Khan Saqib v. Strong League Engineering Ltd

DCEC 2401/2023 & DCPI 3853/2023

(Heard together)

[2026] HKDC 1089

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2401 OF 2023

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IN THE MATTER OF AN APPLICATION BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3853 OF 2023

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JUDGMENT

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Introduction

1.This is the trial of an employees' compensation action (“EC action”) and another personal injuries action (“PI action”) instituted by Khan Saqib (“Mr Khan”) against his former employer, Strong League Engineering Ltd (“Strong League”), directed to be heard together, in relation to an industrial accident occurred to him in Strong League’s warehouse at Kowloon Bay, Hong Kong (“the Site”) on 25 July 2023, at around 11:30 am (“the accident”).

2.Under the EC action, by the Order of Her Honour Judge Phillis Loh dated 27 December 2024, interlocutory judgment on liability was entered against Strong League, leaving compensation to be assessed.

3.At the trial, Strong League put Mr Khan to strict proof of how the accident happened, and contended that it was owing to the latter's sole negligence that brought about the accident.

4.In other words, Strong League disputes both liability and quantum in the PI action.

How the accident happened

Mr Khan's case

5.According to Mr Khan, at approximately 11:30 a.m. on the date of accident, he was handling a long metal beam with a co-worker, one Mr Leung Wai Tsuen ("Mr Leung"), at the Site. As captured on a CCTV footage produced at the trial (which authenticity is not in dispute), both of them were holding the metal beam (one standing at each end facing each other) next to a tailboard of a truck (which was fully lowered in elevated position) when Mr Leung suddenly "lost balance". This momentum of the beam shifted entirely onto Mr Khan's right hand, causing it to strike at the edge of the tailboard and his right ring finger was injured as a result.

Strong League's case

6.Strong League’s case is that Mr Khan was standing next to the tailboard, holding one end of the metal beam (which was hollow and weighed only about 3 kg and measured 1.5 meters in length) while a co-worker held the other end.

7.The weight of Mr Khan’s end of the beam momentarily exerted pressure on his right finger for less than a second while it was "positioned" between the tailboard and the beam. Mr Khan was able to withdraw back his finger immediately. Strong League disputed his finger was ever stuck (between the tailboard edge and the metal beam) as alleged.

8.Strong League contends that the co-worker never lost his balance, and that the burden remains on Mr Khan to prove the true cause of the incident.

9.Strong League's fallback position is that the lifting and moving of the metal beam was not a dangerous task for general construction workers, and that it was entitled to rely on Mr Khan and his co-worker to use their common sense to carry out the work without the need for a prescribed system of work.

Witnesses

10.At the trial, Mr Khan was the only witness on his side. Whereas, Madam Chiu Man Wa (“Madam Chiu”), Strong League's general manager, and Mr Hung Yu Sun (“Mr Hung”), the foreman who was also working at the Site at the material time.

Analysis and findings

11.It is salient to note that both Madam Chiu and Mr Hung did not personally eye-witness the accident.

12.After carefully considered all the evidence before this Court and the parties' submissions, I find as follows:-

(1) The date of accident was the first day Mr Khan worked at Strong League's warehouse, a departure from his previous usual assignments to work on public roads. It was also the first day when he had chance to handle metal beams together with a co-worker to perform the assigned task.

(2) The CCTV footage clearly shows an upward movement of the metal beam at the end of Mr Khan's side did cause his right hand to hit the tailboard. Immediately afterwards, Mr Khan was seen flicking his right hand.

(3) What Mr Khan testified under cross-examination is consistent with what is depicted in the footage. This Court accepts Mr Khan's testimony in describing how he and Mr Leung were actually handling the metal beam at each of its ends at the time.

(4) Although Mr. Khan's witness statement only briefly stated that his colleague (i.e. Mr. Leung) "lost balance and all the weight shifted on him", he elaborated in court that at the material times, he had to constantly adjust his grip to counterbalance the force of Mr. Leung's attempts to fit plastic material onto the other end of the beam. In my view, this explanation is inherently credible and corroborated by the CCTV footage. Such a procedure would naturally cause irregular movements at Mr. Leung's end, necessitating corresponding adjustments by Mr. Khan to keep the beam steady.

(5) Thus, although Mr. Khan in his witness statement did not satisfactorily articulate what he actually meant by his colleague suddenly "lost balance", the video footage clearly captures how the accident happened and speaks for itself. When his witness statement and oral testimony are considered together against the footage, the Court has no doubt that Mr. Khan was actually referring to a sudden imbalance of force created by Mr. Leung’s manoeuvre, which propelled the end of the beam grasped by Mr. Khan to move upward. In any event, any discrepancy between Mr Khan's witness statement and his oral testimony would not be fatal to his case, for it can fairly and reasonably be resolved by the video footage.

(6) Specifically, Mr. Khan also testified that prior to the impact, he pressed his left hand against the tailboard to assist himself to counterbalance the substantial force Mr. Leung was applying from the other side. The video footage also tends to support this testimony, which shows that before the impact, Mr. Khan had been crouching forward with his left hand pressed against the tailboard, and his right hand grasping the metal beam below the level of the tailboard platform to keep the beam steady. It can also be seen in the footage that Mr. Leung was of a much bulkier build, whereas Mr. Khan was considerably slimmer.

(7) Based on the primary facts discernible from the CCTV footage and elicited from Mr. Khan's oral testimony, this Court draws a reasonable inference and finds, on balance of probabilities, that before the impact, Mr. Leung's manoeuvre indeed caused a sudden change of force at his end of the beam. This instantaneously caused the end grasped by Mr. Khan's right hand to jerk upward and strike the tailboard, momentarily trapping and injuring his right ring finger.

Issue of liability under PI action

13.According to Mr. Khan's testimony, he and Mr. Leung performed the assigned task of handling metal beams next to the tailboard pursuant to an order given by Mr. Hung earlier that day. Although Mr. Hung disputed this, this Court prefers Mr. Khan's evidence and rejects Mr. Hung's. Notably, Ms. Chiu confirmed under cross-examination that she was told by Mr. Hung that he had ordered the workers to work next to the tailboard. Furthermore, having observed Mr Hung's demeanor and shifty, inconsistent answers given under cross-examination, this Court has no hesitation to find him to be an evasive and unreliable witness. Insofar as any of his evidence conflicts with Mr. Khan's, this Court would accept Mr Khan's evidence and reject Mr Hung's.

14.In my judgment (after carefully considering all the evidence), it is obviously unsafe for Strong League (through Mr Hung) to instruct Mr Khan to work together with Mr Leung next to the tailboard. For, when the two workers were handling the metal beam dynamically, requiring Mr. Khan to constantly adjust and counter Mr. Leung’s opposing forces as the latter fitted the plastic material onto the beam end, sudden changes of force from irregular movements at Mr. Leung's side are entirely foreseeable.

15.However, as shown in the CCTV footage, Mr. Khan only had limited space to manoeuvre himself, virtually hemmed in by a wooden pallet positioned vertically and closely to his right and the tailboard edge on his left.

16.In this Court's view, requiring Mr. Khan to work directly adjacent to the tailboard in such environment would effectively turn the tailboard's edge into a potentially dangerous pinch point. It is reasonably foreseeable that any accidental loss of control, swing of the beam, or sudden imbalance of force by his co-worker, as occurred here, could cause Mr. Khan's hand to be crushed against the tailboard edge. The cramped working space however left him with no adequate room to safely evade or deflect such a sudden movement.

17.In Charlesworth & Percy on Negligence (14th ed), the commentary at para 12-27 on "safe place of work" states thus:-

“12-27 The duty of employers to provide their employees with a safe place of work was said by Goddard LJ to be "not merely to warn against unusual dangers known to them ... but also to make the place of employment ... as safe as the exercise of reasonable skill and care would permit."... The employer's duty is to see that care is taken, so that liability can arise even if the failure to exercise reasonable care and skill is that of an independent contractor. The employer is excused only if the danger is due to a latent problem, not discoverable by reasonable care and skill..." (emphasis supplied)

18.This Court does not accept the submissions of Mr Eric Chau Hin Chung, counsel for Strong League, that this task could simply be left to the workers' common sense or discretion. To begin with, generally speaking, an employer bears a positive and non-delegable duty to see to its workers' safety.

19.Furthermore, Mr Khan testified that the date of the accident was his first time handling this specific task with metal beam. Given his lack of prior experience, this Court would incline to think that the inherent risks of this operation would not have been readily appreciable to him. At the very least, there is no or no credible evidence adduced by Strong League demonstrating to the otherwise.

20.On the other hand, Mr Hung admitted under cross-examination that he knew of the dangers of working next to the tailboard, yet he chose to instruct Mr Khan to work together with his co-worker at that spot.

21.As seen in this light, the authorities cited by Mr Chau to dispute liability are wholly distinguishable and do not advance Strong League's case at all.

22.Crucially, Mr. Hung was standing immediately next to the two workers and was fully aware of the inherent risk of injury to Mr. Khan for some time before walking away[1]: a salient feature wholly absent from the cited authorities. As their direct supervisor, Mr. Hung ought to have averted this risk by halting the task until a safe workplace could be located for the workers or the hazard eliminated. In my judgment, Mr Hung's failure to intervene, coupled with his direct presence, effectively compelled the employees (particularly Mr Khan) to work in an inherently hazardous environment, leaving Mr Khan with no realistic discretion to opt for a safe workplace.

23.Viewed thus, the core principle as elicited from Mr Chau's authorities that an employer may, under certain special circumstances, delegate a simple manual task to a worker's own judgment, is wholly inapplicable here. See, for instance, Chu Chung Man v East Asia Moving Ltd [2020] HKDC 362, at para 54.

24.Due to the above reasons, this Court has no hesitation to find Strong League was in blatant breach of his employer's duty by failing to provide a safe place of work to Mr Khan at the material times, thereby causing or materially contributing to his right ring finger injury sustained in the accident. Strong League is therefore liable to Mr Khan under common law negligence.

25.Mr Choi informed this Court after the close of the evidence that Mr Khan would no longer pursue the cause of action basing on Occupiers Liability Ordinance (Cap.314). Thus, it is no longer necessary for this Court to deal with such cause.

Contributory Negligence

26.Strong League raises a fallback argument that Mr. Khan was contributorily negligent (CN), contending that liability should be apportioned at 50% against him. In its Opening Submissions, Strong League's contention was essentially twofold: first, Mr. Khan failed to keep a safe distance from the tailboard as expected of a reasonable worker; and second, he failed to position himself to allow for a quick retreat should the load unexpectedly shift. In this Court's view, however, these two arguments are in effect two sides of the same coin.

27.Strong League bears the burden to prove CN on Mr Khan's part: Charlesworth & Percy on Negligence (14th ed), para 4-13.

28.In light of the above analysis, after carefully considering all the relevant evidence and circumstances and both parties’ submissions, this Court finds no case of any CN made out.

29.Mr Samuelson T L Choi, counsel for Mr Khan, rightly pointed out that while Mr Khan had experience as a general labourer, this was his first day working at the Site and his first time handling metal beams with a co-worker to carry out the assigned task. Importantly, this Court accepts Mr Khan's testimony and finds that it was Mr Hung (qua the foreman) who selected the location and instructed Mr Khan and Mr Leung to work immediately next to the tailboard. Mr Khan was simply obeying Mr Hung's orders. Furthermore, as noted above, the CCTV footage confirms that the available workspace for Mr. Khan to manoeuvre was highly restricted.

30.Therefore, Mr Chau's submission that Mr Khan voluntarily assumed the risk of injury by choosing to stand near the tailboard (or failing to keep a safe distance from it) is actually basing on an erroneous or mischaracterised premise. The Court will be very slow to find contributory negligence against a worker (and in this case, Mr Khan) who was effectively compelled by his or her employer to operate under an unsafe system or in an unsafe place of work.

31.In Machray v Stewarts and Lloyds Ltd [1965] 1 WLR 602, McNair J at p.610F-G held that:-

“...when I find a workman, an employed man, adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer’s business, and when I find that he has been prevented from doing the work in the way in which he would have preferred to do by the employer’s breach in providing him with the proper tackle, I myself am very slow to put any blame on him……” (emphasis supplied)

32.Further, what Sakhrani J in Lam Fung Ying v Lui Kwok Fu (unrep, HCPI 826/2002, 26 February 2004) said at para 58 of the judgment also echoed with the above principle:-

“58. …The deceased was the employee of the defendant and he was instructed to carry out the works. There was no safety equipment provided to him by his employer to carry out the works whilst working on the scaffold. As the deceased was simply following his employer's instructions to carry out the works, I am unable to accept that there was any contributory negligence on his part...” (emphasis supplied)

33.I have not lost sight of Mr. Hung claiming under cross-examination that no alternative location was available at the Site for the workers to carry out the task, but this cannot constitute a justification to shift any blame to Mr. Khan for an unsafe situation created by Strong League itself. Fundamentally, this did not prevent Mr. Hung from halting the work until a proper area could be arranged, or finding a way to eliminate the hazard before instructing the workers to proceed. Otherwise, as Mr. Choi rightly submitted, Strong League would be condoned for prioritizing operational convenience at the expense of its workers' safety.

34.Furthermore, the CCTV footage shows that the truck was left completely idle, with no active loading or unloading underway. It further reveals that Mr. Hung’s sole activity was manipulating some plastic material on the tailboard platform (effectively making it as a makeshift workbench) before passing the material to Mr. Leung. No evidence suggests why this straightforward task could not have been done by Mr Hung elsewhere on-site. In this setting, the crushing hazard could prima facie have been eliminated entirely beforehand simply by closing the tailboard. Despite Mr. Hung being fully conscious of the inherent danger a lowered tailboard posed to the two workers, this Court sees no reasons proffered from Strong League to explain why the basic safety precaution of closing the tailboard could not be taken beforehand.

35.All in all, the burden of proving contributory negligence rests squarely on Strong League's shoulders, and it has patently failed to discharge under the circumstances of this case.

36.Mr Chau made two more points of submissions on CN in his Closing, namely: (1) Mr Khan did not request to move to another area to work; and (2) he paid insufficient attention to the actions of Mr Leung, and had he done so, he would have exerted counterforce in time to cancel out the weight on him created by Mr Leung.

37.These two points do not detract this Court's conclusion on finding no contributory negligence on Mr Khan's part, for they are likewise devoid of merits.

38.Regarding the first point, the court has to use common sense and appreciate the reluctance of workers to speak up for themselves in fear of losing their jobs by disobeying their superiors' orders. There is no evidence to convince this Court to think otherwise in Mr Khan's case. To the contrary, when this line of questioning was put to Mr Khan by the defence counsel, he frankly replied that he simply followed orders he received, and did not disobey Mr Hung because he was his supervisor.

39.If any authority is needed on this point, Cheung Kai Chi v Chun Wo Contractors Ltd [2008] 1 HKLRD 102 is one. Tang VP had the following to say at para 35 of his judgment:-

“35. …The primary duty to provide a safe working place is on the employer, a worker who consents to work or continues to work in an unsafe working place should not normally be regarded as being liable for contributory negligence. If the court is too ready to find contributory negligence it might encourage employers to be less careful, and their insurers to be less eager to insist on compliance with industrial safety. I do not encourage workers to ignore their own safety. Indeed, I would earnestly urge them to refuse to work when it is dangerous to do so and report their employers to the authorities. But the court has to use common sense and appreciate the reluctance of workers to speak up for themselves. Yuen JA also said that there was no evidence that the deceased might have been dismissed. I accept that there was no evidence. But it is rare for there to be such evidence. An employer is unlikely to dismiss a worker on such ground. Lord Goddard recognized that complaints “in many cases might mean dismissal”. Also a worker who insists on his right might find it difficult to find a job and his contract of employment might not be continued. If the Site was otherwise well run and safe, a worker who took unnecessary risk could be found liable for contributory negligence, but the situation is very different when the work place was a highly dangerous one. In such circumstances, the workers are left, in effect, with the unenviable choice of quitting or accepting exposure to great risks.” (emphasis supplied)

40.The second point is also plainly untenable. The CCTV footage clearly reveals that the swing of the metal beam at Mr. Khan's end crushing his right hand to the tailboard's edge occurred within a split second; it is therefore unreasonable to find fault with Mr Khan for failing to react quickly enough to counter this very sudden momentum caused by Mr. Leung's manoeuvre.

Quantum

41.I would first deal with the compensation payable to Mr Khan under the Employees’ Compensation Ordinance (Cap.282) (the "ECO"), and then the appropriate common law damages under the PI action.

A preliminary matter on section 18 appeal under ECO

42.Mr. Khan managed to appeal against the loss of earning capacity (LOEC) assessment contained in the Form 9 issued on 30 July 2025 by filing a corresponding notice of appeal on day 2 of the trial (i.e. 31 July 2025)[2], though he filed no earlier notice of appeal against the Form 7, which was issued on 9 April 2025[3].

43.On Strong League's side, it had filed a notice of appeal (on 21 July 2025) against the Form 7, but did not subsequently file a separate notice of appeal against the Form 9. In a way, this is understandable given that the Form 9 maintains the same certification of LOEC and sick leave periods as the Form 7.

44.This Court do not think another notice of appeal against the Form 9 assessment on the sick leave periods is separately required from Strong League, because this Court was already hearing the appeal of such assessment made by Strong League on the 1st day of the trial (i.e. 30 July 2025), which was also the very day the Form 9 was issued and filed with the Court Registry.

45.In these circumstances, this Court has jurisdiction to determine Mr Khan's appeal against the LOEC and Strong League's appeal against the sick leave periods, as respectively certified under the Form 9.

Section 9 compensation

46.Mr Khan was 24 years old at the time of accident. It is undisputed that his monthly earnings at the time was HK$20,800 per month. The difference between the parties lies only in whether the loss of earning capacity ought to be 0.25% as certified in the Form 9 or 1% as asssessed by the single joint orthopaedic expert, Dr Wong Kwok Shing Patrick ("Dr Wong")[4].

47.After the accident, Mr Khan attended the A&E Department of Tseung Kwan O Hospital on the same day[5]. X-ray taken showed no fracture. Physical examination revealed his right finger was tender over the distal inter-phalangeal joint region. He was treated and discharged.

48.On 5 August 2023, Mr Khan consulted an orthopaedic specialist, Dr David Ip. He was treated conservatively with medication and physiotherapy and with sick leave given to him. According to Dr Ip's medical report dated 28 September 2023[6], the initial consultation was on 5 August 2023, and his examination of Mr Khan revealed a "grossly inflamed right hand right finger radial collateral ligament of the distal inter-phalangeal joint, with stiffness, poor power, and inflammation." Dr. Ip further noted that when Mr. Khan was last seen on 26 September 2023, he presented with "residual pain, poor power and stiffness of right ring finger".

49.Dr Wong also quoted a medical record from Dr Ip that examination on 27 September 2023 showed that range of motion of the right finger was 75% normal and power 60% normal. According to Dr Wong, this reflects that 2 months after the accident, Mr Khan had reasonably satisfactory progress though he was not yet fully recovered then[7].

50.In both the Form 7 and the Form 9, the MAB assessed Mr Khan's injury to be "right ring finger injury resulting in pain".

51.As can be seen from the single joint expert report prepared by Dr Wong dated 16 September 2024 (the “SJER”)[8], it is noteworthy that Dr Wong has carefully reviewed the medical evidence in relation to Mr Khan’s right ring finger injury and the resulting disability he has suffered, and conducted thorough examination of Mr Khan, then he came to the diagnosis that Mr Khan sustained soft tissues crush injury at his right ring finger during the accident[9], and assessed his impairment of whole person to be 0.5% for his resulting right ring finger pain, and LOEC at 1%[10].

52.Dr Wong's physical examination of Mr Khan revealed a normal range of motion in the right ring finger by then, with no significant residual swelling or deformity, but with only mild tenderness over the DIPJ collateral ligament. The expert also noted (without expressing any doubt or other adverse comment over) Mr. Khan's complaint of some pain upon making a full right-hand fist. The SJER also put on record that Mr. Khan was wearing gloves at the time of the accident, resulting in no open wound or subsequent bleeding.

53.According to Dr Wong, Mr Khan had reached maximal medical improvement at the time of the examination, and did not require further treatment or investigation.

54.Dr Wong further opined that Mr Khan's prognosis is good, but he "may have mild residual pain from time to time upon heavy use of his right hand involving ring finger".

55.In stark contrast, there is no material available to enlighten this Court as to how the Medical Assessment Board (the "MAB") came to their assessed figure of 0.25% for the LOEC as stated in the Form 7, or in the Form 9 upon its review.

56.Mr. Chau drew this Court's attention to item 26 of the First Schedule to the ECO, which prescribes a 1% LOEC for ankylosis of the distal interphalangeal joint of the ring finger. Mr Chau submits that Mr. Khan's injury is less severe than this specified condition. While this is noted, in the present context, this is not the primary (still less, the sole) consideration for the Court in assessing the appropriate percentage of LOEC of Mr Khan under the ECO. Crucially, Dr. Wong’s LOEC assessment was primarily based on Mr. Khan's residual right ring finger pain rather than a restriction in its joint movement.

57.Having carefully considered all the evidence and circumstances, this Court prefers and accepts Dr. Wong’s 1% LOEC assessment over the MAB's certified figure, and allows Mr Khan's appeal against the Form 9 assessment accordingly. In doing so, this Court would also underscore that it finds no error in Dr. Wong’s methodology and has paid due regard to his independence and impartiality in rendering his expert opinion, as fairly reflected in the SJER.

58.In these circumstances, the compensation payable under section 9 would be:-

HK$20,800 x 96 x 1% = HK$19,968

Section 10 compensation

59.Under the Form 9, the MAB certified intermittent sick leave of 257 days during the period between 25/7/2023 and 14/4/2024, and another nearly two months' sick leave between 4/7/2023 and 29/8/2024 to be necessary. In his Closing Submissions, Mr Choi submitted that the sick leave period up to 14/4/2024 should be affirmed, or at least 6 months out of such period as Mr Khan's fallback position.

60.On the other hand, Dr Wong categorically stated at para 48 of in the SJER that he “believe that Mr Khan should be capable of resuming at least some of the lighter duties of his pre-accident job at 3 months after the accident”, and “[m]ajority of patients with similar injury should be capable of resuming work in 3 months”.

61.Regarding the periods of sick leave certified by the MAB, the medical certificates produced by Mr. Khan show that only two of them were issued by Tseung Kwan O Hospital ("TKOH"), covering the period from 25 July 2023 to 4 August 2023[11]. The remaining certificates were issued intermittently from 5 August 2023 onwards by Dr. David Ip[12].

62.However, no primary medical notes or clinical records from Dr. Ip were produced. The only available documentation is his medical report dated 28 September 2023[13] as referred to in paragraph 48 above. But even in that report, it was not indicated how many sessions or frequency of Mr Khan receiving physiotherapy and when the course was completed[14].

63.Importantly, Dr Ip's medical report was already fully considered by Dr. Wong[15] before he assessed the reasonable period of sick leave in Mr Khan's case.

64.It is observed that Dr. Wong came to his opinion that a three-month sick leave period was appropriate only after carefully considering the medical documents supplied to him (including Dr Ip's medical report and TKOH's medical report), Mr Khan’s medical history, the nature of his ring finger injury, and after conducting thorough examination of Mr Khan (both physical and radiological).

65.Though, Dr Wong qualified his opinion by stating that if Mr Khan’s work duties were as heavy and strenuous as described, a total of six months' sick leave would be reasonable and appropriate.

66.In this connection, Mr Khan claimed in his witness statements[16] and also told Dr Wong that he is unable to carry out his pre-accident job duties. Nonetheless, this Court does not accept this is the case after carefully considering all the evidence and counsel's submissions.

67.To begin with, according to Dr Wong's expert opinion, Mr Khan should be able to resume his pre-accident job, or any previous jobs he worked on before. His overall work efficiency and capacity will only be very mildly reduced as a result of the accident.[17]

68.Although Mr. Choi submits that Mr. Khan still claims in his witness statements[18] that he regularly experiences fluctuating pain in his right ring finger (which would worsen during extreme hot or cold weather and requires painkillers), these are subjective complaints whose veracity must be gauged against objective medical evidence.

69.In my judgment, the single joint expert evidence provides a reliable and objective indicator of Mr. Khan's residual condition. Dr. Wong estimates his whole person impairment for daily activities to be 0.5% for the residual pain resulting from the accident[19].

70.It was explored with Mr Khan during his cross-examination the specific tasks he was mainly assigned by Strong League before the date of accident (as referred to in Madam Chiu's witness statement).

71.Mr Khan agreed that although he was initially employed as a labourer by Strong League, he was later assigned to work as a truck driver. However, he testified that he was unable to drive because gripping the steering wheel exerted painful pressure on his injured right ring finger.

72.I find Mr Khan's testimony on this point unconvincing. Common sense dictates that while proper driving requires both hands, merely holding a steering wheel does not exert the type of force that would cause such degree of pain under normal circumstances given the mild residual impairment with his ring finger.

73.Taking a fair and balanced view of the evidence before this Court, I do not think the driving task as described by Mr Khan in court can be characterized as heavy or strenuous.

74.It is further observed that Dr Wong gave Mr Khan’s finger injury a good prognosis. He noted that while Mr Khan might experience mild, intermittent residual pain upon heavy use of his right hand, he is likely to regain normal or near-normal function with a gradual increase in activity.

75.Mr Khan also said that he would use high-pressure water hoses to clean road, and this required significant physical manpower to counter the water pressure. In this regard, Madam Chiu testified that the hose of one-inch (in diameter) runs on a pulley system and can easily be pulled forward with one hand, requiring minimal physical force.

76.Importantly, this Court notes that if the nature of handling the task of water hose would really cause Mr Khan any practical difficulty to discharge with his residual right ring finger issue, it is natural to expect him pointing this out in his witness statement. But he did not. He only highlighted the fact that it was due to his “feel” of loss of power and grip in right hand (given rise by his right finger injury) that he could not fully handle loading and unloading materials and demolition works.

77.It is true that when he performed the right-hand grip test by dynamometer in Dr Wong’s clinic, it showed ‘weakened’ right hand grip by around 50%. But Dr Wong provided his further opinion to account for this phenomenon : Mr Khan was “unable” to make a full grip as he did not use his right little finger to grip onto the handle, and Mr Khan gave the purported explanation that he was avoiding exerting pressure onto the adjacent ring finger.

78.However, it is Dr Wong’s unchallenged expert opinion that Mr Khan may not have exerted his maximal effort in such grip strength testing. In this Court's view, his expert opinion here is well reasoned by pointing out the pertinent objective fact that the muscle bulks of Mr Khan’s upper limbs measured[20] are not compatible with 50% weakness of the right hand as compared to the left side. Update x-ray shows symmetrical appearance with no relative osteopenia of the right hand to suggest chronic underuse of the right hand.

79.Dr Wong further observed out the current physical and radiological examination findings are compatible with Mr Khan having a reasonably satisfactory recovery from the injury, with mild residue only.

80.In light of Dr Wong's detailed and rational analysis of his residual right finger condition, Mr Khan cannot in this Court's view discharge his burden to credibly demonstrate he really suffered any significant loss of hand grip strength, still less of such degree to prevent him from resuming his pre-accident job duties as canvassed in the trial, in particular, his operation of the high-pressure water hose.

81.Mr Khan also claimed that fetching traffic cones (i.e. another task mentioned in Madam Chiu's witness statement) required both hands because the cones were exceptionally large, reaching up to his shoulder height. On the other hand, Madam Chiu disputed this as an exaggeration, testifying that Strong League only used standard cones measuring 70 to 80 cm in height and each one is of such weight which does not require two hands to move. On this matter, I find Madam Chiu's testimony more credible than Mr Khan's after gauging their respective veracity in the light of the above analysis. Mr Khan cannot convince this Court that he would really encounter difficulty to resume handling these traffic zones either.

82.In light of the aforesaid, after carefully considering all the evidence, this Court finds that 3-month sick leave is reasonable and appropriate in Mr Khan's case, and his section 10 compensation should be assessed accordingly.

83.Strong League did not raise any issue that Mr Khan has received any income during this sick leave period.

84.In these circumstances, the section 10 compensation payable by Strong League is calculated as follows:-

HK$20,800 per month x 3 months x 4 / 5 = HK$49,920

Section 10A compensation

85.Both parties agreed the compensation under this head at HK$1,200.

Common law damages

PSLA

86.Mr Khan claims HK$150,000 for PSLA. Strong League proposes an award of HK$30,000.

87.In this connection, the authorities relied upon by Mr Choi are: (1) Shah Juniad Ali v Yau Lee Galvanizers (Hot-Dip) Company Limited (unrep, DCPI 517/2008, 14^th April 2009); (2) Chan Hung Hang v Fat Kee Marine Repairing & Engineering Co Limited & Anor (unrep, DCPI 2328/2007, 3^rd September 2008); (3) Khan Irram v Wai Hing Engineering Limited (unrep, DCPI 1465/2009, 4^th November 2011); (4) Singh Harpel v Najib Transport (unrep, DCPI 494/2009, 23^rd November 2009).

88.The PSLA authorities relied upon by Mr. Chau primarily concern minor soft tissue injuries. These include (1) Singh Jagdeep v VSC Engineering Products Co Ltd (unrep., DCPI 391/2005, 17 June 2005); (2) Cheung Yu Tin Alvin v Ho Hon Ka (unrep., DCPI 853/2004, 9 June 2005); (3) Yip Chun Nam v Chan Kang & Another (unrep., DCPI 183/2002, 24 March 2003); (4) Chan Sau Lan v Chesterton Petty Ltd (unrep., HCPI 1123/2002, 3 November 2004); (5) Khan Irram v Wai Hing Engineering Company Limited (unrep., DCPI 1465/2009, 4 November 2011). The fifth authority overlapped with Mr Choi's authority no.3. While that plaintiff's injury involved a bone fracture, Mr. Khan's did not. I gathered from Mr. Chau's submissions that that authority serves merely as a reference point for considering the ceiling that any reasonable PSLA award claimed by Mr Khan cannot go beyond.

89.After carefully considering the medical evidence as regards to the nature and extent of Mr Khan’s right ring finger injury and the development of its condition since the accident, which results in only mild residual impairment as assessed by Dr Wong, I think the authorities cited by Mr Choi are not proper comparables in light of the above findings and observation made by this Court.

90.On Strong League's side, only authority nos. 1 and 5 involved finger injury, and the rest concerns with plaintiffs who suffered injuries at other different bodily sites, which do not appear to be apt comparables.

91.Regarding Singh Jagdeep, the plaintiff was cutting an iron with an electric disc cutter, the disc broke and hit his left hand, causing ½ cm abrasion on the dorsal of his left hand with 16 days' sick leave. The trial judge only accepted this injury and resulting sick leave as caused by the accident, and awarded HK$30,000. In my judgment, the overall injury of Mr Khan and the ensuing pain and inconvenience he suffered would appear to be more serious than the case of Singh Jagdeep.

92.The trial judge in Singh Jagdeep referred to another relevant authority of Lee Tsz Kin Ken v Climax Paper Converters Limited (unrep, HCPI 504/2003, 24 June 2024) in coming to the PSLA award. In Lee Tsz Kin, the plaintiff suffered a minor right thumb hyper-extension sprain, and immediate examinations showed normal sensation and movement. A subsequent exploratory operation revealed normal soft tissues with only mild nerve scarring. Tang J (as he then was) found the injury to be minor and the plaintiff had exaggerated his thumb condition, leaving a negligible residual disability evaluated at a 1% impairment of the whole person (according to D's expert). Out of 850 days of total intermittent sick leave, the court found only a 10-month period medically justified. Balancing the minor injury and the surgery against the lack of objective medical evidence for longer-term complications, the judge awarded HK$50,000 for PSLA[21]. The injury and the surgical complications in Lee Tsz Kin render that plaintiff's case more serious than Mr. Khan's.

93.Looking at the matter in the round, the Court considers that the appropriate PSLA award for Mr. Khan would be in the vicinity of HK$40,000 if assessed at the time the aforesaid two authorities were decided.

94.However, those two cases were decided many years ago. Taking inflation into account, this Court would grant a PSLA award in the sum of HK$48,000 at current value (see 鍾玉珍 對 嘉頓有限公司 [2023] HKDC 1123, paras 121–123).

Loss of earnings

95.As similar to his position for claiming section 10 compensation, Mr Khan claims his pre-trial loss of earnings and MPF benefit by referring to his sick leave period granted by Dr Ip and certified by the Medical Assessment Board up to14/4/2024[22], or 6 months' sick leave as his fallback position. He claims no further loss of earnings beyond (including future loss of earnings).

96.For similar reasons as already explained above, and after carefully deliberating on counsel's submissions, this Court considers that 3 months of sick leave would also be an appropriate and reasonable period that this Court should adopt for compensating Mr Khan's loss of earnings and MPF benefit under the PI action.

97.As such, his pre-trial loss of earnings and MPF is quantified thus:-

HK$20,800 per month x 3 months x 1.05 = HK$65,520

Loss of earning capacity

98.Mr Choi urged this Court to allow a figure of HK$62,400 under this head, whereas Mr Chau submitted that no such award ought to be made.

99.Having carefully considered the parties' submissions and the evidence in light of the above findings, in particular Dr. Wong's unchallenged expert opinion that Mr. Khan may still experience occasional mild residual pain during heavy use of his right hand and that his overall work efficiency and capacity will indeed be reduced according to the expert (be it very mildly), and noting that Mr Khan had also worked as a construction site labourer for a few years before joining Strong League, this Court is satisfied that a real risk thus exists that Mr. Khan's residual finger problems will have some negative impact on his overall competitiveness in the labour market for heavy manual work, leading to some financial loss over the remainder of his working life, especially noting that he is still relatively young.

100.However, considering the degree of impact discerned from a fair reading of Dr. Wong's overall assessment of Mr Khan's residual right ring finger condition, any reasonable compensation under this head can only be a very minor award. Doing its best in this assessment exercise, this Court awards a commensurate amount of HK$20,000 under this head.

Special Damages

101.The parties agreed the special damages at HK$6,700.

Summary of Quantum

102.Given the aforesaid, Mr Khan's quantum as allowed by this Cour under the EC action and PI action respectively are summarised hereinbelow:-

(I) EC action

Head of compensation		Amount (HK$)
Section 9		19,968
Section 10		49,920
Section 10A		1,200
		_______
	Total:	71,088

(II) PI action

Head of Damage		Amount (HK$)
PSLA		48,000
Pre-trial loss of earnings & MPF		65,520
Loss of earning capacity		20,000
Special Damages		6,700
		_______
	Total:	140,220

Disposition

103.Due to the above reasons, under the EC action, Strong League is ordered to pay Mr Khan forthwith:-

(1) the sum of HK$71,088; and

(2) interest accruing thereon at half judgment rate from the date of the accident to the date hereof and thereafter at judgment rate until full payment.

104.In relation to the PI action, judgment is entered in favour of Mr Khan in the sum of HK$140,220 together with interest which shall accrue:

(1) on the PSLA award at 2% per annum from the date of service of writ until the date of judgment, and thereafter at judgment rate until payment; and

(2) on the pre-trial loss of earnings and MPF benefit and special damages at half judgment rate from the date of the accident until the date of judgment, and thereafter at judgment rate until payment.

105.For the avoidance of doubt to prevent double recovery, any payment(s) to be made by Strong League to Mr. Khan in satisfaction of the judgment under the EC action (pursuant to paragraph 103 above) shall be credited against the judgment sum and interest (as ordered to be paid in paragraph 104 above) under the PI action.

Costs

106.Costs should normally follow the event.

107.Accordingly, under the EC action, this Court also makes a costs order nisi that Strong League shall pay Mr Khan the costs of the EC action (including all reserved costs, if any), to be taxed if not agreed, with certificate for counsel.

108.A similar costs order nisi is also made that Strong League shall pay Mr Khan the costs of the PI action (including all reserved costs, if any), to be taxed if not agreed, with certificate for counsel.

109.Both costs orders nisi shall become absolute in the absence of application to vary the same within the next 14 days.

110.Lastly, it remains for me to thank counsel for their helpful assistance rendered to the Court.

Mr Samuelson Choi, instructed by Messrs. Y W Mok & Co, for the Applicant / Plaintiff

Mr Eric Chau, instructed by Messrs Patrick Mak & Tse, for the Respondent / Defendant