the contractors and controllers of the Site. Mr Shum submitted that the statutory duties under the various Ordinances are similar in nature with the Common Law duties in negligence. All duties should be concurrent and co-extensive. Once the court finds that there was breach of the statutory duties on the part of the defendants, it will likely also find negligence on the part of the persons in breach[2]. This is not disputed by Mr Tony Ko, counsel for D1 and D2.

Breach of Statutory Duties and Common Law Duty

17.Mr Shum submitted that based on the following, D1 and D2 have breached the statutory duties as set out above:

(1) No independent lifeline was provided when P was dismantling the scaffolding on the day of the Accident.

(2) The bamboo scaffolding that P stepped on broke which led to P’s fall.

18.D1 and D2 concede that they are responsible for taking reasonable steps to ensure the safety of workers at the Site pursuant to common law and statutes as submitted by Mr Shum.

Issues to be determined

19.Parties agree that on the question of liability against D1 and D2, the issues are:

(1) How the Accident occurred;

(2) Whether D1 and D2 were negligent and/or whether the duties of care as pleaded were breached;

(3) Was the Accident caused by the breach of duties of D1 and/or D2;

(4) Were the injuries caused by the Accident;

(5) Whether P was liable for contributory negligence.

20.If liability is established, the quantum of damages will also need to be determined.

CREDIBILITY OF WITNESSES

21.The determination of several issues in dispute will depend on the credibility of the witnesses. 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 High Court 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]

22.In Star Glory Investment Limited v Kai Tou (H.K.) Technology Company Limited & Ors[3], Chung J adopted the following test:

“There are two objective tests for assessing a witness’ credibility regarding a matter to which he has testified: -

a) Whether that part of his testimony is inherently plausible or implausible;

b) Whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’ motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest.”

23.The above principles are respectfully adopted.

THE WITNESSES

24.P gave evidence by adopting the contents of her two witness statements. Two other witnesses, 萬福滿 (P’s ex-husband and ex-colleague) and 周振東 (P’s ex-colleague) also gave evidence in support of P’s claims.

25.D1 and D2 called two witnesses: 陳亞漢 (elder brother of D3 and an employee of D3) and 趙均峰 (foreman of D2).

DID THE ACCIDENT HAPPEN – THE EVIDENCE

26.P’s evidence is that on 5 December 2015, the day when the dismantling of the scaffolding was scheduled to be completed, she was working on the scaffolding and the independent lifeline was already removed. Earlier that day, she already saw two other cleaning workers having fallen through some broken bamboos at the bottom level of a working platform from a height of 1-storey, but they were not hurt. Having witnessed that, she had asked for the independent lifeline to be put up again but such request was refused by representatives of Ds, who only urged her to finish the dismantling quickly so that the air conditioners could be installed afterwards.

27.Her evidence was that as there was no independent lifeline, she anchored her safety belt onto the intersection between a horizontal and vertical bamboo whilst she worked on the scaffolding. At about 1:30 pm – 2:00 pm, heavy rain set in and she was climbing down the scaffolding to take cover when the bamboo she stepped on broke and at the same time the bamboos at the intersection where the safety belt was anchored at also broke. P then fell from about 2-storeys of height and landed on her buttocks on the pile of bamboos that were laid on the ground. As she was falling down, her elbows hit the bamboos multiple times before landing on her buttocks.

28.There were no other witnesses to the Accident.

Was there an independent lifeline at the time of the Accident?

29.The most hotly disputed issue on liability was whether there was a lifeline provided. On this issue, the respective stance of the parties was as follows:

(1) P adopted her witness statement which set out the Accident as in paragraphs 26 – 27 hereinabove.

(2) D1 and D2’s case is that there was an independent lifeline provided. They deny that the independent lifeline was removed on 5 December 2015.

(3) There is no dispute that on 1 December 2015, 4 days before the alleged Accident, an inspection was carried out and 10 sets of independent lifelines were certified to have been in safe working order at Block 8 and Block 9 of Provident Centre.

(4) A photo produced by D1 and D2 was relied upon to show existence of an independent lifeline (the “Photo”). It is accepted that the Photo was taken about 3 hours after the Accident and after P had been taken to the hospital. There is little dispute that the Photo showed the location where the Accident occurred. The Photo only captured up to the 1^st floor of a building (agreed to be Block 8 of Provident Centre) with the scaffolds still up. One can see at the right-hand side of the Photo a portion of an independent lifeline hanging next to the scaffolding. The top of the independent lifeline was not shown in the Photo. The bottom end of the independent lifeline was not left hanging off the bottom portion of the scaffold, but was instead looped around the last two horizontal bamboos of the scaffolding. There is no other photo showing the independent lifeline all the way hanging from the top of the building.

30.I find that on the day of the Accident, there was no effective working lifeline provided at the Site for the following reasons:

(1) As P is interested in the outcome of the determination of whether there was a lifeline at the time of the Accident, I view her evidence with caution.

(2) In relation to the evidence of 萬福滿, as he had no recollection of whether the independent lifeline was present on the day of the Accident, his evidence in relation to a possible explanation of why the independent lifeline was removed is of little evidential value for the determination of the issue. Further, he might have motivation to not give a truthful answer as P is the mother of his children, even though he and P were divorced.

(3) 周振東is an ex-colleague of P. His evidence was that the independent lifeline had already been removed on the day of the Accident. In his oral evidence, 周振東 testified that a few days before 5 December 2015, the independent lifeline had already been removed, as only very few items of work were left to be finished. As to the portion of the lifeline seen in the Photo, 周振東explained that it was in fact the abandoned portion of the lifeline which had been cut from the top and was thus not in use.

(4) 趙均峰 did not directly say that he saw the existence of an independent lifeline on the day of the Accident. 趙均峰’s evidence is to rebut 周振東’s evidence: - that there was no practice for D1 or D2 to cut off old independent lifelines. Indeed, it was said that it would have been dangerous to do so as the independent lifeline was heavy, cutting it off from above and letting it fall would damage the scaffolding as well as the wall.

(5) 陳亞漢’s evidence was that the dismantling of the scaffolding at Block 8 of Provident Centre began on 1 December 2015. By 5 December 2015, only the scaffolding for the bottom 2 storeys were left. He recalled that P had not mentioned that there was anything wrong with the bamboos before the Accident. He also did not see any broken bamboos on the day. His evidence was that the independent lifeline was still there on the day of the Accident.

(6) As there are different versions of evidence on the issue, the credibility of the witnesses come into issue.

(7) Mr Ko submitted that周振東 is an unreliable witness as his oral evidence differs from his witness statement in some aspects. For example, When he was cross-examined on whether he had seen P having been moved by anyone, 周振東originally said that nobody had moved P between the time he found P lying on top of the bamboos and the time the ambulance came. Subsequently, after he was shown his witness statement, he corrected himself and said that “阿漢” (there is no dispute that this referred to 陳亞漢 although 周振東did not know his full name) had tied a random piece of rope to the rope on P’s safety harness and took pictures. Mr Ko criticized 周振東’s change in his answers and submitted that this was fabricated by 周振東to explain the independent lifeline as shown in the Photo.

(8) Despite this inconsistent answer, I find 周振東to be overall straightforward and truthful. Although he had given inconsistent answers sometimes, I accept his explanation that he did not remember all the details because the Accident had happened 8 years ago and neither the Accident nor the claim concerned him. I also take into account the fact that after he was shown paragraph 12 of his witness statement he immediately said that it was “阿漢” who had tied the rope onto P. The name of “阿漢” was not mentioned in the witness statement, yet 周振東could immediately refer to him as the person who had tied the rope onto P.

(9) Mr Ko also suggested to 周振東 that it was incredible to suggest that the lifeline had been cut in the middle and that the portion shown in the Photo was the part of the independent lifeline that had been cut and fallen off. This is because this practice is highly dangerous as the lifeline that had been cut might hit the wall, the windows or people underneath as it fell. 周振東 explained that it would not be dangerous as the area was fenced off and the lifeline would not hit the walls or windows. Upon questioning by the court as to the reason why the lifeline would be cut in the middle instead of collected from the top of a building, 周振東 explained that sometimes to save on effort, the lifeline would be cut in the middle as it would have been very heavy to retrieve it all the way from the top. Although this did not strictly comply with regulations, it did happen in reality. 周振東is only P’s ex-colleague. There is no suggestion that he has any self-interest or would otherwise stand to gain or lose from the outcome of the trial. I accept the evidence of 周振東 on this issue of the existence of a lifeline on the day of the Accident.

(10) 陳亞漢 is D3’s brother and an employee of D3 at the time of the Accident. His oral evidence was that he would inspect the independent lifeline and the scaffolding every day when walking pass them. His inspection was by way of glancing at them whilst walking by, as he was experienced enough. However, nowhere in his witness statement had he mentioned that he had in fact inspected the independent lifeline and found them to be in working order on the day of the Accident. I agree with Mr Shum that this issue is one of the most crucial issues in this trial. If 陳亞漢 had indeed carried out such inspection on the day, it would have been inconceivable that it would have been left out of his witness statement. 陳亞漢’s explanation for having missed out such piece of important information in his witness statement was that he could not remember clearly at the time. If that were indeed the case, there is no reason why he could now remember, 8 years having passed since the Accident. I reject his explanation and evidence in this regard.

(11) Throughout his oral evidence, 陳亞漢 was at pains to emphasise that there was a lifeline throughout the duration of the project at Block 8. At one point, when Mr Shum asked if he had gone to each of the 4 blocks (Blocks 8 – 12) every morning to inspect the lifelines, 陳亞漢’s answer was that there was no need to inspect as there was one previously for all blocks. This of course misses the point as there is no dispute that there was an independent lifeline on 1 December 2015, when it was inspected and certified. The dispute is whether there was one 4 days later, on the day of the Accident.

(12) Later in 陳亞漢’s evidence it transpired that across the whole façade of the whole width of the scaffolding at Block 8, there would be a row of independent lifelines, instead of just 1 to 2. This of course accords with common sense as multiple lifelines across the scaffolding would be necessary to enable the scaffolding workers to move across the scaffolding whilst working on different parts. The Form 7 certificate made on 1 December 2015 shows that as at 1 December 2015 when the independent lifelines were inspected and certification was made, there were in fact 10 sets of lifelines on Block 8 and 9. It was also 陳亞漢’s evidence during re-examination that there were 10 sets of the lifelines on the side of Block 8 that P was working at.

(13) However, the Photo does not show multiple sets of lifelines. Even assuming for the moment the portion of the lifeline shown in the Photo was hung all the way from the rooftop and was in working order, the Photo at best only showed 1 independent lifeline remaining 3 hours after the Accident. 陳亞漢’s witness statement states that from his memory, on the day of the Accident, there was one independent lifeline, rather than multiple lifelines. This is inconsistent with: i) his oral evidence that there were multiple independent lifelines on the day of the Accident, and ii) the certification on 1 December 2015 that there were 10 sets of independent lifelines for Blocks 8 and 9. There was no explanation on why all independent lifelines were removed except for the one left as seen in the Photo.

(14) I agree with Mr Shum that if the situation was, as alleged by 陳亞漢, that all 10 sets of independent lifelines had remained on Block 8 at the time of the Accident, given P informed 趙 均峰 that she had fallen off from the scaffolding whilst working without an independent lifeline, the first thing for D1 and D2 to do would be to take a photo either from the rooftop or across the façade of the scaffolding showing all 10 sets of independent lifelines in place. Instead, it was 陳亞漢’s evidence that he was not aware that anyone had gone to check the lifelines. Throughout the trial, there was no photo produced showing any independent lifeline being hung all the way from the roof.

(15) I therefore accept the evidence of P and 周振東 and reject 陳亞漢’s evidence that there was any independent lifeline on the day of the Accident. I find that on the day of the Accident, there was no independent lifeline for P when she was working on the scaffolding.

Did P fall? If so, how did P fall?

31.P’s evidence is that she fell from a height when the bamboo she stepped on broke and at the same time the bamboos at the intersection where the safety belt was anchored at also broke. No one else witnessed the fall. Ds put P to strict proof and contend that P simply slipped on top of the pile of bamboos on the ground and fell.

32.I find that P did fall from the scaffolding at a height when she was climbing down as the rain started, instead of slipping on top of the pile of bamboos on the ground for the following reasons:

(1) The accounts given by P to various people immediately after the Accident had been consistent:

(a) 周振東 and 萬福滿’s evidence were that they were told by P at around 1 pm and 3 pm respectively that she had fallen from the scaffolding. Both of them subsequently found P lying on a pile of bamboos.

(b) 趙均峰 was told by P at around 1:30 pm that she had fallen from the scaffolding and he found her lying on a pile of bamboos.

(c) 陳亞漢 was told by some workers at around 1:30 pm that P was involved in an accident and he found P lying on top of a pile of bamboos. In his oral evidence, he agreed that he had later learnt that P had claimed that she had fallen from the scaffolding.

(2) The version of events given by P to the medical personnel when she was admitted to the hospital immediately after the Accident was also that she had fallen from the scaffolding.

(3) P’s account of the Accident at subsequent medical follow-ups also consistently referred to her having fallen from height.

(4) I accept P’s evidence that at the time of the Accident she was dismantling the scaffolding on her own. I do not accept Mr Ko’s submission that P’s account of dismantling the bamboo scaffolding on her own was inherently improbable, and that P had not been instructed to dismantle the scaffolding. 陳亞漢accepted that the dismantling of all the remaining scaffolding was scheduled to be completed on that day, subject to the weather. I accept周振東’s and P’s evidence that on the day of the Accident, only the bottom part of the scaffolding was not yet dismantled and P was asked to dismantle the remaining scaffolding as soon as possible. There is also nothing improbable about P dropping the bamboo sticks onto the ground from where she was working at, which I find to be about 2-3 metres high (see below).

33.Although I find that P had fallen from the scaffolding, I find that P had slipped on the scaffolding leading to her fall rather than from the breakages of the bamboos for the following reasons:

(1) The discharge summary from Pamela Youde Nethersole Eastern Hospital (“PYNEH”) on 30 December 2015 recorded that P had fallen “from the scaffolding due to slippery floor”. This is contemporaneous evidence of what P’s account was after the Accident;

(2) This was repeated in the summary from the psychiatry notes of Yan Chai Hospital (“YCH”) dated 30 May 2016.

(3) There is no investigation or report on the broken bamboos. This would be highly unlikely if multiple of the bamboos broke and led to the Accident as suggested by P.

(4) There is also no corroboration from 周振東or 萬福滿 about the breaking of bamboos.

34.I therefore find that on a balance of probabilities P had slipped and fallen from the scaffolding.

Height from which P fell

35.I find that P had fallen from 2-3 metres instead of 2-3 storeys as claimed by P for the following reasons:

(1) During his oral evidence, 周振東said that the remaining scaffolding was about the height of the court room and the pile of bamboos on the ground was up to his neck. He also testified that the height from the top of the scaffolding and the top of the pile of bamboos on the ground was about 2 metres.

(2) The contemporaneous accident and emergency record after P was admitted into the hospital recorded that P “fell from 2 meters”.

(3) A progress note dated on 10 December 2015 also recorded that P “fell from height with scaffoldings” of around 2 metres.

(4) The account recorded by the psychiatric experts in their joint report also referred to P having fallen from a height of 2 metres onto a pile of bamboos.

(5) On the electrodiagnostic consultation report commissioned by P’s private doctor in the Hong Kong Sanatorium Hospital, it is recorded that P “fell from height of about 2 metres”.

(6) All the above medical records contradict P’s version of 2-3 storeys. I reject P’s evidence on this issue.

DO D1 AND D2 OWE DUTIES TO P?

36.D1 and D2 admit to being persons responsible for the Site and would be subject to the various statutory duties as pleaded by P.

NEGLIGENCE/BREACH OF DUTIES?

37.As I find that Ds had failed to provide an independent lifeline when P was working on the scaffolding, there can be little dispute that Ds had breached the statutory and common law duties as pleaded by P.

CONTRIBUTORY NEGLIGENCE

38.The evidence of 陳亞漢 was that on the day of the Accident, it had been raining and by lunch time, most of the scaffolding workers had left except for two, who had stayed to collect the bamboos.

39.周振東and P were the two remaining workers. 周振東’s evidence was that it started raining about 1 pm on the day of the Accident and he received a call from 周炳章instructing them to stop working. He then called P to ask her to stop work. It was at that time that he was told by P that she had fallen from the scaffolding.

40.P’s version was that it had only started raining at 1:30 – 2:00 pm, whereupon she started to climb down the Scaffolding to take cover.

41.Mr Ko submitted that P should not have worked on the scaffolding in the first place if the independent lifeline was not available. It is also contended that she should not have worked if the bamboos were wet.

42.Mr Shum relied on Chan Wing v. Chan Wai Hung[4] where it was said that:

“61. The burden of proof is on the defendant to prove that the plaintiff did not take reasonable care of himself and was negligent, thus contributing to his own injuries. The plaintiff would only be guilty of contributory negligence if he ought reasonably to have foreseen that he might hurt himself in acting the way he did…

62. If the plaintiff was simply getting on with the work he was told to perform with the inadequate equipment he was provided with, the court would be slow in putting any blame on him even if he is aware of the potential danger the inadequate equipment might cause. He would have had little choice but to get on with the work, short of stopping work altogether: Lau Chiu Wah v Kwong Kee Construction and Engineering Ltd, HCPI 581/1998 (Suffiad J, 28 April 2000), at para 46.

63. In the light of the obvious legislative purpose of the CSSR being to protect the workman, I find it appropriate to follow the approach adopted by Recorder Ronny FH Wong SC in Ng Wah Chun v Cheng Wing Chung & ors, HCPI 164/2001, 27 September 2002, where he adopted the dicta of Stephen Brown LJ in Denwood v Harrod:

‘When the accident is held to be caused primarily by a breach of statutory duty it has to be borne in mind that the protection afforded by the statutory requirement is one which is intended to cover inadvertence and even negligence and that it is important not to judge the actions of an honest workman too harshly’.”

43.Accordingly, Mr Shum submitted that as P was simply getting on with the work she was told to perform, the complaint laid against P is insufficient to find a case of contributory negligence against her.

44.At first, it may seem tempting to say that as P well knew about the importance of the independent lifeline, she should have refused to work when her request for the independent lifeline to be put back up was denied by Ds. However, one must be realistic to the inherent imbalance of bargaining power between Ds and P and the situation at the Site on the day of the Accident: the remaining scaffolding were scheduled to be dismantled on that day to make way for the next stage of the construction. P was asked to get on and finish the work. There was very little that P could have done short of stopping work altogether – this is not a realistic option for a manual worker who earns by the day.

45.As to the suggestion that P should not have got onto the scaffolding if the scaffolding were wet, I find such submission to be detached from reality. This is shown by the evidence of 陳亞漢. Although in his witness statement, it is said that there would be no scaffolding work during rainy days, after cross-examination, 陳亞漢 had to accept that he himself had in fact worked through various weather warnings issued by the Hong Kong Observatory, including strong monsoon signal and thunderstorm warning. He accepted that to say that scaffolding workers would not work whenever there is rain or any extreme weather warning is more of an ideal, which does not always happen in reality.

46.The cases relied upon by Mr Ko where contributory negligence had been established are cases where the plaintiffs could have done something more whilst carrying on with their work to reduce the damages sustained. In the present case, there is no suggestion that there was something else that P could have done other than refusing to work altogether. Those cases are therefore distinguished from the present case.

47.I therefore find that the fact that P had continued working on the scaffolding despite there being no independent lifelines and when the scaffolding was wet do not constitute contributory negligence.

QUANTUM

48.The plaintiff was 28 years old at the time of the Accident and is now 36. In Mr Shum’s written submissions, P claims total damages of HK$17,435,450:

Items		HK$
PSLA		600,000
Pre-trial loss of earnings +MPF		4,931,950
Post-trial loss of earnings + MPF		11,500,500
Loss of Earning Capacity		180,000
Miscellaneous special damages		205,000
Future medical expenses		18,000
	Total:	17,435,450

Injuries and medical treatments

49.P claims that she has suffered injuries as a result of the Accident. The following medical treatments were undertaken since the Accident:

(1) P was taken to the Accident & Emergency Department (“AED”) after the Accident on 5 December 2015. MRI for the whole spine showed osseous haemangiomata (T6 and L4) but there was no nerve or cord compression and no fracture. X-ray showed no fracture or dislocation. CT of the brain was unremarkable. MRI of brachial plexus was unremarkable and showed no evidence of nerve root avulsion injury of brachial plexus or denervation change of muscles around the shoulders. Electrodiagnostic test showed mild right median nerve entrapment at carpal tunnel without motor or sensory degeneration. There was no evidence of significant motor or sensory axonal degeneration of bilateral upper or lower limb peripheral nerve. The conclusion was similar of the MRI scan on 18 February 2016.

(2) P was discharged on 30 December 2015 and received regular follow up at the PYNEH and YCH. The follow-up on 9 March 2016 showed that P’s upper and lower limb power has improved. Her left upper limb and bilateral lower limb weakness had limited her ability in resuming duty. At the follow-up on 22 August 2016, there was an improving trend of her lower limb weakness. At the follow-up on 14 September 2018, P had residual symptoms of mild weakness in her right lower limb and residual weakness in the left fingers and thumb extension.

(3) P had an electrodiagnostic study performed at PYNEH on 23 November 2016 and at the Hong Kong Sanatorium & Hospital (“HKSH”) on 1 February 2016. The nerve conduction test screening by PYNEH of bilateral upper limbs and lower limbs was unremarkable. The electrodiagnostic study at the HKSH concluded that there was: a) mild right median nerve entrapment at the carpal tunnel level without motor or sensory axonal degeneration; b) reduced recruitment of motor units over the left posterior interosseous nerve distribution likely secondary to pain inhibition or partial neuropraxia; c) no evidence of significant motor or sensory axonal degeneration of bilateral upper and lower limb peripheral nerves was found. It was concluded that the prognosis for improvement of neurobiological function with improved pain control is favourable.

(4) P had received physiotherapy and occupational therapy during 2016 and 2017.

Joint Orthopaedic Report

50.The respective orthopaedic experts: Dr Wong for P and Dr Ko for Ds examined P on 21 June 2019. On the day of examination, P’s complaints were:

(1) Difficulty in extending the three fingers on the ulnar side;

(2) Pain over the ulnar dorsal side of the hand on exertion;

(3) Sense of give-way weakness in the right knee;

(4) Paresthesia (decreased touch sensation) in her right lateral lower leg as well as right lateral dorsal region of the foot.

51.X-ray was taken on the day of the joint examination, which showed no significant bony of soft tissue abnormality in her hands and lumbar spine except for mild decrease in lordosis.

52.Dr Ko and Dr Wong both opined that P suffered multiple sites contusion injury; neck and shoulder pain; bilateral lower limb weakness; left hand weakness with wrist drop. Both orthopaedic experts opined that such injuries were caused by the Accident.

53.Dr Wong further opined that P had sustained soft tissue contusion/sprain injury to her left elbow and lower back with probable neuropraxia to her left posterior interosseous nerve.

54.Dr Ko opined that P would have reached maximal medical improvement and static condition by November 2016. Dr Wong is of the opinion that all treatments received were appropriate, with no further medical intervention necessary.

55.Dr Ko and Dr Wong both opine that P should have no problem in managing her daily activities and enjoy sports and leisure activities as before the Accident.

56.However, Dr Ko is of the opinion that at the time of the joint examination, which was about 3.5 years from the Accident, the physical examination of P showed features of gross exaggeration, magnification and inconsistent findings:

(1) The complaint of left wrist drop and difficulty in extending the ulnar three fingers were unexplained, even accounting for anatomic distribution. There are no explanations to attribute to the radial nerve palsy or any cervical spine pathology.

(2) P had full passive range of motion of her ulnar three fingers. When asked to have active extension, P could mobilise her MCP joint of the ulnar three fingers 0-90 degrees with full extension; yet she demonstrated to have no active motion in the PIP joint and DIP joint movements. If she had genuine radial nerve palsy, it would almost be impossible that the electrodiagnostic studies could not identify any abnormality on both occasions (1 February 2016 and 23 November 2016).

(3) Dr Ko opined that even if P had some degree of partial neuropraxia after the Accident which resulted in some degree of wrist drop, she should have recovered by 6 months’ time. The electrodiagnostic study in November 2016 confirmed complete normal study in her bilateral upper limbs and lower limbs. Further, there is no explanation why P could not have active adduction and abduction of her fingers as radial nerve palsy would not lead to that. The fact that there is no small muscle wastage also showed that there should not be any weakness as claimed by P. There is also no muscle discrepancy, which meant that there is no disuse despite claims of left upper limb weakness, ulnar fingers drop and wrist drop for 3.5 years.

(4) In relation to the lower limb symptoms, P demonstrated extreme weakness in her right lower limb. However, Dr Ko is of the view that if there was really such poor motor power, obvious discrepancy in her muscle girth would be present but there wasn’t any discrepancy in her thigh and calf girth in both sides. The decreased sensation in her right lower limbs also cannot be supported by the MRI studies. The electrodiagnostic study on 23 November 2016 also confirmed no lower limb abnormality.

57.Dr Ko’s conclusion was that the findings of physical examination of P was inconsistent with the results from sophisticated investigations.

58.Dr Wong opined that P has recovered well and agreed that P’s inability to extend her fingers fully and her need to walk with a quadripod was more severe than expected. Dr Wong explained P’s “over-expression of signs and symptoms” by opining that it is plausible that it is not unusual for patients to have subjective altered sensation in the lower limb after a low back sprain injury.

59.In light of the unremarkable results from the various medical tests, Mr Shum relied on the case of Hung Sau Fung v Lai Ping Wai[5] and submitted that where a plaintiff has adopted a “sick role” so effectively that he had convinced himself that he was unable to resume any form of gainful employment, a tortfeasor would still be liable, as the tortfeasor must take a plaintiff as he finds him/her.

60.When considering whether a tortfeasor was responsible for losses that flowed from a plaintiff’s adoption of a sick role, paragraphs 56 – 58 of Hung Sau Fung are instructive:

“56. A distinction has to be drawn between conscious exaggeration or malingering, on the one hand, and unconscious exaggeration on the other. Malingering has been defined in DSM-IV-TR (4th ed., 2000) as:

‘… the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.’

57. Conscious exaggeration or malingering involves a deliberate decision by the claimant to feign his or her injuries or to deliberately pretend that they are worse than they actually are.

58. On the other hand, unconscious exaggeration may be totally unintended and may relate to a recognised psychiatric disorder such as somatic disorder, chronic pain disorder, or depression. If so, the tortfeasor is liable for the full consequences from the accident, albeit that they are wholly unexpected and unforeseen, for he must take his victim as he finds him. Where the exaggeration is due to an unconscious psychological reaction, the claimant will be entitled to recover the full extent of his or her loss and damage. Thus, in Digby v Essex County Council [1994] PIQR P53, Sir Thomas Bingham MR said at p.54:

‘The upshot of that report, therefore, is that the orthopaedic surgeon, subject to the possibility of the neurological explanation, concludes that there is no organic basis for the symptoms of which the plaintiff complains, and concludes that there is likely to be a functional overlay, that is, a genuine complaint by the patient and one for which there is no organic basis. It is, as I take it, clearly understood that functional overlay is something quite distinct from deliberate malingering and deliberate dishonest exaggeration.’

And in Ford v GKR Construction [2000] 1 WLR 1397, the Court of Appeal noted the following express finding of the Trial Judge:

‘I do not think that the [claimant] was deliberately lying. I think there is a failure on her part to recognise that there are times when she can do much more than she does, and in fact to recognise that on occasion she does do more for herself. I think there is force in the submission that once the [claimant] was regarded as limited in her capabilities it was easy for her to regard that as the norm, whereas in fact it may reflect the situation when she is at her worst. It is the nature of the illness that it fluctuates’.”

61.Whilst I accept the principles in Hung Sau Fung, I do not find P to have adopted a “sick role” in terms of her orthopaedic symptoms for the following reasons:

(1) People adopting sick roles are those who might subjectively experience pain where there is no organic basis or otherwise think that they are unable to carry out certain tasks or motions when there are no medical reasons why they are unable to do so. However, this is not P’s situation:

(a) P had full passive range of motion of her ulnar three fingers. When asked to have active extension, P could mobilise her MCP joint of the ulnar three fingers 0-90 degrees with full extension; yet she demonstrated to have no active motion in the PIP joint and DIP joint movements. This is thus not a consistent inability to have full motions due to subjective pain, but a selective display of motions on the part of P.

(b) If there was indeed left upper limb weakness, ulnar fingers drop and wrist drop for 3.5 years due to subjective pain, there would have been muscle discrepancy, as the subjective pain experienced would still affect the physical use of P’s fingers and wrists. However, no muscle discrepancy was shown which meant that there is no disuse of the various fingers as claimed.

(c) Similarly, if there was really extreme weakness as demonstrated by P in her right lower limb, obvious discrepancy in her muscle girth would be present but there wasn’t any discrepancy in P’s thigh and calf girth in both sides. This therefore shows that there was no difference in P’s use of both limbs and would thus refute any claim of subjective pain experienced.

(2) Dr Wong has on the other hand not explained how in these circumstances P’s alleged subjective pain can still be substantiated.

62.For the above reasons, I find that there was conscious exaggeration and malingering by P in relation to the orthopaedic symptoms. I prefer the expert evidence of Dr Ko and find that:

(1) the lower limb weakness, left wrist drop and paresthesia are no longer genuine symptoms;

(2) P would have reached maximal medical improvement and static condition by November 2016.

Ability to return to work - orthopaedic

63.In terms of P’s ability to return to work as a scaffolding worker, Dr Ko is of the view that P should be able to resume working by November 2016 with mild impairment of work efficiency and effectiveness. Dr Wong on the other hand opined that P would not be able to return to work as a scaffolder. On this issue, I prefer the opinion of Dr Wong for the following reasons:

(1) Dr Ko is of the view that there is a 1% whole person impairment for the possible residual right lower limb pain, weakness and numbness and possible residual left upper limb pain, weakness and numbness. Dr Wong on the other hand is of the view that there is a 4% total impairment due to left elbow, lower back and buttock sprain/contusion with partial neuropraxia of the left posterior interosseous nerve resulting in persistent left hand and fingers weakness and numbness, as well as lower limb altered sensation with associated weakness and pain.

(2) Despite the fact that I accept Dr Ko’s opinion that the remaining injuries suffered by P are minor, P’s job is of such a nature that even injuries or conditions of the mildest nature may put P’s life in danger when she is required to work at heights.

(3) It will not be fair for the court to conclude that P can return to her previous job as a scaffolder when she still experienced numbness and weakness, however mild those conditions maybe, as they may compromise her ability as a scaffolder.

Sick Leave - Orthopaedic

64.In relation to the amount of appropriate sick leave, sick leave certificates have been issued from 5 December 2015 – 28 February 2018. Dr Ko is of the opinion that sick leave for up to late November 2016 should have been adequate, when Dr Wong is of the opinion that all sick leave granted was reasonable and acceptable.

65.On this issue, I prefer the opinion of Dr Ko for the following reasons:

(1) The electrodiagnostic study performed at PYNEH on 23 November 2016 and at HKSH on 1 February 2016 showed unremarkable results at the nerve conduction test screening of bilateral upper limbs and lower limbs. The electrodiagnostic study at the HKSH concluded that there was: a) mild right median nerve entrapment at the carpal tunnel level without motor or sensory axonal degeneration; b) reduced recruitment of motor units over the left posterior interosseous nerve distribution likely secondary to pain inhibition or partial neuropraxia; c) no evidence of significant motor or sensory axonal degeneration of bilateral upper and lower limb peripheral nerves was found. It was concluded that the prognosis for improvement of neurobiological function with improved pain control is favourable.

(2) As at November 2016 therefore, P should have reached maximal medical improvement and static condition. I thus agree with Dr Ko that by late November 2016, P would have reached maximal medical improvement and static condition. Dr Wong has provided no concrete reasons for his opinion that all sick leave issued was reasonable.

66.I therefore find that sick leave from 5 December 2015 – 30 November 2016 to have been reasonable and appropriate.

Joint Psychiatric Report

67.P was examined jointly by her expert, Dr Chan, and Ds’ expert, Dr Fan on 10 July 2019. At the joint examination, P said that after the Accident, she experienced sleep onset insomnia and had repeated flashback of the Accident. She was depressed in mood and had crying bouts. She also had shortness of breath and anxiety. She would feel cold in rainy and cold days like the weather on the day of the Accident. She had suicidal ideation but no actual suicidal attempt.

68.Such psychiatric symptoms were not reported between 5 – 30 December 2015. On her psychiatric assessment on 10 December 2015, she was noted to be calm and relaxed, in a neutral mood with coherent and relevant speech. Sleep and appetite were normal with no suicidal or psychotic symptoms. No psychiatric follow-up was deemed necessary.

69.P was first noted to be emotional and tearful with suicidal thoughts at a physiotherapy session at YCH on 30 May 2016. She was admitted into the emergency Medicine Ward of YCH for Adjustment Disorder with depressive features with suicidal ideas. P was then assessed and reported to have turned increasingly depressed as she was pessimistic about the recovery of her lower limbs and left hand. She had poor sleep, poor appetite, social withdrawal and suicidal ideations.

70.P then attended follow-up sessions in Kwai Chung Hospital in 28 June 2016 and was diagnosed to have Severe Depressive Episode without Psychotic Symptoms and Post-traumatic Stress Disorder (“PTSD”). She was put on anti-depressants.

71.P also saw a private psychiatrist Dr Benjamin Lai on 23 July 2016 and was diagnosed to have PTSD and Depressive Illness. However, P did not take any of the prescribed medication nor did she attend any follow-up with Dr Lai.

72.Several major life events, including the passing away of her father, marriage to her boyfriend and a pre-term spontaneous delivery of a baby happened during 2016.

73.At the psychiatric follow-up on 20 December 2016, P was reported to be very irritable with compulsive behaviours developed. She had a suicidal attempt in December 2016 after arguing with her then husband.

74.In January 2017 she was assessed to be mentally unfit to take care of her baby, which stirred up emotions of worry, despair and anger. Her husband then quit his job and stayed home to help take care of the baby. This helped alleviate P’s moods and she was reported to be stable from March to May 2017.

75.P’s condition worsened again in May 2017 due to worsened relationship with the husband. P then found out about her unplanned pregnancy with twins in July 2017. Her mood remained stable between August to October 2017 despite the workload in taking care of two more new-borns. However, she was referred to the Intensive Care Team of Kwai Chung Hospital as she was considered a case at risk with many needs of high complexity requiring crisis intervention. P considered this as stigmatising and became uncooperative. She was noted to be emotionally very unstable during her psychiatric follow-up on 23 October 2017.

76.Between 23 November 2017 to 30 October 2018, P was reported to be normal in mood and could enjoy playing with and taking care of her children. However she was still pre-occupied with unhappy thoughts about the first child’s premature birth, unstable power supply and past injury. P had self-blaming thoughts of not being able to protect her daughter and she had loss of self-esteem.

77.At the joint examination, it was found that P’s mood was stable and neutral. No overt anxiety or depressive features could be observed. No suicidal idea was present. No psychotic feature was evident. P only became tearful when mentioning about her sleep problems and nightmares. There was no impaired cognitive function. P denied having abused substances in the past and denied any serious suicidal attempts.

78.Dr Fan is of the opinion that P suffers from Adjustment Disorder with prominent disturbance of other emptions. Dr Fan gave detailed explanations for his diagnosis. He opined that P displayed not only depressive symptoms, but also anxiety symptoms, tension symptoms, worry symptoms and anger symptoms. Dr Fan identified the stressful life events and significant life changes (the “10 Stressors”) and gave full explanation on how these are direct causes for P’s Adjustment Disorder, including:

(1) Slow recovery of physical illness and residual disabilities;

(2) Loss of leisure activities;

(3) Loss of working capacity owing to injury and disabilities;

(4) Worsening of financial situation;

(5) Unplanned pregnancy in April 2016;

(6) Housing problems;

(7) Pre-term delivery and physical problems of her first child;

(8) Relationship problems with husband;

(9) Unplanned twin pregnancy in May 2017; and

(10) Ongoing litigation over compensation for the Accident.

79.Dr Fan opined that a diagnosis of PTSD is not justified as the Accident fails to fulfil the diagnostic criteria that the stressful event of a situation must be of exceptionally threatening or catastrophic nature which is likely to cause pervasive distress in almost anyone. Dr Fan’s opinion is that most persons suffering from similar accidents certainly do not experience pervasive distress. Further, P’s symptoms are not closely and predominantly associated with the traumatic events but are more associated with the emergence and resolution of the various stressors identified.

80.The clinical progress of her psychiatric conditions revealed that P’s emotional disturbances and severity were closely related to the 10 Stressors and their resolution rather than to her treatment for PTSD.

81.Dr Chan on the other hand is of the view that P suffers from PTSD. P had been exposed to a stressful event, namely, the Accident. P had repeated flashbacks of the Accident and avoidance behaviour to bamboo scaffolding with significant anxiety, which was not present before the Accident. P has difficulty falling or staying in sleep. She is irritable, hypervigilant and had difficulty concentrating.

82.Dr Fan and Dr Chan are both of the opinion that there is no evidence of malingering of psychiatric symptoms by P. As such, I do not think it matters too much whether P’s psychiatric symptoms are labelled as an Adjustment Disorder (as advocated by Dr Fan) or as PTSD (as advocated by Dr Chan). The court will assess the quantum of damages based on P’s actual psychiatric conditions (if any).

Pre-Existing Psychiatric Condition

83.The investigations by the experts revealed that having had a difficult childhood, P had a history of polysubstance abuse since about 13 years old, including ketamine, ecstasy, cannabis and ice. P also had a pregnancy terminated in 2004. P was admitted compulsorily to Kwai Chung Hospital for 2 weeks in September 2004 for repeated suicidal attempts and self-injurious behaviours, including overdosing on hydrogen peroxide, Panadol and Midazolam, lacerating her wrists resulting in heavy bleeding leading to hypovolemic shock requiring resuscitation.

84.During her hospitalisation in 2004, she was diagnosed to have suffered from Emotionally Unstable Personality Disorder, Borderline Type and Adjustment Disorders with mixed disturbance of emotions and conduct. After discharge from Kwai Chung Hospital she had repeatedly defaulted in her follow-up sessions.

85.It is thus not disputed that P has pre-existing psychiatric conditions.

86.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^[6]. 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.

87.Dr Fan is of the opinion that none of the psychiatric symptoms was caused by the Accident. He opined that P was still acting under the influence of such abnormal behaviour pattern of her personality disorder which is pervasive, enduring and long standing in and nature and extent. This put her at a higher risk of suffering from adjustment disorders when she encounters stressful life events.

88.In particular, Dr Fan based his opinion on the following:

(1) The symptoms and signs of adjustment disorders usually occur within one month of occurrence of the relevant stressful life event or significant life changes.

(2) P had not reported any psychiatric symptoms during her hospitalisation from 5 – 30 December 2015.

(3) P reported normal sleep and appetite when she was assessed by the psychiatrist on 10 December 2015. No psychiatric diagnosis was made and no follow-up was ordered.

(4) No psychiatric complaints were mentioned when P attended the physiotherapy and occupational therapy sessions. The first objective records of psychiatric symptoms were noted on 30 May 2016 with onset in March 2016.

(5) Symptoms and signs of the adjustment disorder is not temporally related to the Accident. There is no objective evidence that P suffered from any psychiatric injuries in the first 4-5 months after the Accident.

89.Based on Dr Fan’s opinion, Mr Ko submitted that there is a strong possibility that the occurrence of any stressful life events or significant life changes to P may lead to a relapse P’s adjustment disorders, therefore P’s pre-existing conditions fall within category 2. Mr Ko further submitted that P’s psychiatric conditions as displayed were not caused by the Accident but by her pre-existing psychiatric conditions. As such, there should be a 100% reduction for her psychiatric injuries in assessing the quantum of damages.

90.Dr Chan on the other hand has not opined on whether the pre-existing condition had any bearing on P’s psychiatric status.

91.Whilst I agree that the court needs to take into account P’s history of psychiatric conditions, I do not agree with Dr Fan that none of the psychiatric symptoms was caused by the Accident. Dr Fan explained in paragraph 85 of the joint psychiatric report that the symptoms experienced by P were closely related to the 10 Stressors. Out of these 10 Stressors, it can be seen that at least half of them related to the Accident:

(1) Slow recovery of physical illness and residual disabilities – this referred to P’s injuries caused by the Accident;

(2) Loss of leisure activities – this was alleged by P to be the case after the Accident;

(3) Loss of working capacity owing to injury and disabilities – the inability to work was directly caused by the Accident;

(4) Worsening of financial situation – the injuries caused by the Accident had meant that P was prevented from earning the relatively high salary as a scaffolding worker;

(5) Ongoing litigation over compensation for the Accident – this stressor is a direct consequence of the Accident.

92.As these stressors were directly or indirectly related to the Accident, it is thus difficult to see why Dr Fan came to the conclusion that none of the psychiatric symptoms suffered by P is caused by the Accident.

93.Further, the fact that there was at first no complaint of psychiatric condition during the first few months after the Accident does not necessarily mean that the psychiatric symptoms are unrelated to the Accident. As seen from the above 5 stressors, their effect would not be apparent until the effects of such stressors dawned on P.

94.I am of the view that whilst P’s pre-Accident psychiatric conditions may have made P more pre-disposed to the development of psychiatric conditions, the Accident and the related stressors caused by the Accident have certainly contributed to P’s current psychiatric symptoms.

95.Whilst Mr Ko had submitted that there should be a 100% reduction in the assessment of damages relating to P’s pre-existing psychiatric conditions, Mr Shum contended that there should not be any reduction. Neither formulation is helpful, as it is apparent that P’s psychiatric symptoms are both caused by her pre-existing psychiatric disposition as well as the Accident. Drawing support from the 10 Stressors identified by Dr Fan, and that 5 of which can be said to be completely unrelated to the Accident (unplanned pregnancy in May 2016 and in 2017, housing issue, pre-term delivery in 2016, and relationship problems) and taking into the account of the likely severity of each of the relevant stressors, I come to the conclusion that a 30% reduction in damages is appropriate, to take into account P’s pre-existing psychiatric conditions and the existence of other stressors in life which contributed to P’s current psychiatric conditions.

Sick Leave - Psychiatric

96.Dr Fan is of the opinion that no sick leave ought to have been granted as the psychiatric injuries were not caused by the Accident. Dr Chan is of the view that sick leave for 6 – 9 months due to PTSD is deemed reasonable. As I have rejected Dr Fan’s opinion that P’s psychiatric conditions are not attributable to the Accident, I prefer Dr Chan’s opinion in this regard and find that 9 months of sick leave to be appropriate (concurrent with the sick leave for P’s orthopaedic conditions).

Ability to return to work - psychiatric

97.Both experts are of the view that P could take up alternative employment requiring much less physical labour, such as cashier or shop assistants.

Pain, Suffering and Loss of Amenities (“PSLA”)

98.Damages for non-pecuniary loss such as PSLA should, as a matter of general principle be fair and reasonable with regard to social, economic and industrial conditions in Hong Kong[7].

99.I have not relied solely on the percentage impairment of the whole person as the main ground for selecting comparable awards as it might be misleading. Instead, I have taken into account the following factors[8]:

(1) total loss, or impairment, of a limb or other specific part of the body, or impairment of the body as a whole;

(2) the shock of the injury, sometimes followed by neurosis;

(3) physical pain at the time of the injury, during surgical operations, and perhaps during the rest of life;

(4) mental distress;

(5) inability to look after the bodily needs of life;

(6) disfigurement, by scars or mutilation;

(7) loss of the joys of life, such as sports, recreation, music, or the mere ability to walk about.

100.Both the orthopaedic experts opined that P could participate in recreational sports and hobbies. Likewise, the orthopaedic experts are of the view that P should have no major difficulty with daily living and activities. I have already rejected Mr Shum’s “sick role” argument in relation to P’s orthopaedic injuries. Therefore, there is nothing to support P’s bare assertion that she could not return to her previous recreational and sport activities due to her orthopaedic conditions.

101.In terms of P’s psychiatric conditions on the other hand, neither expert is of the opinion that the psychiatric condition suffered by P was fake. Dr Fan is of the opinion that P’s adjustment disorder would not affect her daily activities whilst Dr Wong is of the view that P’s PTSD would affect her daily living activities significantly. It is difficult to reconcile Dr Fan’s opinion with his view that long term clinical psychological service for P’s avoidance and compulsive behaviours are recommended, especially when P’s psychiatric conditions are not challenged. I prefer Dr Wong’s opinion in this regard and find that P’s daily living activities are affected by her psychiatric conditions.

102.Both counsel referred the court to cases said to be of comparable facts. The cases relied upon by Mr Shum are cases relating to orthopaedic injuries much more serious than P’s conditions, as found by me. As such, they are of little assistance as I find that P’s injuries do not fall within the “Serious Injury” category.

103.The following cases quoted by Mr Ko are more similar to the type of injuries as found in the present case:

(1) In Chan Ying Wai v Secretary for Justice for and on behalf of Commissioner of Correctional Services[9], the plaintiff in the course of his employment descended the stairway and slipped and fell down about 4 steps of stairs due to the wet and slippery surface of the same caused by rain. He landed on his buttock and back. He was diagnosed with simple back contusion without bony injury and/or neurological complication, without any clinical support. The Court awarded HK$160,000 for PSLA. – The present case is different in that P suffers from psychiatric conditions as well.

(2) In Tsang Yee Man v Chanel Hong Kong Limited[10], the folding chair on which the plaintiff sat broke and collapsed and she fell to the ground with alleged pain and swelling of left foot, ankle and heel. The learned master accepted expert orthopaedic evidence that soft tissue sprain injury was caused with good if not excellent prognosis, but plantar fasciitis could not have been caused by the mechanism of the injury at the accident; it was also accepted that the plaintiff could have developed symptoms of adjustment disorder due to ankle injury but it was likely that she only suffered mild residual psychiatric symptoms; appropriate sick leave would be 5-6 months; damages for PSLA were awarded in the sum of $150,000.

(3) In Lai Sin Yan Elsie v Tata Communications (Hong Kong) Ltd[11], the plaintiff suffered superficial (subcutaneous) contusion of the sacro-coccygeal and left buttock region and mild adjustment disorder with depression, as a result of her fall while playing teambuilding games. An award of HK$150,000 was made for PSLA.

104.Comparing the present case with the cases relied upon by Mr Ko, I find that although P’s orthopaedic injuries might not be in the serious category, the manner in which P suffered her injuries was more traumatic (falling from a height of 2 – 3 metres). It is also not disputed that P suffers from psychiatric conditions.

105.Taking into account the amount awarded in the above cases and the distinguishing features as noted, together with inflation, I am of the view that an appropriate award for PSLA in the present case should be HK$220,000. Applying a discount of 30% for pre-existing conditions, the sum awarded under the head of PSLA is HK$154,000.

Pre-trial loss of earnings and MPF

Monthly Income

106.P claims that at the time of the Accident, she earned a monthly salary of HK$61,000. In her witness statement, she elaborated that she would earn HK$2,000 for every day of work (“一工”) and if she worked in both day shift and night shift, her daily income might be around HK$3,400 to 6,000.

107.P has produced the certificate of employment and receipts issued by Kon Kee Engineering Limited (“Kon Kee”) covering only 3 months (September – November 2015) in support of her claim. The receipts indicate that P received HK$60,000, HK$62,000 and HK$44,000 respectively in September, October and November 2015 as shown in the table:

Month	Amount
September 2015	HK$60,000 for 30 days
October 2015	HK$62,000 for 31 days
November 2015	HK$44,000 for 22 days

108.If one only takes into account the figures produced for these three months, one would arrive at a monthly average of HK$55,333.

109.Mr Ko sought to challenge the daily wage of P by showing the data of the average daily wages of a bamboo scaffolder engaged in Public Sector Construction projects as reported by main contractors for December 2015 to be HK$1,706.

110.Mr Ko also challenged that it was not possible for P to have worked all month with no holidays and through the rainy days in September and October. P had explained that she had always wanted to earn more money and would therefore work even during holidays. She also chose to work for Kon Kee for the precise reason that she would be able to carry work indoors when it rained, e.g. doing preparatory works such as collecting and organising the bamboos, cutting metal wires in preparation etc. Therefore, even though it rained, she could continue to earn if she had carried out such indoor works.

111.The employer’s return of remuneration and pensions (the “Employers’ Return”) submitted by various employers for P indicated a total of HK$144,420 was received by P for the year 2013 – 2014 (average of HK$12,035 per month). The Employers’ Return for the year 2014 – 2015 indicated that a total of HK$175,000 was received by P (average of HK$14,583 per month). No Employers’ Return had been filed with the Inland Revenue Department (the “IRD”) for the year 2015 – 2016.

112.Based on the Employer’s Returns, Mr Ko urged the court not to adopt the figures as shown in the three months of salary receipts issued by Kon Kee to be the base figure for P’s monthly salary, but to adopt the figure of HK$14,600 per month as P’s monthly income.

113.The difference between P’s claimed figure of HK$61,000 per month and D1 and D2’s figure of HK$14,600 is more than 4-fold. It is therefore necessary to look at the evidence on the whole in order to determine the monthly income figure. In doing so, I have taken the following into account:

(1) P could only provide the three receipts from Kon Kee in support for her claim that her monthly income was HK$61,000. However, the letter dated 24 June 2016 from the IRD has made clear that no Employers’ Return for the year 2015 - 2016 had been submitted by any employer. Mr Ko submitted that this throws the authenticity of Kon Kee’s 3 receipts into doubt, as it is a criminal offence for employers not to report the salaries paid to workers.

(2) However, D1 and D2 had not previously disputed the authenticity of the Kon Kee receipts, and as such, I do not think it is fair for Mr Ko to criticise P for not calling the maker of these receipts only during his closing submissions. There is nothing on the face of the Kon Kee receipts that suggest that they are forged. I accept that Kon Kee had made payments to P for those three months in the total of HK$166,000.

(3) However, I am not prepared to arrive at an average monthly income only based on the amount received by P in these three months. As shown from these receipts alone, there is clearly a fluctuation month by month in terms of P’s income.

(4) The Employers’ Return for the two years (2013 – 2014 and 2014 – 2015) prior to the Accident showed an average monthly income of HK$12,035 and HK$14,583 respectively. I place great weight on these evidence as they are independent contemporaneous documents.

(5) In a table of monthly income filled out by P and submitted to the Labour Department for purposes of claim, P had only filled out the amount of income received from Kon Kee for September – November 2015 (the “Claim Form”). It is not known why P would have left out the salary for the months of December 2014 to August 2015 blank in the Claim Form. However, that meant that there is no direct evidence on the level of income received by P for those 9 months in the 12-month period directly before the Accident.

(6) The minimal amount of of MPF contributions from 2013 – 2015 also does not support P’s claim of a monthly income of HK$61,000.

(7) Despite the relatively high amount of monthly income claimed, P’s bank account did not show any substantial amount of savings or deposits. P’s claim that she is a big spender who spent most of her monthly income is not substantiated by any details or evidence of such high spending. I bear in mind that before 2016, P has not yet given birth to her first child and was not yet married. The amount of expenses should therefore only be for herself.

(8) Despite P’s claim that she would work 30 – 31 days per month and would not take any statutory holidays or annual leave, such practice cannot be sustainable for extended periods, even if believed to have been the case for those 3 months that P has shown receipts for.

(9) I do not consider there to be sufficient evidential basis to make a finding that P’s average monthly income had increased drastically from HK$12,035 and HK$14,583 in the 2 years before the Accident to HK$55,333 in 2014 – 2015.

(10) In the absence of evidence in support of a consistent earning of HK$61,000 per month for more than 3 months, I am therefore only prepared to adopt HK$15,000 as P’s monthly income for the months of December 2014 to August 2015 (which had been left blank in the Claim Form). The average monthly income for the year immediately before the Accident from December 2014 to November 2015 would thus be (HK$15,000 x 9 + HK$60,000 + HK$62,000 + HK$44,000)/12 ≈ HK$25,090.

114.Based on the evidence, I find that P’s average monthly income prior to the Accident was about HK$25,090.

Sick Leave

115.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[12]; Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[13].

116.As discussed above, based on the opinions of the orthopaedic experts and the psychiatric experts, I find that sick leave from 5 December 2015 – 30 November 2016 to have been reasonable and appropriate for P’s orthopaedic conditions. As for P’s psychiatric conditions, I find that 9 months of sick leave from the onset of such conditions in March 2016 is appropriate (up to 30 November 2016). I therefore find that sick leave from 5 December 2015 – 30 November 2016 for both P’s orthopaedic and psychiatric conditions was appropriate.

117.Therefore the pre-trial loss of earnings plus MPF from the Accident to the end of sick leave would be: 5 December 2015 to 30 November 2016, that is (11.9 months) x HK$25,090 x 1.05 = HK$313,500.

118.P accepts that she would only be able to take on the work of a security guard or other sedentary jobs, fetching a monthly income of HK$15,000.

119.The pre-trial loss of earnings plus MPF from the end of sick leave to trial would therefore be: 1 December 2016 to 11 January 2024, that is (85.4 months) x (HK$25,090 – HK$15,000) x 1.05 = HK$904,770.

Post-trial loss of earnings and MPF

120.P is 36 years old at the time of trial. Mr Shum submitted that but for the Accident, P would have continued to work as a scaffolder to the retirement age of 65. Adopting a 2.5% discount rate, the multiplier should be 20.5 based on Table 10 of the Personal Injuries Table 2019.

121.Mr Ko on the other hand submitted that for a scaffolder, a retirement age of 60 should be adopted instead of 65, relying on Leung Siu Chun & Anor v China State Construction Engineering Corp.[14], where a multiplier of 14 was agreed.

122.I take into account the following when deciding on the multiplier:

(1) A scaffolder is a labour-intensive job which requires agility and strength, as it carries with it an inherent degree of danger associated with working at heights.

(2) P has had three children since the Accident, which may further reduce her ability to work as a scaffolder.

(3) P’s pre-disposition to the stressors affecting her psychological state would possibly also reduce the years that P would be able to work as a scaffolder.

123.I will thus agree with Mr Ko that a reduced multiplier of 14 should be adopted in the present case.

124.The post-trial loss of earnings would thus be: (HK$25,090 – HK$15,000) x 12 months x 14 x 1.05 = HK$1,779,876

Loss of Earning Capacity

125.The principles in making an award for loss of earning capacity are set out in Yu Kok Wing v Lee Tim Loi[15], citing Moeliker v A Reyrolle & Co Ltd[16]:

“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 p.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 at p.140, where Browne LJ dealt fully with this matter…’”

126.Having taken into account the situation of P, I accept Mr Shum’s submission that with the residual orthopaedic conditions (although mild) and psychiatric conditions that are suffered by P, she will likely suffer from a disadvantage in the employment market. I agree a sum equivalent to 12 months of post-trial earning of HK$15,000 (total of HK$180,000) is appropriate.

Special Damages

127.For special damages, I consider P to be entitled to:

(1) Travelling expenses at HK$2,000 (not disputed)

(2) Aids and Equipment at HK$3,000 (not disputed)

(3) Tonic Food at HK$10,000 – Despite a lack of receipts produced, I consider HK$10,000 to be reasonable for P to have spent on tonic food for her orthopaedic conditions.

(4) Medical expenses at HK$100,000 (HK$4,000 of which is not disputed) – Although I agree that in general and for majority of instances P can obtain medical assistance from the public sector, it would not unreasonable or inappropriate for P to consult psychiatrist in the private sector occasionally.

128.In total I would award HK$115,000 for special damages.

Interest

129.Interests will be awarded at 2% per annum for general damages for PSLA from the date of Writ to the date of Judgment.

130.On pre-trial loss of earnings and special damages, interests will be awarded at half the judgment rate from the date of the Accident to the date of judgment.

Summary

131.The quantum of damages as assessed is as follows:

Items		HK$
PSLA		220,000
Pre-trial loss of earnings +MPF		1,218,270
Post-trial loss of earnings + MPF		1,779,876
Loss of Earning Capacity		180,000
Miscellaneous special damages		115,000
		3,513,146
	Less
	Pre-existing condition at 30%	- (1,053,944)
	EC compensation	- (950,000)
	Total:	1,509,202

ORDER

132.There will be judgment to the plaintiff for HK$1,509,202 against all defendants.

133.There will be a costs order nisi that the defendants do pay the plaintiff her costs of this action to be taxed if not agreed. The plaintiff’s own costs 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.

134.I thank Mr Shum and Mr Ko for their assistance.

Mr Erik Shum, instructed by Lau & Chan, assigned by Director of Legal Aid, for the plaintiff

Mr Tony Ko and Mr Hung Kin, instructed by W.H. Chik & Co, for the 1^st and 2^nd defendants

The 3^rd defendant, acting in person, absent