Gurung, Lachhin v. J Liang & Son

DCPI 1041/2024

[2026] HKDC 1232

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2941 OF 2021

------------------------------

------------------------------

------------------------------

JUDGMENT

------------------------------

Introduction

1.This is the assessment hearing of the claims of the Plaintiff Mr Gurung Lachhin (“Mr Gurung”) for damages for personal injuries arising out of an accident at work sustained by him on 14 February 2022 (“the Accident”).

2.Interlocutory judgment on liability was entered against the Defendant on 13 August 2025 with damages to be assessed.

The Accident and the Medical Findings

3.The Plaintiff adopted his witness statement at the hearing. The Defendant called Ms Yiu Yu Chu (“Ms Yiu”), the Defendant’s assistant manager to testify at the assessment hearing.

4.There is also a single joint medical expert report of Dr Ko Put Shui Peter dated 12 December 2024 (“SJR”) which I have fully considered. By consent it was ordered by Master Charmaine Lo on 21 May 2025 that the SJR be adduced as evidence without calling the expert to testify.

The Accident

5.The Plaintiff was born in Nepal on 12 April 1975. He was 46 years old at the time of the Accident.

6.The Plaintiff was employed by the Defendant as a general labourer at a construction site at Lamma Island Power Station on Lamma Island.

7.The accident happened at around 2:30pm on 14 February 2022. While the Plaintiff was in the process of unhooking the arch rope from a piece of iron, his left thumb was accidentally caught in-between and trapped inside two shackles and sustained a crush injury.

8.After the accident, the Plaintiff travelled to the Department of Accident and Emergency (“AED”) at Queen Elizabeth Hospital (“QEH”) for treatment.

9.At the AED of QEH, Physical examination showed a 4.5 cm laceration on the ulnar aspect of the left thumb with mild oozing. Light touch sensation diminished over radial and ulnar border of thumb. Capillary refill was less than 2 seconds. The Plaintiff was unable to fully flex the left thumb over interphalangeal joint. X-ray examination of left thumb showed fracture of medial aspect of proximal phalanx head with intra-articular extension to interphalangeal joint. The Plaintiff was diagnosed with open fracture left thumb proximal phalanx and was admitted to the Department of Orthopaedic and Traumatology (“DOT”) of QEH for further treatment.

10.On 15 February 2022, the fracture was reduced with Kirschner wire fixation. The post-operative course was uneventful and he was discharged on 16 February 2022. On 29 March 2022, the Kirschner wire was removed.

11.The Plaintiff was referred to the DOT outpatient clinic and to physiotherapy and occupational therapy at QEH for follow-up and further treatment:-

(a)  From 1 March 2022 to 2 August 2022, the Plaintiff attended follow-up at the DOT outpatient clinic of QEH. On 2 August 2022, physical examination showed scar well healed and the fracture site nontender. Range of motion (ROM) measurements: MCPJ: 5-50, IPJ 5-20 (stiff). Ulnar/radial collateral ligaments were stable and distal sensation was intact. X-ray examination showed “fracture healed”. As of 19 July 2022, his maximum lifting capacity was 25lb. As occupational and physiotherapy had completed, sick leave was stopped and no further sick leave was granted;

(b)  From 1 April 2022 to 8 June 2022, the Plaintiff attended 11 sessions of physiotherapy treatment at the QEH;

(c)  From 23 February 2022 to 2 August 2022, the Plaintiff attended 37 sessions of occupational therapy at the QEH.

The Medical Assessment Board (“MAB”)

12.On 16 November 2022, the Plaintiff was assessed by the Medical Assessment Board. The Certificate of Assessment (Form 7) was issued on 30 November 2022. The Plaintiff was diagnosed with “left thumb injury resulting in left thumb pain, scar, numbness and interphalangeal joint stiffness”. Sick leave for the period from 14 February 2022 to 1 August 2022 was endorsed. The Plaintiff was assessed to have lost 5% of his earning capacity permanently as a result of the workplace injury.

Expert opinion as per the SJR

13.On 29 October 2024, the Plaintiff was examined by Dr Ko. His expert opinion on the extent of the Plaintiff’s injuries is as follows:-

(1)  Diagnosis: The Plaintiff sustained “open injury articular fracture proximal phalange head of left thumb (4.5 cm laceration wound over ulnar aspect left thumb)”;

(2)  Causation: The left thumb injury should be the sole and direct result of the accident. There was no pre-existing condition to the left thumb injury;

(3)  Prognosis: At the time of the assessment which was more than 2 and a half years after the occurrence of the alleged injury, Mr Gurung had residual pain, stiffness and weakness in his left thumb. Physical examination showed corresponding findings. X-rays found that the facture of the left thumb had healed well. The prognosis for his left thumb recovery should be reasonably favourable and satisfactory;

(4)  Treatments received: The treatment, investigation and rehabilitation received by the Plaintiff until August 2022 was adequate and appropriate;

(5)  Further treatment and/or examination: He would not have benefited from any further treatment, investigation and rehabilitation;

(6)  Sick leave: Sick leave period until August/‌September 2022 would have been adequate and acceptable for the treatment, investigation and rehabilitation of the alleged injury;

(7)  Activities of daily living: The Plaintiff would be able to continue to manage his usual activities of daily living in independent and normal manner;

(8)  Sports and recreation: The injury would not pose any significant hindrance and obstacle in the Plaintiff’s resumption in his pre-accident preferred regular sports included volleyball, basketball and badminton with probably little impairment of his enjoyment level;

(9)  Resumption of pre-accident job: Considering his pre-accident job requirement as a general labourer at construction site with job details: “His duties required him to work in construction sites. He wore safety helmet, working gloves at work and on a necessary basis harnesses. He needed to handle/ lift heavy weight maximal by himself up to 20 to 30 kg climbing on heights included ladder and scaffords. He needed to use different tools and instruments included rachet, hooks, grinding machine (small).” and also his right hand dominance, Dr Ko opined that he would have been able to resume his pre-accident job by around August to September 2022 with probably mild impairment of his work efficiency and work effectiveness as caused and contributed by the residues from the alleged injury;

(10)  Impairment to the whole person: 3%;

(11)  Loss of earning capacity: 3-3.5%.

Quantum

14.The Plaintiff claims the following four heads of damages:-

(1)  PSLA

(2)  Loss of earning and MPF (pre-trial and future);

(3)  Loss of earning capacity;

(4)  Special damages.

PSLA

15.I have considered the authorities relied on by the parties. The cases referred to by the Plaintiff in his opening submissions do not concern an injury to the thumb. I consider two of the Plaintiff’s authorities in his closing submissions to be more relevant.

(a)  In Yiu Pau Yau v Co-Ray Design & Construction Limited (Unrep, DCPI 864/2006, 3 May 2007), the plaintiff was working at the staff quarters of the Ocean Park when his left index finger was cut by the spinning blade of an electric trimmer machine. Examination revealed that there was an open wound over his left index finger with irregular wound edge. He was not able to move the distal interphalangeal joint. There was also sensory loss over the ulnar aspect of the distal phalanx. The wound was explored and it was found that there was complete cut of the flexor digitorum profundus tendon, complete cut of both the radial and ulna digital nerve and complete cut of the ulna slip of the flexor digitorum superficialis. There was a 50% cut of the radial slip of the flexor digitorum superficialis. The damaged structures were repaired. The Occupational Therapy Report recommended the plaintiff to resume work as a decorator and said that the plaintiff should be able to return to his original job as a carpenter. At the hearing, the plaintiff said that he resumed working as a carpenter towards the end of 2003. The plaintiff had not claimed for any pre-trial loss of income beyond the days of his sick leave. Specialist in orthopaedics and traumatology assessed the plaintiff to have suffered a 6% permanent impairment of the whole person based on American medical authorities and opined, for the purpose of employees' compensation assessment, that there was a 7% loss of earning capacity. PSLA was awarded at HK$200,000.

(b)  In Wong Tai Yau v Transward Stevedore Limited & Another (Unrep, HCPI 1080/2006, 9 October 2009), the plaintiff suffered a comminuted fracture of right thumb (dominant hand) while he was unloading containers from the container ship in December 2003. X-ray examination showed comminuted intra-articular fracture of the proximal phalanx of the right thumb, namely, multiple fractures which extended into the articular area of the joints of the proximal phalanx. The plaintiff was admitted into the Orthopaedic and Traumatology Department of QEH. The fractures were initially treated conservatively by a thumb splint and the plaintiff was discharged from hospital two days later. The plaintiff underwent surgical operation in April 2005 for the fusion of the metacarpophalangeal joint and debridement of the interphalangeal joint. The grip strength of the right thumb could not fully recover but the treatment given had prevented it from deteriorating. The plaintiff had difficulty lifting heavy objects. PSLA was awarded at HK$250,000.

16.The Defendant also referred to In Muhammad Asghar v Kwok Kong Moon & Ors (Unrep, DCPI 855/2018, 12 December 2022), the plaintiff, a right-hand dominant, suffered fractured proximal phalanx in his right thumb in the course of his employment. He was hospitalized for 3 days and discharged. He was subsequently re-admitted for open reduction and internal fixation. He was hospitalized for 7 days and discharged. He was assessed to have suffered 3% impairment of the whole person for his right thumb fracture. PSLA was awarded at HK$140,000.

17.In my view, the injuries that the Plaintiff suffered in this case are less serious than that in Wong Tai Yau and Yiu Pau Yau. The Plaintiff seeks HK$200,000 under this head. The Defendant submitted that an award in the range of HK$150,000 would be appropriate.

18.Considering the overall circumstances, an appropriate award for PSLA would be HK$170,000.

Loss of Earning

19.The Plaintiff was born on 12 April 1975. He was 46 years old at the time of the Accident and is now 51 years old.

20.The Joint Expert is of the opinion that the Plaintiff should be capable of resuming his pre-Accident occupation by around August to September 2022 with “probably mild impairment of his work efficiency and work effectiveness”.

21.In Chan Sze Yuen v Tin Wo Engineering Co Ltd & Ors (Unrep, HCPI 427/2008, 5 February 2016) Master Leong (as he then was) made the following general observations in relation to loss of earnings and loss of earning capacity at §§17-19:-

“17. We do not go to work only when we are 100% fit and efficient. I cannot imagine that, for example, any professional football player only play matches when he is perfectly fit. Any professional (or even amateur) athletes are likely to be affected all through their careers by various old and new injuries, pains or aches due to training etc.

18. Similarly, “general workers” like us are often affected by various minor ailments, coughs and colds, back pains, headaches, tiredness, jet-lags, hangovers etc which may reduce our work capacity and efficiency.

19. We all learn to cope and work around such ailments, and still be able to perform at a reasonable level at our work. Our employers do not, in general, deduct our income because we feel jet-lagged returning to work after a holiday and have to drink a few more cups of coffee, or if we have a headache and have to take some painkillers. Thus, any reduction in work capacity and efficiency does not always translate to a loss in income.”

22.I accept the Defendant’s submission that it is for the Plaintiff to prove that any reduced capacity, efficiency and endurance would have any effect on his ability to return to his pre-accident employment and his pre-trial earnings and/or loss of earning capacity.

The Plaintiff’s credibility

23.The test for assessing credibility of a party’s case on a particular issue is well established. Deputy Judge Eugene Fung SC has provided the following guidance in Hui Cheung Fai and Other v Daiwa Development Limited and Others (unreported, HCA 1734/2009, 8 April 2014) at §§76-80:-

“76. In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)…

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).” (emphases added)

24.The Defendant noted that the Plaintiff has not been able to provide a consistent account of his pre-accident job duties:-

(1)  In the contemporaneous Occupational Therapy Progress Note dated 2 August 2022, the Plaintiff gave the job particulars of present job “Perceived critical job tasks (self reported by patient): maintenance work at Power plant including lifting panels, screwing and unscrewing”;

(2)  In the Plaintiff’s witness statement dated 29 October 2024, the Plaintiff changed his account and reported much more demanding job duties:

“5. … included overall general labouring work such as erecting scaffold working platforms/towers and dismantling them as per the instructions of D. I was also required to do the painting work on the pipes, doing lining work and as well as assembling and dissembling of the metal water pipes and cutting of metal sheets using a five-inch grinder, standing on the scaffold working platform etc at the work site. I was required to manually handle long and heavy metal sheets and other pieces of metals and required lifting and transport heavy construction materials within the area from one location to another location manually which required physical fitness. I was frequently required ascending and descending to and from the scaffold working platforms whilst at work. From time to time, I was always required to walk, stand, and climb up and down to and from the ladders and the machinery electric infrastructures around the area and also required me to stretch my body from time to time after a prolonged period of time working in the due execution of my duty.

6. I was required to erect, assemble, dissemble and/or do the storage and normal manual transport of scaffold tubes and platform boards… Sometimes I was also required to erect scaffold platforms at very awkward areas places at Lamma Power Station…”

25.The Defendant further complained about the inconsistent description of the Plaintiff’s pre-accident sporting activities:-

(1)  The Plaintiff’s witness statement listed basketball, football, running and jogging;

(2)  However, the Plaintiff changed his account to “volleyball, basketball or badminton” as recorded in the SJR.

26.Whilst I note the above internal inconsistency of the Plaintiff’s evidence, I do not consider that these matters enable me to come to a conclusion that the Plaintiff is not a credible witness.

27.However, when it comes to the alleged psychiatric treatment the Plaintiff received in Nepal (as elaborated further below), I do find his version of events improbable.

Monthly Income

28.In the Revised Statement of Damages, the Plaintiff pleaded that he worked as a general worker in a construction site with the Defendant, with an average monthly earning of about HK$27,040 per month.

29.However, the Plaintiff did not produce any record of his monthly salary but relied on Notice of Accident (Form 2), Certificate of Compensation Assessment (Form 5) and Certificate of Assessment (Form 7).

30.On behalf of the Defendant, Ms Yiu produced monthly payment records and confirmed that the Plaintiff’s total earnings for the 12 months prior to the Accident was HK$317,586 per year or HK$26,465.50 per month. In light of the evidence provided by the Defendant, I accept that the Plaintiff’s monthly earnings were HK$26,465.50 per month.

Sick Leave

31.The Joint Expert opined that sick leave period until August/‌September 2022 would have been adequate and acceptable.

32.The Plaintiff was granted continuous sick leave from 14 February 2022 to 1 August 2022.

Pre-trial Loss of earnings and MPF

33.Adopting the SJR’s opinion and contemporaneous medical record, I accept that the Plaintiff’s reasonable period of sick leave should end on 1 August 2022 (a total of 169 days).

34.The pre-trial loss of earnings and MPF should be calculated as follows:-

HK$26,465.50 × 169/30 × 1.05 = HK$156,543.42

35.The Defendant did not terminate the Plaintiff’s employment. I accept Ms Yiu’s evidence that the Defendant would have arranged for an appropriate role for the Plaintiff if he reported to work after the expiry of his sick leave.

36.The Plaintiff however had made no attempt to resume his employment with the Defendant after the expiry of sick leave. The Plaintiff did not provide satisfactory explanation as to why he did not return to work. Whilst the Plaintiff held the belief that he would not be able to resume his job, there is no evidence which justified such belief.

37.The Defendant has also produced the statement of travel records of Immigration Department which showed that the Plaintiff was out of Hong Kong from 16 August 2022 to 12 November 2022 and from 20 December 2022 to 28 March 2023. At the hearing, the Plaintiff explained that he travelled to Nepal and was admitted to a mental hospital for depression. He did not produce any medical records in this respect and did not mention such treatment in his witness statement. The SJR also recorded that “He attended no treatment from Pain specialist, psychiatrist or clinical psychologist”.

38.I find that the Plaintiff has failed to provide a credible explanation in respect of his travelling shortly after the expiry of his sick leave. I further find the Plaintiff has failed to prove that his failure to return to his previous employment was caused by the workplace injury.

Future Loss of earnings

39.The Joint Expert opined that the Plaintiff could return to his pre-accident job with “probably mild impairment of his work efficiency and work effectiveness”.

40.As stated above, I find that the Plaintiff changed his job due to his personal choice so there should be no award under this head of claim.

Loss of Earning Capacity

41.In the Revised Statement of Damages, the Plaintiff claims HK$100,000 under this head.

42.Loss of earning capacity may be awarded where there is a substantial risk that the plaintiff will at sometime during the rest of his working life lose his current job and be thrown into the labour market; see: Lo Kwok Fai v Ngan Cheung Wah [2003] 1 HKLRD 82 at §35.

43.The Joint Expert opined that the Plaintiff would be “able to resume his pre-accident job by around August to September 2022 with probably mild impairment of his work efficiency and work effectiveness” and gave an estimation of 3-3.5% loss of earning capacity.

44.The Plaintiff is now 51 years old, he will be working for 14 more years until his retirement age at 65. Under cross-examination, the Plaintiff accepted that there is a very small risk of him being thrown into the labour market and suffer a disadvantage due to his alleged disability.

45.I do not consider it appropriate to make any award under this head.

Special Damages

46.At the hearing, the Plaintiff agreed with the Defendant’s calculation of past medical expenses in the sum of HK$5,027.

47.There is no evidence in support of the Plaintiff’s claim for tonic food. The claim of tonic food in the sum of HK$2,000 is therefore rejected.

48.The Plaintiff’s claim of travel expenses in the sum of HK$1,000 is agreed.

49.I would therefore allow a sum of HK$6,027 under special damages.

Employee Compensation

50.The Plaintiff has already received a sum of HK$219,024 as employee compensation.

Summary

51.In summary, I am of the view that the Plaintiff is entitled to the following amount of damages:-

Claim	(HK$)
PSLA	$170,000
Pre-trial loss of earnings and MPF	$156,543.42
Future loss of earnings and MPF	0
Loss of Earning Capacity	0
Special Damages	$6,027
Sub-total	$332,570.42
Less: EC Payment	($219,024)
Total:	$113,546.42

52.Interest on general damages shall run at 2% per annum from the date of the writ to the date of this judgment. Interest on special damages shall run at half judgment rate from the date of accident to the date of judgment. Post judgment interest of the assessed sum shall run at judgment rate until payment in full.

53.Costs should follow the event. I make an order nisi that the costs of this assessment on damages be paid by the Defendant to the Plaintiff, to be taxed if not agreed.

The Plaintiff appeared in person

Ms Jenny Lok, instructed by Au Yeung, Chan & Ho, for the Defendant