Tse Fuk Ping v. Tse Fuk Tong and Chan Yiu Tong Formerly Trading As Fat Kee Company and Another
Read the full judgment text of DCPI 1519/2022 on BabelCite. This District Court judgment was delivered on 9 September 2025.
1. This is the assessment of damages for the personal injuries sustained by the Plaintiff (“ P ”) in an accident happened in the course of his employment on 11 June 2019 (the “ Accident ”).
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DCPI 1519/2022 [2025] HKDC 1519 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 1519 OF 2022 ________________________ BETWEEN
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________________________ ASSESSMENT OF DAMAGES ________________________ A. Introduction 1.This is the assessment of damages for the personal injuries sustained by the Plaintiff (“P”) in an accident happened in the course of his employment on 11 June 2019 (the “Accident”). 2.Interlocutory judgment on liability was entered against the 1st Defendant (“D1”, who has been absent throughout) on 3 May 2023 leaving damages to be assessed. 3.The Employees Compensation Assistance Fund Board was joined on 20 September 2023 as the 2nd Defendant (the “Board”) pursuant to Section 25A of the Employees Compensation Assistance Ordinance (Cap 365) to defend on the issue of quantum as if it were in D1’s position. 4.In this regard, the Board’s role when participating in an existing action for damages was explained in Wo Chun Wah v Employees Compensation Assistance Fund Board (2019) 22 HKCFAR 495 at §§43-46. In short, the Board carries out a filtering or monitoring function to test P’s case so as to ensure that public resources are properly applied and not subject to abusive or unjustified claims. 5.In related employees’ compensation proceedings DCEC 1845/2020, P obtained an award of HK$830,513.60 plus interest (the “EC Award”) against D1[1]. B. Agreed background facts 6.I have been greatly assisted by both counsel who managed to prepare an Agreed Statement of Facts. The following background matters are mostly taken from that Statement. B1. P’s personal details and medical history 7.P was born on 15 December 1954. He is married with a daughter and a son. 8.Prior to the Accident, P has been (i) a smoker of an average of one pack of cigarettes per day and (ii) a drinker consuming on average a can of beer each day. 9.P had a medical history of hypertension, dyslipidemia (abnormal levels of lipids in bloodstream), ischemic stroke, carotid artery stenosis, deranged liver function, emphysema (shortness of breath), lung fibrosis and thyroid nodule. In this regard:
10.At the time of the Accident, P was working as a general labourer / home decoration worker engaged in, inter alia, carpentry, plastering and painting works at residential premises. To that end:
11.Parties are agreed that, prior to the Accident, P’s monthly income was HK$31,200 (ie HK$1,200 per day x 26 working days). B2. The Accident 12.On 11 June 2019 (ie when P was 64 years old), P met with the Accident whilst working for D1 as a casual / general labourer at a residential unit located in Flat B, 3rd Floor, Block 12, Wonderland Villas, 9 Wah King Hill Road, Kwai Chung. He was assisting in the repair of an aluminium window when he fell from the third floor of the building onto the ground level, thereby sustaining personal injuries. B3. Medical treatments received by P B3.1 Admittance to and discharge from PMH 13.Immediately after the Accident, P was taken to the Accident & Emergency Department of Princess Margaret Hospital (“PMH”):
14.On 13 June 2019, P was transferred to the general ward until he was discharged on 28 June 2019. During this period:
B3.2 Medical follow-ups 15.Between 15 July 2019 and 2 December 2019, P had regular orthopaedic follow-ups at PMH’s specialist outpatient clinic (“SOPC”). During this period:
16.Meanwhile:
17.Between 23 December 2019 to 9 June 2022, P had another round of orthopaedic follow-ups at NDH’s orthopaedic specialist clinic (“OSC”):
18.At P’s follow-up at the Department of Ophthalmology of Caritas Medical Centre on 18 March 2020, (i) the visual acuity of his right eye was 0.7 and that of his left eye was 0.6, and (ii) the slit lamp and dilated fundal examination as well as gonioscopy examination were normal. B3.3 Physiotherapy 19.Between 4 July 2019 to 3 February 2020, P attended 21 out-patient physiotherapy sessions at the Department of Physiotherapy of NDH, including electrotherapy, exercise therapy and gait training, during which:
20.Between 15 January 2021 to 22 April 2021:
B3.4 Occupational therapy 21.Between 8 July 2019 to 9 June 2020, P attended occupational therapy sessions at NDH for splintage and work rehabilitation programs. By the time of his discharge:
B3.5 Other medical consultations 22.Between 29 July 2019 and 17 October 2021, P visited the general out-patient clinic of NDH at Shek Wu Hui on a few occasions. During this period:
23.Between 11 August 2021 and 11 February 2022, P sought treatment from an orthopaedic specialist, Dr. Poon Tak Lun, for “Head injury, Sprain neck injury, fracture distal radius both sides, injury due to work accident”. B4. Sick Leave 24.Intermittent sick leave was granted to P in the period between 11 June 2019 and 11 February 2022, totalling 959 days. 25.P did not resume work after expiration of his sick leave period. B5. EC Board Assessment and Review 26.P was assessed by the EC Assessment Board. The assessment was subsequently reviewed. According to the Certificate of Review of Assessment:
C. Expert assessment 27.It is convenient at this juncture to set out the expert opinion of Dr Arthur Chiang, the single joint orthopaedic expert appointed by the parties. Dr Chiang assessed P on 9 November 2023 and prepared an expert report dated 5 March 2024[2]. There is no challenge from either party on the analysis and findings in Dr Chiang’s report. C1. Diagnoses 28.According to Dr Chiang, the diagnoses were, in summary:
29.Dr Chiang was of the view that these diagnoses were consistent with the mode of injury. C2. Pre-existing conditions 30.With respect to the wrists and right shoulder, there were no direct pre-existing conditions. 31.With respect to the cervical spine, there were multiple levels of degenerative changes with osteoarthritic apophyseal joints, anterior and posterior marginal osteophytes in various combinations at different levels, which were compatible with moderate degree of degenerative changes. 32.Dr Chiang took the view that some degree of on and off neck symptoms had been present before the injury. There was likely decreased endurance in performing prolonged and continuous heavy manual activities and an increased tendency of the degenerative changes to be aggravated by strain, sprain or contusion of the neck which might result in a period of exacerbation. 33.Dr Chiang opined that P’s neck condition fell into what is commonly known as Category II: without the neck injury, there was a strong possibility that other events or progression of the cervical spine degeneration would have brought about the onset of symptoms that resulted in the present state of the neck in about 5 to 7 years from the time of the injury. C3. Prognosis 34.Dr Chiang opined that the neck, both wrists and the right shoulder had reached maximal medical improvement. Specifically, Dr Chiang opined that (i)P’s neck and bilateral wrist fractures resulted in satisfactory recovery; (ii) the residues in the neck and right wrist were likely to be mild, whereas more residues were likely present in the left wrist but were likely to be still on the mild side; and (iii) the right shoulder was noted to have satisfactorily recovered. 35.Dr Chiang further observed that intra-articular fracture might give rise to late post-traumatic degenerative arthritis in the future. The chance of encountering this complication in the right wrist was about 5% and that for the left wrist was about 10 to 20%. C4. Disabilities and working capacity 36.Dr Chiang estimated that the whole person impairment was about 11%, contributed by (i) right wrist injury (3%), left wrist injury (4%) and neck injury (4%). I pause to note here that parties are in disagreement how the pre-existing conditions to the neck should be factored in and I will return to this question in Section H2 below. 37.The loss of earning capacity was also estimated to be about 11%. 38.Dr Chiang was of the view that P was unlikely to be able to return to the pre-injury job. The pre-existing degeneration might also have given rise to mild limitation in the pre-injury capacity. Instead, P should be able to take up some light duty work in the pre-injury job such as cleaning and on-and-off lifting of less heavy objects. If these jobs were not practically available, P was recommended to work as security guard, gas station attendant and in a selected cleaner’s job or waiter’s job without the need to lift very heavy objects. C5. Sick leave 39.Dr Chiang opined that the neck injury, bilateral wrist injury and frozen right shoulder had likely reached maximal medical improvement at some stage in the latter half of 2020, and the sick leave period could have ended before the end of 2020. 40.Whilst Dr Chiang was of the view that the 14 sessions in the second course of physiotherapy was not mandatory for the recovery, he stated that a half day sick leave may be given for each visit. D. Issues in dispute 41.By the time of closing submissions, the parties are able to narrow down their issues in dispute. The following matters are those that require my deliberation:
42.I record that the Board no longer takes issue that P is entitled to claim for (i) the cost of care of his wife in the sum of HK$30,000; and (ii) special damages in the sum of HK$27,553. The Board agrees that no deduction should be made for salaries tax since P had no assessable income after deductions and allowances. P also confirms that credit should be given for the EC Award regardless of whether he in fact received the sum of money. E. Factual witness and credibility 43.P is the only witness who gave oral evidence before me. I bear in mind the usual principles in assessing credibility. I take into account the inherent probabilities and the contemporaneous records and documents. In particular, I prefer to place weight on the medical records insofar as P’s oral evidence is inconsistent with them. This is also accepted by P in cross-examination. 44.Indeed, neither P nor the Board seeks to challenge the accuracy of the contents of the medical records and reports. 45.The Board has elected not to call any factual witness. F. PSLA 46.The extent of injuries suffered by P has been set out above. I also bear in mind the following matters:
47.Both counsel cited various authorities as comparables to show what an appropriate amount of PSLA should be. I have considered all of them and find the following to be helpful references. 48.In Wong Sun Ming v Chung Kam Tim t/a Viking Contractors Co (unreported, HCPI 117/1999, 6 July 2000), the plaintiff fell off a scaffolding, injuring his spine and right wrist. The medical evidence showed that the plaintiff suffered a fracture of his L2 vertebra and his right wrist. His complaints included discomfort over left shoulder, right elbow, wrist and back pain. The Court considered the injuries to fall below the “serious injury” category and awarded HK$330,000 for PSLA (§6). 49.In Yu Pun Yuen v Ng Kwok Man t/a East Mountain Engineering Co (unreported, HCPI 293/2002, 9 May 2003), the plaintiff fell off a ladder which was about 6 or 7 feet tall. As a result of the accident, the plaintiff suffered from fracture of the distal right radius and ulna in his right wrist. Further clinical diagnosis revealed a rotator cuff tear of the right shoulder. The major complaints of the plaintiff included pain, stiffness and weakness in the right shoulder and weakness of the right hand in gripping. The Court awarded HK$450,000 as damages for PSLA (§86). 50.In Bou Kwok Leung Timothy v Yuen Ming Sun (unreported, HCA 2706/1987, 9 June 1989), the plaintiff was met with a motor vehicle accident. He suffered multiple abrasions of the forehead, face, left side of back, chest and right arm and fractures of the cervical spine at C2 level, left clavicle, left scapula and left pubic bone. Cervical traction and conservative treatment were given and he was hospitalised for 7 weeks. He wore a clavicle brace for 6 months and continued to receive treatment for one year after the accident. More than 3 years after the accident, a healed compression fracture of L1 in the lumbar spine was discovered also to be attributable to the accident. Total impairment was assessed at 10% (§4). The Court awarded PSLA in the sum of HK$100,000, being around 75% of the lower bracket of the “serious injury” category at the time (§9). 51.In Ho Ho Ming v Tse Po Wah & Kwan Po Tim (unreported, HCPI 1168/2003, 25 September 2006), the plaintiff fell from a height of over 12 metres from a scaffolding. As a result of the accident, he sustained multiple fractures of left clavicle and 2nd to 6th ribs, laceration over the left parietal region of his head, swelling and tenderness over his left shoulder and almost complete loss of use of his left arm. The Court awarded HK$750,000 as damages for PSLA (§104). 52.Self-evidently, the present case is less serious than Ho Ho Ming (where the plaintiff’s left arm is almost completely lost of use). It is similar to Wong Sun Ming, and the extent of whole person impairment is comparable to Bou Kwok Leung Timothy (although Bou was not concerned with a wrist fracture). I would put the present case at around 80% of the lower end of the “serious category” (within the meaning of Lee Ting-lam v Leung Kam Ming [1980] HKLR 657). 53.In Cheung Ka Man v Wong Yu Huen [2023] 2 HKLRD 418, the PSLA brackets were revised after taking into account inflation. 54.Considering and balancing all factors, an appropriate award for PSLA should be HK$450,000 (subject to possible discount for pre-existing conditions, see Section H below). G. Pre-trial loss of earnings 55.The Accident happened when P was 64 years of age. The key question I need to decide is whether, but for the Accident, P would have worked (ie having both the physical ability and the intention to work) until 70 as he claims (and plainly he bears the burden of proof). P’s evidence is that he had wished to work until 70 when his son has graduated from university and is able to find a stable job. 56.On the other hand, the Board’s primary position is that P would have retired at 65 in any event. 57.I should mention at this juncture that the Board advances an alternative position (described as “Primary Position B” in the Board’s closing submissions) that P would not have worked past the expiry of the medical certificates in February 2022. This alternative however does not reflect what P would have intended but for the Accident – in this counterfactual situation, ex hypothesi there are no sick leave certificates, and there is no particular reason why P might wish to retire in February 2022 (when he was 67 years old). 58.Accordingly, the primary question I have to decide is whether P would have retired at 70 (ie in December 2024 as he claims) or 65 (as the Board suggests) if the Accident did not happen. 59.I acknowledge that under s 2 of the Mandatory Provident Fund Schemes Ordinance (Cap 485), “retirement age” is defined to mean 65 years of age (or earlier if the regulations so prescribe). Courts have sometimes observed that general labourers usually retire between the age of 60 and 65: eg Shauket Iqbal v Wampum Engineering Co[2024] HKDC 236 at §30. Nevertheless, I do not think it is a pure question of law as to when a person is to retire (or be treated to have retired for the purpose of assessing loss of income). Rather, it is a question of fact and evidence, taking into account the person’s intention, his/her physical condition (including any pre-existing conditions), the nature of the job duties and all the surrounding circumstances. 60.It will be recalled that P said that he would otherwise have retired at 70 after his son has graduated from university and is able to find a stable job. In this regard, P confirmed that his son was born in December 1999 and he attended the Hong Kong Metropolitan University which commanded annual tuition fees of more than $100,000 per year. He graduated in 2022 and started to work around a year later in 2023. 61.On the specific facts of this case, I accept P’s evidence that but for the Accident, he would have retired at 70. It is understandable for the main breadwinner of the family to wish to work until the next generation is reasonably settled in their employment. Mr Adrian Wong for the Board has tried his best to test P’s case in this regard, but in the eventual analysis the Board has no real material to discredit P’s subjective intentions. I will briefly deal with the Board’s arguments below. 62.First, the Board refers to P’s pre-existing conditions, which had likely led to (i)on and off neck pain before the Accident; (ii) decreased endurance in performing prolonged and continuous heavy manual duties; and (iii) increased tendency of aggravation by strain, sprain or contusion. This is coupled with P’s admission that his work involved lifting of heavy objects up to 45kg and that he was obliged to follow his employer’s commands and could not simply pick and choose to perform the less physically demanding tasks. P also agreed that relatively few people tend to continue working in his field after the age of 65 if the work nature involved plastering. I acknowledge that these are relevant considerations in deciding whether P would have the physical ability to continue working until 70 but for the Accident, but in my view a complete answer is given by Dr Chiang, who opined that even after the Accident the neck and wrists symptoms are likely to be “mild” or “on the mild side”, and without the Accident P would only have “on and off” pre-existing neck symptoms. I am satisfied that without the Accident, even if these symptoms were already present or would present themselves within P’s hypothetical working life, they would not be serious enough to have prevented P from working (and intending to work) until 70. 63.Second, there are medical notes whereby P was recorded to have informed the treating professionals that he would consider retirement if he was unable to resume his previous job (see eg the occupational therapy notes on 27 November 2019 and 19 December 2019, and the medical notes where P said he had no concrete job plans). I do not consider these matters to assist the Board, for the simple reason that these are post-Accident matters. P might have harboured an intention to retire after he was told that he may not be able to return to his previous job, but this goes nowhere to show his intentions but for the Accident. In my judgment, the medical note on 6 February 2020 recording that P “wanted to resume previous duty” reinforces P’s intention to work until 70 if he had not met with the Accident. 64.The same logic applies to (i) P’s reluctance to remove his wrist implants in December 2021 apparently because he was right-handed and “planned to retire” and (ii) the financial burden shouldered by P and his family (where they required loans from relatives and friends) as a result of the Accident. These do not shed light on his intentions but for the Accident. 65.Third, in §19 of Dr Chiang’s Report, it was noted that P had not resumed working after his sick leave had ended because he had passed the retirement age. In terms of inherent probabilities, this information most likely originated from P himself (and under cross-examination P did not deny that he may have told Dr Chiang about it). But this is at best equivocal; P may well mean that he did not work after the expiry of sick leave because he had passed a “newly intended” retirement age, with the meeting of the Accident and the news that he may not resume his previous job becoming known facts of his life. It did not indicate one way or another when he intended to retire without the Accident. 66.I accordingly find as a fact that P would have retired at 70 if the Accident did not happen. 67.That said, I accept Dr Chiang’s opinion that maximal medical improvement had likely been reached for P at some stage in the second half of 2020, such that his required sick leave should reasonably end before the end of 2020 (this is notwithstanding that the treating doctors kept providing sick leave until February 2022, and the parties agree that I am not bound by the sick leave certificates). Thereafter P could (and should for the purpose of mitigation) look for an alternative employment (as a security guard according to Dr Chiang). 68.In this connection:
69.For these reasons, I find that from 1 January 2021 onwards, P has failed to reasonably mitigate his losses and he is only entitled to partial loss of earnings (ie deducting what he could reasonably have earned as a security guard). I reject P’s argument that 3 extra months should be given as a “buffer” for him to secure an alternative employment. This is because P had already been advised in June 2020 (i) that he had achieved maximal medical recovery and (ii)that he would have to change to a job with lighter duties. He should have started to look for alternative jobs from that moment onwards and he had had 6 months to do so before the end of the 2020 (which is more than reasonable). 70.Adopting P’s income of HK$31,200 (as agreed between the parties) and a notional income of HK$13,985 as a male security guard in the first quarter in 2021, P’s loss of earnings is as follows:
H. Discount for pre-existing conditions 71.It will be recalled that P’s pre-existing conditions only relate to the neck as a result of the cervical spine degeneration. There were no pre-existing conditions with respect to the wrists and right shoulder. 72.I remind myself as to the well-known principles set out in Chan Kam Hoi v Dragages Et Travaux Publics [1998] 2 HKLRD 958 on the proper approach to pre-existing conditions. H1. Discount on pre-trial loss of earnings 73.According to Dr Chiang, there was a strong possibility that other events or progression of the cervical spine degeneration would have brought about the onset of symptoms that resulted in the present state of the neck in about 5 to 7 years from the time of the injury. 74.I have decided above that P would have retired at 70 years of age (ie in December 2024), being around 5.5 years from the date of the Accident. 75.Given the way Dr Chiang formulated his opinion, it is hard to decide with any certainty whether the onset of symptoms due to pre-existing conditions may be felt during P’s hypothetical working life but for the Accident (and I am prepared to find that before the symptoms are triggered, any neck pain is likely to be mild and merely “on and off”). 76.On a balance of probabilities however, it would seem that P would unlikely be troubled by the pre-existing conditions for the most part of the remainder of his hypothetical working life, because according to Dr Chiang any onset is only to surface in the last 6 months of his hypothetical working life, and this in itself only carries a 25% chance (by breaking down the 2-year period as opined by Dr Chiang, ie the “5 to 7 onset years”, into 4 periods of 6 months). 77.I am accordingly of the view that no discount should be applied to P’s pre-trial loss of earnings. It is essentially the application of the same logic in Chan Leung Sing v Ng Keung (unreported, HCPI 3/2012, 27 August 2015) where the Court observed at §73 that:
H2. Discount on PSLA 78.Part of this issue revolves around how Dr Chiang’s report should be properly understood. The material parts are as follows:
79.P’s case is that, in §101(c), Dr Chiang only apportioned as pre-existing conditions 20% of the injury to the neck (which in turn accounts for 6% of the entire injury as stated in §101(b)). Hence, as per §102, the Accident takes up 3% + 4% (from the 2 wrists) + 4% (being 6% x 80% = 4.8%). On this formulation, the pre-existing conditions only takes up 1.2% (or about 2% as stated in §101(d)). 80.On the other hand, the Board contends that Dr Chiang apportioned as pre-existing conditions 20% of the overall injury. As the argument goes, the entire injury led to 13% whole person impairment (3% + 4% + 6%) and an overall discount 20% discount is to be applied, leading to 10.4% (which explains the “about 11%” in §102). 81.The significance is that on P’s interpretation of Dr Chiang’s report, the pre-existing conditions only account for 1.2% (or at most “about 2%”) overall, whereas on the Board’s contention pre-existing conditions account for 20% overall. 82.While Dr Chiang’s formulation may be said to be ambiguous, I am satisfied that P’s interpretation is to be preferred:
83.I am also satisfied that the situation regarding pre-existing conditions in the present case bears similarities with that in Tang Chi Keung v Mung Ka Wai[2018] HKCFI 1685 and Tso Chun Cheong v Mak Chi Ming trading as Lik Wang International Sofa Company (unreported, DCPI 766/2007, 19 December 2007), but in the present case P’s pre-existing conditions are less severe. I also bear in mind the Board’s argument that Dr. Chiang did not categorically state that absent the Accident, the effect of P’s pre-existing cervical degeneration would not be felt until 5-7 years after the Accident (although I have held that the “on and off” neck pain prior to the Accident was mild). 84.Given that only 1.2% (or at most “about 2%”) of the total whole person impairment is attributable to the pre-existing conditions, I am convinced that the applicable discount on PSLA should be 15%. I. Conclusion, interest and costs 85.In conclusion, I assess P’s damages at HK$1,870,468.00. Giving credit to the EC Award sum, P is entitled to a judgment against D1 in the sum of HK$1,039,954.40.
86.Interest on PSLA is awarded at 2% per annum from the date of writ to the date of judgment, and thereafter at judgment rate until payment in full. 87.Interest on all pre-trial special damages is awarded at half judgment rate from the date of the Accident to the date of judgment, and thereafter at judgment rate until payment in full. 88.As to costs, I make an order nisi as follows:
89.The above costs order nisi will become absolute in the absence of any application to vary within 14 days. 90.I thank both counsel for their assistance.
Mr Victor P Y Lau, instructed by B Mak & Co, for the plaintiff The 1st defendant was not represented and did not appear Mr Adrian T Y Wong, instructed by Gallant, for the 2nd defendant [1] See [2023] HKDC 77. [2] By the Orders of Master Jo Siu dated 14 June 2024 and Master Charmaine Lo dated 13 September 2024, the report shall be adduced without the need to call Dr Chiang to give oral evidence. [3] MPF is only payable up to the age of 65. |
Cases cited in this judgment