Wu Tanglun v. Ck Engineering (Hong Kong) Co Ltd and Another
Read the full judgment text of DCPI 4033/2022 on BabelCite. This District Court judgment was delivered on 30 March 2026.
1. This is the trial of the claim by the Plaintiff Mr Wu Tanglun (“ P ”) against his employer the 1 st Defendant and the principal contractor the 2 nd Defendant (respectively “ D1 ” and “ D2 ”, and collectively “ Ds ”) for damages for personal injuries arising out of an accident at work allegedly occurred to him on 19 November 2020 (“ Accident ”) when working on a construction site at Lai Cho Road, Kwai Chung, New Territories, Hong Kong (“ Site ”).
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DCPI 4033/2022 [2026] HKDC 555 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 4033 OF 2022 --------------------------
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-------------------------- JUDGMENT -------------------------- INTRODUCTION 1.This is the trial of the claim by the Plaintiff Mr Wu Tanglun (“P”) against his employer the 1st Defendant and the principal contractor the 2nd Defendant (respectively “D1” and “D2”, and collectively “Ds”) for damages for personal injuries arising out of an accident at work allegedly occurred to him on 19 November 2020 (“Accident”) when working on a construction site at Lai Cho Road, Kwai Chung, New Territories, Hong Kong (“Site”). 2.Both liability and quantum are in issue. 3.P called 1 witness of fact, namely himself, at trial. Ds called D1’s director 伍民添 (transliterated “Ng Man Tim”) whose evidence is mainly on P’s earnings and periodical payments made to P after the Accident. 4.P is represented by Ms Percy Yue of counsel. 5.Ds are represented by Ms Agnes Kwok of counsel. LIABIITY 6.It is admitted that P was at all material times employed to work by D1 as a construction worker on the Site of which D2 was the principal contractor. 7.P’s evidence is that as at the time of the Accident, he had about 7 years’ experience working on construction sites, and had gradually specialised to work as a welder in metalworks for 4 years. The Accident 8.There is no dispute that on 19 November 2020 whilst working on the Site, P was assigned to erect a temporary metal platform (“Platform”) with his co-workers. 9.P’s main duties on the day included preparation of construction materials and rigging and laying of sheet piles. The sheet piles were transported by a crane to be unloaded on top of the I-beam structure to build the Platform where P was working. 10.Whilst working on the Platform at around 11 am on the day of the Accident and standing on an I-beam, P lost balance and fell through a distance of approximately 7.27m to the ground. As a result, he sustained multiple injuries. The Platform 11.As stated in the Accident Report dated 12 May 2021[1] commissioned by the Occupational Safety Section of the Labour Department pursuant to their investigation of the Accident, the semi-constructed Platform was erected above a slope. It was constructed by fixing long sheet piles (each of measurements of 12m L x 30cm W x 20 cm H) side by side on top of an I-beam structure. The I-beams were of a width of 30cm. 12.There was no fixed access ladder nor other fixed structures as means of access to/egress from the Platform, nor was there guardrail around the Platform. To reach the top of the Platform, the workers including P had to walk up a slope and climb up the bamboo scaffold adjacent to the Platform. The Criminal Prosecution 13.As a result of the Accident, D1 and D2 were prosecuted and convicted on 10 July 2021 of the following offences in breach of statutory duties on industrial safety as follows[2]:-
14.The convictions against D1 and D2 establish a prima facie case on liability. The burden of proof in this civil action is shifted to the defence who bears the burden to show that Ds were not negligent on the balance of probabilities by operation of Section 62 of the Evidence Ordinance, Cap. 8. See the dictum of Lord Denning in Stupple v Royal Insurance Company Limited [1971] 1 QB 50:-
15.Ds plead a simple denial of liability in their Defence filed on 14 March 2023 (“Defence”), and that the Accident was caused or contributed to by P’s own negligence as he (i) had failed to use the safety belt provided by Ds; (ii) should not stand on the I-beam which was not designed as an access on the Platform; and (iii) had failed to pay attention to his own safety when gaining access to the Platform. 16.Ds have not called any evidence on liability in support of their pleaded allegations against P or to argue that they have discharged the burden of disproving negligence. P’s Case/ Evidence 17.P’s evidence on liability, as stated in his supplemental witness statement filed on 11 November 2024, is as follows:-
18.In court under cross-examination by Ds’ counsel, P gave the following evidence:-
Ds’ Case 19.Ds did not adduce evidence from any witness to challenge P’s case on liability. Their counsel Ms Kwok seeks to highlight some inconsistencies in P’s evidence and attack the general credibility and reliability of P’s evidence given in court on the following matters and argues that his account of the Accident should not be accepted:-
Analysis 20.Despite Ds’ challenge of general credibility/reliability of P’s evidence on liability, the parties have no dispute on the circumstances of the Accident. 21.In my view, Ds’ arguments on inconsistencies in P’s evidence concern some peripheral matters of P’s previous complaints on safety matters to his foreman, the time during which P had been working, whether continuously or not, on the Platform on the morning of the Accident and reliability of his memory of the circumstances of the Accident. They do not touch upon the central issues regarding the unsafe features of the system of work on the half-built Platform, more specifically on causation of the Accident. Such inconsistencies do not impact on P’s credibility on matters material to consideration of liability of Ds in this case. 22.P’s evidence of the circumstances of the Accident is clear and firm, and unshaken during cross examination. I found him a frank, straightforward and credible witness. His evidence on the circumstances of the Accident, not challenged, is accepted. 23.The place and system of work provided by Ds on the half-built Platform are shown to be obviously unsafe. Workers were required to work and move around on the unguarded Platform being built on the I-beam structure, without any anchorage points to attach a safety belt/harness, and onto which an overhead load of sheet piles was being transported by a crane. 24.It would be reasonably foreseeable that a worker working on the Platform would be subject to the risks of fall from height as what had happened to P in the Accident. 25.Ds have not shown any evidence which would help them in any way discharge the burden of disproving negligence in causing the Accident presumed against them in light of the criminal convictions in breach of the relevant statutory safety duties and regulations regarding working on the Platform. 26.I have no hesitation coming to the conclusion and find Ds jointly and severally liable for causing the Accident to P in this action in their respective capacities as the employer and principal contractor. Contributory Negligence 27.Ds argue that P was an experienced construction worker who had received safety trainings. He should have known and taken safety and precautionary measures for his own safety whilst working on the Platform. 28.Ds plead that the Accident/P’s injuries were caused or contributed to by P’s own negligence, when working on the Platform, particularised as follows[4]:-
29.In order to establish such failure and argue contributory negligence on the part of P, the burden is on Ds 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 cause/resulted in or contributed to the occurrence of the Accident. 30.P’s case all along is that there was no suitable independent support or fixture available for fixing a safety belt or harness. 31.Ds have no answer nor evidence in reply. 32.At the closing submissions stage, Ds’ counsel confirmed that they no longer rely on the alleged failure of P in using the safety belt provided by Ds to argue contributory negligence. 33.Ds maintain that P was contributorily negligent in standing on the I-beam instead of the built/completed metal surface of the Platform. Upon P’s explanation given during cross-examination that he had lost balance whilst stepping aside (to stand on the I-beam) in order to make way for the sheet piles being transported and unloaded onto the Platform and at the same time paying his attention to and looking up at the overhead moving sheet piles load, Ds’ counsel further argue that P was negligent in walking on the uncompleted Platform without paying attention to his step, but was looking up at the moving sheet piles being transported. 34.The evidence reveals that the work of P at the time of the Accident was to stay on the half-constructed Platform to wait for the crane to transport and unload sheet piles onto the Platform. He would then help unload the sheet piles and align them on top of the I-beam structure in building and completing the Platform floor. P had to move around on the Platform without guardrail in order to make way for the unloading onto the I-beam structure of the moving load of sheet piles being transported overhead by the crane, and at the same time pay attention to the overhead moving load, yet without any safety precautions which would prevent him from falling off the Platform. 35.In my view, P could not be blamed for paying attention to the overhead moving load or moving around to make clearance for the sheet piles which were to be unloaded on the I-beam structure. P’s stepping aside to stand on the I-beam when paying attention to the overhead moving load could not in my view be said to be an unreasonable act or failure to take care of his own safety that had caused the Accident. There is no question nor evidence of deliberate taking of risks, as opposed to mere inattention or momentary lapse in the present case, that would constitute contributory negligence on the part of P. See Sit Kan Tat v World-Class Talent Ltd & Anor [2024] HKDC 420 at §61. 36.On the evidence, I find that the sole cause of the Accident was the unsafe place and system of work that had posed reasonably foreseeable risks of falling from height to any worker working thereon, and had resulted in the Accident to P. 37.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 or the co-operating cause of the Accident, or consciously accepted a risk of injury. Conclusion on Liability 38.No case of contributory negligence is made out on the evidence. I find Ds wholly liable to P in this action. QUANTUM Personal Background 39.P was aged 32 at the time of the Accident and is now 38 years old. 40.Since he came to Hong Kong in 2013, he had been working as a construction worker for 7 years. He became specialised in metalworks earning higher income for about 4 years up to the time of the Accident. 41.He is the sole breadwinner of his family with 2 young children. He has been working hard over the years to support his family. He usually worked 6 days a week when work was available. He seldom took long leave from work, except for a few days over the Chinese New Year when he returned to his hometown in the Mainland. 42.He had fallen through a height of over 7m to the ground in the Accident, as a result of which he sustained multiple head and left arm and wrist injuries. 43.Despite repeated operations to the left elbow dislocation and left wrist fractures and lengthy rehabilitation treatment, P has suffered and permanently suffers left arm and hand functional impairment limiting heavy manual work capacity, and pain, stiffness and weakness of the left arm and wrist. He also suffers residual neurological symptoms resulted from the head injury. He was incapacitated from resuming the heavy and physically demanding pre-accident work as a construction metal worker. Issues in Dispute 44.P was as a result of the injuries sustained in the Accident granted continuous sick leaves up to 22 August 2022 as endorsed in the Form 9 issued on 4 May 2023[5]. He had tried to find work by end March 2022. The parties are agreed that P should be entitled to full loss of earnings from the date of the Accident up to 24 March 2022, ie 16.2 months. 45.Credit is agreed to be given for employees’ compensation received by P at $768,399. 46.P had resumed, initially intermittently, other work since April 2022 but at lower earnings due to various residual disabilities. He had suffered partial loss of earnings. Since March 2024 he was able to find non-heavy work on construction sites gradually making earnings comparable to those of the pre-accident times. He makes no claim for loss of earnings as from March 2024. 47.On that basis and in light of the diminished claim for pre-trial loss of earnings up to February 2024 only and nil claim post-trial, P claims damages for loss of earning capacity in the sum of $200,000, higher than the $100,000 pleaded in the Revised Statement of Damages filed on 11 November 2024 (“RSOD”). 48.The parties’ respective positions at the time of closing submissions are summarised in the table below (on 100% liability basis):-
Injuries, Treatment and Disabilities 49.Medical evidence on the injuries and treatment of P’s head and left arm and wrist injuries sustained in the Accident is not disputed. 50.Upon the fall in the Accident through a height of more than 7m to the ground, P lost consciousness. He was immediately sent by an ambulance and admitted to the Accident and Emergency Department of the Princess Margaret Hospital (“PMH”) for emergency treatment. Trauma call was activated upon arrival. 51.Examination showed left forehead lacerations, a GCS score at 14/15, left wrist swelling and tenderness, and reduced motor power of the left upper limb. 52.CT scan revealed the following[6]:-
53.X-rays of the left wrist showed compound fractures of the left distal radius and ulnar styloid fracture, and posterior dislocation of the left elbow with avulsion fracture over the lateral epicondyle[7]. 54.P was admitted to the Intensive Care Unit (“ICU”). Other injuries noted included: blood stains over the nostrils, face and ears, right haemotympanum, left supraorbital and forehead laceration, left periorbital bruises and left subconjunctival haemorrhage, laceration over the left volar wrist, left wrist joint deformity, and swelling of the left elbow. Subsequent CT brain showed interval new bilateral subdural haemorrhage and enlargement of the left frontal epidural haematoma. Conservative management was provided[8]. 55.On the following day on 20 November 2020, emergency operation of wound debridement, closed reduction and external fixation for compound fractures of the left distal radius and posterior dislocation of the left elbow, and left carpal tunnel release, suturing of left supraorbital and forehead lacerations was performed. P was put on a long arm slab after the operation. He was transferred out of the ICU to the General Surgical Ward on 21 November 2020 for rehabilitative treatment. 56.On 4 December 2020 P underwent a further operation of reconstruction of medial and lateral collateral ligaments of the left elbow with anterior transposition of the left ulnar nerve; open reduction and internal fixation with bone grafting of the left distal radius fracture. He remained in the Orthopaedic Ward post-operatively, and was managed and fitted with a left elbow hinge brace[9]. 57.The dental surgeons of PMH assessed P’s facial bone fracture and suggested a course of antibiotics and avoidance of nose blowing. The otorhinolaryngologist attempted close reduction of the fracture nasal bone under local anaesthesia but P could not tolerate the procedure. He declined surgery and accepted the suboptimal cosmetic outcome[10]. 58.The ophthalmologists of PMH examined P on 24 November 2020, and noted limited left subconjunctival haemorrhage, visual acuity at 20/30 and 20/20 for the right and left eye respectively, and mild limitation in left abduction without subjective diplopia. He was treated conservatively until 5 January 2021 when his visual acuity became normal[11]. 59.Other than the head and left arm and wrist injuries, P exhibited psychiatric/psychological symptoms. He had sleeping difficulties, nightmares, attempts to hit himself and worries related to his recovery and future livelihood. He was anxious and fearful when he saw construction sites. He became easily agitated and had increased conflicts with his wife. He was distressed by multiple life stresses including worries related to rehabilitation, recovery, compensation, and marital relationship issues. He received 4 sessions of in-patient clinical psychology treatment from 25 November 2020 to 8 December 2020, and was diagnosed to be suffering from acute stress reactions and adjustment difficulties due to stress of pain and disabilities related to his injuries. 60.After hospitalisation for about 3 weeks, P was discharged from PMH on 9 December 2020. He continued to attend active rehabilitative treatment and follow up consultations until mid-2022 at different clinics and departments of government hospitals such as the Neurosurgery Clinic, Orthopaedic (Hand) Clinic, Clinical Psychology Clinic, Physiotherapy Department and Occupational Therapy of PMH, Otorhinolaryngology Clinic of Yan Chai Hospital and Ophthalmology Clinic of Caritas Medical Centre[12]. 61.He continued to suffer from left forehead numbness and occasional headache and dizziness and attended follow up at the Neurosurgery Clinic of PMH until 21 February 2021. Follow up CT scan of the brain done on 6 and 26 January 2021 revealed resolved haematoma and right encephalomalacia related to the head injury. 62.He received intensive physiotherapy treatment (a total of 48 sessions) during the period from 24 December 2020 to 23 September 2021 for his left elbow, forearm and wrist injuries. 63.He continued to attend clinical psychological outpatient service after discharge until 22 October 2021. His condition improved upon treatment after a year, and he was discharged in early 2022[13]. 64.P was admitted to PMH again during 26 and 27 March 2021 for a further operation of removal of implants for the left wrist fractures. 65.He received occupational treatment/work rehabilitation service from 27 May to 19 August 2021. He suffered permanent pain over the left wrist and hand. At the latest work ability assessment done on 19 August 2021, his overall work capacity was assessed to be not-matched with the previous job demands of a metal worker. 66.He also attended about 10 sessions of Traditional Chinese Medicine treatment. 67.As a result of the injuries sustained in the Accident, P was granted sick leaves from 19 November 2020 to 22 August 2022 (ie for about 21 months)[14]. 68.P was assessed by the Medical Assessment Board to be suffering from 7% permanent loss of earning capacity (“LEC”) in respect of the injuries sustained in the Accident as set out in a Certificate of Assessment (Form 7) dated 4 August 2022. The assessment was revised to 10.5% upon review in respect of multiple injuries resulting in (i) residual left wrist pain, stiffness and weakness (3.5%); (ii) left elbow pain and stiffness (1.5%); (iii) residual headache, slow in mentation, insomnia, parethesia over left supra-orbital and occasional muscle twitching (4%); (iv) hyposmia and nose discomfort (1%) and (v) psychiatric impairment (0.5%) as set out in a Certificate of Review of Assessment (Form 9) dated 4 May 2023. The sick leaves granted from the date of the Accident on 19 November 2020 up to 22 August 2022 were endorsed. 69.P’s case is that despite numerous operations to the left elbow and wrist and lengthy rehabilitative treatment, he has suffered and continues to suffer the following permanent residual symptoms and disabilities:-
70.P cannot resume sports which he enjoyed weekly prior to the Accident such as playing badminton and basketball. He can now only swim which is a new hobby developed after the Accident. Medical Expert Evidence Orthopaedic Experts 71.For the purposes of this action, P was jointly examined by orthopaedic experts Dr Andrew Miu (“Dr Miu”) and Dr Danny Tsoi (“Dr Tsoi”) on 24 October 2023, about 4 years after the Accident. 72.P still suffered most of the symptoms set out in §69 hereinabove. 73.Physical examination revealed extensive scars over the left forearm, elbow and wrist with tenderness. Left arm and wrist weakness and stiffness is supported by muscle wasting and girth reduction. 74.As set out in the Orthopaedic Joint Expert Report dated 4 March 2024, Dr Miu and Dr Tsoi consider P’s complaints genuine; they are more or less agreed on the following[15]:-
75.Dr Miu and Dr Tsoi give slightly different opinions as follows:-
Neurology Experts 76.P was jointly examined by specialists in neurology Dr Gardian Fong (“Dr Fong”) and Dr Yu Yuk Ling (“Dr Yu”) on 17 October 2023. 77.As set out in the Neurological Joint Expert Report dated 26 October 2023, Dr Fong and Dr Yu give more or less agreed opinions on P’s head injury and current condition as follows[16]:-
78.The opinions of Dr Fong and Dr Yu differ slightly on the following:-
Analysis of the Medical Evidence 79.There is no dispute by the parties on the medical evidence, nor argument that P’s multiple head and left forearm, elbow and wrist injuries sustained and residual orthopaedic and neurological symptoms and complaints are not genuine or in any way exaggerated. 80.Having heard P’s evidence in court, I found him an honest and straightforward witness who was frank about the stable recovery and ability to resume work a year after the Accident. He frankly admitted that he had not required any treatment in the past few years since around 2022. 81.I accept all medical and expert evidence which is on the whole agreed on the diagnoses, periods of hospitalisation required, treatment and recovery progress and permanent residual disabilities and impairments. 82.The minor differences in the medical experts’ opinions on the reasonable sick leaves and permanent impairment and LEC ratings do not impact on the assessment on quantum in light of the parties’ agreement on (i) the length of sick leave (up to 24 March 2022) for calculating full loss of earnings and (ii) the incapacity of P in resuming his pre-accident work on construction sites as a metal worker/welder. Pain Suffering and Loss of Amenities/ PSLA 83.The medical evidence is that P sustained moderately serious head, facial and orthopaedic injuries to his left forearm, elbow and wrist with multiple fractures. He was hospitalised for over 3 weeks. He underwent 3 operations to fix the fractures and required suturing of the open wounds and abrasions. The injuries, though recovered without complications upon lengthy rehabilitative treatment, have resulted in permanent residual disabilities, and impaired functional and work capacity. 84.He also suffered neurological symptoms exhibiting depressive and Post-Traumatic Stress Disorder (“PTSD”) features after the Accident. 85.Ds argue that the orthopaedic left elbow, forearm and wrist injuries should not impact on P greatly on his work capacity nor should cause great inconvenience to his daily life given he is right-hand dominant. 86.I disagree. It cannot be disputed that the work of a construction metal worker is strenuous and requires frequent manual handling of heavy tools and construction materials with both hands. The agreed medical expert evidence is that P as a result of the orthopaedic injuries has been and will be incapacitated from resuming the heavy pre-accident manual work. 87.In assessing the appropriate award for PSLA, I have considered the authorities submitted by both counsel. 88.The authorities submitted by Ds’ counsel Ms Kwok, including Choi Chun Tai v Lam Sze Ling [2025] HKDC 944, Siu Kin Keung Anthony v H & M Hennes & Mauritz Ltd (unreported, HCPI 81/2011, 31 October 2012), Ip Chee Wai Jeffrey v Ho Wai Pan [2024] HKDC 102 and Mehmood Khalid v Million Harvest Wharves & Logistics Limited & Ors (unreported, HCPI 401/2006, 20 June 2007), support a range of PSLA awards of $200,000 to $350,000. These cases involve either mild head injuries with abrasions and swelling only resulting in mild post-concussional symptoms, or mild fracture injuries only – these are in my view much milder injuries compared to those sustained by P in the present case. 89.I found the following authorities referred by Ps’ counsel Ms Yue comparable to P’s injuries for assessing damages for PSLA:-
90.Having considered the evidence and the abovecited authorities, also taking 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 $480,000. Loss of Earnings and MPF Benefits 91.The parties agree that P should be entitled to full loss of earnings from the date of the Accident up to 24 March 2022, ie for 16.2 months. This is the sick leave endorsed by all medical experts, despite further sick leaves were granted up to 22 August 2022. 92.P claims partial loss of earnings during the period from 25 March 2022 up to 28 February 2024 gradually when he had gradually resumed work, but made reduced earnings. This is agreed by Ds. 93.P makes no claim for loss of earnings after 28 February 2024 as he has since March 2024 gradually been able to make earnings comparable to those of pre-accident times despite he could only take up less physically demanding and non-heavy work on construction sites due to the permanent left arm and wrist disabilities. 94.The parties dispute on (i) P’s pre-accident earnings; and (ii) residual earnings which he was/should be able to make during the period from 25 March 2022 to 28 February 2024. Pre-Accident Daily Wage/Monthly Earnings 95.P’s case is that he was a daily paid/casual metal worker earning a daily wage of $1,300 when working for Ds. 96.In the RSOD he pleads pre-accident monthly earnings of $31,200 based on 24 days work per month. At trial, he contended for 21 workdays per month, hence his monthly earnings were about $27,300 ($1,300 x 21). 97.P has adduced in evidence 2 employment contracts dated 5 July 2019 and 16 June 2020[17] signed by him with D1 for work as a metal worker in different construction projects at the daily wage of $900. 98.P explains in his supplemental witness statement that the $900 daily wage stated in the contract was paid by D1 to him through bank transfer (“大糧”), whilst the supplement of $400 daily wage was paid by the subcontractor to him in cash (“細糧”). This kind of wage payment arrangements, namely “big and small wages” (“大細糧”), is common in the construction field. 99.P relies on the following documentary evidence in support of his pleaded daily wage of $1,300 and average monthly earnings at the time of the Accident:-
100.Ds argue on the other hand that P’s daily wage was only $900 as stated in the employment contracts[23]. Their witness Ng Tim Man (“Ng”), director of D1, adopted his witness statement dated 5 March 2024 and gave evidence in court that when working for Ds, P worked 6 days a week and was not entitled to any other allowance. He denied that there were any “大細糧” arrangements of daily wage of $900 paid via bank transfer plus $400 supplement in cash as alleged by P. 101.Ng’s evidence seems to be inconsistent with what Ds have pleaded in the List of Earnings of P’s earnings received when working for Ds as follows:-
102.Upon cross examination as to how P could earn as much as $28,600, $27,300 and $32,500 in the respective months of July, August and September 2020 (which would equate to more than 30 working days in a month) as stated in the List of Earnings, Ng could not give any explanation. At the end he admitted that he was not certain and that the suggested daily wage of $900 was likely incorrect. 103.I find on the overall evidence, in particular the documentary evidence of earnings and periodical payments records, that P was telling the truth. His pre-accident daily wage was $1,300. I have no hesitation rejecting Ds’ pleaded daily wage of $900 which could not explain P’s high monthly earnings for the months of July to September 2020, and finally admitted by Ds’ witness Ng in the witness box to be incorrect. 104.As to the pre-accident monthly earnings, P argues at 21 working days in a month and proposes to adopt $27,300 ($1,300 x 21 days) in this quantification. This tallies with Ds’ records set out in §§99(i) and (ii) above. 105.P sets out in his supplemental witness statement a table of his earnings with some employment details working in different projects during the 12-month period (11/2019 to 10/2020) prior to the Accident (“Table of Earnings”). The stated earnings covering June to September 2020 tally with those provided by Ds in the List of Earnings. P has not adduced documentary evidence in support of the alleged earnings. 106.P’s evidence as stated in the Table of Earnings is that he had also worked for other contractors on other sites earning a total of $24,700 in Jan 2020, $26,000 in Feb 2020, $29,900 in March 2020, $32,500 in April 2020 and $31,200 in May 2020. For the months of Jan 2020 and Feb 2020 when he also worked for D1, he had received supplements (likely the “細糧”) of $3,600 and $4,400 respectively, equivalent to 9 days and 11 days of work for D1 in those months. 107.When cross-examined on the details set out in the Table of Earnings, P explained that he had retrieved the information partly from his hand-written records made in a calendar that he kept for calculating his earnings towards the end of the month, and partly from his memory. He did not keep or produce the calendar in evidence. 108.The Table of Earnings record monthly earnings of P within a range of $20,800 to $32,500, or about $28,800 per month on average during the 11-month period from 11/2019 to 9/2020. 109.Though P strikes me as an honest witness, I do not consider it safe to accept the earnings figures set out in the Table of Earnings not supported by records, but from P’s memory or allegedly from some handwritten records which P has not adduced in evidence. 110.I however have no doubt and accept that P was a hardworking person as supported by the evidence of his pre-Accident earnings records in the few months working for Ds and his numerous attempts to find work post-Accident. 111.For the month of 10/2020, it is stated in the Table of Earnings and P further explained in court that he had returned to his hometown in the Mainland for a month on some important personal matters (on which he gave some details in court). He did not work and had almost nil income for that month until he returned to work for Ds in November 2020, and later met the Accident on 19 November 2020. 112.P gave evidence that the non-working month of Oct 2020 was exceptional. He normally worked all months in a year and would only take leave and return to his hometown in the Mainland for a few days during Chinese New Year. 113.Ds’ case as pleaded in the Answer to RSOD filed on 10 December 2024 is that P’s pre-accident monthly earnings were much lower at $20,366.67, by calculating the monthly average of P’s earnings for the 3 months prior to the Accident in Aug-Oct 2020 as pleaded in the List of Earnings as follows:-
114.Such calculations are in my view unreasonable in that it has taken into account the full non-working month of October 2022 when P earned minimal income of $1,300. 115.I consider a more reasonable approach in light of the evidence of the List of Earnings would be to take the monthly average of P’s full months of work with Ds during June to Sept 2020, not counting the month of October 2020 in which P did not work, as follows:-
116.This would equate to 21 working days in a month based on my finding of $1,300 daily wage – this is consistent with (i) the documentary evidence on average number of working days of 21 and average monthly earnings of $27,300 provided by D2 in the Form 2 Information Amendment Sheet[24] and the periodical payments records provided by D1[25]; (ii) Ng’s evidence that P worked 6 days a week; and (iii) the Table of Earnings provided by P. 117.I find on the overall evidence P’s proposed pre-accident monthly earnings of $27,300 reasonable, and adopt the same in this assessment of damages. Post-Accident Work and Earnings 118.P’s case is that after the Accident, he had since April 2022 tried to resume construction work despite he was still attending medical follow up and was granted sick leaves until 22 August 2022. Being the sole breadwinner of his family with 2 young children, he had to work hard to support them and could not afford to remain on sick leave without income for too long. 119.As stated in his supplemental witness statement and supplemented by his evidence in court, P’s post-Accident work and earnings are as follows:-
120.Other than the agreed period of 16.2 months (from the date of the Accident to 24 March 2022) in which full loss of earnings would be payable, the parties agree that P should further be entitled to damages for partial loss of earnings during the period from 25 March 2022 till 28 February 2024, ie 23.13 months. 121.P’s counsel submits that the proper approach and calculations should be the full earnings (at $27,300 per month) which P would have earned continuously from his pre-accident job but for the Accident during the period from 25 March 2022 to 28 February 2024, to be deducted by the actual earnings received by P. 122.Curiously P’s counsel has not included in her calculations partial loss covering the period from 25 March 2022 to 30 June 2022[26]. There is no reason in my view why P should not be entitled to claim partial loss of earnings for this period. 123.Ds’ counsel argues at monthly earnings of $20,366.67 and proposes deduction for residual monthly earnings of $15,000 in calculating partial loss of earnings covering the period from 25 March 2022 to 28 February 2024. 124.I accept that P was incapacitated by the multiple residual disabilities suffered as a result of the Accident from working full time after he resumed work in various odd and light jobs from 25 March 2022 to 28 February 2024. On the overall evidence, I consider it reasonable to adopt average residual monthly earnings of $11,000 in calculating partial loss of earnings. Calculations on Loss of Earnings Plus MPF Benefits 125.On the basis of my findings of P’s (i) pre-accident monthly earnings of $27,300; and (ii) average residual monthly earnings of $11,000 during the period from 25 March 2022 to 28 February 2024, I quantify loss of earnings plus 5% MPF benefits in the total sum of $860,243 as follows:-
$860,243 Loss of Earning Capacity 126.It is common ground and the agreed opinion of the orthopaedic experts that by reason of the permanent residual left arm and wrists symptoms and disabilities, P would not be able to resume the heavy and physically demanding pre-accident work of a construction metal worker. 127.He would suffer impaired work capacity and reduced efficiency at work. His choice of work will be limited to non-heavy manual labour. will suffer disadvantage in the labour market compared to the able-bodied workers. His condition may be aggravated upon exertion at work and he may require intermittent leave absence from work. 128.I accept and find that an award for loss of earning capacity would be appropriate upon the submissions of P’s counsel and the well-established legal principles laid down in the judgment of the Court of Appeal in Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, citing Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132: -
129.The usual awards for loss of earning capacity range between $60,000 to $150,000 for mild to moderately serious injuries, depending on factors such as the nature and extent of injuries, personal circumstances of the injured worker, and strenuousness of the alternative work available. 130.In view of the severity of P’ injuries, his relatively young age of 38 hence the long working life ahead in which he would be impacted adversely by the permanent residual neurological and orthopaedic symptoms and disabilities, and the strenuousness of the alternative work that he has taken on, I consider it reasonable to make an award towards the higher end of the range. 131.Also bearing in mind the fact that P has made no claim for loss of earnings beyond February 2024 or for future loss, when in fact he was earning lower income of $21,000 a month when resuming construction work in February 2024, I award damages for loss of earning capacity at the slightly generous sum of $200,000 as claimed. Other Special Damages/ Misc Expenses 132.As pleaded in the RSOD, P claims reimbursement of medical, travelling and tonic food expenses in the respective sums of $5,000, $2,000 and $5,000. This is agreed by Ds as pleaded in the Answer to RSOD. 133.According to the Schedule of Medical Expenses[27] updated after filing of the RSOD as explained by P’s counsel, hospitalisation and medical expenses incurred and paid to the government hospitals and clinics up to April 2022 came to a higher total sum of $16,437. These are reasonable expenses all supported by records and receipts, and should be allowed. 134.The claims for travelling and tonic food expenses, though without receipt in support, are reasonably modest and agreed by Ds as pleaded in the Answer to RSOD. 135.I therefore make an award of $23,437 as claimed for reimbursement of medical, travelling and tonic food expenses incurred. Future Medical Expenses 136.The overall agreed expert evidence by Dr Miu, Dr Tsoi, Dr Fong and Dr Yu is that P’s medical condition had long reached MMI both orthopaedically and neurologically by end-2021 or 2022. 137.There is no medical evidence on the need for future medical treatment, apart from the evidence of Dr Miu, orthopaedic expert engaged by P, that he “would require frequent symptomatic treatment (in the form of medication and physiotherapy) on a need-to basis”. 138.P’s own evidence given in the box is that he has in the past few years (since end-2022) not required any further medical treatment for the injuries sustained in the Accident. 139.In the absence of evidence that P has plans or would require to attend any treatment or procedure in the near future, no claim for future medical expenses should be allowed (See Lam Kwong Ting v Ho Yau Yuen & Anor [1990] 2 HKC 381). Summary of Award 140.I summarise the award of P’s claims for common law damages as follows:-
141.Giving credit for the employees’ compensation received by P, agreed in the sum of $768,399, the nett award of damages is thus $795,281 (plus interest). Interest 142.Interest on PSLA is assessed at the usual rate of 2% p.a. from the date of service of the writ of summons to the date of judgment, thereafter at judgment rate until payment. 143.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. ORDER 144.I therefore make an order that judgment be entered for P against Ds for damages in the sum of $795,281 plus interest. 145.Costs should follow the event. I make an order nisi that Ds do pay P the costs of this action, with certificate for counsel, to be taxed if not agreed. 146.P’s own costs should be taxed in accordance with the Legal Aid Regulations. 147.In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute. 148.Lastly, I thank counsel Ms Yue and Ms Kwok for their assistance.
Ms Percy Yue, assigned by the Director of Legal Aid and instructed by Messrs K Y Woo & Co LLP, for the Plaintiff Ms Agnes Kwok, instructed by Messrs DLA Piper Hong Kong, for the 1st and 2nd Defendants [1] [E/306-311] [2] [E/289-299] [3] [D/267, 269, 271] [4] [A/15/Defence §6] [5] [F/382] [6] [D/262] [7] [D/258] [8] [D/261-263] [9] [D/261-263] [10] [D/262] [11] [D/275] [12] [D/240-243/§§8.1-8.6] [A/259, 264-267, 272-276] [13] [D/267] [C/242/§8.4] [14] Form 9 issue on 4 May 2023 [15] [C/229-233] [16] [C/243-253] [17] [B/129, 130] [18] [B/192-211] [19] [E/281-288] [20] [B/159, 164] [21] [B/159] [22] [B/121] [23] [F/372, 373] [24] [C/288] [25] [B/192-211] [26] [P’s Opening Submissions §58] [27] [F/398] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment