Tsoi Cheong Wang v. Ngai Sze Wai Trading As Lengend Design Engineering Company

DCPI 741/2023

[2025] HKDC 814

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 741 OF 2023

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JUDGMENT

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INTRODUCTION

1.This is the trial of the claim by the Plaintiff Mr Tsoi Cheong Wang (“P”) against his employer the Defendant (“D”) for damages for personal injuries arising out of an accident at work allegedly occurred to him on 8 May 2020 (“Accident”) when working on a construction site at Unit C, 4/F, 9 Broom Road, Happy Valley, Hong Kong (“Premises”).

2.Both liability and quantum are in issue.

3.P is the only factual witness called at trial. D has elected not to call any factual evidence.

4.At the closing submissions stage, D, represented by counsel Ms Percy Yue, conceded liability, but argued contributory negligence to the extent of 35-50% on the part of P.

5.P is represented by Mr Alexsander Wong of counsel.

LIABIITY

6.It is admitted that P was at all material times employed by D as a renovation/decoration painter (“油漆師傅”) working at the Premises.

The Accident

7.There is no dispute that on 8 May 2020 at around 4:00 pm, whilst P was in the course of work using a vacuum cleaner to clear wood debris around an electric circular saw (“Saw”), his left (L) hand came into contact with the revolving blade of the unguarded Saw. As a result, he suffered serious cut injuries to his L fingers.

P’s Case/Evidence

8.P’s evidence on liability, as stated in his witness statement dated 9 April 2024 and given in court, is as follows:-

(1)  He was aged 22 at the time of the Accident. He had about 2 years of experience working as a painter in renovation/decoration works, and had worked for D for about 9 months since August 2019 as at the time of the Accident;

(2)  On the day of the Accident on 8 May 2020, he was working with his supervisor Mr Mak (“Mak”) at the Premises;

(3)  At around 4:00 pm, P was instructed to pack and clean up for the day;

(4)  Mak noticed that the Saw was jammed and proceeded to examine it. He instructed P to clear the wood debris with a vacuum cleaner;

(5)  P never had any experience working with or handling the Saw at work. No instructions or safety precautions were ever provided to him or taught by D;

(6)  Mak switched on the Saw to examine the blockage. Meanwhile P was vacuuming the wood debris in the close vicinity of the Saw on the table;

(7)  The Saw was placed on the table at around hip to waist level. The unguarded semi-circular Saw protruded above the table and was revolving at a high speed;

(8)  P and Mak were standing on the opposite sides of the square table which measures about 2 ft x 2 ft odd (but P could not recall clearly). P therefore thought he and Mak were standing and facing each other at a distance of 2 feet odd;

(9)  P was vacuuming clean the wood debris with his right (R) hand on the table surface, and his L hand resting on the table for balance;

(10)  Mak suddenly started to lecture P on the reasons for the blockage of the Saw without first switching it off. P looked up and listened to Mak and his attention was distracted momentarily. Within a short time of no more than 10-15 seconds whilst listening to Mak, P’s L hand came into contact and was cut by the revolving blade of the Saw. As a result, P suffered serious cut injuries to his L fingers.

9.D did not adduce factual evidence to challenge P’s case. D’s counsel however seeks to attack the general credibility of P during cross-examination on following matters and argues that his account of the Accident should not be accepted:-

(1)  P’s complaints of worriedness and loss of sleep allegedly brought about by the L hand pain and disabilities suffered as a result of the Accident are untrue, there being no record of such complaints in any of the medical notes and records. He did not seek nor require any psychiatric treatment; and

(2)  The tax returns for tax years 2018/19 and 2019/20 signed and filed by P give income figures different from those provided by the employers.

10.P explained that when attending treatment and follow up, he was asked by the treating doctors only and had focused on his L fingers injuries, hence he did not mention nor report his other symptoms of worriedness/loss of sleep other than the L fingers injuries.

11.Regarding tax matters, P admitted that he had made mistakes in calculating his income and filling out the tax returns as he was ignorant and not familiar with tax matters. He denied making any deliberate attempts to understate his income as put to him by D’s counsel, and said that he would be willing to repay any outstanding tax.

12.I accept P’s explanations. In fact he had in the 2018/19 tax return stated an annual income higher than what his then employer IT Apparels Limited had reportedly paid him. I found him a frank, straightforward and credible witness on the matters in issue.

13.P’s evidence of the circumstances of the Accident is clear and firm, and unshaken during cross examination. His evidence on liability, not validly challenged, is accepted.

Liability of D

14.D through its counsel conceded liability at the closing submissions stage.

15.This is in my view a prudent step. I would no doubt on the evidence before this Court have come to the same conclusion on liability whether or not there was a concession on liability from D.

16.D as the employer had acted in clear breach of its non-delegable duty of care for exposing P to work in the close vicinity of the unguarded Saw in motion. The peril was accentuated by Mak talking to P in the course of the latter’s vacuum-cleaning work thereby diverting his attention. P being the subordinate, relatively young and inexperienced as well, would have no choice but look up and listen to Mak. The risk of injury to the hands was reasonably foreseeable, or even obvious.

17.I would have found D, being the employer, liable to P for causing the Accident based on common law negligence and breach of the implied terms of employment and section 7 of the Occupational Safety and Health Ordinance (Cap. 509) to provide him with a reasonably safe system of work as sued[1].

18.The plea of breaches under section 6A of the Factories and Industrial Undertakings Ordinance (Cap. 59) (“FIUO”) and its subsidiary regulations of the Factories and Industrial Undertakings (Woodworking Machinery) Regulations (Cap. 59G) is inappropriate as section 19 of the FIUO specifically provides that it does not confer a right of action in civil proceedings in respect of a failure to comply with, inter alia, section 6A.

Contributory Negligence

19.D’s pleaded particulars of contributory negligence against P for causing or contributing to the Accident can be summarised as follows[2]:-

(1)  Failing to switch off the Saw before cleaning;

(2)  Failing to prevent but recklessly and negligently allow his L hand to come into contact with the revolving blade of the Saw, knowing that the Saw had not been switched off;

(3)  Failing to keep any or any proper lookout, or to have any or any sufficient regard for his own safety when he was using a vacuum cleaner to clean the Saw in motion; and

(4)  In the premises, failing to take reasonable care for his own safety and to prevent the occurrence of the Accident.

20.In order to establish such failure and argue contributory negligence on the part of P, the burden is on D to prove that P had unreasonably done or omitted to do some act in the circumstances to such an extent that he could be said to have failed to exercise reasonable care for his own safety, and that it had resulted in or contributed to the occurrence of the Accident.

21.Such pleas of contributory negligence are in my view wholly inappropriate in the circumstances of the present case in that they have in effect delegated onto the employee the duty to devise a safe system of work, the provision of which should undoubtedly be part of the employer’s non-delegable duty.

22.First and foremost, it was not P’s duty to switch off the Saw. He never had experience of or instructions on working with the Saw. Mak was the one who was using/examining the Saw and switched it on after instructing P to do the vacuum cleaning.

23.The evidence shows that P had taken care in carrying out the vacuum-cleaning work initially, until his supervisor Mak talked to him about the reasons for the blockage of the Saw. P had then naturally responded by looking up to listen to Mak, and had his L hand come into contact with the revolving blade of the Saw.

24.In the circumstances, I am of the view that the cause of the Accident remains that of the Saw which was left unguarded and switched on by Mak after he had asked P to do the vacuum-cleaning work in the close vicinity of the unguarded revolving blade of the Saw, but not any act which P had committed or failed to do.

25.D’s counsel further argues that P was negligent in that he (i) had ignored the obvious hazard; (ii) was standing too close to the Saw without a legitimate reason; and (iii) allowed himself to be distracted instead of ensuring his L hand to remain in a safe position.

26.I have no hesitation rejecting these arguments. There is no question of P (i) ignoring the obvious hazard. He was instructed to work in the close vicinity of the unguarded Saw and was placed by Mak in the obvious hazard in the circumstances.

27.Particulars (ii) and (iii), apart from being not pleaded by D, are wholly unreasonable.

28.P admits that the Accident had occurred when his L hand came into contact inadvertently when his supervisor Mak suddenly began to talk to him/give him instructions regarding the blockage of the Saw. The distraction was originated from Mak who knew well the obvious danger he had placed P in, i.e. vacuum cleaning in the close vicinity of the unguarded Saw whilst it was in operation.

29.There is no question that D should be vicariously liable for the negligence of Mak in creating the obvious hazard (to borrow D’s words) and unsafe work environment/system and asked P to do the obviously dangerous work of cleaning the unguarded Saw whilst it was in operation.

30.P could not be faulted for standing by the side of the table (same as Mak) and close to the Saw, the legitimate reason being that he was told by Mak and had to stay close to the Saw in order to clean the area around it.

31.I accept P’s counsel Mr Wong’s submissions that a momentary lapse in attention or inadvertence of a worker, as opposed to deliberate taking of risks, should not constitute contributory negligence. See Sit Kan Tat v World Class Talent Ltd and Anor [2024] HKDC 420 at §61.

32.I have also considered the judgment of HHJ A Li in Alam Zafar v Cheuk Fung Engineering Co Ltd [2022] 5 HKLRD 978 at §§67–70 referred to by Mr Wong which highlights the court’s sentiments and sympathy over the risks to which employees are subject whilst carrying out their duties under the express instructions from the employer:-

“67. I think it is fair to say that over the years Hong Kong courts have developed our own jurisprudence on this subject and formed a judicial reluctance to readily make findings of contributory negligence against employees, particularly when they are forced to work in unsafe environment or injured due to lack of suitable equipment, instructions or supervision as in the circumstances of this case.

68. The judicial sympathy is based on their habitual carelessness about the risks that employees’ work may involve…

69. Further, when concluding no contributory negligence in the relatively old case of Tang Shau Tsan v Wealthy Construction Co Ltd [1999] HKLRD (Yrbk) 374 (HCPI 1092/1998, 2 December 1999), Deputy Judge Woolley also said at §14:

‘… one has to distinguish between a workman deliberately taking risks, possibly as a shortcut, where he is paid on piece work and wishes to achieve as much as possible in the time available, and one who is using the only method provided to do the best job he can.’

70. In the present case, the plaintiff seemed to have followed the express instructions from his employer while carrying out his duties. Moreover, the defendant’s allegation that the plaintiff fell all of a sudden does not in itself suggest a conclusion of any contributory negligence.”

[emphasis added]

33.On the present evidence, P is not shown to have unreasonably done or omitted to do some act that could be said to be causative of the Accident or would render him consciously accepting a risk of injury.

34.No case of contributory negligence is made out on the evidence. I find D wholly liable to P in this action.

QUANTUM

35.P was aged 22 at the time of the Accident and is now 27 years old.

36.He quit school after completing secondary Form 4 education and had worked as a salesman. He also worked part-time in renovation/decoration painting works, learning from and through working with experienced sifus. He switched to full-time renovation/decoration painting work for the much higher pay after working as a salesman for a year.

37.P’s case is that as a result of the serious L fingers cut injuries sustained in the Accident, he has suffered and will permanently suffer L hand functional impairment limiting heavy manual work capacity and dexterity of the L hand and fingers. He will never be able to resume his pre-accident job as a renovation/decoration painter.

P’s Claims

38.P’s claims herein as submitted by counsel for the parties in their closing submissions (on 100% liability basis) are summarised respectively as follows:-

	P’s case	D’s case
PSLA	$450,000	$300,000
Pre-trial loss of earnings & MPF	$706,227.11	$425,527.74
Loss of earning capacity	$162,000	$50,000
Future medical expenses	$20,000	nil
Misc expenses/ other special damages	$10,000	$11,283
Total:	$1,349,227.11	$786,810.74
[LESS] EC received:	[$354,240]
Nett:	$993,987.11	$432,570.74
	(plus interest)

Injuries, Treatment and Disabilities

39.Medical evidence on the injuries and treatment of P’s L hand injuries sustained in the Accident is not disputed.

40.In the Accident, P had 4 of his L hand fingers cut by the revolving blade of the Saw. He was admitted to the Accident and Emergency Department of the Pamela Youde Nethersole Eastern Hospital (“PYNEH”) for emergency operation of tendons and nerves repair and fracture fixation immediately after the Accident. He was hospitalised for 7 days before he was discharged home.

41.He was diagnosed to have sustained the following injuries:-

(1)  Left index finger (LIF): Complete cut of radial slip of flexor digitorum superficialis tendon, not requiring repair. Complete cut of radial neurovascular bundle, with digital nerve repaired. Radial collateral ligament of proximal interphalangeal joint injury;

(2)  Left middle finger (LMF): Complete cut of flexor tendons and radial neurovascular bundle, with tendons and digital nerve repaired. Radial collateral ligament and volar plate of proximal interphalangeal joint injury. Bone loss at head of proximal phalanx;

(3)  Left ring finger (LRF): Complete cut of radial slip of flexor digitorum superficialis tendon, not requiring repair. 50% cut of extensor tendon, repaired. Complete cut of radial neurovascular bundle. Radial collateral ligament of proximal interphalangeal joint injury. Bone loss at proximal radial aspect of middle phalanx;

(4)  Left little finger (LLF): 80% cut of extensor tendon.

42.P sought treatment and was referred to the Orthopaedics and Traumatology Department (“O&T”) of PYNEH, and later for physiotherapy and occupational therapy treatment.

43.He was referred to the O&T of Duchess of Kent Children’s Hospital (“DKCH”) in 9/2020. He had a further surgery on 21 December 2020 of fusion, tenolysis for flexors, re-rupture and reconstruction of tendons and was discharged the following day on 22 December 2020.

44.He defaulted O&T follow up at PYNEH after November 2020.

45.He attended further follow up, intensive physiotherapy and occupational therapy at DKCH and Queen Mary Hospital during the period from 8 January to 10 August 2021. He did not seek any other treatment after that.

46.Continuous sick leaves were granted by the treating doctors of the government hospitals and clinics from 8 May 2020 to 20 May 2021, i.e. a total of 12.5 months.

47.P was assessed on 11 June 2021 by the Medical Assessment Board to be suffering from 3.5% permanent loss of earning capacity (“LEC”) in respect of residual pain and stiffness of the 4 injured fingers of the L hand for the purposes of the employees’ compensation claim as set out in a Certificate of Assessment (Form 7) dated 25 June 2021. The sick leaves granted from the date of the Accident on 8 May 2020 up to 20 May 2021 were endorsed.

Medical Expert Evidence

48.Dr Patrick Wong (“Dr Wong”), specialist in orthopaedics, was engaged by the parties as a single joint expert (“SJE”). He examined P on 29 February 2024, i.e. almost 4 years after the Accident, and commissioned a SJE report dated 5 March 2024 (“SJE Report”)[3].

49.The SJE Report was ordered to be adduced in evidence at trial without calling Dr Wong for oral evidence. No challenge is made of his evidence.

50.Dr Wong examined P’s present condition and gives his opinions as follows[4]:-

(1)  P is right-hand dominant;

(2)  His L fingers injuries had long reached maximal medical improvement;

(3)  He still complains of residual L hand pain, stiffness and weakness over the L hand and injured fingers;

(4)  Examination showed reduced left forearm muscles as compared to the R forearm;

(5)  Range of movement of the L fingers is satisfactory, other than the joints of the LMF (which cannot be flexed at all);

(6)  Sensation of the radial side of LIF, LMF and LRF is mildly reduced;

(7)  Grip strength of the L hand is impaired and reduced by about 50% considering P is right-handed;

(8)  The findings are compatible with a reasonably satisfactory recovery with mild to moderate residues considering the severity and complexity of the L fingers injuries;

(9)  Functional use of the left hand for daily activities will be mildly impaired;

(10)  On work capacity, Dr Wong considers P not fit to return to full duties as a renovation/decoration painter. He has limited heavy manual capacity and impaired delicate fine handling. Alternatively, P should be able to perform other general work duties of light to moderate manual demand, or jobs not requiring use of both hands simultaneously in heavy duties or delicate tasks of the L hand and fingers with dexterity. P’s current job as a van driver is a suitable job for him;

(11)  The sick leaves granted from 8 May 2020 to 20 May 2021 are appropriate;

(12)  P does not require further treatment. There is no indication to remove the LMF bone fusion screw, as it is fully embedded within the bone in a satisfactory position;

(13)  P may consider a procedure of exploration of his LLF joint tender nodule to see if any retained stitch can be removed to improve scar tenderness. If P elects to have the surgery in the private sector, it can be done as a day-case under local anesthesia at the estimated cost of $20,000; and

(14)  Dr Wong opines that P suffers a total of 22% upper extremity impairment, equivalent to 13% whole person impairment. LEC is also estimated at 13%.

Analysis of the Medical Evidence/ Work Capacity

51.The overall medical evidence supports serious cut injuries of 4 fingers of the L hand requiring surgeries of tendons and nerves repair and fracture fixation, and 2 periods of hospitalisation.

52.P had a reasonably satisfactory recovery leaving permanent residual pain and stiffness of the L fingers, resulting in impaired grip strength and weight handling capacity. The residual disabilities are supported by objective evidence of wasting of muscles and reduced girth of the L forearm.

53.Upon challenge by D’s counsel that he had had a speedy recovery with mild residual disabilities only as he had defaulted follow up at PYNEH after November 2020 and did not require any treatment after August 2021, P replied that he had no time for lengthy treatment. Being the sole breadwinner of a young family of 4, with 2 young children, he had to resume work as soon as he could and work hard to feed the family.

54.Evidence reveals that despite the unfortunate Accident and his predicament, P has remained motivated and hardworking. Shortly after the Accident when he was incapacitated from working, he made good use of the time and took a one-year full time Diploma Yi Jin course from September 2020 to May 2021 at Caritas Institute of Community Education. He had hoped to explore the career path of social work.

55.As P recovered gradually from the L hand injuries and later realised that the path of a social work career would require lengthy periods of studies and higher education, he gave up the thought and made incessant efforts instead to find work and resumed working in different jobs until September 2022 when he commenced driving work. He has since remained in the job as a logistics truck driver until now.

56.I accept the evidence of P and SJE Dr Wong that P has as a result of the Accident been permanently incapacitated from resuming his pre-accident work as a renovation/decoration painter, or other jobs requiring high physical demand and dexterity of both hands.

Pain Suffering and Loss of Amenities (“PSLA”)

57.In assessing the appropriate award for PSLA, I have considered the authorities involving hand and fingers cut injuries submitted by both counsel.

58.I found the following cases in which awards for PSLA were made within a range of $250,000 to $350,000 comparable to P’s injuries in the present case:-

(1)  Ip Wing Cheong v Kam Lam trading as Kong Fung Decoration Works (unrep, DCPI 2457/2011, 30 July 2015): Left palm and fingers cut injuries requiring suturing, tendons repair, occupational therapy for 2 months, and about 3.5 months of sick leave. Residual numbness and stiffness in the little finger. Award for PSLA at $250,000;

(2)  Yiu Pau Yau v Co-ray Design & Construction Ltd (unrep, DCPI 864/2006, 3 May 2007): Serious cut injury to the left little finger severing tendons and nerves, resulting in permanent partial sensory loss and mild tenderness, and 6% impairment of the whole person. Award for PSLA at $200,000;

(3)  Tsui Kim Ming v Charter Form Co Ltd (unrep, HCPI 681/2001, 29 October 2002): A laceration of 4 cm of the left index finger, resulting in a deep cut of extensor tendon and fractures of the proximal and middle phalanges, requiring operations of tendon repair and fusion, 24 sessions of physiotherapy and 4 sessions of occupational therapy, leaving 6% impairment of the whole person. Award for PSLA at $350,000;

(4)  Bilal Muhammad v Law Kim Wah and Anor [2021] HKDC 1189 (unrep, 29 September 2021): Fractures of left 2^nd to 4^th fingers requiring operation, physiotherapy, occupational therapy and 217 days of sick leave. The plaintiff was able to perform an active grip and make near full fist apart from some stiffness in the middle and ring fingers. Award for PSLA at $300,000;

(5)  Chung Tat Ho v Au Hoi Lam Sub-contractor and Anor (unrep, HCPI 472/2003, 6 September 2004): Left index and middle fingers cut by a saw. Resulted in amputation of the left index finger above the proximal phalanx, leaving residual discomfort, pain and resulted osteoporosis. Award for PSLA at $350,000.

59.P’s left hand/fingers injuries in the present case are in my view more serious than those suffered by the plaintiffs in Ip Wing Cheong (supra), Yiu Pau Yau (supra) and Tsui Kim Ming (supra), comparable to those depicted in Bilal Muhammad (supra) and less serious than those of the plaintiff in Chung Tat Ho (supra).

60.Having considered the evidence and the abovecited authorities, taking also into account inflation since the judgments, I am of the view that an appropriate award for PSLA for P’s injuries and disabilities would be about $400,000.

Loss of Earnings and MPF Benefits

61.P’s pleaded pre-accident monthly earnings of $27,000 working as a renovation/decoration painter are agreed by D at trial.

62.D also agrees that P should be entitled to full loss of earnings and 5% MPF benefits during the sick leave period from the date of the Accident to 20 May 2021 (ie 378 days in total and as opined by Dr Wong to be appropriate), plus 3 months for finding alternative work, but minus the actual earnings of $16,732.26 in July and August 2021, as follows:-

$27,000 x 378/30 x 1.05 + $27,000 x 3 x 1.05 – $16,732.26

= $425,527.74

63.D argues that other than the above, no further loss of earnings should be allowed. P should by 5/2021 have recovered well enough to pursue his dream career, such as in the field of social work, earning comparable income as in pre-accident times and would not suffer further loss of earnings.

64.On the other hand, P claims for loss of earnings he actually suffered during the 28-month period from the date of the Accident to 9/2022, when he finally found and settled with new driving work and has been able to make income comparable to his pre-accident earnings.

65.P’s evidence, supported by documentary evidence including wage records and not challenged by D, on his post-accident work and earnings is as follows:-

(1)  Shortly after the Accident (when he was attending treatment and could not work due to the injuries), P enrolled in a full-time Diploma Yi Jin course in Social Service with Caritas Institute of Community Education. He was hoping to explore the possibility of a career in social work in future as it became clear that with his L hand injuries, he would not be able to resume the physically demanding work as a renovation painter which work requires both hands dexterity. He took the course during the period from 9/2020 to 5/2021;

(2)  It later transpired to P that it would be very difficult, if not impossible, for him to pursue social work given his inadequate educational background. He could not afford to pursue further studies as he had to work to support his young family. He tried to find other work;

(3)  He found a summer job with the Boys’ & Girls’ Clubs Association in 7-8/2021. After the contract ended, he could not find work for about 4 months despite numerous attempts;

(4)  During 1-8/2022, he took different part-time jobs with KFC, a sushi shop and HKSKH Lady MacLehose Centre, whenever work was available; and

(5)  Since 9/2022, he was introduced by a friend and commenced driving work as an employed truck driver in some logistics/transportation business. He worked hard and was able to make earnings comparable to those in the pre-accident times.

66.I accept that but for the Accident, P would have continued to work as a renovation painter making earnings of no less than $27,000 per month. His earnings would most likely have increased with time as he grew in experience in the work.

67.I found P a frank and motivated young man who had worked hard to support the living of his young family. I accept his evidence that he had made all attempts possible to find work, but was limited by his L hand disabilities suffered due to the Accident.

68.I reject D’s arguments that P had failed to mitigate his loss. I accept P’s case is that he had tried to do his utmost in taking studies to enrich and get himself prepared for future job hunting, but despite his incessant attempts and hard work, he was only able to make much reduced earnings from the different part-time jobs in the 2-year post-accident period until he commenced working as a truck driver in September 2022.

69.The alleged actual earnings of $80,201.89 received by P during the period from 7/2021 to 8/2022 (before he switched to driving work in September 2022), supported partly by documentary evidence of bank statements and tax records, are not disputed.

70.I accept the submissions of Mr Wong that P should be compensated fully in damages for pre-trial loss of earnings plus 5% MPF benefits for the entire sick leave period from the date of Accident on 8 May 2020 and up to 31 August 2022 (a total of 27.8 months), less his actual income, as follows:-

$27,000 x 27.8 x 1.05 - $80,201.89 = $707,928

71.P makes no claim for loss of earnings beyond August 2022, nor future loss of earnings.

Loss of Earning Capacity

72.P has commenced new driving work since September 2022 making earnings comparable to his pre-accident income.

73.However, in view of the permanent impaired work capacity by reason of the residual L hand and fingers disabilities to the extent of 13% whole person impairment as found by Dr Wong, P will never be able to resume internal fitting or painting works requiring moderate physical strength, grip power and dexterity of both hands. His work efficiency will be reduced.

74.He will no doubt suffer handicap as his choice of work will be restricted, and he will be disadvantaged in the labour market. His condition may be aggravated upon exertion at work and he may require rests upon prolonged driving or intermittent leave absence from work. An award under this head would be appropriate. (Frost v Palmer [1993] PIQR Q14)

75.The usual awards for loss of earning capacity range between $60,000 to $120,000 for mild to moderately serious injuries depending on the nature and extent of the injuries, personal circumstances of the injured worker, strenuousness of the alternative work, etc.

76.P is relatively young at age 27 currently. He will suffer handicap by reason of the L hand and fingers disabilities in the long working life ahead. I consider an award for loss of earning capacity representing about 6 months of earnings would be appropriate.

77.Bearing in mind that no provision for loss of earnings is made beyond 8/2022, I consider it not unreasonable to award damages for loss of earning capacity of a slightly generous figure of $140,000.

Other Special Damages/Misc Expenses

78.P’s claim for reimbursement of medical expenses in the sum of $5,000 is supported by receipts and is agreed.

79.The claim for travelling expenses of $2,000, though without receipt in support, is reasonably modest and is allowed. I found in fact the claim to be on the low side given P had attended more than 100 sessions of treatment and follow up in government hospitals and clinics in the year after the Accident.

80.As for the tonic food claim of $3,000, P’s evidence is that he had purchased and consumed health supplements and nutritious soups to assist recovery. There is no evidence of receipts or that the tonic food was required upon medical advice or it would assist recovery from the injuries sustained in the Accident (Kings Light v Lo Wai Keung [1994] 3 HKC 391 at §§44-50). I would allow $2,000 but no more for tonic food expenses.

81.I therefore make an award of $9,000 for reimbursement of medical, travelling and tonic food expenses incurred.

Future Medical Expenses

82.There is no medical evidence on the need for future medical treatment, apart from Dr Wong’s advice that P “can consider exploration of his left little finger DIPJ (distal interphalangeal joint) tender nodule to see if any retained stitch can be removed to improve the scar tenderness”[5]. The estimated cost of the procedure if done in the private setting would be $20,000 including post-operative care.

83.On that basis, P claims future medical expenses in the sum of $20,000.

84.Dr Wong’s evidence on the suggestion of an exploration procedure to the L little finger does not strike me to be a necessary or advisable treatment for enhancement or further improvement of L hand strength and functions.

85.In any event, P states in his witness statement[6] that he had no time or money to undergo the procedure as he had to work hard to support his family. There is no evidence that he intends to or will make arrangements for the procedure.

86.In the absence of evidence that the treatment or procedure is likely to take place in the near future, no claims for future medical expenses should be allowed. (See Lam Kwong Ting v Ho Yau Yuen & Anor [1990] 2 HKC 381)

Interest

87.Interest on PSLA is assessed at the usual rate of 2% p.a. from the date of the writ of summons to the date of judgment, thereafter at judgment rate until payment.

88.Interest on all pre-trial special damages is assessed at half of the judgment rate from the date of the Accident to the date of judgment, thereafter at judgment rate until payment.

Summary of Award

89.I summarise the award of P’s claims for common law damages as follows:-

PSLA	$400,000
Pre-trial loss of earnings and MPF	$707,928
Loss of earning capacity	$140,000
Other specials/ misc expenses	$9,000
Future medical expenses	nil
Total:	$1,256,928 ========
	(plus interest)

90.Giving credit for the employees’ compensation received by P from D, agreed in the sum of $354,240, the nett award of damages is thus $902,688 (plus interest).

ORDER

91.I therefore make an order that judgment be entered for P against D for damages in the sum of $902,688 plus interest.

92.Costs should follow the event. I make an order nisi that D should pay P the costs of this action, with certificate for counsel, to be taxed if not agreed.

93.P’s own costs should be taxed in accordance with the Legal Aid Regulations.

94.In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute.

95.Lastly, I thank counsel Mr Wong and Ms Yue for their assistance.

Mr Alexsander Wong, instructed by Messrs Ho & Associates, assigned by the Director of Legal Aid, for the plaintiff

Ms Percy Yue, instructed by Messrs Hoosenally & Neo, for the defendant