Gurung Jagat v. Dragages Hong Kong Ltd and Another

HCPI 501/2020

[2025] HKCFI 418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 501 OF 2020

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JUDGMENT

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A.  Introduction and Undisputed Background

1.The Plaintiff (“P”) was a gantry crane operator at a construction site (“the Site”). It was not seriously disputed that although P was employed as a gantry crane operator, 40% of his duties included helping with other manual work at the Site when there was no gantry crane to operate.

2.The 1^st Defendant (“D1”) was P’s employer and the 2^nd Defendant (“D2”) was the main contractor of the Site.

3.On 7 December 2017, when P was dismantling a tower of scaffolding poles at the Site, his safety helmet and left shoulder was hit by a metal scaffolding pole falling from a height which caused him to fall to the ground landing on his right shoulder (“the Accident”).

4.He was taken to Tuen Mun Hospital (“TMH”) after the Accident and was hospitalized for 8 days. X-rays revealed that P suffered a right shoulder acromial clavicular joint (“ACJ”) dislocation of type V[1].

5.The medical report of Dr Chan Wai Ming (“Dr Chan”), P’s treating doctor at the Department of Orthopedics & Traumatology (“O&T”), dated 20 September 2018 (“Dr Chan’s Report”) recorded that treatment options including conservative management and operative intervention were discussed with P, and the benefits and risks of each option were explained to P. P opted for conservative management.

6.After discharge, P received 57 physiotherapy sessions and 22 occupational therapy sessions at TMH. He was granted sick leave from 7 December 2017 until 18 September 2018 (286 days in total).

7.P was 37 years old at the time of the Accident and his average monthly earnings was HK$30,685. After the Accident, P did not return to work as a gantry crane operator but worked as a security guard since December 2018 earning around HK$15,000 a month.

8.Liability was admitted by the Defendants (“Ds”) on 3 October 2024, leaving only quantum of damages to be assessed.

9.At the trial before me, Mr Wright, counsel, represented P and Mr Lim, counsel, represented Ds.

10.Notwithstanding the sums originally claimed in the Revised Statement of Damages, Mr Wright confirmed that P claims the following sums:

(1)  HK$300,000 for pain, suffering and loss of amenities (“PSLA”);

(2)  HK$1,762,533 for pre-trial loss of income;

(3)  HK$2,571,179 for post-trial loss of income;

(4)  HK$7,976 for special damages; and

(5)  HK$150,000 for loss of earning capacity.

After giving credit for the amount of HK$460,000 received in his Employees’ Compensation Claim (“ECC Award”), P claims a total of HK$4,331,688.

11.Mr Lim, submitted that P should only be awarded: (1) HK$180,000 for PSLA; (2) HK$378,173.75 as pre-trial loss of earnings during the sick leave period and allowing 2.5 months for P to find a job; (3) HK$7,976 for special damages; and (4) HK$100,000 for loss of earning capacity. No award for loss of earnings after the sick leave period and a period for finding a job (2.5 months) should be granted as P failed to mitigate loss by unreasonably refusing to undergo operative treatment which would have enabled him to return to his pre-accident work. After deducting the ECC Award, a total of HK$206,149.75 should be awarded to P.

12.Three joint medical reports on P dated 30 December 2020 (“JMR1”), 4 July 2022 (“JMR2”) and 5 November 2024 (“JMR3”) (collectively, “JMRs”) were prepared by Dr Fu Wai Kee (“Dr Fu”), P’s expert, and Dr Peter Ko Put Shui (“Dr Ko”), Ds’ expert.

13.P, Dr Fu and Dr Ko attended the trial to give evidence.

B.  Assessment of credibility of witnesses

14.In assessing the credibility of the witnesses, I will bear in mind the guidance of Deputy High Court Judge Eugene Fung SC in Hui Cheung Fai and Another v Daiwa Development Ltd and Others (unreported), HCA 1734/2009, 8 April 2014 at §§77-82:

“ 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: e.g. 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)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

‘ Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.”

15.Furthermore, because the Accident and treatments received by P took place over 7 years ago, I would also take heed of the observations of the English Court of Appeal in NatWest Markets Plc and another v Bilta (UK) Ltd (In Liquidation) [2021] EWCA Civ 680 at §§49-51:

“ 49. In a case such as the present, where the events in question took place over 9 years before the trial and occurred in a narrow period of around 3 weeks, the salutary warnings about the recollections of witnesses in Gestmin SGPS SA v Credit Suisse UK Ltd [2015] EWHC 3560 at [22] and Blue v Ashley [2017] EWHC 1928 at [68] are pertinent. It was therefore of paramount importance for the Judge to test that evidence against the contemporaneous documents and known or probable facts if and to the extent that it was possible to do so.

50. We say, ‘if and to the extent that it was possible to do so’, because it is important to bear in mind that there may be situations in which the approach advocated in Gestmin will not be open to a judge, or, even if it is, will be of limited assistance. There may simply be no, or no relevant, contemporaneous documents, and, even if there are, the documents themselves may be ambivalent or otherwise insufficiently helpful. The case could be one about an oral promise which turns entirely on the word of one person against another’s, and the uncontested facts may well not point towards A’s version of events being any more plausible than B’s. …

51. Faced with documentary lacunae of this nature, the judge has little choice but to fall back on considerations such as the overall plausibility of the evidence; the consistency or inconsistency of the behaviour of the witness and other individuals with the witness’s version of events; supporting or adverse inferences to be drawn from other documents; and the judge’s assessment of the witness’s credibility, including his or her impression of how they performed in the witness box, especially when their version of events was challenged in cross-examination. Provided that the judge is alive to the dangers of honest but mistaken reconstruction of events, and factors in the passage of time when making his or her assessment of a witness by reference to those matters, in a case of that nature it will rarely be appropriate for an appellate court to second-guess that assessment.”

C.  My assessment of P’s credibility

16.In Mr Lim’s closing submissions, he submitted that P was not a witness of truth. He relied upon a number of matters which he submitted were lies or exaggeration.

17.Firstly, Mr Lim submitted that P’s account of what advice he received from Dr Chan was not truthful. In P’s witness statement, it was stated:

“ I had had a conversation with my treating document about the course of treatment that might be best for me. He told me that there were two choices – an operation or ‘conservative treatment’ which he explained would include physiotherapy and occupational therapy. He said that was no guarantee that if I had the operation it would completely ‘correct’ the dislocation and that there were always risks with an operation. Alternatively, if I had the conservative treatment there would, of course, be no operation risk and I stood a chance of making a good recovery. I decided that I would take the conservative treatment.”

18.Mr Lim submitted that P’s oral evidence was very different. In cross-examination, when he asked whether he clarified with Dr Chan what were the risks of operation, he said Dr Chan told him that his hand might shrink, he might not be able to move the hand or the sensation in the hand might be gone. When ask if he also asked Dr Chan how serious was the risk, P said that Dr Chan said it was a serious risk and there was a high risk.

19.I do not accept that there was a great discrepancy between P’s oral evidence and his witness statement. At most, P has expanded on or elaborated on the type of risks and the likelihood of the risks when asked by Mr Lim in cross-examination. The fact that he was advised of the risks is stated in his witness statement and is consistent with Dr Chan’s Report. Although Dr Chan did not state in details what were the risks and the likelihood of the risks, one would not expect Dr Chan to have recorded them in his records.

20.Mr Lim also relied on the evidence he elicited from cross-examination of Dr Fu that although there was a risk for operative intervention of ACJ injuries of shrunken hand, inability to move the hand and loss of sensation if nerves were damaged during the operation, it was a small risk. He submitted that this contradicted P’s evidence. I am unable to find that P lied about this part of his evidence when: (a) it is not inherently improbable; (b) it is not directly contradicted by the contemporaneous records i.e. Dr Chan’s Report; and (c) the assessment of the risk by Dr Fu and the advice that he might have given may not be shared by Dr Chan who was not called by Ds to contradict P’s evidence. With respect, I do accept Mr Lim’s submissions that there was some duty on P’s part to call Dr Chan and an adverse inference should be drawn from the failure to do so, as to strengthen Ds’ case. It is well established that the court may be entitled to draw adverse inference from the absence or silence of a witness who might have expected to have material evidence to give on an issue where there is some evidence adduced by the opposite party on the question which raises a prima facie case. However, in the present case, there is no evidential basis for Mr Lim’s assertion that Dr Chan would not and did not so advised P.

21.Secondly, Mr Lim relied upon P’s oral evidence that he returned to see Dr Chan on 18 September 2018 and again around 1 year later or within a year in 2019 to complain that he has not made good recovery. As I understand Mr Lim’s submissions, if P did not go back to Dr Chan to complain this shows that Dr Chan never advised him that he stood a good chance of recovery by opting for conservative treatment. Mr Lim submitted that P’s oral testimony that he had complained to Dr Chan on those two occasions is contradicted by: (a) Dr Chan’s Report which did not mention any follow up on 18 September 2018; and (b) JMR1 which recorded that P did not have further medical follow up after the last follow up in September 2018.

22.However, it is not entirely clear from P’s evidence if on the occasions that he said that he went to complain to Dr Chan these were at follow-up sessions. Furthermore, bearing in mind the passage of time and there may be inaccuracies with translation, although this part of his evidence may be mistaken, it could well have been an honest mistake on the part of P.

23.Thirdly, Mr Lim relied on Dr Ko’s views expressed in JMR1 and JMR2 that P exaggerated or underperformed in the joint examination on 10 November 2020 (“Joint Examination”). Dr Ko had relied upon the following matters:

(1)  In the last assessment by Wyman Wong (“Wong”), the occupational therapist, on 29 August 2018, P presented with 130 degrees abduction and in the last assessment on 7 September 2018, Ko Wa Chun (“Ko”), the physiotherapist found 120 degrees active range of motion and 130 degrees passive range of motion of the right shoulder. However, the range of motion recorded at the Joint Examination was only 100 degrees for abduction;

(2)  In the Joint Examination, P demonstrated decreased touch sensation in the right whole lower limb from the shoulder joint down to fingertips by 20% which had never previously been recorded and could not have any direct causal relationship with alleged accident. In JMR2, Dr Fu agreed that there was no definite organic cause to explain the decreased sensation and there should be no genuine loss of sensation as the nerves are still intact; and

(3)  The left side Jamar Handgrip Test showed typical bell-shape curve but the right side showed inverted bell-shape curve which represented a degree of manipulation/exaggeration. If P had such degree of weakness of only lifting weight by 2-3 kgf for 2-3 minutes, obvious and significant muscle wasting in the right arm and forearm should be present but was not found. Although there was wasting of supraspinatus muscle in the shoulder girdle, it should not approached to the degree of only grade 4/5.

24.Dr Fu disagreed that there was manipulation or exaggeration. He opined that the deterioration in the range of movement and power since the occupational and physiotherapy sessions were completed is not uncommon due to lack of exercise and fear of pain. P’s underperformance may also be explained because he was nervous or under pressure.

25.Given that Dr Fu and Dr Ko were agreed that for this kind of serious dislocation if treated conservatively there would be residual pain, weakness and stiffness, and the explanations by Dr Ko appear reasonable to me, I am not prepared to accept Dr Ko’s view that there was obvious underperformance/exaggeration at the Joint Examination. It accords with common sense that without continued exercise (which P has said he no longer swim and play volleyball due to pain) or occupational therapy and/or physiotherapy, the range of movement and strength of muscles would decline particularly when pain is reported. Even if I was wrong, accepting some degree of exaggeration in the Joint Examination, this is only one matter I will bear in mind in assessing P’s credibility.

26.Fourthly, Mr Lim submitted that P’s claim that he looked for a job as a gantry crane operator was a lie when he claimed his right thumb was weak and he could not use the remote control to operate a gantry crane. In his supplemental witness statement, P had set out 7 construction companies he had approached for a job as a gantry crane operator. He admitted in cross-examination that the reason why he did so was that his lawyers asked him to do so. I do not regard there is anything much in this point. The fact he made attempts to look for a job upon legal advice probably to demonstrate that he was no longer employable in his previous job does not undermine his credibility. The fact that he did so and was not able to find a job is not inherently incredible.

27.Finally, Mr Lim submitted that P’s claim that sex was less enjoyable after injury was an egregious example of exaggeration and that he evasive when cross-examined on this. Having observed P, I did not find P an evasive witness but on this particular topic plainly he was embarrassed by being cross-examined in open court before strangers and a female judge. There is also nothing in this point.

28.Overall, the matters relied upon by Mr Lim whether on taken on its own or cumulatively do not materially dent P’s credibility. I find P generally a credible and reliable witness although I will bear in mind he has obvious self-interest in the outcome of this assessment to overstate his injuries. In any event, I would place greatest weight on the contemporaneous documents, the objective clinical findings and undisputed reports of the doctors.

D.  My findings on P’s injuries, treatment and conditions, and ability to return to his previous job

29.From the undisputed medical evidence, the following matters were not controversial and should be taken as my findings of fact:

(1)  P attended the Accident & Emergency Department of TMH on the day of the Accident. His chief complaint was right shoulder injury and head injury. He also complained of headache and dizziness;

(2)  On physical examination, he was conscious and alert. There were local tenderness and swelling over the right ACJ. The range of motion was diminished. The circulation and sensation of right upper limb were intact;

(3)  X-ray of right shoulder showed that P suffered right ACJ dislocation of type V;

(4)  He was admitted to the O&T ward of TMH for further management;

(5)  Dr Chan discussed with P the treatment options including conservative management and operative intervention with P. After the benefits and risks of each option were explained, P opted for conservative management;

(6)  P was discharged from TMH on 14 December 2017;

(7)  Following discharge, P received conservative treatment with analgesics, physiotherapy and occupational therapy. After the 57 sessions of physiotherapy sessions (from 19 September 2017 to 7 September 2018) and 22 occupational therapy sessions (from 11 May 2018 to 29 August 2018), at the last physiotherapy and occupational therapy session there were improvement in pain and range of movement of the right shoulder:

(a)  On the last assessment by Ko on 7 September 2018, subjective assessment of pain over the right shoulder was reduced from 10 out of 10 to 8 out of 10, and the active range of motion of his right shoulder improved compared to the initial assessment on 19 December 2017 from 0 degree to 130 degrees. His right and left hand grip strength were 22 kg and 40 kg respectively; and

(b)  On the last assessment with Wong on 29 August 2018, P presented with 125 degrees forward flexion (improved from 95 degrees from the initial assessment), 130 degrees abduction (improved from 100 degrees), 30 degrees in external rotation and internal rotation with hand reaching buttock. Grip power were 24 kgf (right) and 40 kgf (left)[2]. In the initial assessment, the grip power for right side was 12kgf. He tolerated below shoulder reaching with his right upper limb with breaks, gripping exercises and lateral pinching exercises with his right hand with breaks. He could not sustain in work simulated pressing the button of the remote control with shaking and decreased power of right hand noted. He complained of right shoulder pain. He was ranked as not match with job demands;

(8)  At the follow-up on 4 September 2018 with Dr Chan, P still complained of residual pain, stiffness and weakness;

(9)  P was assessed by Dr Fu and Dr Ko on 10 November 2020. P’s clinical picture was compatible with the diagnosis of dislocation of right ACJ. They found:

(a)  There was a mild decrease in ROM in right shoulder and moderate decrease in abduction to only 100 degrees;

(b)  There was mild wasting in the supraspinatus muscle in the shoulder;

(c)  Despite the reported decrease sensation in the right upper limb, there should be no genuine loss of sensation as P’s nerves are still intact;

(10)  The sick leave period granted was appropriate for P’s condition and the treatment received by P;

(11)  P should be independent in activities of daily living; and

(12)  Surgical intervention is no longer a realistic option for P.

30.Although Dr Ko maintained: (1) operative treatment, which is the usual treatment, would have given superior functional outcome and better physical performance compared to conservative treatment for type V ACJ dislocation; and (2) there were obvious features of underperformance/exaggeration of his stiffness and weakness, both of which were disagreed by Dr Fu, Dr Ko accepted that mild residual pain, stiffness and weakness may be present and is not unexpected for this degree of ACJ dislocation with conservative treatment.

31.Furthermore, Dr Ko accepted that from the anatomy point of view, the ACJ dislocation will not be reduced in the future and would only persist. In these circumstances, at the very least the experts are agreed that P suffered from mild pain, stiffness and weakness in the right shoulder as a result of the ACJ dislocation which remains and persists.

32.Dr Fu and Dr Ko also disagreed from the objective findings from the Joint Examination whether P was able to return to his pre-injury occupation as gantry crane operator.

33.Dr Fu opined that P cannot return to his original work that required frequent climbing and heavy lifting. He opined that with the current pain, weakness and stiffness, P will have some difficulty in overhead activities and excessive movement of shoulder. His view is consistent with the occupational therapist who had worked with P over 22 sessions, did exercises which simulated his previous job demands and reached the view that P was not ranked as match with those job demands because of his right shoulder pain, inadequate right shoulder range and strength.

34.On the other hand, Dr Ko opined that P could resume his job as a crane operator with probably mild impairment at his work efficiency and effectiveness after 8 to 9 months after the Accident. In JMR1, he stated that “there is no indication, especially considering his objective physical findings by physiotherapy and occupational therapy in Aug/Sept 2018 and also the present objective parameters from the present physical examination findings, to suggest/recommend [P] to change to work in other jobs with ‘lighter’ or ‘less’ physical demand.” With respect, I do not understand on what basis Dr Ko can say there was no indication from the findings of the physiotherapist and occupational therapists to recommend P to change his job to those with lighter duties. Wong explicitly stated in his report that P was ranked as not match with job demands and work resettlement information was given to P. Dr Chan’s Report also stated that, “Occupational assessment suggested that the patient’s capacity was not match with previous job demands. The clinical progress was static and work settlement was introduced for change of job”.

35.Besides, based on Dr Ko’s acceptance that P would suffer mild pain, stiffness and weakness in his shoulder and that he would have mild impairment in his work efficiency and effectiveness, I cannot accept his opinion that P could have resumed his previous job as a gantry crane operator, which included doing manual work on a construction site which involved lifting heavy objects and climbing. I would prefer Dr Fu’s and Wong’s views in this respect.

E.  Whether P failed to mitigate loss by not opting for operative intervention

36.Dr Fu opined that the non-operative management of the ACJ dislocation received by P was acceptable. From his knowledge and the literature review, he opined both operation and conservative treatment were acceptable modality of treatment. He did not agree with Dr Ko’s opinion that operative treatment has superior result for serious ACJ dislocation.

37.On the other hand, Dr Ko opined that from the academic literature and clinical experience, surgical intervention would give better functional outcome for better physical performance. By declining operative intervention and opting for conservative treatment, this played a significant role in his present residual, pain, stiffness and weakness. This is not agreed with by Dr Fu who opined that there should not be significant difference from P’s current condition even if he had received surgery provided the surgery did not have any complication. The only significant difference was the cosmetics.

38.It seems to me that the difference in opinion between both experts amply illustrates their agreement that there are controversies over the best treatment for type V ACJ dislocation. Although Dr Ko has said operative treatment is the generally accepted method for active healthy patients with type V ACJ dislocation and P ticked all his boxes (right patient, right timing, right technique and right surgeon available at TMH), he has not gone so far to say that Dr Chan should have only recommended operative intervention. If that had been the case, and I accepted that view, there might be some basis to find that the refusal by P would have been unreasonable when that was the recommended treatment.

39.Moreover, Dr Ko rightly stated in the JMR3 that there was no way he can verify the facts and veracity of what Dr Chan had discussed with P about the course of treatment. However, he further confirmed in cross-examination by Mr Wright that the advice given by Dr Chan was the standard or template advice a treating doctor would give to P. He also agreed in JMR3 that the treating doctors should explain the pros and cons with the risks and benefits of the different options, and then the patient should be the one to decide. In cross-examination, Dr Ko further stated that he would not fault P for his choice of conservative treatment.

40.Furthermore, in answer to my query on the claimed better functional outcome of operation over conservative treatment (given Dr Ko’s opinion that P was able to return to his previous job even with conservative treatment), Dr Ko stated that P could perform his previous duties with say 60-70 marks but with surgery 80-90 marks. I think he made it clear that it was just a relative mark but the point he was making is that relatively speaking the functional outcome of surgery is better. He also confirmed that even with surgery, returning to his previous job would involve a certain degree of pain and discomfort.

41.In these circumstances, I do not find that Ds have satisfied their burden of proof that P had failed to mitigate his loss by unreasonably declining surgical intervention. It is undisputed that the burden on proving that P had unreasonably refused to undergo surgery lies on Ds. See Geest v Lansiquot [2003] 1 All ER 383 (PC) cited with approval in Ko Kam Wai v Sze Hak Fung trading as Chung Fung Company and another (unrep) HCPI 292/2005, 11 July 2006 at §64 per A Cheung J (as he then was).

42.In Luk Yee Lam v Livasari (unrep) HCPI 394/2002, 27 November 2003 at §§9, 11 and 12, Master Woolley explained in deciding whether the defendants have proved that the plaintiff had unreasonably refused operation, the court has to consider what is reasonable for a man with the plaintiff’s background, education and experience and to that extent the test must be partly subjective. In that case, for a man not highly educated (up to Form 3 in China) and trained in mechanics, the learned Master observed that it is inevitable that the risks of any surgical procedure offered are uppermost in his mind and unless clearly impressed upon him by a doctor that he trusts that those risks are minimal and the advantages outweigh them to a large degree, he could not say that it is unreasonable that he should decide not to take those risks.

43.In the present case, given that P was offered a choice of both options and the risks and benefits of each were explained, which the experts do not dispute was a proper and likely advice that he would have been given, in view of the P’s background (educated up to Grade 7 in Nepal, worked as a farmer before coming to Hong Kong and after that worked in construction sites) and having heard P’s explanation for his choice, I am not satisfied that Ds have discharged their burden to prove that P unreasonably refused to opt for operative intervention.

F.  PSLA

44.Mr Wright relied on the following of authorities to support an award of HK$300,000 for PSLA:

(1)  Lam Hing Choi v Yip King On and others (unrep) HCPI 263/2006, 20 March 2008. In that case, the plaintiff was a material handler working in construction sites. He was hit by an opening partition of a lorry against his upper arm which caused injuries to his right arm and index finger. Although his injuries were healed, according to the plaintiff’s doctor whose evidence the learned judge preferred, the plaintiff developed a post-traumatic frozen shoulder which caused him to suffer from shoulder pain and certain degree of wasting of muscle around the shoulder. With the persistent pain and restriction of movement in the right shoulder, he was not able to lift and transport heavy materials. An award of HK$150,000 was awarded in March 2008; and

(2)  Or Chun Kwong v Fu Sau Lun, Jason and others (unrep) HCPI 384/2005, 8 December 2006, the plaintiff was a self-employed night shift driver of public light bus. He suffered right shoulder ACJ subluxation and underwent 3 operations to re-align his dislocated ACJ. The medical experts found that the plaintiff should be able to return to his pre-injury job as a public light bus driver and there was only minor physical impairment or mild discomfort. Master J Wong awarded HK$200,000 in December 2006.

45.Mr Wright submitted that in the present case P’s injuries is slightly more severe than the above authorities, and taking inflation at approximately 2% per annum, HK$300,000 was a modest and appropriate award.

46.On the other hand, Mr Lim relied on the following cases as comparable to the present case:

(1)  Yiu Yuen Yee v Johnson Cleaning Services Company Ltd [2019] HKDC 1110 where the plaintiff was a cleaner and had injured her shoulder when she was lifting concrete rubble. A MRI showed a full thickness tear of the supraspinatus tendon with moderate muscle atrophy and suspected superior labral tear. She underwent left shoulder arthroscopic cuff repair, superior labral repair and arthroscopic acromioplasty. Despite many sessions of occupational therapy and physiotherapy, she complained of residual pain (which the learned judge found was mild in nature since she only took pain killers about 2 times a month and there was no objective sign of muscle wasting) and numbness (which the experts found unlikely to be related to her left shoulder injury). An award of HK$150,000 was awarded for PSLA in August 2019 (which Mr Lim submitted should be adjusted to HK$174,000 taking into account inflation);

(2)  Limbu Jas Maya v HK Scafframe System Limited (unrep) DCPI 2790/2008, 20 May 2010 where the plaintiff was a general labourer and as a result of an accident suffered head and shoulder injuries. She suffered anterior dislocation of her right shoulder and received closed reduction, 15 sessions of physiotherapy and 7 sessions of occupational therapy. She was given 148 days sick leave and suffered residual stiffness and weakness. HH Judge Leung awarded HK$160,000 as PSLA in May 2010 (which Mr Lim submitted should be adjusted to HK$211,000 taking into account inflation); and

(3)  Chung Ho Ming v Chan Wai Yip and Kowloon Motor Bus Co (1933) Ltd [2023] 4 HKLRD 237, the plaintiff was a part-time chef who fell when climbing the staircase and suffered anterior dislocation of the left shoulder and massive rotator tear of tendon. He received closed reduction, physiotherapy and occupational therapy, but he still complained of residual left shoulder pain and weakness. A sum of HK$200,000 for PSLA was awarded but given that the learned judge found that the degeneration of his shoulder was pre-existing condition applied a 20% discount to that award in July 2023.

47.Although Mr Lim maintained in his closing submissions that HK$180,000 is appropriate had P had opted for surgery, in view of my findings that P had not unreasonably refused surgery, having regard to P’s injuries and on the basis of the authorities submitted to me, an award of HK$250,000 is appropriate.

G.  Pre-trial Loss of Earnings

48.Given that there was agreement that the period of sick leave was reasonable and additional time should be allowed for P to find a job, I would allow an award for full loss of earnings for 11 months: HK$30,685 x 1.05 (MPF) x 11 = HK$354,412.

49.As for loss of earnings up to trial (around 6 years and 2 months after the end of the sick leave plus the additional time for finding a job), given that I have found that P cannot return to his previous job and has not failed to mitigate his loss, I would allow partial loss of earnings up to trial being: (HK$30,685-HK$15,000) x 1.05 (MPF) x 74 (months) = HK$1,218,725.

50.The total pre-trial loss of earnings is therefore HK$1,573,137.

H.  Post-trial Loss of Earnings

51.It was not disputed that a multiplier of 13.01 should be adopted assuming normal retirement age of 60 for calculating post-trial loss of earnings. I would therefore award post-trial loss of earnings being: (HK$30,685-HK$15,000) x 1.05 (MPF) x 13.01 x 12 = HK$2,571,179.

I.  Loss of Future Earning Capacity

52.It was also not disputed that an award for loss of future earning capacity should be awarded.

53.Mr Wright submitted that the assessment and quantification of such an award is not an exact science. In Thapa Surendra v E W Cox Hong Kong Limited and Anor (unrep) HCPI 451/2009, 11 July 2011, Deputy High Court Judge Seagroatt (as he was then) held that one has to quantify the present value of the risk of future financial loss taking into account the degree of risk, when it may occur and all the facts which may affect the plaintiff’s chances of getting a job or equally well paid job. Whilst there is always an element of crystal-gazing, there must be a rational factual matrix against which the assessment must be made. The learned judge in that case had regard to the nature of the plaintiff’s injury, his overall condition and the limited type of work he can carry out, which indicate the risk of being unemployed for lengthy periods frequently, and of having to give up work before the normal time simply because he will become unemployable. A sum equivalent to 2 and half years of the plaintiff’s current salary was allowed. See §§46-48.

54.In the present case, having regard to P’s injuries and condition, the sort of work that he could be employed and the risk of being unemployed by reason of his injuries, I would award a sum of HK$150,000 which is around 10 months’ salary of a security guard.

J.  Special Damages

55.Special damages of HK$7,976 was agreed and is awarded.

K.  Conclusion and Orders

56.In summary, P is awarded:

(1)  HK$250,000 for PSLA;

(2)  HK$1,573,137 for pre-trial loss of earnings;

(3)  HK$2,571,179 for post-trial loss of earnings;

(4)  HK$150,000 for loss of future earning capacity;

(5)  HK$7,976 as special damages;

(6)  Less deduction of HK$460,000 on account of the ECC Award;

Total: HK$4,092,292.

57.I would award interest at 2% for PSLA from the date of the writ to date of judgment and for loss of earnings and special damages from the date of the Accident to date of judgment at half judgment rate and thereafter until payment at judgment rate.

58.As for costs, I would make the following costs order nisi which shall become absolute in the absence of any application to vary within 14 days from the date of handing down of this Judgment:

(1)  Ds shall pay the costs of this action (including any reserved costs) to P, to be taxed if not agreed; and

(2)  P’s own costs to be taxed in accordance with the Legal Aid Regulations.

59.Lastly, I thank counsel for their helpful assistance.

Mr John Wright, instructed by Krishnan & Tsang, for the Plaintiff

Mr Patrick Lim, instructed by Norton Rose Fulbright Hong Kong, for the 1^st and 2^nd Defendants